Fresno

Friction may push Fresno City Hall into an internal legal power struggle

The Fresno City Hall power structure abhors a vacuum. But if you decide to fill that vacuum, and your presence is contested, you’d best have the City Charter and the City Attorney’s Office on your side.

That appears to the be the essence of a memo making the rounds at City Hall regarding the City Council’s efforts to regulate the assignment of office space on the second floor.

The five-page memo comes from City Attorney Doug Sloan. It asks one question: Does the Charter permit the Council, by resolution, to assign office space in City Hall?

Sloan succinctly answers the question at both the start and end of his memo.

“Yes, the Council has the authority, through official policy making, to direct matters such as assignment of office space,” Sloan says at the start.

At the end, Sloan says: “Given the thoroughness and specificity of these Charter provisions, they cannot mean anything other than an express grant of authority to the Council to provide by resolution for the allocation of City resources. The assignment of limited office does not violate the Charter and is legally enforceable.”

Mayor Lee Brand and his Administration know all about Sloan’s memo.

“We disagree with it,” the Mayor told me on Sunday. “We’re going to ask for a second opinion.”

Brand said both the memo and the dustup over office space assignments are more evidence of friction between the City Council and his Administration. He added on Monday that his office has already begun seeking a second opinion.

Brand noted that the City Attorney is hired and fired by the Council. He said the time is coming for a hard look by voters at Charter language that can put the Executive branch at an apparent disadvantage when it comes to Council-Mayor legal disputes that cross the City Attorney’s desk. 

The Sun recently reported on the issue at the heart of Sloan’s memo.

There is an office, Room 2085, next to the office of City Manager Wilma Quan. Several of Quan’s top assistants work there. Quan says having close proximity to these executives is vital to her work. The Council wants to use Room 2085 for its own purposes. The Council says such purposes are vital to its work. The Council recently passed a resolution on a 5-1 vote that (in its opinion) reaffirms control of the office space to the legislative branch. Quan, speaking from the dais prior to the vote, expressed her firm opposition to the resolution.

Most of Sloan’s memo is devoted to a detailed analysis.

Like any good constitution, Fresno’s City Charter consists in part of enumerated powers. The Council, Sloan quotes from the Charter, “shall be vested with all powers of legislation in municipal affairs adequate to a complete system of local government consistent with the Constitution of the State.”

The city manager is responsible for the direction of all administrative jobs not otherwise assigned in the Charter (The City Clerk, for example, is hired/fired by the Council).

Council members must butt out of the city manager’s job, Sloan writes, “except when the Council and Mayor take action through official policy making.” (Emphasis in the memo.)

Fresno went from the manager-council government to the strong mayor government in January 1997.

Since then, Fresnans have gotten used to the city manager’s duties in the new era. Yes, departments such as Public Works and Public Utilities report directly to the city manager. But everyone knows that the Mayor calls the shots in the Executive branch.

The city manager is hired and fired by the Mayor. Prior to 1997, the city manager was hired and fired by the Council. In the old days, the city manager had to be able to count to four to keep his/her job.

In this current era, it’s the City Attorney who must be able to count to four to keep collecting a city paycheck.

But, Sloan says, authority in the post-1997 era for the creation and organization of various departments belongs to the Council. Sloan quotes from the Charter: “The Council by resolution may assign additional functions or duties to offices, departments or agencies not inconsistent with this Charter.”

Sloan goes on at length to set the stage for his fundamental point: The Council is empowered by the Charter to get deeply involved in the workings of City Hall. The exceptions are certain Charter prohibitions and the Mayor’s veto pen.

There’s one other exception: Political inertia.

Sloan writes: “Essentially, if there is no official policy, that is, the Charter, Municipal Code, or an approved resolution, then the City Manager is authorized to operate and direct all of the people and resources under her jurisdiction in her discretion. However, this discretion is subject to the Council adopting official policy otherwise.”

Room 2085 is located in what once might have been called a “demilitarized zone” at City Hall.

It sits between one end of Council territory and one end of City Manager/Mayor territory. Various councils of the past two decades apparently showed little interest in this DMZ. Various city managers/mayors of the past two decades stepped into the vacuum and scooped up Room 2085 for its own purposes.

The current Council – led by Luis Chavez, Esmeralda Soria and Arias – says it’s time for the Brand Administration to pack up and skedaddle from Room 2085.

Sloan lists several examples of where past Councils have adopted resolutions that tell the Administration how do its job. The examples include the Better Business Act, written by Brand when he was on the Council.

Sloan says Council resolutions are legally enforceable: “It would be just as illegal to violate a policy pertaining to office space as it would be to pay an employee more than what is allowed in the Salary Resolution.”

Before reaching his conclusion, quoted at the start of this article, Sloan reminds everyone about the authority vested by the Charter in the City Attorney: “There is no provision for anyone other than the City Attorney (or a deputy thereof), or an attorney hired directly by the Council, to provide legal opinions for City officials.”

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