From: The Sun
By Ryan Hagen 3/12/14
SAN BERNARDINO >> Plans for a charter review committee are moving forward despite a letter from the police union challenging the legality of the process.
The three-page letter, sent by attorney Rockne A. Lucia Jr. on behalf of the San Bernardino Police Officers Association, argues mainly that the proposed committee doesn’t follow state law regarding the formation of a charter review commission because the committee’s members are appointed rather than elected by residents and because they aren’t all required to be residents.
The union also contends that, if a committee or commission does go forward, it should include union representatives.
“Of course, the Council may simply propose amendments to the City Charter directly, and ask City residents for an up or down vote on its proposals,” the letter, dated March 11, says. “This at least would streamline the process, and provide more direct political accountability (or praise) for any amendment’s fate. Why this is not being done escapes our understanding.”
That is the process the council intends to follow, after getting nonbinding advice from the committee. The change from calling it a commission — with the power to put amendments on the ballot — to an advisory committee was the main reason the resolution wasn’t voted on when Mayor Carey Davis presented it at his first meeting, leading to a series of changes to the resolution discussed over the past week and at a special meeting Tuesday.
Those changes will be put into a clean version that the City Council will vote on Monday. The City Council, mayor and city attorney were given the letter shortly before a Tuesday meeting at which they approved certain changes to the charter review committee in theory and put off a final vote until Monday.
“The impression I had seeing the letter was that it was concerning the initial commission,” City Attorney Gary Saenz said Wednesday. “I did not consider very carefully each of the details since our resolution has changed considerably from the one they are addressing.”
But union president Steve Turner said the change was a distinction without a difference, and that if the city didn’t compromise his group might challenge the process in court.
“At this point it’s probably just a matter of semantics,” Turner said. “Their initial resolution said ‘commission’ and it basically was the same thing as the ‘committee,’ so it’s something that we would probably challenge.”
The government code provides multiple ways to put a suggested change to the city charter on the ballot where the people must ultimately approve any changes.
The section on charter commissions specifies that members must be chosen in an election and gives them the power to put changes directly on the ballot. Alternatively, the City Council by a majority vote after two public hearings can put charter change on the ballot,
Davis and other officials have said their intention is to follow the latter procedure, and merely are forming a committee to get input from the community first.
The attorney’s letter, which refers to amendments made after the change from “commission” to “committee,” acknowledges and rejects that possibility.
“It is possible that the Mayor and Council are proposing the above Resolution as a kind of split-the-baby approach; directly proposing Charter amendments to the City residents, but with the appearance of a collaboration between elected residents and leaders. …” it says. “(But) City residents have no input on who sits on this commission, no input on whether amendments should be considered at all, and in fact, one member may not be a resident.”
The proposal set to be voted on Monday would have one business owner and one resident appointed by the mayor and one resident appointed by each council member, advised by a “recognized specialist” in city charters.
The police union further argues that employees need to have a seat at the table.
“It’s certainly going to impact us,” Turner said. “Why wouldn’t the city want us to be involved if they claim they’re open, transparent, all the other buzz words, when we’re stakeholders just as much as residents? We should have a say in what direction the city goes on the charter that’s going to impact our pay and possibly even our working conditions.”
No specific charter changes are on the committee’s agenda or are off limits, but one provision that’s often criticized is Section 186. The section determines police and firefighter pay based on the average of 10 similarly sized cities.
Turner, along with many officers and residents, expects an attempt to alter or remove that section.
“If they don’t even want us on the committee to discuss this, why would we think they’re going to do the right thing and take care of us?” he said. “186 just keeps us at a fair pay, an average rate of pay, which is why when you take that away, basically the message I think they’re sending is we’re not going to pay you average. So guys are going to say, ‘Why would I stay here if you’re going to pay me below average, in a city as violent as this city is?’”
Saenz says that direct connection is exactly why he thinks it’s inappropriate for the unions to be on the committee.
“Generally speaking, because the unions have a direct interest in the outcome, obviously — in any charter amendments that may address them — it would present a conflict,” he said. “It’s similar to the reason I determined I had a conflict of interest, although it was at one time suggested I would be a member of the committee. Therefore it would seem to me that the union should not either, although mine is a clear conflict and I’m the city attorney and theirs is relative.”
Another section of the city charter provides for the election of the city attorney, although many have argued — and voters have twice rejected ballot measures to create — an appointed city attorney as many other cities have.
