Defenestration of the SB City Charter


San Benito City Attorney states in his “legal interpretation” that the SB City Charter “does not” apply to the SB Economic Development Corporation (EDC) because the EDC is a “separate legal entity”. It is a legal entity created by its governing body, the SB City Commission.
The SB City Charter Section 5.07. Boards states: “The City Commission may establish Boards or Commissions as it shall deem necessary to properly effectuate City business. Except where state or federal law provides to the contrary, each member of the City Commission shall be entitled to nominate a person to serve on established Board or Commissions, subject to the approval of the City Commission”.
The word “shall” implies that there is no ambiguity. As the biblical Ten Commandments state “It shall be done”. However, the City Attorney stated publicly that the City Charter granting each Commissioner a board appointment is not exclusive. I interpret that to mean that the City Charter can be rescinded or amended without voter approval.
City Commission approved Ordinance #2586-05-21, an ordinance of the City of San Benito on the appointment and removal of the San Benito Economic Development Corporations, Inc., Board of Directors, does exactly that, overriding the city charter.
Classified as a legal entity entitles the EDC to enter into contracts, loan and borrow money, sue and be sued, hire employees, own assets, and pay taxes. It is a legal entity that is separate and distinct from its owners or governing body (i.e. City Commission).
However, the city commission has opted that although the EDC is a “legal entity” it should be completely and totally managed by its governing body, The SB City Commission, via an appointment of a chief executive officer or CEO.
The city took it upon itself to not only amend the EDC bylaws to allow the city commission to appoint the City Manager as the CEO but added $45,000 in administrative salary expense to its operating budget. This is an addition to the $54,000 in administrative expenses payable each year to the City of San Benito by EDC.
This action by the commission is not new or unique. The previous commission majority gave the EDC complete autonomy in self-governing without a CEO or the associated $45,000 salary expense.
The EDC Board appointed its own attorney, auditor, and the option to run its own administration with the exception of payroll and insurance. Those were contracted out to the City.
Why is this change in management style changing again? Well, it all began when the mayor allegedly opted to remove some EDC members before their term expired and without city commission consent. One of those EDC members on the ‘chopping block’ happened to be a sitting city commission member. Lawsuits ensued and the legal expenses piled up.
Based on EDC and commission public meeting discussions, the City Attorney was tasked by a City Commissioner to look into the action by the mayor.
Thereafter, the EDC board appointment process was changed via ordinance on a three to two vote where now a commissioner loses its City Charter and voter-approved appointment of an EDC member after three rejections by the city commission majority.
When the EDC bylaws and appointment process changes were discussed, the argument was put forward that the changes to the EDC bylaws and appointment process were necessary to “improve the information flow” between the City Administration and the EDC.
I concur that “the information flow” between the entities was lacking. However, whatever happened to picking up the phone and calling each other? In my opinion, this has nothing to do about the process but more about the proverbial ever-present personalities and egos.
Pursuant to the SB City Charter, the City Commission is tasked or responsible for appointing the city manager, city attorney, and an independent auditing firm for an independent annual audit of all City accounts.
Specifically stated in the City Charter Section 3.05. Prohibitions (c) Interference with Administration. Except for the purpose of inquiries and investigations under §3.08, the City Commission or its members shall deal with City officers and employees who are subject to the direction and supervision of the City Manager solely through the City Manager, and neither the City Commission nor its members shall give orders to any such officer or employee, either publicly or privately.
Bottom line, the city attorney and city manager are appointed/hired by the City Commission as an organized elected unit. All actions/assignments/tasks/orders are to be assigned in a “duly called” open public meeting.
Elected officials are not allowed to give working orders/assignments to the city attorney outside of the city commission meetings. The norm has always been that all legal questions by a city commissioner be asked in a public meeting or in Executive Session.
The process has always been that any changes/amendments to city policies be at the request of the entire City Commission before any legal work is involved.
In June 2012 at a City Commission Saturday work retreat in Rancho Viejo, former City Attorney Ricardo Morado informed the City Commission that the City Attorney reports/works for the City Commission and not any individual City Commissioner. The work retreat was called because individual commissioners were directly contacting the city attorney with legal questions. Ergo, legal expenses were out of control.
Will any of these changes make a difference? In my opinion, if the majority changes after the next election, we might go back to the way it was with EDC having complete autonomy again.
In the last 12 years, I have seen EDC operate both with or without autonomy. Both have been doomed by the time-honored and proverbial egos.
If you honestly believe that qualified applicant appointments will not be rejected by the majority, you are either “not paying attention” or “you don’t reside in San Benito”.
Do you honestly believe a City Commissioner who loses his/her EDC appointments because of rejection by a majority is going to feel compelled to support somebody else nomination?
What the City needs are “term limits”. Some have made a career of elected office without delivering to the Citizens as a whole.
The City Attorney does not cite a federal or state statute to affirm his legal interpretation that the City Charter does not apply to the EDC.
If you visit the City of San Benito home page and click on Government/Boards & Commissions, you will notice that San Benito Economic Development Corporation is listed as a board under “Boards & Commissions.”
Only a legal court challenge against the city attorney’s legal interpretation will decide the argument as to whether the SB City Charter applies to the EDC or not.
I like to pick my battles and this is one battle that the San Benito voters will have to decide at the ballot box in the next election.
Another option, which I don’t recommend, is a “Voter Recall”. Section 7.09 Recall of the City Charter provides the information on the Recall process. Link to the City Charter is at the end of this OP ED.
Final point, as the city begins its next Fiscal Year 2021/2022 Budget Process, I expect the city attorney to ask for a salary increase from $175 to $200 per hour.
In case you didn’t Google it, defenestrate means to “throw someone or something (i.e. City Charter) out the window”!
City Charter
Boards & Commissions

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    • Manuel Garcia on June 20, 2021 at 2:57 pm
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    If people dont know the hierarchy of the city the Citizens come first then the mayor and city commission and then the city manager and city attorney. The commission has to answer to the citizens and they are our voice. But with the way things are being ran it’s the city manager city attorney mayor and commission and then the citizens on the bottom. I suggest a petition to get started and ask for a special election to get some commissioners removed and then the city attorney and city manager. At the end of the day it should be about the citizens and its tax payers.

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