Dissent provided by Charter Review Advisory Committee Chair Rolf Strutzenberg, who voted against placing the item on ballot amending City Charter language regarding the City Clerk:
The City Council need not advance the issue related to the City Clerk to the ballot. There is a long, multifaceted, history of opinion/position of the elected city attorney to substantiate that no change to the City Charter is required for the powers and requirements of the City Clerk under Article XI, Section 11.
Please note that all items in italic presented in this document are direct quotes taken from official published records of the city of Redondo Beach or the state of California.
The elected city attorney has stated that: the Charter directs that the Clerk’s financial duties are to be exercised under the direction of the City Manager. Which is how the city is currently functioning. The elected city attorney has further opined as to: the paramountcy of the City Manager over all financial affairs of the City subject only to those limitations found in the Charter or the law, and the authority of the City Council.
The elected city attorney has also stated that: the City Manager acts as the chief administrative officer, responsible for all policy making over financial affairs, holding paramount Charter authority, as the head …of City government. Thus the elected city attorney has supported that the appointed City Manager holds a higher authority than the elected City Clerk with regard to powers and requirements delineated to the City Clerk in the City Charter. (It is noted that this statement of the elected city attorney is in contravention with the City Charter which provides exclusively for “…the formation of municipal policy by elected representatives…” and further delegates such policy making authority only to the City Council. The City Charter grants no policy making authority to the City Manager. Additionally the paraphrased statement of the elected city attorney misrepresents the full text of the City Charter which reads: “The City Manager shall be the chief administrative officer and the head of the administrative branch of the City government.” Thus clearly confining the so called paramountcy to only the administrative branch, not the City government in its entirety.) The elected city attorney has also taken the position that: Under the language of the Charter, the appointment authority over assistants or deputies is most clearly expressed by the provision governing the City Attorney, followed by that for Treasurer, and is silent as to the Clerk’s authority. Speculating only that these appointive authorities vary due to chronology. However the City Clerk’s authority to appoint deputies is unique in that it has long been clearly delineated in California Government Code 40813 which at present reads: The city clerk may appoint deputies, for whose acts the city clerk and the city clerk’s bondspersons are responsible. The deputies shall hold office at the pleasure of the city clerk and receive the compensation as provided by the legislative body. The failure by the elected city attorney, whether intentional or inept, to note this power of appointment under established government code is glaring. Under Article IX Section 4.1 the City Charter denotes: The City shall have the power and may act pursuant to procedure established by any law of this State, unless a different procedure is established by ordinance. Lacking any specificity in the City Charter, or any City ordinance, the authority granted by the state to the City Clerk to appoint deputies remains in effect. Citing as just one example in Green Valley Landowners Association v. City of Vallejo: If a city's charter is silent as to a particular matter, even one concerning a municipal affair, courts have opined that the matter will be subject to the general laws of this state.
Concerning discussion on the addition of delineation of City Clerk deputies in proposed Charter language the elected city attorney has stated: “They, they had a discussion, because they copied the language that was from the, the city attorney and city treasurer, and so umm, the city clerk it’s the one position where their umm deputy is, uhh, and that’s come up in the past, not with this, well not with, well, not with this umm, this has come up in the past with former city clerk, where it’s civil service protected, it’s not at will, the city treasurer is, my attorneys are at will, umm, umm and they copied that.” Again explicitly making no reference to the California Government Code on the subject.
Speaking as to the exclusive authority to enforce a provision of the City Charter that is being violated the elected city attorney has publicly stated: There is a real check and balance, we had a council that fired a former assistant to city manager, not during my term, but that is direct violation, and the only one who can enforce it is the city attorney. The elected city attorney also spoke to this exclusive authority at another public city meeting: and all violations of city charters are misdemeanors, and so that we go back to the city attorney where if the Council fires someone that they can’t fire, or demands that someone be fired, that’s a violation of non-interference and no one can stop them except for the city attorney that can prosecute them for it, I don’t know that that’s well served but we prosecute crimes that are umm investigated if they’re fact specific umm…
Speaking on another matter concerning a violation of the City Charter the elected city attorney opined as to the requirement of a police report before any further action would be taken by the elected city attorney to actually enforce the City Charter: Well I need, and what I just explained was umm it would be a fact specific investigation, as far as I know no one has reported it to the police to determine whether or not umm members were receiving a stipend and it was not commensurate with the expenses that they had umm actually expended, I just, I have no idea. What I decide, what I did with the first complaint was let them know umm that the clerk had brought it up she hadn’t reported it to the police and so I was calling to make certain that we didn’t have any issues and it stopped, I took a similar tact that I don’t know that you or anyone else reported it to the police, I don’t know that the police conducted an investigation and so that’s why it’s umm I won’t make a a careless yes or no because it’s fact specific if someone was spending five hundred dollars on expenses for their services on School Board that would be allowed under the Charter, I just don’t know what the facts are. I’m concerned with the way that it was structured because you could spend nothing as a school board member and collect whatever the the stipend is and I made that umm clear to the attorney from Rutan and Tucker, Mr. Larson.
In summary of these quotes the elected city attorney has stated a police report as a requirement to establish a violation of the City Charter, and that only the city attorney can enforce a provision of the City Charter when a violation occurs.
The elected city attorney has also opined that it is up to the individual holding elected office to determine if the Charter is being violated with respect to the requirements of that elected office as stated in the Charter. Speaking as to the City Charter being allowed to be circumvented in yet another example the elected city attorney: reported it is up to the City Treasurer to decide whether or not the changes constitute a violation or whether or not he can still perform his duties and the City Treasurer did not think he could not perform his Charter duties. It is implied that such a self-determination and selfreporting doctrine would apply as well to other elected offices and not just City Treasurer.
Finding no police report concerning any violation of the City Charter with regard to the powers and requirements of the City Clerk no violation has been alleged or established, thus there is no finding by the elected city attorney that would indicate that the City Charter requires any modification from its present language in Article XI Section 11.
The elected city attorney has extensively opined that the City is operating within the current language of the City Charter with regard to how the powers and requirements of the City Clerk are executed.
As the chief legal officer of the City of Redondo Beach the elected city attorney would certainly be expected to defend the City Charter if it were being violated, in fact the elected city attorney has repeatedly declared that such enforcement is exclusive only to the city attorney. Finding no history or indications of any enforcement action by the elected city attorney with regard to the City Charter Article XI Section 11, it is thus concluded that no violation has occurred and that the City Charter in this respect is in fact being followed. Further substantiating this, the elected city attorney has documented that the City Charter is being followed in matters under Article XI Section 11 regarding the City Clerk.
It is also further noted that the Charter Review Advisory Committee has included statements that there has occurred Charter amendment by fiat, (with associated indication that this is not legal), which the elected city attorney affirmed, clearly referencing that the City Charter is not being followed as it is currently written. Thus confirming that the elected city attorney is fully aware that City Charter is not being followed, and as such conformity to the City Charter is not being enforced by the elected City Attorney.
In summary the City Charter explicitly imposes a duty on the elected city attorney to: Prosecute on behalf of the People any and all criminal cases arising from violations of this Charter… thus by taking no action the elected city attorney has substantiated that no violation of the City Charter Article XI Section 11 has occurred. The failure to act is of itself an act. There is also no known police report (noted by the elected city attorney as a prerequisite) even alleging a violation of this section of the Charter, thus again indicating that there are no issues with the current language being adhered to. Neither has the current City Clerk officially self-reported that they did not think they could not perform their Charter duties or that any changes that may have occurred constitute a violation of the City Charter, which has been reported by the elected city attorney as a standard of determination. As such there is no need to amend Article XI, Section 11 of the current City Charter.
For further reference, multiple ballot measure attempts have failed to change the City Charter with regard to the powers and requirements of the City Clerk, as such the people of Redondo Beach have repeatedly expressed their will to maintain the City Charter Article XI Section 11 as-is.