July 28, 2014
Final Reports
San Mateo Courts - Civil Grand Jury

2000 Final Report:

CITY OF SAN CARLOS
CITY CLERK PERSONNEL ACTION

Summary | Background | Findings | Recommendations | Responses

Summary:

State law requires that citizens vote on changing an elected city office to an appointive one. The grand jury finds that the San Carlos City Council effectively abolished the elected position of city clerk by reducing the salary to $1.00 per year and reassigning the primary and customary duties of city clerk to an appointed position that was created by council action. This action circumvented state law and denied the citizens of San Carlos the opportunity to decide whether that elected position should be made an appointed position. Although city officials have recognized the need to address this issue in an open and public manner, they have failed to do so since ratifying the personnel change.

The grand jury recommends that the San Carlos City Council place a measure on the November 2001 ballot giving the voters the opportunity to decide whether the office of city clerk should be an appointed position instead of an elected one.

Background:

State law requires that citizens vote on changing an elective city office to an appointive one. The grand jury received a complaint alleging that San Carlos citizens' legal right to decide had been circumvented by its city council. The complaint protested reassignment of elected city clerk duties to an appointed position created by the city council. The change resulted from a personnel action recommended by the city manager and passed by the city council in March 1998.

The city of San Carlos publishes reports concerning each city department prior to the preparation of city budgets. The assistant city manager's Council Staff Report, dated February 27, 1998, included three anticipated new positions; the list of new positions did not include changes to city clerk department staffing. The proposed Work Program for 1998-2000 likewise did not include any staff changes in the city clerk's department, although it did include funding for new office equipment and a records management project for the city clerk's department. On March 9, 1998, during the work program session, a city official mentioned the possibility of changes to city clerk department staffing. This comment was neither memorialized nor included in the published city of San Carlos Proposed Work Program.

The Work Program describes responsibilities for the city clerk work unit as the "statutory duties of the City Clerk." Those duties include, but are not limited to, attendance at council meetings, publication of ordinances, certification of documents, custodian of the city seal, administration of oaths, and the appointment of deputies. The Work Program further describes basic functions, including election services, record keeping, preparation of council agendas, receipt of Fair Political Practices Commission filings, general service functions (mail and photocopying), and response to requests for public information. According to the 1998-2000 Work Program, the elected city clerk also "acts as Assistant to the City Manager. In this capacity, the city clerk performs work on projects assigned by the city manager."

Prompted by the anticipated retirement of the elected city clerk, the city of San Carlos personnel director prepared a recommendation replacing the city clerk/assistant to the city manager with an honorific elected city clerk position at an annual salary of $1.00 and an appointed assistant city clerk. The primary and traditional duties associated with the elected position of city clerk were to be reassigned to the newly created assistant city clerk. The personnel director's final recommendation delineating the reassignment of essential and important duties to the assistant city clerk position was forwarded (memorandum dated March 18, 1998) to the city manager for consideration.

The city manager recommended the personnel action by including it as a consent calendar item on the city council's March 23, 1998, agenda. There were no public hearings scheduled before, during, or after the city council's consideration of the personnel action on March 23, 1998. There have been no public hearings regarding this issue since installation of the appointed assistant city clerk position.

The personnel action was described by the city manager and mayor in 1998 as a necessary expedient to provide for professional staffing of the position responsible for fulfilling statutory requirements traditionally associated with city clerks in California. In an interview with the grand jury on August 31, 2000, the city manager characterized the personnel action as a "minor staffing change" to draw attention away from the potentially controversial issue of city clerk selection. The city manager wanted to avoid a public controversy. The city manager and mayor acknowledged a need ultimately to take this issue to the voters.

Findings:

TThe grand jury finds that the San Carlos City Council effectively abolished the elected position of city clerk by reassigning the primary and customary duties of city clerk to an appointed position that was created by council action. This action denied the citizens of San Carlos the opportunity to decide whether that elected position should be made an appointed position. Although city officials have recognized the need to address this issue in an open and public manner, they have failed to do so since ratifying the personnel change. Neither the city manager nor the mayor has promoted the discussion of how or when a ballot measure resolution would be considered by the city council.

On June 10, 1998, the city manager issued a written statement to the local media that misrepresented a significant personnel action as a minor administrative change. The statement assured the public that open hearings into this matter had been conducted by the city. The change was included on a consent calendar; the city council held no noticed public hearings on the proposed personnel action. While the city council may have satisfied the letter of the law, the members clearly operated in a manner that avoids public comment.

It appears city officials intended to fill both positions with the same person. The city manager appointed the assistant city clerk in 1998 who then ran unopposed for the office of city clerk in 1999. The city manager and city council are not prepared for the possibility that someone other than the city manager's appointee may be selected by the citizens of San Carlos to fill the position of city clerk. In addition to the awkwardness created by this possibility, an elected clerk other than the appointed clerk could exercise authority not granted to the appointee. A citizen as a person other than the appointee who is elected to the office of city clerk would retain state granted authority to appoint a deputy city clerk. The current situation in San Carlos allows for the prospect of its appointed assistant city clerk reporting to someone elected by the voters and sworn into the office of city clerk as well as to deputies appointed by that elected city clerk.

The circumstances surrounding the personnel action causing this reassignment of duties and responsibilities may or may not comply with the letter of the law; however, the action failed to meet standards for ethical conduct and denied the citizens their legal right to decide whether to make this office appointive. Since 1990, four cities in San Mateo County have had elections on changing the city clerk position from elected to appointed.

Recommendations:


Recommendation 2.13

The San Carlos city council should place a measure on the November 2001 ballot giving the voters the opportunity to decide whether the office of city clerk should be elected or appointed.

Recommendation 2.14

The San Carlos city council should review the process that resulted in the personnel action changing the duties of an elected official. In the future, the city council should place similar matters as a separate item on the agenda with a noticed public hearing rather than on the consent agenda.

Response from the City Council of San Carlos:

Re: 2000-2001 San Mateo County Grand Jury - City of San Carlos City Clerk Personnel Action Report

We respectfully disagree with findings in the report and the recommendations numbers 2.13 and 2.14 will not be implemented.

The report indicates the City "effectively abolished the elected position of City Clerk by reassigning the primary and customary duties of City Clerk." This is simply not true. The position of City Clerk remains as an elected position with all of the statutorily required duties intact. Those duties that are not required by law to be held by the City Clerk were reassigned to the appointed position of Assistant City Clerk. The Grand Jury's report indicates that the City Council's action "satisfied the letter of the law" and we believe that should be the end of this issue.

Currently, Christine Boland is the elected City Clerk. She was elected after the City Council's personnel decision in June 1998. She holds now both the elected position of City Clerk and the appointed position of Assistant City Clerk. She is doing a terrific job and we see no need to put the City to the expense or trouble of an election on the issue of appointed versus elected City Clerk. If the situation changes in the future then the City Council may wish to revisit the issue. We do intend, however, to consider restoration of the $50 per meeting separate pay for the City Clerk that was deleted in our 1998 actions. Like most elected positions, the pay is clearly akin to an honorarium, but we are willing to restore it.

We strongly object to Recommendation 2.14 concerning the City Council's agendizing of this matter for a second time. In June 1998 the personnel action concerning non-statutory City Clerk duties was placed on the Council's consent calendar as part of the publicly noticed formal agenda. Most City personnel actions are on the consent calendar. As is the custom and practice, the Mayor asked if any Councilmember, staff or member of the public wished to speak on a matter on the consent calendar. Two public persons did. The matter was then separately considered and the public members were allowed to speak. We are mystified why this action, which meets all the requirements of the Brown Act and due process, is called into question by the Grand Jury. We believe it is the City Council's prerogative as to how it should handle its agenda, within the requirements of the Brown Act, for its meetings.

In summary, we regret that the Grand Jury found cause to involve itself in what we believe to be an internal, fully-legal and fully-justified personnel action. The prior elected San Carlos City Clerk was in favor of the City's action. The City Clerks' Association of California itself did not complain or object to our action. The only persons objecting actually appeared and spoke at our City Council meeting on the issue. It would appear that these same persons raised this matter with the Grand Jury and the Grand Jury unfortunately became involved in the issue.


© 2014 Superior Court of San Mateo County