The San Bernardino City Council this week kicked the can down the road for two more weeks, discussing but taking no action with regard to firing now-suspended City Manager Andrea Travis-Miller or, alternatively, reinstating her to her active role as the county seat’s top municipal administrator.
Since December 19, Travis-Miller’s continuing tenure with the city has been in jeopardy. That day former Third Ward Councilman John Valdivia was elevated to mayor following his November electoral victory in which he turned out the city’s immediate past mayor, Carey Davis. Valdivia was joined on the dais by newly elected First and Second Ward council members Theodore Sanchez and Sandra Ibarra. At Ibarra’s urging, the council that day took up an evaluation of Travis-Miller’s continuing performance in her role as the city’s top staff member. That evaluation took place behind closed doors after a public session during which a cross section of the community, including Davis, voiced confidence in Travis-Miller.
That day in December, as again in January and again in February and then once more in March during similar closed door meetings, the council considered the wisdom and efficacy of leaving Travis-Miller in place as the city’s top administrator. Reliable sources inform the Sentinel that the most pointed criticism of Travis-Miller emanated from the mayor, who is not empowered under the city’s current charter to vote on issues that come before the council under normal circumstances. At that point, there was not sufficient support for cashiering Travis-Miller, as she enjoyed the solid backing of councilmen Fred Shorett and Jim Mulvihill as well as the confidence, if less than fully enthusiastic endorsement, of Councilwoman Bessine Richard and Councilman Henry Nickel.
Playing out at that time was a power struggle in which Valdivia, Mulvihill, Shorett and Travis-Miller were principals. Valdivia’s ascension to the mayoralty was spoiled in no small measure by the charter reform that had taken place with a citywide vote in 2016 that scrapped the municipal charter that had been in place since 1905. The revamped charter had significantly attenuated the mayoral power that had existed under the 1905 charter. For more than 110 years, the mayor had significant political power and administrative reach to match it. While the 1905 charter did not give the mayor a vote on the council, it did provide him with the power to veto any vote that passed by a 4-to-3 or 3-to-2 margin, translating in actuality to the mayor possessing two votes. The mayor wielded the gavel at council meetings, conferring upon him the power to control the ebb and flow of debate, and the power to recognize both members of the council and of the public during public discussions leading up to council action. As significantly, the mayor under the previous charter had the power to hire and fire city personnel, which put him on a par with the city manager in terms of administrative reach.
The 2016 charter reform, in addition to transforming the positions of city attorney and city clerk from elected ones to appointed positions, dispensed with the mayor’s administrative role, such that he was no longer empowered to hire or fire city personnel and no longer had the status of being with the city manager the co-regent of the city.
Upon coming into office, Valdivia was casting about for a way to infuse the mayoralty with some or all of the power that had been taken away. This included beefing up the support staff the council then had – consisting of four city employees who were as answerable to the city manager as they were to the elected leadership – into 13 positions, including the mayor’s chief of staff who would oversee eight staffers serving at the mayor’s pleasure.
When he assumed office, Valdivia had the backing of what appeared to be a sure majority of the council – consisting of Nickel, Richard, Ibarra and Sanchez. But by looking to consolidate power too soon and more than triple the depth of the mayoral/council staff in a way that appeared to empower himself further, Valdivia generated resistance that has complicated his tenure. That included a measure of pushback from Councilman Nickel, who over the previous four years had evolved to become Valdivia’s strongest and most reliable ally on the council. Nickel balked at going along with the mayoral staff increases. Valdivia’s maneuverings to overcome Nickel’s defection from the Valdivia reservation created more tension still. This included an episode in which Nickel, Shorett and Mulvihill simply walked off the dais in the middle of a meeting to prevent the council, which is already functioning at six-sevenths strength because of the vacancy in the Third District as a result of Valdivia’s resignation from that post to assume the mayoralty, from maintaining the requisite quorum to be able to vote. That matter, relating to hiring the staff Valdivia wanted, appeared to be headed toward a 3-to-3 deadlock with Nickel, Shorett and Mulvihill opposed and Richard, Sanchez and Ibarra in favor. Valdivia would then have been eligible to vote, as in addition to veto power the mayor also carries tie-breaking authority.
Early last month, five months after the November election and a decent interim for the city to acclimate to its new political reality, Richard evolved to a willingness to support Valdivia in forcing Travis-Miller’s exit. During a closed session on April 3, she joined with Ibarra and Sanchez in voting to place the city manager on paid administrative leave, resulting in a 3-to-3 deadlock, with Shorett, Mulvihill and Nickel on the other side of the question. Valdivia, using his tie-breaking authority, tipped the scales to suspend Travis-Miller.
An issue facing Valdivia in orchestrating Travis-Miller’s sacking is that when she was hired in August 2017 as a replacement for the previous city manager, Mark Scott, the council unanimously voted to confer upon her a $253,080 annual salary and $93,000 in yearly benefits and a three-year contract. Those terms require that unless a city council majority can cite cause for terminating her at any point before the three years elapse, she must be paid the balance remaining on her contract. Only by firing Travis-Miller for cause can the city avoid having to pay her the $425,000 she would now otherwise have to be paid as a severance.
The Sentinel has learned that those advising Valdivia believe there are bulletproof grounds for cashiering her that could be publicly cited. Whether or not public disclosure of that rationale might carry with it certain complications, procedural and political, is another matter. In addition, the city would want to make a clean break of the relationship with Travis-Miller, meaning that doing so on a 3-to-3 deadlock decided by the mayor’s action could cloud the circumstance, subjecting Ibarra, Sanchez and Richard to potential obloquy down the line they would rather not deal with.
Next week, on Tuesday, the mail polling in the race to fill the gap left by Valdivia’s departure from the council ends when the city’s post office’s close at 5 p.m. No latter than Friday, then, after the last of any straggling ballots have arrived to be counted, it will be known whether the voters in the Third District will have chosen Anthony Aguirre, who initially signed up for the contest but then withdrew after it was too late to remove his name from the ballot, or Juan Figueroa or Treasure Ortiz will take a place on the council dais later this month.
The election results should have some impact with regard to Travis-Miller, as Juan Figueroa is closely allied with Valdivia. Figueroa’s ascendancy to the council would likely mean curtains for Travis-Miller, including a vote to state a public reason for her firing. Ortiz is reportedly far more favorably disposed toward Travis-Miller. Ortiz’s presence on the council, assuming Travis-Miller would want to remain in place as city manager under circumstances that include a sharply divided elected city leadership in which four of those leaders have expressed a lack of confidence in her, might restore Travis-Miller to her post and keep her in place for another two years.
Wednesday night, May 1, after the city council filed into the city’s meeting chambers just before 7 pm after adjourning out of its closed session that had started at 5:30 pm, the first item on the panel’s agenda following the invocation and pledge of allegiance was a closed session report in which the city attorney was to tell whether or not any reportable action had been taken with regard to seven issues enumerated on the closed session agenda, those being conferences with legal counsel relating to three existing lawsuits – People of the State of California v. MJ Dispensary, Inc; Redevelopment Agency of San Bernardino v. DMC Investment Holdings, LLC; Placo San Bernardino, LLC v. City of San Bernardino, a conference with legal counsel relating to one unspecified case of anticipated litigation, the employee evaluation of the city manager, the dismissal of the city manager, and a conference involving real estate property negotiations relating to a portion of the surface parking lot area of the former Carousel Mall. Upon the conclusion of the pledge of allegiance, however, Valdivia skipped over the closed session report and went directly to the next item on the agenda, entailing presentations and the issuance of proclamations. Neither councilmembers Sanchez, Ibarra, Shorett, Nickel, Richard nor Mulvihill protested. Acting City Manager Teri Ledoux, elected City Attorney Gary Saenz, appointed Assistant City Attorney Sonia Carvalho and elected City Clerk Georgeann Hanna acceded to Valdivia’s parliamentary legerdemain, and there has been no official reporting of what action or non-action took place in the council’s closed session.
-Mark Gutglueck