CITY OF OAKLAND
O N E F R A N K H. O G A W A P L A Z A • 6 T H F L O O R • O A K L A N D , C A L I F O R N I A 94612 Office of the City Attorney
Barbara J. Parker FAX:
(510) 238-3601
(510) 238-6500
City Attorney TTY/TDD: (510) 238-3254
PUBLIC LEGAL OPINION RE: ITEM 6 ON THE 10/4/2022 COUNCIL AGENDA September 29, 2022
HONORABLE CITY COUNCIL
Oakland, California
Re: Public Legal Opinion Regarding Proposed Resolution Directing the City Administrator to Allow Individuals Displaced from the Wood Street Encampment Access to the Undesignated Eight Acres on the North Gateway Parcel for Housing - Item No. 6 on the October 4, 2022 Special City Council Meeting Agenda
Dear Council President Fortunato Bas and Members of the Public:
I. INTRODUCTION
At the October 4, 2022 , Special City Council Meeting, the City Council will hear Item No. 6, regarding access to the North Gateway Parcel of the former Oakland Army Base .1 The purposes of this public legal opinion are to advise that (1) the Council lacks authority to direct the City Administrator to allow access to the approximately 8-acre eastern portion of the North Gateway Parcel for housing of individuals displaced from the Wood Street encampment; and (2) the deed restrictions on the North Gateway Parcel prohibit its use for residential housing.
We are submitting t his legal opinion in the agenda packet pursuant to the Sunshine Ordinance. This is a public legal opinion in accord with our issuance of public legal opinions regarding interpretations of the relative powers of the Council and City Administrator under the 1 The full title of Item No. 6 on the October 4, 2022 Agenda is “Resolution Directing The City Administrator To Allow Access To The Undesignated Eight Acres On The North Gateway Parcel Located At The Former Oakland Army Base To Serve Up To 300 Individuals Who Have Been Displaced Due To The Wood Street Encampment Closure, And Directing The City Administrator, In Collaboration With State And Alameda County Leaders, To Develop A Plan To Stand Up A More Stable Housing Intervention With Supportive Services On Eight Acres Of The North Gateway Parcel to Serve Unhoused Communities Throughout District 3, With Priority To Residents From The Wood Street And Martin Luther King Jr. Way Encampments.”
City Council President Bas and Members of the Council
September 29, 2022
Re: Public Legal Opinion Regarding Proposed Resolution Directing the City Administrator to Allow Individuals Displaced from the Wood Street Encampment Access to the Undesignated Eight Acres on the North Gateway Parcel for Housing - Item No. 6 on the Agenda for the October 4, 2022 Special City Council Meeting
3211662v2
Page Two
City Charter. Like all public opinions, this opinion will be posted on the City Attorney’s website at https://www.oaklandcityattorney.org/OpsReps/Opinions.html.
II. BACKGROUND
On May 3, 2022, the City Council passed Resolution No. 89166 C.M.S., which directed the City Administrator to study the feasibility of establishing a temporary homeless intervention site to house at least 1,000 individuals at the North Gateway Parcel, located at the former Oakland Army Base. The report was included in the June 7, 2022, Council agenda packet under Item No. 14. The report explained that the Oakland Army Base has been the focus of redevelopment efforts, including the relocation of two major recyclers located in the West Oakland neighborhood—California Waste Solutions (“CWS”) and CASS, Inc. (“CASS”)—onto the North Gateway site. To that end, Council approved a Lease and Disposition Development Agreement ( “LDDA”) with CWS for the approximately 12-acre western portion of the North Gateway site on July 20, 2021. Council also authorized an Exclusive Negotiations Agreement (“ENA”) with CASS for the remaining approximately 8-acre eastern portion of the North Gateway, which is in effect through December 2022.
The report concluded that use of the parcel is not feasible as a temporary homeless intervention site due to (1) a deed restriction that prohibits the use of the property in question for temporary or permanent residential housing/uses, (2) environmental concerns, and (3) the need for remediation of the land. The report further estimated that the operating costs to serve 1,000 people in cabins could reach approximately $22.5 million.
On September 22, 2022, the Rules Committee scheduled to the October 4, 2022 Special Council meeting a resolution directing the City Administrator to allow access to the North Gateway Parcel to provide housing for individuals displaced by the Wood Street encampment closure. At the September 29, 2022, Rules Committee meeting, Councilmember Fife read into the record a title change for the item that did not amend the item in a manner that resolves the legal impediments we address in this opinion. The Resolution is Item No. 6 on the October 4, 2022 Special City Council Agenda. The proposed Resolution directs the City Administrator to immediately allow access to the undesignated eight acres on the North Gateway Parcel to serve up to 300 individuals displaced from the Wood Street encampment. It also directs the City
Administrator to develop a plan , in collaboration with state and Alameda County leaders, to stand up a more stable housing intervention with supportive services on eight acres of the North Gateway Parcel to serve unhoused communities throughout District 3, with priority to residents from the Wood Street and Martin Luther King Jr. Way encampments.
City Council President Bas and Members of the Council
September 29, 2022
Re: Public Legal Opinion Regarding Proposed Resolution Directing the City Administrator to Allow Individuals Displaced from the Wood Street Encampment Access to the Undesignated Eight Acres on the North Gateway Parcel for Housing - Item No. 6 on the Agenda for the October 4, 2022 Special City Council Meeting
Page Three
3211662v2
III. LEGAL ANALYSIS
A. The City Charter Expressly Provides that the Council Has No Administrative Powers and Prohibits the Council from Attempting to Coerce or Influence the City Administrator in Respect to Any Administrative Action
As we advised in detail in the July 13, 2020 Public Legal Opinion that is posted on our website, t he City Charter provides that the Council has no administrative powers. (See the attached copy of the legal opinion .)2 Section 207 of the City Charter , entitled “Powers of the Council,” which outlines the powe rs of the City Council, explicitly excludes any administrative powers:
The Council shall be the governing body of the City. It shall exercise the corporate powers of the City and, subject to the expressed limitations of this Charter, it shall be vested wi th all powers of legislation in municipal affairs adequate to provide a complete system of local government consistent with the Constitution of the State of California. It shall have no administrative powers .
The Council shall fix the compensation of all C ity employees, officers and officials except as otherwise provided by this Charter.
(Emphasis added.)
Consistent with the fact that the Council has no administrative powers, Charter section 218 prohibits Council interference in administrative affairs, including any “attempt to coerce or influence the City Administrator or such other officers, in respect to any contract, purchase of any supplies or any other administrative action.” Therefore, the Charter prohibits the Council from adopting measures that do not constitute valid legislative enactments.
Here, the purported act of “directing the City Administrator” to immediately allow access to a specific City-owned parcel runs afoul of the separation of powers provided in the Charter, as it interferes with core administrative functions, including day-to-day security, oversight, and management of City land which are administrative actions, as opposed to legislative actions such as establishing policies or adopting laws via ordinance.
The following agenda item would not run afoul of the Charter and would allow the Council to have a robust discussion of the homelessness crisis and emergency and make recommendations to address the crisis and immediately.
2 You also may access the opinion by clicking on the following link:
https://www.oaklandcityattorney.org/Ops-Reps/Opinions.html City Council President Bas and Members of the Council
September 29, 2022
Re: Public Legal Opinion Regarding Proposed Resolution Directing the City Administrator to Allow Individuals Displaced from the Wood Street Encampment Access to the Undesignated Eight Acres on the North Gateway Parcel for Housing - Item No. 6 on the Agenda for the October 4, 2022 Special City Council Meeting
Page Four
3211662v2
(1) A Discussion Of The Homelessness Crisis And Emergency, Including But Not Limited To Issues And Options To Immediately Ameliorate The Crisis, Including But Not Limited To Providing Temporary Shelter To The Approximately 300 Individuals W ho Are Being Displaced Due To The Wood Street Encampment Closure And Other Unhoused Residents In Council District 3; And
(2) Potential Recommendations To Address The Crisis, Including But Not Limited To Establishing A Temporary Homeless Intervention On The Undesignated Eight Acres Of The North Gateway Parcel Located At The Former Oakland Army Base To Serve Individuals Who Have Been Displaced Due To The Wood Street Encampment Closure, And Other Interim And/Or Alternative Intervention Solutions To Immediately Serve The Displaced Wood Street Residents and Other Unhoused Residents In Council District 3 And Throughout The City
B. Deed R estrictions Prohibit Residential Housing , Including Temporary or Permanent Residential Uses, Unless the California Department of Toxic Substances Control and the Federal Government Specifically Waive the Deed Restrictions As noted in the June 7, 2022 Report, the North Gateway Parcel is subject to a “Covenant to Restrict Use of Property, Environmental Restriction – Subaru Lot, Former Oakland Army Base, Oakland, California” (“DTSC Covenant”) and “Quitclaim Deed, Oakland Army Base, Alameda County, California, Subaru Lot” (“Army Quitclaim Deed”) (collectively “Deed Restrictions”). The Deed Restrictions prohibit “sensitive land uses,” including temporary or permanent residential housing and uses , unless they are specifically waived by th e California Department of Toxic Substances Control (“DTSC”) and the federal government. The June 7, 2022 report states that DTSC staff advised City staff that the process to determine whether to waive the Deed Restrictions could take 12-48 months.
Without further action or alternative information from DTSC and/or the federal government, allowing immediate access to the North Gateway Parcel for residential uses, including temporary uses, would violate the Deed Restrictions and be facially unlawful.
City Council President Bas and Members of the Council
September 29, 2022
Re: Public Legal Opinion Regarding Proposed Resolution Directing the City Administrator to Allow Individuals Displaced from the Wood Street Encampment Access to the Undesignated Eight Acres on the North Gateway Parcel for Housing - Item No. 6 on the Agenda for the October 4, 2022 Special City Council Meeting
Page Five
3211662v2
IV. CONCLUSION
For the foregoing reasons, we cannot sign the Resolution approving it as to form and legality.
Very truly yours,
BARBARA J. PARKER
City Attorney
Attorney Assigned:
Malia McPherson
Attachment
July 13, 2020 Public Legal Opinion re Which Actions are Within the Province of the City Council Under the City Charter Versus the City Administrator or Other Officers in the Administration Service
cc: Mayor Libby Schaaf
City Administrator Ed Reiskin
Assistant City Administrator LaTonda Simmons
Assistant City Administrator Betsy Lake
Deputy City Administrator Angela Robinson Pinion
Attachment
July 13, 2020 Public Legal Opinion re Which Actions
are Within the Province of the City Council Under the
City Charter Versus the City Administrator or Other
Officers in the Administration Service
CITY OF OAKLAND
OFFICE OF THE CITY ATTORNEY
MEMORANDUM
TO:
President Rebecca Kaplan and Members of the City Council FROM: Barbara J. Parker
City Attorney
DATE: July 13, 2020
RE: Which Actions are Within the Province of the City Council Under the City Charter Versus the City Administrator or Other City Officers in the Adm inistrative Service
Dear President Kaplan and Mem
bers of the City Council:
Please see the attached public legal opinion which responds to questions regarding whether certain actions that may be undertaken in the name of the City constitute “administrative action” that is outside the purview of the Council’s authority.
The opinion addresses the relative powers of the City Council a nd the City Administrator and other City officers in the administrative service (i.e., Ma yor, City Auditor, City Attorney and department heads designated as city officers by ordinance). Th is is a public opinion because this issue requires interpretation of the City Charter, regarding the relative powers of the City Council and the City Administrator and other city officers in the administrative service.
Like all public opinions, this opinion will be posted on the City Attorney’s web site at www.oaklandcityattorney.org and can be found by clicking on the “Public Legal Opinions” li nk on the home page.
V
e r y t r u l y y o u r s ,
B
A R B A R A J . P A R K E R
C
i t y A t t o r n e y
Attachment
2953375v1
Olson Remcho LLP I 1901 Harrison Street, Suite 1550 I Oakland, CA 94612 I 510.346.6200 I [email protected] olsonremcho.com
MEMORANDUM
VIA EMAIL
To: Barbara J. Parker, Oakland City Attorney
From: Karen Getman
Date: July 13, 2020
Re: Which actions are within the province of the City Council under the City Charter versus the City Administrator or other officers in the Administrative Service (i.e., Mayor, City Attorney, City Auditor, and other department heads designated as officers by ordinance)?
QUESTION PRESENTED
Under the Oakland City Charter, the City Council is “the governing body of the City” and is “vested with all powers of legislation in municipal affairs,” but it “shall have no administrative powers.” Charter § 207. The City Administrator is “the chief administrative officer of the City.” Id. § 500. The Council and its members are prohibited from “attempt[ing] to coerce or influence the City Administrator or such other officers, in respect to any contract, purchase of any supplies or any other administrative action . . . .” Id. § 218 (emphasis added).
You have asked whether certain actions that may be undertaken in the name of the City constitute “administrative action” that is outside the purview of the Council’s authority.
CONCLUSION
The City Council establishes City policy but that policy is implemented by the City Administrator and, with regard to litigation, by the City Attorney. This means that the Council must authorize such things as leases, contracts and franchises,1 but the City Administrator executes the Council policy by negotiating the terms and bringing them to the Council for final approval when
1 Not all contracts require approval from the Council. For example, the City Attorney has authority under the Charter to contract for outside counsel, experts and the like. Charter § 401(6). The Council by ordinance has delegated authority to the City Administrator to execute professional services contracts in an amount up to $250,000. Mun. Code § 2.04.020. Such authority must be expressly delegated to another official by the charter, ordinance or resolution, however.
Barbara J. Parker
Oakland City Attorney
July 13, 2020
required.2 The City Attorney represents the City in all litigation, and in that capacity negotiates settlement or dismissal, subject to Council approval.3
ANALYSIS
The Oakland City Charter is the constitution of the City of Oakland, adopted by the voters pursuant to article XI, section 3 of the California Constitution. Intending to take full advantage of the home rule provisions of the state Constitution, the Charter grants the City the right and power to make and enforce all laws and regulations in respect to municipal affairs, subject only to restrictions and limitations provided for in the Charter. Charter § 106; see Cal. Const. art. XI, § 5(a).4
Municipal corporations such as the City are not bound to follow strict separation of powers principles,5 and thus the Charter determines how power is divided among City officials. “Where the words of the charter are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the charter or from its legislative history.” Domar Elec., Inc. v. City of L.A., 9 Cal. 4th 161, 172 (1994) (citations omitted). The Charter makes the City Council “the governing body of the City” and vests it “with all powers of legislation in municipal affairs adequate to provide a complete system of local government . . . .” Charter § 207. Under the Charter, legislation is required for adopting or amending administrative code provisions; establishing, altering or abolishing City agencies, departments and offices; providing for fines or penalties; levying taxes; regulating public utility rates; authorizing loans; buying, or conveying or leasing for longer than one year, city property; amending or repealing an ordinance. Id. § 219.
These legislative matters require action by the Council as a body. Charter § 210 (“The affirmative vote of five members of the Council shall be required to adopt any ordinance or resolution, except as otherwise provided by this Charter or by general law.”).6 The Council may choose to act by motion, resolution or ordinance, unless a specific form is required for the specific type of action.
Charter § 210. However, no individual Councilmember has authority to legislate on behalf of the Council or to otherwise bind the Council.
2 The City Attorney must approve all contracts as to form and legality prior to execution. Charter § 401(6).
3 The Council has delegated to the City Attorney the authority to settle claims up to the amount of $25,000. Resolution No. 86476 C.M.S. The City Attorney also has independent authority under state law to bring certain types of actions in the name of the people. E.g., Cal. Bus. & Prof. Code § 17535; Cal.
Penal Code § 11226. The Council also by ordinance may authorize the City Attorney to bring and/or settle actions.
4 Matters of state-wide concern remain subject to state legislative control. T-Mobile West LLC v. City and County of San Francisco, 6 Cal. 5th 1107, 1116 (2019). 5 See McQuillin, Municipal Corporations § 10.06 (3rd ed.). 6 For example, the affirmative vote of at least six Council members is required for an ordinance to take effect immediately. Charter § 216.
Barbara J. Parker
Oakland City Attorney
July 13, 2020
Moreover, the Council “shall have no administrative powers.” Charter § 207. Instead, the City Administrator is the “chief administrative officer of the City.” Id. § 500. The City Administrator serves under the direction of and “at the pleasure of the Mayor.” Id. § 501. The City Administrator “execute[s] and enforce[s] all laws and ordinances and policies of the Council and [ ] administer[s] the affairs of the City.”7 Id. § 504(a). He makes recommendations to the Council and “investigate[s] affairs of the City under his supervision,” including the performance of franchises and contracts.
Id. § 504(c) & (d). He “control[s] and administer[s] the financial affairs of the City,” including preparing the annual budget, although the Council adopts the City budget by resolution. Id. §§ 504(e) & (f), 801.
The City Administrator prepares plans, specifications, and contracts for work ordered by the Council, supervises purchases of materials and supplies, makes recommendations to the Council in connection with the awarding of public contracts, and ensures that “all City contracts under his direction or that of the Council are faithfully performed.” Id. §§ 504(g) & (h), 807. The City Administrator represents the City in intergovernmental relations and “negotiate[s] contracts for joint governmental actions, subject to Council approval.” Id. § 504(l). He establishes and maintains financial accounts and controls for the City. Id. §§ 805, 810.
In addition to those distinctions listed above, the Charter provides that the Council legislates when it sets by ordinance the conditions and procedures for purchases and contracts, including bid requirements. Charter § 808(a). However, the actual contracting and purchasing of supplies are administrative actions performed by the City Administrator or his designees, as to which the Council is forbidden from attempting to coerce or influence the City Administrator. Id. §§ 218, 807.
Thus the Charter clearly separates the legislative and administrative powers and defines what those respective powers are in some areas. To maintain that separation, the Charter forbids the Council and each Council member from interfering with the administrative service for which the City Administrator, Mayor and other appointed or elected officers are responsible. Charter § 218. In addition to not interfering with the City Administrator’s contracting and purchasing authority, this includes not giving orders to any employee under the jurisdiction of the City Administrator and not taking any part in the appointment or removal of city employees and officers. Id. Council members who violate section 218, titled “Non-Interference in Administrative Affairs,” are subject to misdemeanor prosecution and forfeiture of office. Id.
7 The Mayor is the “chief elective officer of the City, responsible for providing leadership and taking issues to the people and marshalling public interest in and support for municipal activity.” Charter § 305. The roles of the Mayor and the City Administrator overlap to the extent, for example, that both play a role in making recommendations to the Council, administering the City’s finances, preparing and presenting the annual budget, and representing the City in intergovernmental relations when directed by the Council. See Brown v. Fair Political Practices Com., 84 Cal. App. 4th 137, 146-47 (2000). Under the Charter, the “crucial distinction” between the Mayor and the City Administrator in that regard is that the latter “operate[s] under the mayor’s direction.” Id. at 149 (emphasis in original).
Barbara J. Parker
Oakland City Attorney
July 13, 2020
While the Charter is clear that the administrative and legislative functions must remain separate, and draws that line of separation explicitly in some areas, it does not answer where the line is drawn in every circumstance. As a leading treatise notes,
The crucial test for determining what is legislative and what is administrative has been said to be whether the ordinance is one making a new law, or one executing a law already in existence. In other words, if the legislative function is principally law creation, the executive function is chiefly law enforcement. However, the complexities of modern life often impel legislatures to confer on executive and administrative departments the authority to make rules and regulations in order to enforce and achieve the policy intended. . . . [S]o long as the determination of the legislative principle remains within the control of the legislative body, the determination of the secondary structure that insures and assists the establishment of the principle is not legislation.
McQuillin, Municipal Corporations § 10.06 (3rd ed.).
Further insight comes from case law construing the powers of initiative and referendum, which are coextensive with the legislative power. “‘The electorate has the power to initiate legislative acts, but not administrative ones[.]’” Sacks v. City of Oakland, 190 Cal. App. 4th 1070, 1090 (2010) (quoting City of San Diego v. Dunkl, 86 Cal. App. 4th 384, 399 (2001)). In that context, the courts have held that “‘[l]egislative acts are those that declare a public purpose whereas administrative, sometimes called adjudicative or quasi-adjudicative, acts implement the steps necessary to carry out that legislative purpose.’” Id. at 1090 (quoting Citizens for Planning Responsibly v. County of San Luis Obispo, 176 Cal. App. 4th 357, 367 (2009)). Thus “‘[a]n enactment that interferes with the City’s ability to carry out its day-to-day business is not a proper subject of voter power.’” Id. (quoting Dunkl, 86 Cal. App. 4th at 400). Administrative acts are those that “carry out [the City’s] day-to-day business.” See id. (interpreting initiative ordinance to articulate the purposes to which bond measure funds were directed, but retaining the City’s administrative discretion to implement the legislation).
With these principles in mind, we address four specific scenarios below.
1. Negotiating real property agreements such as ground leases and development agreements, sale or purchase agreements: The Charter provides that the Council has the authority to lease or sell real property “in accordance with such uniform procedures as it shall adopt by ordinance[.]” Charter § 1001. Thus the Council must authorize and approve the lease or sale, and procedures governing the lease or sale, as a legislative matter. However, the Charter grants the Council no role in implementing the real property transaction. Thus, as with other legislative acts, the policy is set by the Council, but implementation of that policy through the actual negotiation process resides with the City Administrator.
2. Negotiating other types of contracts, including franchise agreements and information technology agreements: This question is squarely addressed by the Charter, which assigns
Barbara J. Parker
Oakland City Attorney
July 13, 2020
the role of setting contract parameters to the Council, but requires the City Administrator to implement that policy, including negotiating the actual contract.
Under the Charter, “[t]he Council shall establish by ordinance the conditions and procedures for any purchase or contract, including advertising and bidding requirements . . . .” Id. § 808(a). Similarly, the Council has “authority to grant or issue franchises, licenses and permits . . . and to provide by ordinance the procedures for the granting or issuing thereof, the taxes, charges, fees or other compensation to be paid therefor and the penalties for the violation thereof.” Id. § 1000. “The issuance of a franchise involves the setting, not the implementation, of public policy; it rests on a determination in the first instance as to which private entity is best suited to provide services for the public. Thus, ‘[t]he rule is firmly established that the granting of a franchise by a city or county is a legislative act.’” Lindelli v. Town of San Anselmo, 111 Cal. App. 4th 1099, 1113 (2003). “It has long been established that ‘the award of a contract . . . [is] legislative in character.’” Joint Council of Interns & Residents v. Board of Supervisors, 210 Cal. App. 3d 1202, 1211 (1989) (citations omitted).
However, the implementation of that legislative decision, including negotiating the specific terms of the contract or franchise, rests with the City Administrator. He (or his designee) “shall purchase or contract for equipment, materials, supplies and public works required by the City in the manner prescribed by ordinance . . . .” Charter § 807; see also Dunkl, 86 Cal. App. 4th at 390 (determination of contract compliance is an administrative act); id. at 402 (invalidating initiative measure that intruded upon contract compliance decisions vested in city administration).
3. Negotiating labor agreements: Labor agreements are a form of contract, and the general rules stated above regarding contracts apply here with particular force, including but not limited to the City Administrator, or other officers in the administrative service, being responsible for actual negotiation of the agreements and conducting the meet and confer process. The Charter assigns to the City Administrator the task of administering the City’s entire workforce, except the employees of the Mayor and other appointed or elected officers of the City.
The City Administrator shall be responsible to the Council for the proper and efficient administration of all affairs of the City under his jurisdiction, and shall, subject to the provisions of Article IX of this Charter and except as otherwise provided in this Charter, have the power to appoint, assign, reassign, discipline and remove all directors or heads of departments and all employees under his jurisdiction. He may delegate to directors or other department heads responsible to him/her the authority to appoint, discipline and remove subordinate employees, subject to the provisions of Article IX of this Charter.
Charter § 503.
Section 900 of the Charter sets forth the personnel policy of the City, which is to establish “a comprehensive personnel system based on merit . . . .” Consistent with this policy, section 902 confirms that all “offices and employments in the City government” are part of the competitive civil service except those exempt positions specifically enumerated in the Charter. The
Barbara J. Parker
Oakland City Attorney
July 13, 2020
provisions of Article IX are enforced by the Civil Service Board, which is “responsible for the general supervision of the personnel system, without impairment of the responsibility and duty of the City Administrator, department heads and other supervisory personnel to exercise the administrative discretion vested in them by this Charter, or by ordinance.” Charter § 901. We construe this to mean, for example, that the Civil Service Board has no authority to override the administrative authority of the City Administrator over the departments and agencies created by the City Council. See Charter § 600.
Thus in the area of labor relations, as elsewhere, the Council’s authority is legislative in character, and extends to setting policy, but not to implementing that policy. This is consistent with the state law provisions governing local agency/employee relations, which assign to “[t]he governing body of a public agency, or such boards, commissions, administrative officers or other representatives as may be properly designated by law or by such governing body” the obligation to “meet and confer in good faith regarding wages, hours, and other terms and conditions of employment with representatives of such recognized employee organizations . . . and shall consider fully such presentations as are made by the employee organization on behalf of its members prior to arriving at a determination of policy or course of action.” Cal. Gov’t Code § 3505 (emphasis added). State law clearly contemplates that the Council’s role in the meet and confer process is that of the legislative body operating as a whole, setting policies on wages, hours, and terms and conditions. Otherwise, the negotiations are conducted by “administrative officers . . . designated by law,” which here is the City Administrator or his designee.
4. Negotiating settlement of litigation. This involves analysis of the roles of the Council and the City Attorney when the City is a party to litigation. Under the Charter, the City Attorney is the sole attorney for the City, which acts through the Council. Charter §§ 207, 401(6). The Charter mandates that she act as counsel on behalf of the City or any of its officers, boards, commissions, or other agencies in litigation involving any of them in their official capacity. Id. § 401(6). She must receive Council authorization to settle or dismiss any litigation brought for or against the City. Id.; but see exceptions in n.3 supra. By implication, and because negotiation is an administrative function, this means the City Attorney conducts settlement negotiations, subject to the direction and approval of the Council. The Council has no authority under the Charter to direct someone other than the City Attorney (or those acting under her direction or control) to represent the City in litigation or in settlement discussions. See Dadmun v. City of San Diego, 9 Cal. App. 549, 551 (1908) (voiding city council’s appointment of a special prosecutor to act in lieu of the city attorney; “the city council cannot relieve a charter officer of the city from the duties devolving upon him by the charter and designate another to perform such duties.”).
KG:NL
(00401574-4)