Fresno · Highlight

Voters need to know: How far will Fresno’s City Council power grab go?

Looks to me like the Fresno City Council is conducting a power grab at City Hall.

You know how it is with power grabs in a big institution. Once you start, it’s hard to stop.

All this suggests that we’ve already got a key issue for debate on the 2020 mayoral campaign trail: Is Fresno to have the strong-mayor form of government approved by voters in 1992 or are we reverting to a government dominated by a council composed potentially of seven “mini-mayors”?

Let’s begin with a consent calendar item on the Council’s July 25 agenda. The item dealt with the code enforcement division.

The report to Council had a brief executive summary: “On June 27, 2019, the Council adopted (the) FY 2019-2020 budget, which included transferring code enforcement functions to the City Attorney’s Office. These code changes are to update the code to be consistent with that action.”

Code enforcement was part of the Development and Resource Management Department (DARM). The report to Council was written by City Attorney Doug Sloan, not DARM Director Jennifer Clark.

The proposal from Sloan consisted of amendments to the city ordinance dealing with code enforcement as well as judicial and administrative remedies. Such amendments to the municipal Code must go through a two-step process. The first is introduction of the proposed changes. The Council on July 25 unanimously approved the introduction of these changes. No council member or representative of the Brand Administration made any comments from the dais. The second step is adoption of the proposed changes. The Council will tackle this step at a later date.

In other words, Fresnans have another bite at the apple should they be so inclined.

Sloan’s report summarized four changes to the Municipal Code. In Sloan’s words, those changes are:

1.) “Where the Director or City Manager has authority to enforce the code or approve the regulations to implement or interpret the code, such authority shall also be granted to the City Attorney.”

2.) “Along with other specified department directors, the City Attorney will have the authorization to issue criminal citations.”

3.) The City Attorney (currently the City Manager) may approve code enforcement compliance agreements.” (The parenthetical comment is in Sloan’s report.)

4.) The City Attorney shall make rules and regulations for rental housing inspections.”

By my reading of the Municipal Code section at issue, the DARM director’s authority is diminished by the amendments.

The City Manager’s authority is also curtailed or diluted, in my opinion.

One part of the code currently says the City Attorney shall “(i)n the case of code enforcement fines, penalties, abatement costs, attorney fees, interest, and liens, submit the matter to the Chief Administrative Officer for approval up to one hundred thousand dollars ($100,000).”

The amended code will say “(i)n the case of code enforcement fines, penalties, abatement costs, attorney fees interest, and liens, in exchange for obtaining a compliance agreement, the City Attorney shall have the authority to write-off up to one hundred thousand dollars ($100,000).”

By my reading, the City Manager under Sloan’s amendments would be completely out of this particular decision-making loop.

A citizen of Fresno going to the City Clerk’s website and calling up the July 25 Council agenda would be hard pressed to find any written context to the Sloan amendments. The complete silence from the dais on July 25 would have been of no help to the citizen.

What were all the key players thinking as to why this bill was introduced? Fresnans don’t know.

Permit me to add some context, in four parts.

1.) The City Charter, our fundamental governing document, says Fresno has a strong mayor form of government. The City Manager, who is hired and fired by the Mayor, is largely in charge of day-to-day operations.

But not entirely. Article VIII, Section 800 of the Charter says: “There shall be a City Attorney and a City Clerk who shall be appointed by and serve at the pleasure of the Council, but who may be removed only by a majority vote of the entire Council.”

That’s pretty simple.

It’s when we come to Article VIII, Section 801 that things get dicey – my way of saying open to interpretation.

Section 801 begins: “The Council shall provide by resolution not inconsistent with this Charter for the organization, conduct and operation of the several offices established by this Charter, and for the creation of departments, divisions, offices and agencies, and for their consolidation, alteration or abolition.”

If this power is to come into play, it most likely would happen during the annual budget hearings. The Mayor submits a budget. If the Council with a veto-proof five votes decides to consolidate the widget division with the thingamajig division, it’s a done deal. The Administration must accept the Council’s decision.

Section 801’s next sentence says: “The Council by resolution may assign additional functions or duties to offices, departments or agencies not inconsistent with this Charter.”

Again, you might see this power coming into play during budget hearings. If the Council wants more bicycle cops assigned to certain neighborhoods, then the money is appropriated during the hearings and the deed is done.

Then we come to the third sentence in Section 801: “No office provided in this Charter to be filled by appointment by the Chief Administrative Officer may be consolidated with an office to be filled by appointment by the Council.”

I take this to mean the Council can’t put the Police Department under the organizational umbrella of the City Clerk’s Office on the logic that both departments generate a lot of paperwork – and, besides, we’ve got the necessary five votes. Such an attempt would be both a power grab and a violation of the Charter.

Here’s another and more topical example, posed in the form of a question: DARM has a director who is hired/fired by the City Manager. The DARM director oversees all aspects of a Code Enforcement Division. Therefore, the success or failure of the Code Enforcement Division ultimately rests on the shoulders of the City Manager and, by extension, a Chief Executive (Mayor) elected by citywide vote. Can the Council with a veto-proof five votes consolidate the guts of the Code Enforcement Division with the City Attorney’s Office, thus putting the Council itself in charge of a key City Hall “office” that, per the City Charter, is “to be filled by the Chief Administrative Officer”?

The current City Council is halfway to doing precisely that.

For health reasons, I haven’t been around City Hall of late. But I have spent my share of time at City Hall in the past. I don’t think I’m out of line in suggesting that previous Administrations would have gone ballistic over such a power grab. Those Administrations may not have won the battle. But they would have tried.

I called Mayor Brand on Saturday. He said the Sloan amendments are the Council’s idea. He said he doesn’t agree with the consolidation. He said Sloan views the consolidation as within council’s Charter-authorized powers. He said Sloan had a third party, an attorney who has done business with the city, review this Charter/constitutional issue. He said this outside attorney agreed with Sloan – the council can, in essence, consolidate code enforcement with the City Attorney’s Office without violating the Charter. The thinking, if I understood the Mayor correctly, is that both the City Attorney’s Office and the Code Enforcement Division deal with enforcement actions.

I told the Mayor that I find it hard to think of a city department that, in some manner, doesn’t deal with enforcement actions.

The Mayor replied with a tactful silence.

Mayor Brand said the Charter needs to be amended to give the Mayor an equal say in the hiring and firing of a City Attorney who has the final word in interpreting the City Charter. (To use my words, the City Attorney is all nine Supreme Court justices rolled into one. But the City Attorney isn’t appointed for life. He serves at the pleasure of the City Council. If the City Attorney wants to keep his job, he must at all times satisfy at least four council members.)

2.) Code enforcement has become a high-profile part of Fresno’s municipal government. When it comes to generating public interest/outrage, code enforcement is probably second only to the Police Department. Many rules pertaining to public and private buildings have long been on the books. Many more rules have been adopted since November 2015, when the city was rocked by revelations of substandard housing at Summerset Village Apartments. City Hall has greatly enhanced its coercive powers in this regard. We’re talking fines and other forms of legal action to get landlords/property owners to obey the rules.

Residential rentals get the most attention.

There are so many rules on our built environment, and the ownership of property is so varied and complex, that enforcing the city’s code is very much an art. That’s another way of saying political judgment plays a part in code enforcement.

3.) Mayor Brand during his first two years as Chief Executive had a successful working relationship with the City Council. He didn’t always get his way with the Council. But that’s how it should be in a government of separated powers.

Fresno’s municipal government has taken a dramatic turn since January 2019. That’s when Miguel Arias (District 3) and Nelson Esparza (District 7) joined the Council. That’s when Steve Brandau (District 2) resigned to take a seat on the Board of Supervisors. Arias, Esparza and District 1’s Esmeralda Soria are a formidable bloc that has given the Council a decided Progressive bent.

Brand, a Republican who has tried to govern as a centrist, has announced he won’t run for re-election in 2020.

The Council is stronger, the Mayor is weaker.

4.) Fresno has tried a municipal government with all power residing in the City Council. This council-city manager government worked for a while. By the early 1990s, however, efficiency in government had stagnated. Without a strong chief executive to give government focused energy, critics said, the six council members and the mayor (who served on the council as the seventh vote but whose mayoral duties were largely ceremonial) couldn’t resist jockeying among themselves for authority and status. Thus the complaint that Fresno actually had seven mayors, each of considerable ego and small public stature.

Police Chief Jerry Dyer, prosecutor Andrew Janz and District 5 Council Member Luis Chavez are the three biggest names to seek the mayoral job in 2020. What do they think of Fresno’s strong mayor government?

It’s a question worth asking them now.

George Hostetter
George Hostetter is The Sun’s Fresno Civic contributor – covering the City of Fresno, County of Fresno, and Fresno Council of Governments.