For City Council Meeting [August 22, 2023]
TO: Honorable Mayor and City Council
APPROVAL: Henry Garcia, Interim City Manager
FROM: Eric S. Vail, City Attorney
Title
Request that the City Council Introduce for First Reading Ordinance No. 1687, Amending Section 2.04.050 of Chapter 2.04 of the Rialto Municipal Code to delete paragraph C related restricting the authority of the City Council to remove a City Manager not-for-cause.
(ACTION)
Body
BACKGROUND
Paragraph C of Section 2.04.050 of the Rialto Municipal Code (“RMC”) currently provides:
“The city manager shall not be removed from office during or within a period of one hundred twenty days prior to or one hundred twenty days next succeeding any general municipal election held in the city, at which election a member of the city council is elected or following appointment of a new councilperson. Prior to the one hundred twenty-day period and after the expiration of the one hundred twenty-day periods mentioned herein, the provisions of subsections A and B of this section as to the removal of the city manager apply and are effective.”
Such provisions are generally known as “cooling-off” periods and are intended to restrict the ability of city councils to terminate the employment of a city manager during a specific period after (and sometimes prior to) an election in which a new council person is or maybe elected. Most commonly, cooling-off periods only restrict termination without cause, but allow for termination for cause. Generally such cooling-periods follow the election of a new councilmember and allow a reasonable period of time for a new councilmember and city manager to attempt to get to know and work together.
The cooling-off period was first added to the RMC by Ordinance 708 in 1977 providing for a 90 day cooling-off period both before and after council elections. The cooling-off period was later expanded to 120 days both before and after council election by Ordinance 1627 in 2019.
ANALYSIS/DISCUSSION
Cooling-off provisions are typically the subject of bargaining between the city council and a candidate when the parties are negotiating the terms of a new employment contract. Mandating a cooling-off period by ordinance restrains the ability of the city council to fairly negotiate all of the terms of an employment contract with a new city manager candidate.
In addition, the existing cooling-off period is unreasonably expansive as it prohibits termination of a city manager even if there is legitimate cause for dismissal. It also prohibits termination prior to an election (as opposed to after the election), and further the goal of allowing a new councilmember time to work with an existing city manager. Finally, the existing term provides a blanket period of eight months during which a city manager cannot be terminated.
Removing the cooling-off period from the municipal code will not prohibit the city council from negotiating and adding a cooling-off period to a city manager employment contract. What it will do is preserve the Council’s discretion and ability to bargain for such a position without being unreasonably forced to do so.
ENVIRONMENTAL IMPACT
The proposed actions do not constitute a “project” as defined by the California Environmental Quality Act (CEQA). Pursuant to Section 15378(b), a project does not include organizational or administrative activities of governments that will not result in direct or indirect physical changes in the environment.
GENERAL PLAN CONSISTENCY
This action is consistent with Guiding Principle 3A of the General Plan:
Our City government will lead by example, and will operate in an open, transparent, and responsive manner that meets the needs of the citizens and is a good place to do business.
LEGAL REVIEW
The City Attorney prepared and approved this staff report and ordinance.
FINANCIAL IMPACT
Operating Budget Impact
This action will have no impact on the Fiscal Year 2023-2024 operating budget.
RECOMMENDATION
Staff recommends that the City Council Introduce for First Reading an Ordinance entitled: “AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RIALTO, CALIFORNIA AMENDING SECTION 2.04.050 OF CHAPTER 2.04 OF THE RIALTO MUNICIPAL CODE TO REPEAL PARAPGRAH “C” THAT PROVIDED A 120 DAY COOLING-OFF PERIOD REGARDING THE TERMINATION OF A CITY MANAGER.”
ATTACHMENT “A”
PROPOSED ORDINANCE
RIV #4869-8737-6758 v1