San Bernardino makes ‘historic’ governing agreement; legality questioned
SAN BERNARDINO >> The leaders of San Bernardino signed what they called a first step toward good government Monday night, pledging to abide by an outline of their roles that differs from the ones set out in the citizen-passed city charter.
That charter has long been the bane of some reformers in the city who say the governing document is unique in California in how it creates conflicting responsibilities and no accountability, and a 17-member strategic planning “core group” recommended the “interim charter agreement” at a March 19 meeting.
“We’re moving forward,” Councilwoman Virginia Marquez said Monday. “This is a historic day.”
That charter still remains in place — although replacing it is a goal, several officials said Monday — and City Attorney Gary Saenz said he didn’t expect the “operating practices for good government” to hold up in court if someone were charged with not following them.
“It’s a gentleman’s commitment,” Saenz said.
The two-page agreement was signed by Saenz, Mayor Carey Davis, City Manager Allen Parker and six council members, with Councilman John Valdivia strongly objecting that the agreement was reached in violation of the state’s open meeting law, the Brown Act.
“This now goes to the point of illegal activity,” Valdivia said, before leaving the room in protest and not returning until the discussion was finished with “yes” votes from everyone else.
In general, the Brown Act prohibits a majority of an elected body from discussing items they have voting control over, except at a meeting open to the public with an agenda available beforehand for the public to review.
Valdivia, as well as some members of the public, argue this was violated when five of the council members indicated at the March 19 strategy meeting that they would vote for the agreement. The meeting was open to the public, but it wasn’t convened as a City Council meeting. (Valdivia didn’t attend the March meeting, and Councilman Rikke Van Johnson wasn’t there for that portion.)
Saenz, both March 19 and Monday, said the discussion of the charter was legal under an exception written into the Brown Act that allows discussion at a conference of material that’s part of the scheduled program.
In addition, because the city attorney’s position would be affected by the agreement, the city hired an independent attorney, San Francisco-based Renne Sloan Holtzman Sakai LLP to review the legality of the charter agreement. That will cost the city significantly less than the $25,000 maximum that was authorized, but the total isn’t yet known, according to Saenz.
The results of that review were given to the council in closed session, but Saenz said they found it to be legal.
The agreement itself is just under two pages. In general terms, it says that the City Council will set policy; the mayor will create and implement a shared vision; the city attorney will provide legal advice; and the city manager will direct city staff and run the day-to-day affairs of the city.
This contrasts with broader powers the charter gives, particularly, to the mayor and city attorney.
Consultant Management Partners, among others, contends that the existing charter is the only one in the state with that set-up, and that the alignment of responsibilities contributed to the city’s dysfunction and bankruptcy filing.
Most of those who spoke Monday celebrated the move, including five members of the strategic planning core team.
Two, though, opposed it, and pointed to past attempts to reform the charter that residents resoundingly opposed — particularly Measure Q’s attempt in 2014 to set police and firefighter salaries by collective bargaining and Measure C’s 2010 move to make the city attorney, city clerk and city treasurer appointed rather than elected offices.
Proponents of the charter reform say they don’t want to become a general law city, but do want to substantially amend the city charter to put it more in line with those of more “successful” cities. Under state law, such a charter change can only come from a public taken in November of an even-numbered year.