‘Incompatible Public Offices:’ Police Chief & City Administrator

ABSTRACT: Yesterday, the City Council voted unanimously to adopt a Resolution authorizing the Mayor to execute an employment agreement between the City of Carmel-by-the-Sea and Mike Calhoun, Public Safety Director, Chief of Police, and Interim City Administrator, as part of the Consent Calendar.   However, according to Attorney General Opinion Office of the Attorney General, State of California, Opinion No. 98-707 (September 30, 1998), the positions of police chief and city manager/city administrator are incompatible. To wit, “the city manager, if allowed to serve simultaneously as chief of police, would be authorized to control, order and give directions to himself, appoint and remove himself, prepare and submit his own budget to the city council, conduct investigations into the affairs of his own office, and investigate complaints in relation to matters concerning the administration of his own department. As noted at the outset, offices are incompatible "where one is subordinate to the other and subject in some degree to the supervisory power of its incumbent." (People ex rel. Deputy Sheriffs' Assn. v. County of Santa Clara (1996) 49 Cal.App.4th 1471, 1481; 80 Ops.Cal.Atty.Gen., supra, at 75.)” Therefore, “Acceptance of the city manager office automatically causes the police chief office to be vacated," according to Richard M. Kreisler, L.A. County Police Chief Update, October 01, 1998. And importantly, “It is this office's opinion that the Attorney General would be likely to find that holding an acting city manager position is likewise incompatible with maintaining your permanent appointment as chief of police. Given that the apparent purpose or intent of the “incompatible public office” doctrine is to prevent a person from simultaneously holding two public offices where the performance of the duties of either office could have an adverse effect on the other, it is arguably of little import that your exercise of duties as a city manager is occurring while you are temporarily the city manager. In such case, the city manager can still impact the operations of the two public offices inasmuch as an acting city manager is typically invested with all of the powers, duties and obligations of the office of the city manager, and is therefore called upon to in essence supervise the chief of police.”  Moreover, according to Robert Wechsler, Director of Research for City Ethics, "The California statute has an interesting penalty provision. The public officer is "deemed to have forfeited the first office upon acceding to the second." Thus, a mayor who successfully runs for or accepts an incompatible office is no longer mayor. If the mayor won't budge, this penalty may be enforced in an action by the AG, or by a private party with the AG's consent."

Opinion 98-707

Attorney General Opinion Office of the Attorney General, State of California, Opinion No. 98-707 (September 30, 1998)

REFERENCES:

OPINION :: No. 98-707 of : September 30, 1998 DANIEL E. LUNGREN :Attorney General : :ANTHONY S. Da VIGO : Deputy Attorney General

CONCLUSION The positions of police chief and city manager of the City of San Jacinto are incompatible public offices

State Attorney General Offers Opinion That the Chief of Police of a General Law City May Not Serve Simultaneously as City Manager - Acceptance of the City Manager Office Automatically Vacates the Police Chief Office
By: Richard M. Kreisler L.A. County Police Chief Update, October 01, 1998
LIEBERT CASSIDY WHITMORE

Incompatible Offices in Perspective
Monday, March 28th, 2011
Robert Wechsler Cityethics.org

CITY OF CARMEL-BY-THE-SEA DRAFT BUDGET FISCAL YEARS 2011/12 THROUGH 2013/14 & HIGHLIGHTS OF INTERIM CITY ADMINISTRATOR’S BUDGET MESSAGE FOR THE FISCAL YEARS 2011-12 THROUGH 2013-14

ABSTRACT: The CITY OF CARMEL-BY-THE-SEA DRAFT BUDGET FISCAL YEARS 2011/12 THROUGH 2013/14 is embedded. HIGHLIGHTS OF INTERIM CITY ADMINISTRATOR’S BUDGET MESSAGE FOR THE FISCAL YEARS 2011-12 THROUGH 2013-14, CITY OF CARMEL-BY-THE-SEA, in the form of selected excerpts and paraphrased sections, are presented.

DRAFT BUDGET 2011 2014

CITY OF CARMEL-BY-THE-SEA
DRAFT BUDGET FISCAL YEARS 2011/12 THROUGH 2013/14

HIGHLIGHTS OF INTERIM CITY ADMINISTRATOR’S BUDGET MESSAGE FOR THE FISCAL YEARS 2011-12 THROUGH 2013-14, CITY OF CARMEL-BY-THE-SEA

The proposed Operating Budget for 2011-12 is technically balanced. It contains an expenditure plan of $13,074,249 supported by $13,090,408 in revenues resulting in a technical surplus of $16,159. This result will not require the use of General Operating Fund Reserves.

While this budget is technically balanced, there are several uncertainties both on the expenditure and revenue side of the ledger. On the revenue side,..., limited increases are projected for the City’s property tax, sales tax and hostelry tax revenue. There is also uncertainty whether or not the COPS grant to support law enforcement will be funded. The State Police Chief’s Association concludes that it will be funded, but other information sources on this issue are more guarded regarding this funding.

Expenditure Plan includes sections on Fire, Ambulance, Police, Legal Staffing, Commission Requests, Outreach, Marketing and Community Services, Street Repair, Council/Administration, Library, Salary/Expenditure Savings, Capital Outlay (Equipment Purchases). Revenue Plan notes that 2011-12 projected revenues are nearly $900,000 less than the revised 2010-11 revenues due to significant reductions in grant revenue ($450,000), use of General Operating Fund Reserves ($300,000), et cetera.

Compared to the revised 2010-11 budget, it is projected that there will be an increase in property tax revenue from $4,147,055 to $4,200,000. It is estimated that the Transient Occupancy Tax (TOT) will increase from $4,084,000 (2010-2011) to $4,210,000 (2011-12). Sales tax revenue is projected to increase from $1,750,000 (2010-11) to $1,870,000 (2011-12).

TOWARD A BALANCED BUDGET section includes Expenditure Containment, e.g. Shared Services and Contractual Services and Revenue Enhancements, e.g. Phased Paid Parking, Public Safety Assessment, Hostelry Tax, Parking Citation Fees, Norton Court Senior Parking, Parks/Beach Fees, Banner Fees, Emergency Medical Service (EMS) Fee.

PROPOSED CAPITAL IMPROVEMENT BUDGET

...the proposed Capital Improvement Budget will require Capital Reserves to balance the expenditures proposed in the 2011-12 Budget. The proposed Capital Improvement Budget, or CIP, includes projects totaling $831,868 supported by $344,308 in revenues. This results in a deficit of $487,560, which would need to be paid from Carmel’s Capital Reserves. Currently, these Reserves contain a balance of $2,233,274.

Conclusion

It is hoped that the proposed 2011-12 Operating and Capital Budgets, along with the proposed 2012-13 and 2012-2014 budgets, will be useful during Council’s deliberations in determining the City’s fiscal plans for coming years. Staff will be prepared to answer questions about these budgets from the City Council and the public at future budget workshops.


John Goss, Interim City Administrator

ADDENDUM:
“Human Resources Director” is currently vacant.
INTERIM CITY ADMINISTRATOR’S BUDGET MESSAGE FOR THE FISCAL YEARS 2011-12 THROUGH 2013-14, CITY OF CARMEL-BY-THE-SEA

Staffing. This expenditure plan does not contain funding to allow filling current vacant positions, such as the Senior Planner, a Police Officer, Human Resources Director, and Tree Care Specialist.