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sr-052571-8g`~. °.~. ,~ '~. ATE: TO F2?0?:~: SIIBJECT cirr o~ s .~arF~ raot~~c~, ~~ ~~ ~~~e'~~~3~~~~ " _~~1 -, May 13, 1971 ~ ~tiY~ ~19ij 11^d~IS i~9 The Honorable Members of the City Council Cd'P F~I~L;FIL ~G ~ ~~ Christina J. New, Acting City Attorney City Attorney's Opinion Interpreting Section b10 of the City Charter of Santa Monica This Honorable Body requested a City Attorney's opinion interpreting the provisions of Section bl0 of the Santa Monica .City Charter. The request for said opinion arose out of the controversy surrounding the telephone calls made by former Ccuncilman Lowell T. Patton to Captain Hansen of the Santa :Monica Police Department and to the Acting City Attorney conce-rni.ng the case of People v. G,uy Arnold T•~]ade, et a1., Municipal Court No. 48389, Santa Monica Judicial District.- Prior to the time that such opinion was to have been submitted the question whether such conduct by Council- man Patton or the unauthorized release of the polygraph test results by the City Manager constituted a violation of law had been submitted to the District Attorney's office for decision by an independent agency. In view of this fact, I requested this Honorable Body to alloca this office to put over the orriting of said opinion unti_1 after the District Attorney's decision on the foregoing questions had been re- ceived. C7n January 25, 1971, I personally went to the District Attorney's office in Los Angeles and submitted the case for a determination as to ?ahethe-r or not there was sufficient evidence to warrant the issuance of a crim- inal complaint against either Councilman Patton or City Manager Perry Scott. I told the Deputy District Attorney that in my opinion there was no criminal conduct involved on the part of either party but that I was requesting the assistance of his office in view of the fact that I was personally involved in the matter and a decision by this office might be construed as presenting a conflict of interest. The District Attorney's office assured me that they would thoroughly review the case and render a decision.. After a call from the District Attorney's office for further in- formation, I sent them a letter furnishing the information requested. K ~~ ~~r.. ._.. `Che "tIonorable Members of the City Council May 13, 1971 Page Two Recently, I received a letter from the District Attorney's office in cahich he refused jurisdiction of the matter and declined to issue the requested opinion. idherefore, no further action will be taken by this office and the following opinion interpreting Section b10 of the Santa Monica City Charter is hereby submitted as per your -request. Section 610 of the Santa Monica City Charter provides as relevant here: "Except for the purpose of inquiry, the Citv Council anal its members shall deal with the Administrative Services under the City Manager solely through the City Manager and neither the City Council nor any member shall give orders to any subordinates of the City Manager, either pub- 1ic1y or privately." (A .copy of said Charter Section 610 is attached hereto) It will be noted that Section 610 pro'nibits members of the City Council from dealing directly with the Administrative Services under the Cit~ Manager, except for purposes o lrquiry. Hence, in the ana ysis of this Section there are two 'oasic issues in- volved, the first of which is: 1. Is the person. contacted by the Councilman a mem- ber of the Administrative Services under the City Manager? A perusal of the City Charter reveals that all officers and employees of the City with the exception of the City Clerk, the City Attorney, and .the Health Officer, are members of the Administrative Services under the City Manager. Since the three above enumerated officers are appointed directly by the City Council, they are not members of the "Administrative Services under the City Manager" as the term is used in Section 610. (See City Charter Section 700 attached hereto.) But rather, said officers perform a staff function for both the City Council and City Manager. 2. Is the Councilman`s contact with such member for the purpose of inquiry, or for the purpose of giving. direction or instruction? Inquiry is defined by the "American College Dictionary" published by Harper and Brothers, as" "l. A seeking for truth, information or knocaledge. 'Che Honorable idembers May 13, 1971 Page Three o:f the City Council 2. An investigation, as into a matter. 3. Act of inquiring, or seeking infor- mation by questioning," Inquiry is further defined by "Webster's Neca Collegiate Diction- ary, Seventh Ed9_ta.on" published by G and C Merriam Company, to mean: "l. A request for information. 2. A systematic investigation of a matter of public interest." Order is defined by the °1American, Co7_lege Dictionary" as relevant i~-re to mean: "l, An aut'noritati_ve direction, injunction or mandate.11 It is defined by "Webster's New Collegiate Dictionary, Seventh Edition" as follows: "To give an order to, to command, to issue orders, authoritative direction." In view of the foregoing it seems clear that a Council- man may question a City employee for the purpose of obtaining information but that he may not give direction or instruction to an employee in the Administrative Services other than the City Manager. Fo-r example, he could not instruct or order a City employee to furnish or produce a report. It is apparent, therefore, that if a Councilman desires a report, or the pro- duction of some tangible item, or desires some specific conduct on the part of a City employee, the request for such production or performance must be made to the City Manager. A direct request to the City employee for such action. would constitute a violation of Section 510 of the City Charter. Respectfully submitted, -, _ CHRISTINA J. Ni~W Acting City Attorney CJN:mh Attachments ,. SANTA TYONTCA MUNICIPAL CODP 232 than one newspaper of general circuln- tlon published In the City, the City Coun- cil, annually, prior to the beginning of each fiscal year, shall Publish a notice Imdting bids and contract for the publi- cation oC all legal notices or other mat- ter required to be published, in a news- paper of general cirnrlatlon published and circulated In said City, daring the. ensuing fiscal year. In the event there is only one new•spnpcr of general circu- lation published In the. City. then •thc City Council shall have the power to contract with such newspaper Cor the printing xnd publishing of such legal notices withouC being required to adacr- tise for btds therefor. The newspaper with which am such contract is made ahail be designated the otIlCiai nrws- pnpcr fee the publication oC surh notices or ether matter for the period of such contract. In no case spoil the contract pricey for such publication exceed the cusiemnry rates charged by such newspaper for the publication of legal notice= of a pri- vate character. In the event there is no oRlcial news- paper designated by the City Council, then atl legal notices or other matter may be published by posting copies thereof in at least three public places in the City. No defect or in'egu]arity in proceed- ings taken under this section, or failure to designate an off~ciai newspaper, shalt invalidate any publication where the same is otherwise. in conformity with this Charter or law or ordinance. SECTION 610. in terfcrence in :lehnin- istralivc sen-ien. Neither the CSty Coun- cil nor any of its members shall order or request directly or indirectly the appoint- ment of any person to an o(iice or em- ployment or hie removal therefrom, by the City Manager, or by any of the de- partment heads in .the administrative service of the City.!F.xcept for the pur- pose of inquiry, the City Council and its members shall deal with the adminis- trative service tinder the City Aianager solely through the City Manager and neither the City Council nor any member shalt give orders to any subordinates of the City Manager, either publicly or privately. SECTION fill. Rrgul:v lYrrtings. The Cfty Counoil sha[I hold regular meetings at least price each month, at suchtimes as iL shall fix by ordinance or resolution and may adjourn or readjourn any regu- lar meeting to a date certain, v: hick shall be specified in the order of adjournment and when so adjourned, each ac iourned meeting shall be a regular meeting for all purposes. SI'•.CTIOti 812. Rprrinl ]4Tectings. 5pe- cinl met rings may be called nt any time by the Mayor, nr by Cour members oY 4he City Council, by written notice de- llcrred personally to each member at )east three hours before the time speci- fied for the proposed meetng. A special meeting shall also be validly called, with- out the giving of such written notice; if ail members shall give their consent, in writing, to the holding of such meeting and such consent is on file in the o([ice of file City Clerk at the time of holding such meeting. A .telegraphic connnuni- catinn frnrn a member consenting to the holding of a meeting shall be considered a consent in writing. At any special meeting only such matters may be acted upcr, as are referred to 3n such tt-ritten notice or consent. SECTION 613. I9acn of Dicetin gs. All meetings shNl be held in Lhe Council Chamber^. of the City Flail and shall be open to the public. If, by reason of fire, Food or other emergency, it shall be unsafe to meetin the place designated, the meetings may be held for .the dura- tion of the emcrgcrcy at such place as is designated by the Tfayor or, if he should tai] to act, by four members of the City Council. SF.CTZON 61d. Cjnanmt. Proceedings. Four members of [he City Council shall constitute a quorum to do business, but a less ttumbcr may adjourn from time to time. The City Council shall judge the qualifications of its members as set forth by the Charter and shall judge alt electlnu returns. Each member of the City Council shall have the potter to administer oaths and affirmations in any investigation or proceeding. pending be- fore the City Council. The City Council may establish rules for the conducC of its proceedings artd punish any ritember or other person for disorderly conduct at any meetings. It shall pace the power and authority to cmnpel the attendance of witnesses, to esaminc them under oath, and to compel the production of evidence before it. Subpoenas may be issued in the name of the Cite and be attested by the City Clerk_ Disobedience of such subpoenas, or there Cusal to testify (upon other than constitutional grounds), shall constitute a misdemeanor. The Citp Council shall cause the City Clerk to keep a correct record of all its proceedings. and at the demand of any member or upon the adoption of any ordinance, resolution, or order for the payment of money, the City Clerk shall tali the roll and shah cause the ayes and Hors taken nn any question, to be entered in the ntinutes of the meeting. t _. _ _< - _... _J .._ _ .. SANTA ~fOIQICA MUNICIPAL CODE 234 EL-G ARTICLE V11-THE APPOINTIVE OFFICERS SECTION 700. Of£cers to be Appoint- ed by the City Council. The City Coun- cil shall appoint the City Irfanager, City elttorney and Health Officer, which posi- tions shall not be in the Classified Serv- ice and who may be removed by motion of the City Council adopted by at least five affirmative votes. It shall also appoint the City Clerk, which positia: sha!1 be in the Classified Service. see. ~m SECTION 701. Officers to be Appolnt- Ameotlsd er e« ed by the City 3lanager. The City Man- us~sccs alter shall appoint, and may remove, the ad o6etl Chief of Police, which position shall not be in the classified service. The City bfarager also shall appoint the City Controller, Personnel Director, City Treasurer, City Engineer, Street Superintendent, Building Officer, Chief of the Fire Department, Director of Recreation, Librarian and the heads of all other .departments of the city; which positions shall be in the classified service. Appointments. to the position of Per- sonnel Director,~Recreation Director and Librarian shall be subject to the ap- proc•al of their respective boards or com- missions. SECTION 702. Other Appointive Of- ficers. The City Council may provide by ordinance for the creation, continua- tion or abotishment of other City de- partments apon recommendation oP the City Manager. Each department so cre- ated or continued shall be headed by an officer, as department head, who shall be appointed by the City b4anager. The positions of such department heads shall be included in the Classified Service. SECTION 703. City i1Ianager. Ap- pointment The City Manager shall be chosen on the basis of his executive and administrative qualifications. He shall. be paid a salary commensurate with his responsibilities as chief administrative officer of the City. No City Councilman shall receive such appointment during the term for which he shall have been elected, nor within two years after the expiration of his term, SECTIO\r 704._ City Manager. Powers and Duties. The City Manager shall be the chief executive officer and the head of the administrative branch of the City government. He shall be responsible to the City Council for the proper adminis- tration of all affairs of the City, and he shall have power and be required to: " (a) Appoint and remove, subject to the Civil Service provisions of this Char- ter, all department heads of the City except as othenvise provided by this Charter, and pass upon and approve all proposed appointments and removals ofsubordinate employes by department heads; (b) Prepare the budget annually and submit it to the City Council and be responsible for its administration after adoption; (c) Prepare and submit to the City Council as of the end of the fiscal year a complete report on the finances and administrative activities of the City for the preceding year; (d) beep the City Council advised of the financial condition and future needs of the City aad make such recommen- dations as may seem to him desirable; and (e) Perform such other duties as may be prescribed by this Charter or re- quired of him by the City Council, not inconsistent with this Charter. SECTION 705. City Dlanager. Council Table. The City Manager shall be ac- corded ascot at the City Council table and shall he entitled to participate in the deliberations. of the City Council, but shall not have a vote. SECTION 706. Rianager Pro Tempore. The City Manager shall appoint, subject to the approval of the City Council, one of the other officers of the City to serve as Manager Pro Tempore during any temporary absence or disability of the City Manager. Assistant City Manager. In the event that the City Council provides for the appointment of an Assistant City Man- ager, he shall be appointed by, and be under the supervision and direction of the City Manager. The position of As- sistant Cit}- Manager shall not be in the Classified Service. SECTION 707. City Clerk. Poavers and Defies. The City Clerk shall have power and be required to: (a) Attend all meetings of the City Council and record and maintain a full