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