May 19, 2013
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2001 Final Report:
City of San Carlos Elimination of Elective Office
2001 Final Report:
City of San Carlos Elimination of Elective Office
The subject of the actions taken by the City of San Carlos regarding the statutory office of City Clerk once again came before the San Mateo County Grand Jury. The subject is not new to the deliberations of the Grand Jury, as the same matter was the subject of a review by the 2000-2001 Grand Jury. The 2000-2001 Grand Jury found that the City Council of San Carlos effectively and improperly eliminated the elected office of City Clerk. The 2001-2002 Grand Jury believes that the City Council acted by subterfuge and legislative sleight of hand to eliminate the elected position of City Clerk.
In its response of May 29, 2001, to the 2000-2001 Grand Jury, the San Carlos City Council expressed its belief that ". . . the [2000-2001] Grand Jury unfortunately became involved in the issue." The 2001-2002 Grand Jury believes it is more unfortunate that it, too, had to become involved because of the City Council's refusal to follow the 2000-2001 Grand Jury's recommended remedial course of action.
Issue: Should the City of San Carlos afford the citizens of San Carlos a voice through the ballot in deciding if the City Clerk position should be an elected or appointed position?
As previously set forth in the Grand Jury 2000-2001 report, the San Carlos City Manager recommended a personnel change to be on the consent calendar of March 23, 1998. The City of San Carlos Personnel Director made several recommendations including the replacement of the City Clerk/Assistant to the City Manager with a City Clerk at an annual salary of $1, and creation of a new appointed position of Assistant City Clerk. The recommendation was pulled off the consent calendar, discussed briefly, and approved at once. There was insufficient opportunity for the public to be heard because the item was originally noticed on the consent calendar and was not deferred for full discussion at a subsequent meeting.
In the City Council's letter of May 29, 2001, responding to the 2000-2001 Grand Jury report, the City Council defended its actions as satisfactory and within the letter of the law, but the City Council did not acknowledge the importance of conforming to the spirit, and even more important, to the legislative intent of the relevant statutes.
In a letter to the San Carlos City Council dated July 31, 2001, the 2001-2002 Grand Jury expressed its disappointment with the Council's response and failure to act on the matter, and again urged the Council to place an appropriate measure on the ballot to give the voters an opportunity to decide whether the office of City Clerk should be elected or appointed.
The 2001-2002 Grand Jury undertook further inquiry into this subject, not only because of the inadequate response to the prior Grand Jury report, but because members of the City Council made representations that the Council would re-examine the issue and " . . . consider restoration of the $50 per meeting separate pay for the City Clerk . . . ." There has been no showing that anything was done.
Further, the 2001-2002 Grand Jury, through personal interviews with members of the present City Council, found that not all the councilpersons are familiar with the background of this issue.
The Grand Jury seeks to have the City Council act in conformity with the letter of the legislative intent, as well as the relevant legislation. The current City Council appears not to be clear on what prompted the 2000-2001 Grand Jury recommendations and this current inquiry. Grand Juries do not wish to interfere with the lawful workings of a city council. Unfortunately, the City Council's actions do not adhere to the statutory requirements of a general law city as created by statute (Gov. Code §36501). The Grand Jury's criticism of the City Council is not with the Council's desire to realign the duties of the City Clerk, or with whether the City Clerk is an appointed or elected position, but rather with the high-handed process used to accomplish the realignment.
The City Council did not literally abolish the office of City Clerk but instead engaged in deception by reducing the pay to $1 annually for an elected City Clerk. The case of DeMerritt v. Weldon (1908), 154 Cal 545, is enlightening. In that case, the appellate court declared: " . . . the amount of compensation . . . is so small . . . [it] can be held to be a practical abolition of the office . . . in that no competent person can be found to perform the duties . . . for that compensation . . . .".
That case concerned a City of Ukiah marshal whose salary was reduced to $120 per year. The court held that the city had a right to set the amount as long as the purpose was not to eliminate an elected office. While the appellate court held that, based on the facts in the case, the $120 annual salary was not so low as to eliminate the job of marshal, it nonetheless quoted with approval the legal treatise, Abbott on Municipal Corporations: "General legislation cannot be nullified by fixing the salary of a public official . . . at such a low figure that no competent person will accept the office." The San Carlos City Council's action clearly resulted in the practical abolition of the office.
The 2001-2002 Grand Jury interviewed City Council members and the City Manager to gain further understanding of their position on this issue. The persons interviewed either expressed an outright affirmative position to placing the issue on the ballot or said it "probably" should go to the voters to decide.
The California Government Code imposes many statutory duties on the City Clerk position. The decision to eliminate the position of City Clerk should rest with the voters. California Government Code § 36508 reads: "At any municipal election or special election held for that purpose, the city council may submit to the electors the question whether the elective officers . . . shall be appointed by the city council . . . ." The City Council's refusal to put the matter on the ballot deprives the citizens of San Carlos a right inherent in the democratic process. The method used here to rearrange and eliminate an elected position was not in keeping with accepted principles of citizen participation that are essential to good government.
We have reviewed the Grand Jury's report regarding the City of San Carlos City Clerk and Assistant City Clerk positions. We appreciate the fact that the Grand Jury has acknowledged that the San Carlos City Council met in properly noticed, public meetings on March 23, 1998 and again in June 1998 to discuss these matters. That is indeed the case. This matter appeared on the City Council agenda and copies of the agenda were made available in the San Carlos Library and at City Hall in advance of each these meetings. At the City Council meeting in June 1998, two members of the public spoke on the matter and their testimony was listened to and considered before the City Council took action.
The Grand Jury wrote
that the City Council replaced the position of City Clerk/Assistant
to the City Manager with a City Clerk position that was elected and
created a new position of Assistant City Clerk. This simply is not true.
The position of City Clerk remains 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 2001 Grand Jury's report indicates
that the City Council's action "satisfied the letter of the law"
and we believe that should have been the end of this issue.
In addition, the City Council changed the compensation for the elected City Clerk position from $50 per meeting to $1 per year and transferred the balance of these funds to the Assistant City Clerk position. This was done to help fund the increased salary and benefits of the Assistant City Clerk position prior to recruiting a replacement for the prior Assistant to the City Manager. The salary had been honorific for many years and the Council felt the 1998 Council did not change that in a meaningful way.
This matter is an internal, personnel matter and is the legal responsibility of the City Council. The Grand Jury comments seem to be based on the belief that the elected position was somehow eliminated. This is not what happened; the position continues and has not been eliminated, effectively or otherwise.
The Grand Jury in its letter to us dated May 6, 2002 has recommended that we restore the per meeting compensation of $50. I will recommend to the City Council that they do so at their next meeting in August.
In closing, we appreciate this opportunity to discuss and clarify the actions taken by the San Carlos City Council in 1998. We have reviewed the matter thoroughly; we understand the reasoning that the members of the 1998 San Carlos City Council used in reaching their decision; and, we continue to believe that it was a wise and appropriate choice. Hopefully the decision to restore the per meeting compensation to its former level will now end this matter.
Donald M. Eaton