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Home My WebLink AboutMemo to Council from City Attorney re status of City Treasurs CITY OF HUNTINGTON BEACH INTER -DEPARTMENT COMMUNICATION HUNTINGTON BEACH To HONORABLE MAYOR JACK KELLY & From GAIL HUTTON MEMBERS OF THE CITY COUNCIL City Attorney Subject Status of City Treasurer Date February 24, 1987 Agenda Item G2 (3-2-87) .The City Treasurer is an elected official of the city. The position is established by provision of the City Charter. The duties of the position are outlined therein. (Charter § 311) Mr.., -.Hall is- not . a. member�of}.the personnel system. `,The.•, .. -` ordinance=which"' s 'abfish`es� the'pei"sdnnei�syst6m:categorically h........... . ... . ezcludes ..elected__officials._.from membership. Y (Huntington Beach,,., Municipal Code § 2.76.010(a)) Mr. Hall has been designated by the City Administrator to perform certain.- duties in addition. -to -those duties described _ An.the Charter. ,. _Performance- of - such, additional . duties,..by.. the incumbent would'be consistent with his"chartei: `mandated duties -: so Iona as several conditions are satisfied.: a) The additional duties are consistent with his primary duties as City Treasurer, a common law requirement; b) The City Council designates by ordinance or resolution that the Treasurer performs the additional duties, Charter S 311(e). Since the council approved the current salary resolutions, it can be presumed the duties were "council designated." It must be borne in mind that a proper designation of additional duties by the City Council and the performance of such duties even when dressed with an additional "job description" such as "Risk Manager," "License Administrator," or "Investment Officer" did not make for a separate "position" than that of Treasurer for Mr. Hall. The "dual" compensation seemingly paid to Mr. Hall results from an historical quirk. In the mid 1960s the position of City Treasurer was in essence an "honorary" position. The then incumbent was paid only a token amount. He performed few, if`any, duties. He passed away and the council attempted to reduce the compensation even further, apparently to penalize the newly elected incumbent. The Charter at that time provided that the compensation of an elected official could not be increased or diminished after their election or during their respective terms of office (1966 Charter § 502). The end result of the furor over this issue was that the decision was made to make the position "full time". 'In order to overcome the salary prohibition, the scheme to pay a "dual HONORABLE MAYOR JACK KELLY & MEMBERS OF THE CITY COUNCIL February 24, 1987 Page 2 compensation" was concocted. As a result, the sum of $500 per month was paid for the duties of "City Treasurer" and a much larger sum was allocated to the incumbent as "City Investment Officer". The Assistant City Attorney was enlisted to bless this arrangement with a "legal opinion" supporting the obvious subterfuge. A problem arose because both positions had the ,same job description. Subsequently, the "second" job description was dropped and the Treasurer was made "Risk Manager" and more currently, License Administrator. However, the raison d'etre for the subterfuge long ago disappeared. After the new Charter was adopted deleting the prohibition ;7against-increasing or decreasing .an e,�e.Rted_,offi,pial,' ,: - �_ ,T .. _-ass►:GYM -.r 77,: .r -_ _• ....y .> . compensation during lii-s term,`iiei�vas rio need t63n 1we�nSo .- �. ,*-the .fiction that,.."two" . positions .existed in order to pay the City Treasurer on a full-time basis - s.......-r..,•_y;,e.._r -.ram: . ,r..-,....;.-.-. The question posed at the council meeting of February 17, �ti� - • 1987 was may the. elected City Treasurer--also_server inheP,4�• , �K� Civil Service? In the past I have responded that the incumbent does not so serve. In order to serve in the personnel system there must be a position created in the competitive system. Then there must be a "competition" for such position and, thirdly, an appointment to such position. In Mr. Hall's case the process was quite different. He was elected in the first instance to a part-time post. He then aspired to a full-time position, and it was the sense of the council to convert the position from full -tire to part-time. The various "additional duties" (duties beyond those described in the Charter itself for the City Treasurer's elected position) given him, if given him by the Council itself as mandated by the Charter, are duties which he must perform so long as such duties are consistent with his Charter described duties. Never at any time was a position in the competitive service established which Warren Hall filled, nor at any time did he ever compete for such position. He was simply given "other" things to do and paid commensurately given the size and complexity of the government of the City of Huntington Beach and the heavy responsibilities of the City Treasurer position. HONORABLE MAYOR JACK KELLY & MEMBERS OF THE CITY COUNCIL February 24, 1987 Page 3 The problems that the city faces are that should Mr. Hall resign the Council will be faced with the following dilemma: 1. Leave the office vacant for one year. Given the Treasurer's Charter duties this is not possible. There are certain duties only the Treasurer by law can perform for the city; 2. Appoint a successor for the balance of the term; 3. Hold an election. :?$'1a Ts+F in+iY�+F +.( E r m. h" a wr t ;the t5mpeiisatYon f ft* he ewlY epPoirl ec -�o iec e i ` m- . - ,Treasurer must be, .Set_ by. -the council by ordinance or�,„F_,w t resolution, -and such compensation must-be-reasonaiile. 'r'� It is predictable that if the issue of a reasonable :-; compensation As •.-left- open ;to -be decided -.after: the election-,ofY� a successor City Treasurer and_then such"compensation is •�` greatly Yeduced, "such --action will -inevitably meet with unfavorable reaction in the courts. Any duty of the council, including the duty to set reasonable compensation, must be performed in a manner so as to be non -arbitrary or capricious. Therefore, if there is a desire to adjust the duties of the Treasurer, action shall be taken now to set the compensation of such position. The proposal to groom a member of the personnel system to replace the City Treasurer would mean that if successful, such employee would be ousted from his appointed position and lose the protection of the personnel system. The result would be much the same if the fiction of the two positions were supportable. If one assumes Mr. Hall is an elected official and also another category of employee, then what category does his position fall under? - No public official elected or appointed may serve "two masters." Since the elected City Treasurer serves the electorate, it would be incompatible for such individual to also serve the City Administrator either directly or through a department head or the City Council as a direct employee. This is for the obvious reason that if an elected official were to be beholden or subservient to another city official or body, the independence of the position would be eliminated. On this subject George Washington said in effect that no man can stand the challenge of bribery when the bribe is properly put to him. HONORABLE MAYOR JACK KELLY & MEMBERS OF THE CITY COUNCIL February 24, 1987 Page 4 Conclusion The elected City Treasurer of the city may not be a member of the personnel system, because of the inherent incompatibility of holding an elected position at the same time as holding a position with the same entity in an subordinate position. No position is created in the personnel system unless the procedures for establishing positions are followed, and no person may be appointed thereto unless the regular selection procedures are followed. The right to compensation for a position goes to the position itself and not to the incumbent mot ,off. •the q,sitio z;The .�Qunc I .has.,., n A x P $ � ] . aly:go i' it •fi �P ail.' 1 ..N. :-5tiay.., •'r" :r *$'t`3 compensa3onn'fringe iiiifit`so�icte�i`f i"cif ;"rbu suc1j.,,power may not.be .exercised ;in.ran.Aarbitrarx_:or-,, aprjc�ou,sn, manner'`and `must 'be 'reasonable'. An appoi"need member'`of the"� " personnel system elected to the office of City Treasurer would be ousted by law from his appointed position. ♦ _�*+y.-_ _ j -_� --•r: � t .- s ..-"R:. rL � s'¢ --. - r_..�. _ �� :.:._. / '. Y.,:-s•�x^• '.Y�'t^ - ^' v' -,..� c.-..;7:.s !:` l�, - > - sf+.+ _.. .. ..,:'ar.. �<� .X �. _ -' tea.- C' t.,,: _wa• - N- r ) ids +a'� GAIL HliTTON City Attorney cc: Warren Hall, City Treasurer Charles Thompson, City Administrator Robert Franz, Deputy City Administrator/ Chief of Administrative Services bcc: Alicia Wentworth, City Clerk