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CITY OF SANTA MONICA ~y~ ~_ ~ ~ ~ "~'~ ~
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~~~~~ INTER~DEPARTMEH~ MEMO~~~~-~~~~ ~,
DATE: January 26, 1971 ~~"~~ ~~~='
TO: Honorable Members of the City Council
T`. ice'
FROM: Christina J. New, Acting City Attorney ~,
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SUBJECT: Item 8M on the Agenda for the Santa Monica ~;;;,~ ~~ (l~1
City Council Meeting on January 26, 1971 I
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~E`1'li ~ti n i'O i'HE
1:ITY CLER3i'S CFr ICE
,~ FOR FILING.
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Attached hereto please find a legal opini~'' `~.~ __.
from the law firm of Kurlander, Solomon & Hart regarding
grounds for the termination of the City Manager's con-
tract with the City.
Respectfully submitted,
CHRISTINA J. W
Acting City Attorney
CJN:mw
Attach.
CITY OF SANTA MONICA
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DATE: January 26, 1971
TO: Honorable Members of the City Council
FROM: Christina J. New, Acting City Attorney
SUBJECT: Item 8M on the Agenda for the Santa Monica
City Council Meeting on January 26, 1971
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CITY %;LERK'S OFFICE
FOR FILING.
Attached hereto please find a legal opinion
from the law firm of Kurlander, Solomon & Hart regarding
grounds for the termination of the City Manager's con -
tract with the City.
Respectfully submi/tted,
CHRISTINA J. N~W
Acting City Attorney
CJN : cnw
Attach.
LAW OFFICES OF
KURLfl(iDER,SOLOf00Il & HflRT
WILLIAM A.KURLAN DER 1255 LINCOLN BOULEVARD CITY OF COMMERCE OFFICE:
STEPHEN WARREN SOLOMON SA OTA OlO01Cfl,Cfl LIf O RO IA 90401 6055 E. WaS MIN6TON OLVD.
CHARLES R. HART. JR. SUITE 1020
STEPHEN H. SILV ER ~213~ 393-82]1 ~ 8>0-6495 LOS ANGELES 90022
~213~ ]23-6311 ~ ]22-36 G2
January 26, 1971
To: The Honorable Members of the Santa Monica City Council
At the special meeting of the Santa Monica City Council held
on January 22, 1971, the following motion was made by Councilman
McCloskey, and passed by the Council:
"I`11 make a motion then that the City Attorney do the
necessary research as regards dismissal or cancellation
of the contract."
These issues were presented by the City Attorney to this office for
its opinion. In arriving at our conclusion we reviewed the Agree-
ment between the City of Santa Monica and the City Manager dated
April 14, 1970 (to which the motion referred), the City Charter.
of the City of Santa Monica, and all of the applicable statutes
and reported appellate authority throughout the United States.
The first question to be decided is the extent to which the
aforementioned contract is enforceable against the City. In our
opinion, that portion of the contract which in any way (1) serves
to create any right to employment or related benefits for any
future period of time and (2) restricts the right of the City Coun-
cil to remove the City Manager at will are in conflict with Sec-
tion 700 of the City Charter and, thus, invalid. The basis for
our opinion is as follows:
Article XX, Section 16 of the California Constitution provides,
in pertinent part, as follows:
" ..in the case of an officer or em 1o ee of any munici-
pality governed un era eta y a opte carter, the pro-
visions of such charter
o ice or t e >_smissa
employee shall control;
The City of Santa Monica
charter and with reference to
Charter provides as follows:
with reference to the tenure of
rom o ice o any suc o icer or
... ." (Emphasis added)
is operating under a legally adopted
the tenure of the City Manager, the
"Section 700, OFFICERS TO BE APPOINTED. BY THE CITY COUNCIL.
The Cit Council shall a oint the Cit Mana er, City At-
torney and health officer which positions shal not be in
the classified service and who may be removed by motion of
LAW OFFICES OF
KuQ~fln~~a,So~omon & HflRT
Page 2
the City Council adopted by at least five affirmative
votes. It shall also appoint the City Clerk, which po-
sition shall be in the classified service." (Emphasis .
added)
By this provision of the Charter, there is no fixed term of
employment for the City Manager. A City Manager who is not under
a fixed term of office may be removed at the pleasure of the ap-
pointing authority at any time for any reason.
Ox1e v. Count of Oran e, 228 C.A.2d 620, 621 (1964)
Dec er v. Boar o Health Commissioners of the Cit of
Los~An e~es, C.A.
Ni htin ale v. Williams, 70 C.A. 424, 430 (1924)
Farre v. Po ice Commissioners, 1 C.A. 5, 7 (1905)
Patton v. Board of Hea th of San Francisco, 127 Cal, 388;
392 1889
40 Ca1.Jur.2d--Public Officers, Sections 73 and 77
112 American Law Reports, 107, 108
Paragraph 1 of the contract with the City Manager provides:
"It is the purpose of this agreement to assure continuity
of executive tenure for the benefit of both 'City' and
'Manager` and to establish a minimum period of service,
minimum compensation, minimum hours and other terms and
conditions of employment."
Paragraph 2 of the contract with the City Manager states,
in pertinent part:
"The term of this agreement shall commence on the date
hereof and shall remain in full force and effect until
June 30, 1973 unless terminated at an earlier date as
provided in Section 7 hereof."
Paragraph 7 of the contract reads as follows:
"'City' may terminate this agreement prior to June 30,
1973 in the event 'Manager' is convicted of a crime
involving moral turpitude, 'Manager' intentionally
fails to implement any lawful policy determination
made by City Council or 'Manager' is incapable of
performing the duties of the office of City Manager
on account of illness or disability for a period of
time greater than the accumulated work time in excess
of forty hours per week, sick leave and vacation time
credited to 'Manager`s' account maintained by the.De-
partment of Finance."
LAW OFFICES OF
KURLflI1DfR,$OLO(170^ & HflRT
Page 3
There is a direct conflict between Section 700 of the Santa
Monica City Charter, which provides that the City Manager serves
at the will of the City Council, and paragraphs 1, 2, and 7 of
the Agreement, which purport to create tenure in the City Manager
by giving him a three-year term of office and to limit the grounds
by which the City can terminate this tenure.
Where there is a conflict between a city charter and a sub-
ordinate act of the City Council, such as an ordinance or a con-
tract, the charter provisions prevail so that the conflicting acts
are of no validity.
Currieri v. Roseville, 4 C.A.3d 997 (1970)
In Currieri, the Court set out the legal proposition as•
follows:
"'The proposition is self-evident...that an ordinance
must conform to, be subordinate to, not conflict with,
and not exceed the (city's) charter, and can no more
change or limit the effect of the charter than a legis-
lative act can modify or supersede a provision of the
constitution of the state.' (5 McQuillin Mun. Corp.
(3d ed. 1969 rev.) Section 15.19, pp. 79-80, Section
15.15, p. 74;lAntieau, Municipal Corporation Law, Sec-
tion 3.09, pp. 122, 123, Section 5.39, p. 292.38;
Marculescu v. Cit Plannin Com. (1935) 7 Ca1.App.2d
X74 ( P. hear. den.).)"
The validity of an employment contract with a public officer
who is serving at will is not a novel question of law in the State
of California. There are several California cases which provide
support for our opinion, including:
People v. Hi11, 7 Cal. 97 (1857)
Hackler v. Ward, _105 C.A.2d 615 (1951)
Humbert v. Castro Valley, 214 C.A.2d 1 (1963}
In Hackler, the police chief filed a complaint for damages
against ti~Cy for wrongful removal from office. The complaint
alleged that he was removed without cause during the duration of
a contract of employment. The applicable statute provided that
the chief of police held office during the pleasure of the city
council.
In holding that the complaint failed to state a cause of ac-
tion against the city, the Court ruled that where the law fixed
the officer's term at the pleasure of the appointing power, it
had no authority to limit that power. Thus, nothing contained
in the contract of employment could in any way alter the legal
right of the city to release the police chief at its pleasure.
LAW OFFICES OF
KURLflnD~R,SOLOmO^ & HflRT
Page 4
In support of its conclusion, the Court referred to the opinion
of the Supreme Court of Minnesota in Jensen v. Inde endent Con-
solidated School District No. 85, 160 Minn. 99 N.W. 91~,
w is state
"'This right which the board has to release the superin-
tendent at its pleasure is a public right, and exists for
a public purpose. The school board cannot by contract de-
prive itself of such right. Under our statute the district
has in its discretion the inalienable power to remove the
superintendent at any time. It cannot contract to keep
him in office for any time certain. It cannot renounce or
agree not to exercise its power of removal at pleasure.
(Citing cases.) Under such condition it is rather incon-
sistent to contract for a fixed term. Yet if there is a
fixed term it is impliedly subject to recall, and the
fixed term is the time the superintendent will hold his
office if the power to recall is not exercised. (Quoting
cases.)
'To hold that the contract in question is binding for the
fixed term would be to allow the school board to deprive
itself and its successors of governmental powers which _
have been granted to it by the Legislature for public
purposes. We are led to the conclusion that the Pinney
contract for three years is not binding for the fixed
term but is subject to recall. He may be employed as
superintendent only during the pleasure of the board.
These rules of law incorporated themselves into and be-
came a part of his emplovment by the board- and he was
9
oouna to taxe notice tnereot. He has been discharged,
and the board was within its legal rights in doing so.°
(Italics added.)(cases cited.)"
Hackler v. Ward, 105 C.A.2d 615, 617 (1951)
In the Humbert case, a fire captain brought suit for damages
for breach ocean ememployment contract. The Court determined that
the complaint did not state a cause of action for damages. In
this regard, the Court noted that the plaintiff, as an appointive
officer, was serving at the will of the governing body. As a
result, the Court concluded that he had no vested contractual
right in the terms of his employment, as the existence of a con-
tract of employment was essentially inconsistent with his status.
Accordingly, the Court concluded that because plaintiff had no
contractual rights, no cause of action for breach of contract
could lie.
LAW OFFICES OF '
KURLflI1DfR,SOLO(7100 & HflRT
Page 5
Therefore, we conclude that the City Council may terminate
the City Manager's employment at will with five affirmative votes.
The next question that arises is the effect of the remaining
portions of the Agreement in question. In our opinion, the bene-
fits conferred upon the City Manager pursuant to paragraphs 4, 5,
and 6 of that Agreement exist only on a day-to-day basis and may
be altered or eliminated by the City Council at any time, with
only four affirmative votes. This conclusion results because
these items are not vested rights. (Woodcock v. Dick, 36 Ca 1.
2d 146 (1950); Casserly v. City of Oa an Ca . 64 (1936}}
However, we must qualify our opinion by stating that we do
not believe that the City can accomplish indirectly what it cannot
do directly. For example, Section 700 of the City Charter provides
that the City Manager can be removed only pursuant to five affirms-
tive votes of the Council to that effect. If the City Council
could only secure four affirmative votes in support of a motion
to terminate the City Manager°s employment, but attempted to use
those same four votes to effect an unreasonable reduction in salary,
the City would have to overcome a strong inference that it was at-
tempting to do indirectly what it could not do directly. How-
ever, our qualification should not be interpreted to preclude
reasonable modifications of the salary or related benefits of the
City Manager.
Respectfully submitted,
KURLANDER, SOLOMON & HART
WILLIAM A. KURLANDER
CITY OF SANTA MONICA 71-C-11
DATE: January 26, 1971
TO: The Honorable City Council
FROM: City Manager
SUBJECT: Alleged Breach of Contract
Perhaps it would be useful to set forth the specific circumstances under
which the City Council may lawfully terminate the contract. The only pro-
visions for termination are set forth in Section 7 which reads as follows:
"'City' may terminate this agreement prior to June 30, 1973 in
the event 'Manager' is convicted of a crime involving moral
turpitude, 'Manager' intentio;zally fails to implement any law-
ful policy determination made by City Council or 'Ivlanager' is
incapable of performing the duties of the office of City Manager
on account of illness or disability for a period of time greater
than the accumulated work time in excess of forty hours per
week, sick leave and vacation time credited to 'Manager's'
account maintained by the Department of Finance. "
The Acting City Attorney expressed her opinion with respect to authority for
the release of examination results at the Special Council Meeting of January
22, 1971 as follows: (Page 10 of transcript)
"I'm telling you, Councilman Reidy, that in connection with this
particular test where my test was involved with the Council, the
Council has the right to withhold that test from the public--I'm
telling you, in addition, that in a test involving any other city
employee other than a Council employee, the City Manager has
the right to determine whether or not-that shall be released to
the press or to the public."
Apparently, the "Breach of Trust" and "Unwarranted Invasion of Privacy"
charges made by the Acting City Attorney are confined exclusively to the
results of her examination and are made on the basis of the claim that only
the City Council could authorize any release because she is an employee of
the City Council.
To: The Honorable Gity Council
January 26, 1971
It is submitted. that the proper disposition of any criminal case
is essential to the proper administration of the Police Depart-
ment as well as essential to the maintenance of integrity in the
law enforcement function.
The interest of the public in each of these areas of law enforce-
ment administration and the public's right to know outweigh any
claim of personal privacy on the part of the Acting City Attorney
with respect to proper disposition, proper administration or the
maintenance of integrity.
71-G-11
page 2
Moreover, public consent to take the examination concerning the
truthfulness of assertions by the Acting City Attorney upon which
the administration acted in good faith necessarily represents an
implied consent to publish the examination results.
It also seems rather odd that the Acting City Attorney would claim either
"Breach of Trust" or "Unwarranted Invasion of Privacy" when that which
was published tends only to substantiate the truth of assertions made by her
and sworn to be true on her "professional reputation" and "honor."
The additional charge of the Acting City Attorney that the release of her
examination results is an "intentional failure to implement a lawful policy"
is even more obscure. The December 17, 1976 letters of censure and
reprimand offered as policy statements would hardly qualify as a statement
of policy forbidding the release of examination results which tend to sub-
stantiate the honesty and integrity of the law enforcement function in Santa
Monica.
Counsel has advised that the nature of this class of proceeding invariably
produces subjective decisions and that an argument in Chambers on dis-
puted questions of law is pointless. The City Council is advised herewith
that I do not consent to the breach of the employment contract.
Zanager
PS: j s