Charter Review, Post 3

Probably one of the first things the review commission will want to decide (even before it starts looking at the intricacies of the charter itself) is what form of government we want for the city. Do we want things to remain as they are with some tweaks, or do we want to radically change the way the city operates.

Strong Mayor vs. Council Manager

General law cities are required to have 5 council members and a council-manager form of civic government. However, as a charter city, we can have as many or as few council members as we wish and can opt for a “Strong Mayor” type of government. Council-manager is where the council hires a city manager to run the day-to-day operations and, in theory, the mayor and council ONLY give direction to the city manager and have no responsibility for day-to-day operations of the city. The mayor and councilmembers should not have direct influence/direction of city staff and all operations are handled by the city manager.

So What is the Strong Mayor System?

The strong mayor system replaces the city manager with the mayor. Under this system the mayor serves as the chief officer of the city, replacing the city manager and runs all departments within the city with the power to hire, terminate, promote, etc. all city employees. S/He might opt to hire deputies and/or assistants to help in the operational side of the city. Ultimately, s/he is the ultimate authority (with council approval) of all activities within the city.

So where can we look in California to see this type of system. For research the following cities have a Strong Mayor form of city government: Fresno, Los Angeles, Oakland, San Diego, and San Francisco (Sacramento defeated a charter amendment to change to strong mayor in 2014).

When Gov. Jerry Brown was Oakland’s mayor, he successfully pushed for the executive (strong mayor) system there, arguing that it “counterbalances the parochialism of council districts.” In other words, it allows the mayor to act in the best interests of the entire city. This is an argument that we often hear in Pomona.

Going with this type of city government would require a charter amendment with voter approval.

Elected vs. Hired Officers

Pomona hires/appoints its main city officers such as City Clerk and City Attorney. This is a decision made by the city manager and approved by the city council. In our case the city attorney has been a company hired (outsourced) by the city to handle its legal issues. In the case of the city Clerk, the city hires an individual (insourced) to serve as city staff. Either the “outsource” or “insource” options are available to the city. In addition, however, is the option to elect either or both of these officers as well as other major division heads such as Police Chief and Treasurer.

Cities in California that have an elected city attorney are: Compton, Huntington Beach, Oakland, Los Angeles, San Francisco, San Diego, San Bernardino, Long Beach, Redondo Beach, San Rafael, and Chula Vista.

Of the 478 incorporated cities in California, 154 have elected city clerks. Among these are: Arcadia, Atwater, Azusa, Burbank, Coachella, Covina, El Monte, El Segundo, Fontana, Monrovia, Montebello, and Ontario, to name just a few. Interestingly, larger cities such as Los Angeles, Long Beach, San Diego, and San Francisco have appointed city clerks.

Some of the arguments concerning appointment vs. election is that it makes the positions political. However, as has been argued, these positions are political by nature and as we have recently seen, this has been very true here in Pomona. I specifically note the city attorney and city clerk because of issues with those two offices over the past year. However the charter specifies other city officers including Police Chief, Treasurer, and city finance officer. These can also be made elected offices. Below are the charter sections on each of these offices:

Sec. 702. - City Clerk. The City Clerk shall be appointed by a majority of the total membership of the City Council, shall serve at the pleasure of the Council and may be removed at any time by the affirmative vote of a majority of the total membership of the Council. The City Clerk shall give notice of Council meetings to its members and the public, keep the journal of its proceedings and perform such other duties as are prescribed by ordinance or resolution, this Charter, or by state law or as requested by the City Manager. The City Clerk shall serve as the City's Elections Official and the duties required to effect the California Elections Code shall take precedence over other duties and responsibilities.

Sec. 703. - City Attorney. There shall be a legal officer of the City, appointed by a majority of the total membership of the Council, shall serve at the pleasure of the Council, and may be removed at any time by the affirmative vote of a majority of the total membership of the Council. The City Attorney shall serve as the chief legal advisor to the Council, the City Manager, and all City departments and appointed bodies, and shall have the authority to represent the City in all civil and criminal matters, and shall perform such other duties as prescribed by this Charter, by ordinance or resolution, or as requested by the Council or City Manager.

To be and remain eligible to hold the title of City Attorney, the person must be an attorney at law, duly licensed as such under the laws of the State of California, and shall have been engaged in the practice of law for at least five (5) years prior to appointment.

Sec. 704. - City Treasurer. The Council, by a majority of the total membership of the Council, shall appoint a City Treasurer. The Treasurer shall have the responsibility for receiving and investing City funds and shall perform such other duties as prescribed by ordinance or resolution, this Charter, by state law, or as requested by the City Council through the City Manager.

Sec. 705. - Department and Director of Finance. The City Manager shall appoint a department head who shall have the title of Director of Finance. The Director of Finance shall be the chief financial officer of the City, who shall have responsibility for financial reporting, expenditure control, purchasing, bond development, preparation of the City budget for the City Manager, receiving and investing City funds, and shall perform such other duties as prescribed by ordinance or resolution, this Charter or by state law, or as requested by the City Manager or by the City Council through the City Manager.

 Sec. 706. - City Police Department/Chief of Police. (a) The City Manager, with the approval of a majority vote of the total membership of the Council, shall appoint a Police Chief whose function shall be the administration of the Pomona Police Department. The Chief of Police may not hold any other permanent or temporary managerial office. (b) Within the departments established, police services as required by law shall be performed by Pomona City Police Department employees. The City may not contract for primary police services with the County of Los Angeles or other police agencies without a vote of the City's electorate. The City may contract for ancillary police-related services without a vote of the electorate.

As the charter is reviewed I would hope that all of these items be considered. I am not advocating for any of these, but I think that at the beginning it should be considered whether they should be considered or if they are too much of a change to consider at this time.

My next post will begin an Article by Article review of what's currently in the charter, what recommendations were made 10 years ago, and things we might want to consider moving forward.

Charter Review Post 2

In the previous post I gave a brief(?) overview of the city’s Charter Review Commission. As we get ready to seat a new city council on Monday, here are my recollections of how the process occurred last time and some comments on how we can make the process better this time.

The charter review commission was created the last time the charter was amended in 1998. The charter review section of the charter is:

Sec. 1701. - Charter Commission.  

Beginning in January of the year 2010, and in January of every tenth year thereafter, the Council shall appoint a Commission to consider and propose amendments to the existing Charter. No later than twelve (12) months from each inception, the Commission shall submit its proposals to the City Clerk for placement on the ballot at the next scheduled election.

Under this section of the charter, every ten years the citizens have an opportunity to place charter amendments before the voters. In October 2009, knowing of this process, I began asking those in the city when the applications for the review commission would be available. Evidently no one in the city was aware that there was this requirement (this is the kind of thing the city attorney should be on top of). Despite my bringing it to the attention of the city, they didn’t even begin the process until January, when the commission was, under this section, to be seated.

Once it was brought to the council’s attention they weren’t sure how to form the commission. They asked the city attorney and I discussed the outcome in my previous post.

Deciding how the commission would be formed and making applications available took several months so the commission wasn’t seated until April of 2010, not January 2010 as mandated in the charter.

The charter review commission, like all city commissions and committees is subject to the Brown Act which mandates that all meeting agendas be posted prior to the meeting and that the public have the opportunity to address the commission on items to be voted on, or to make suggestions. In addition, there were a couple of public input meetings held at Ganesha Community Center.

I had the fortune to be among the original 15 persons appointed to this commission. At our first meeting, we were told, that despite the fact that we were trying to deal with the city’s main legal document (its constitution if you will) that we would not have a representative of the city attorney’s office at our meetings due to costs. The assistant city manager and city clerk were made available as staff resources. Very much later, when it became obvious that we were looking at significant changes to the charter, the city attorney did start coming to our meetings and argued against things as potentially illegal or would cause litigation that we had worked on diligently over many months.

The charter says specifically that whatever the citizen commission comes up with MUST be placed on the next ballot and the council may not change or block it. It was argued, when we made changes which were unpopular to some of the council, that the council could offer a competing charter amendment on the same ballot, while this is probably true, it would generate additional expense for the election and potential legal problems depending on how the vote went. Something for consideration.

The commission took each section of the charter, as well as ideas for new additions suggested by the whole commission and city staff, and created 4-5 member subcommittees (no subcommittee could have more than 6 members as defined by Brown Act) to study each item and come back with suggested changes. While the commission as a whole met monthly, many of these subcommittees met on a weekly or monthly basis themselves and all members of the commission were on several subcommittees, so would be meeting multiple times per month.

Based on this type of structure, this was not a commission for wimps. Some of us were attending as many as 8 meetings per month in order to come up with workable drafts.

One a subcommittee had created a draft of a section, the section would be brought to the entire 15 member commission for discussion and vote at a regular monthly meeting. It was determined that no section would move forward without a 75% affirmative vote.

Unfortunately, with the late start for the commission, the November 2010 elections and the seating of a new council in December, which came four months before the 1 year that the commission had to complete its work caused problems. Again, the city attorney weighed in and stated that the newly elected council members could remove and appoint their own members to the commission. This meant that after working on this project for 8 months, we now had new people who had no background it what had been done and we needed to get them up to speed.

Once the commission had come up with consensus of what should be included as changes to the charter, we started to look at how we would want it presented to the voters. Certain things we felt should be presented as separate ballot items while others could be combined. Again, the city attorney and city staff fought (I say this rather than suggested because suggested is way too mild) that we only have one ballot item citing the cost of putting items on the ballot, which was about $20,000 per ballot item if memory serves. The 15 members acquiesced and the entire amendment was created as one ballot item.

This actually did not serve the city well because the amendment was eventually defeated in the 2012 election. That meant that things that the city had asked for, where the city’s  actions are out of compliance with the charter or where state law had made the charter requirements out of compliance with state law, were actually DEFEATED by the people. As an example, the way that the charter requires cost of living to be determined is NOT the way the city does it, despite  the voters having voted against doing it the way the city does it.

My Suggestions for the 2020 Charter Review Commission.

1.      Start the process early. Make sure that by October 2019 or earlier that there is a process in place with nomination applications available by November 1 so appointments can be made before the end of December. It is really imperative that we have a commission in place by Jan. 1.

2.      Determine the size of the commission. I HIGHLY recommend that the council follows the charter and makes this a legitimate commission which is made up as required by the charter.

3.      Make it clear that, since the commission must submit its report by the first meeting in January, that commissioners, once appointed cannot be replaced unless there is a resignation or illness. Since it’s a one year commission, commissioners should be dedicated enough to follow through on it.

4.      Allow that there may be a need to have more than one ballot item, or the council should suggest a limit to the number of items to mitigate funding issues. Let’s be transparent here.

5.      Legal assistance should be provided by the city from the start of the process. And the city attorney should not try to bring undue influence on the commission but merely give legal advice.

6.      Make sure that applicants understand the time commitment for this very serious and special commission. If a 7 member commission is appointed, it may not be feasible for subcommittees as was done the last time, so there will probably need to be multiple meetings per month (remember we only have 12 months to review a document with 17 sections, and we may want to add additional).

What I’d like to see any charter review commission take up

1.      Changes to the section on the charter review commission to reflect the items that I noted above. Make sure that some future council or city attorney is not tempted to “interpret” the intent of the section.

2.      Based on what’s been happening in the past few weeks, ask for an RFP process for the City Attorney every 4 years. Regardless of whether they’re good or bad, in my opinion a review of cost and services will serve the city well in the future.

3.      Make the commissions stronger. There is a perception that staff prefers that commissions not be too strong. I think that citizen participation is vital and that commissions can have a vital role in the process. Create a process where if commissioners resign or seats become empty, that there can be a MUCH MORE timely manner of ensuring that commissions are filled. Also, do something to make it so that we don’t end up with the situation where historically some commissioners have missed as many as over half of the commission meetings in a year, causing “lack of quorum” cancellations. You can’t get ANYTHING done if you don’t meet.

4.      Clean up any irregularities within our charter. Let’s make sure that our charter and the way that the city does business is synchronized. Right now the city is doing a lot of things which are contrary to the charter. If there’s a reason, let’s fix the charter and make it a document that we will respect! Or, let’s fix how the city operates and make them operate within the charter.

I’m sure that there are others. I tried during the last round to get an Ethics Commission (fought by city staff and the city attorney) which didn’t get enough traction. We had also recommended a police commission which, given that the recent grand jury report (Aug. 2018) stated, “effective community relations and public trust can be earned through an open and accessible complaint process.” The grand jury noted that 44 of the 46 departments in the county do not have civilian oversight, and that this is a problem that should be “of great concern.” The creation of a citizens police commission should look to alleviating this problem. I’m personally in favor of these, and expect to advocate for them. As we get closer to the formation of the commission I’m sure that I’ll have other thoughts.

I know this is long and it’s not everything but I’ll be more than happy to answer questions from my perspective. Please leave comments here. I’m sure that those who will be appointed will probably be reading this as will those who appoint them.

In my next posting, after the holidays, I’ll be discussing the kinds of things the commission can, should, shouldn’t, and might want to, consider.

Charter Review, Post 1

Now that the recent election is over, we have seated the city council that will choose the members of the charter-mandated citizen’s Charter Review Commission. The last time there was a Charter Review Commission was in 2010. That was the first time that charter article XVII was activated. Because at that time there was no precedent, the council appeared to be a little confused as to how the commission was to be constituted. The city attorney, argued that the commission could be:

1) a commission made up of the members of the city council;

2) a 7 member commission like all other commissions, or

3) a commission of size that would be determined by the council.

Here’s what section XVII, section 1701 actually says about it:

Beginning in January of the year 2010, and in January of every tenth year thereafter, the Council shall appoint a Commission to consider and propose amendments to the existing Charter. No later than twelve (12) months from each inception, the Commission shall submit its proposals to the City Clerk for placement on the ballot at the next scheduled election

When this came up at council, I argued that 1) it was clearly not the intent of the framers of the charter section that the council act as the commission as they can make changes to the charter for submission to the voters at any time as outlined in

Article XVI, section 1601 (b) Amendments to this Charter may be proposed and placed on the ballot: by ordinance of the Council containing the full text of the proposed amendment and passed by five-sevenths (5/7) of the total membership of the Council.

2 & 3) that the charter clearly states:

Article VIII, section 801(a) All appointive boards and commissions shall have the same number of members as there are members of the Council. Each Councilmember within sixty (60) days of assuming office, shall appoint one member who shall be a resident of the City to each board or commission.

At that time, the city attorney argued (convincingly it seems, at least to the council at that time) that the commission set up in the charter wasn’t really a commission but was a “special committee” and so was not covered under section 801(a), so the council decided to make it a 15 member commission with each councilperson getting to appoint two seats and the mayor 3.

I still argue that the charter clearly calls this a commission and that section 801 clearly defines a commission.

What is a Charter?

Under California law, cities are either Charter Cities or General Law Cities. Most cities in the state are general law cities and the umbrella laws that cover their operation are set by the California legislature. This includes local cities such as Ontario, Claremont, La Verne, Chino Hills, etc.

Charter cities on the other hand have greater latitude in setting their own rules for how the city is run based on a “charter” which acts as a constitution of sorts and all actions within the city are required to follow the charter. A charter trumps state law when dealing with what the court calls “municipal affairs.” There are only 121 such cities in California (up from 86 in 2011). You can see the list here: http://www.cacities.org/Resources-Documents/Resources-Section/Charter-Cities/Charter_Cities-List. A lot of other information on Charter vs. General Law cities can be found at the League of California Cities website at: http://www.cacities.org/Resources/Charter-Cities.

Over the next several months, I’ll be posting my musings on the charter, how it can be strengthened, things that potential commissioners should consider, and the processes of the commission. In talking about the process, I’ll be looking at the way the 2010 commission handled things and lessons learned from that process.

Since the charter review commission must be established by January 2020, it is my hope that the council will take action as early as October 2019 to begin the process of putting the commission together. That gives them 11 months. I do hope that the mayor and all the council members will be made aware of this important process and not let it “fall through the cracks” as happened in 2010.