New Council Members to Help Tackle Hiring Procedures

As far back as anyone can remember, city managers have appointed and dismissed department heads without “concurrence” from the City Council, which is required in San Marino.
At last week’s City Council meeting, City Manager Marcella Marlowe told council members that they must address the issue and end the longstanding procedural gaffe, which she said potentially leaves the city exposed to legal liability.
It will be up to the next recently-elected City Council members to decide whether to abolish the requirement that council members approve the appointment and dismissal of each city’s department heads, which is unusual for a council-manager form of government.
The currently seated City Council narrowly postponed that decision at its meeting Wednesday, Nov. 8, at the request of Councilman Steve Talt, who along with Councilman Dr. Steven Huang, will be the senior members of the council after the three winners of this month’s election are sworn in at the next meeting on Dec. 13. Two outgoing councilmen — Mayor Dr. Richard Sun and Vice Mayor Richard Ward — opposed tabling the proposed ordinance.
“I would prefer tabling it,” said Talt, a practicing lawyer. “I see the problem with the statute. Concurrence is not defined. It could be that the statute is amended in such ways that we define what concurrence is, because right now, it’s vague. I’d like an opportunity to look into that as well as hear from everyone coming in what they think.”
Marlowe reported discovering the issue when examining the hiring of the city’s newest department head, Michael Throne, who serves as the parks and public works director as well as the city engineer.
“In our quest to try to correct that situation, we did a bit more investigating and it turns out, to the best of our research knowledge, we have never followed that municipal code,” Marlowe explained, a statement each sitting councilman corroborated.
At the recommendation of her and City Attorney Steven Flower, the City Council retroactively and unanimously approved the appointments of all current department heads and also the appointments and dismissals of all previous department heads, as a manner of bookkeeping and shutting down potential legal issues.
However, Marlowe drew attention to the phrase “concurrence” in the code, which is vague without a formal definition and, therefore, still legally problematic.
“Concurrence could mean, for example, three council members [approving],” she said. “It could mean unanimous. It could mean open session or closed session.”
Marlowe outlined four reasons for outright eliminating the portion of the procedure regarding department head appointment: Removing the City Council from these appointments limits additional liability exposure because access to confidential personnel information could open windows for accidental revelation or factor into decisions; it would follow best practices because of the public nature of interviews before a job is even offered; it would prevent efficiency challenges that would arise if the council and manager aren’t on the same page; and it would strengthen the ability for the council to hold the manager accountable for decisions and results.
She also acknowledged how odd the timing appeared: She took over the job on Oct. 16 and three of the City Council’s five seats are changing hands in a few weeks. Marlowe noted her recommendation could be interpreted as “a power grab,” but she assured the current council members she was simply fulfilling a promise to bring up issues she found.
“What I committed to when you hired me into this community was that I would do right by you,” she said. “I really wish this had not come up right now. I’m really sorry that the first item I’m bringing to you is with this bad of timing.”
Talt responded by telling Marlowe she was “fulfilling a promise if you indeed saw a problem and brought it to our attention.”
Opinions from the City Council were more mixed.
“On one hand, your recommendations are reasonable because we have not approved the appointment or dismissal of a department head in years,” Councilman Dr. Allan Yung said. “On the other hand, with the City Council, the buck stops with us. Not to retain the final authorization bothers me a little bit.”
Yung added he thinks the accountability in the current procedure is adequate because “if the whole council tells you to do [something], and you don’t, I think you should go.”
Ward had expressed concerns about the undefined “concurrence” being in place, but Talt pointed out it is unlikely another department head will be hired before this issue is settled. Sun said he is inclined to introduce the proposed ordinance for first reading because the newly seated council could still consider changes of its own at the second reading next month.
On that note, the three City Council member-elects each weighed in on the matter at this meeting. Susan Jakubowski suggested that the arrangement might work better in San Marino than in other council-manager systems because the city’s governmental operation is relatively small.
“I feel that the city is in a huge flux right now,” Jakubowski added. “We have newly defined positions, we have new people filling those positions and, respectfully to our city manager, she is new to this position. I don’t think our current system is posing a problem.”
Gretchen Shepherd Romey said she agrees and believes the procedure is a good way to ensure City Council members are kept up-to-date on administrative happenings.
“This measure of concurrence is a great policy to keep the council engaged in key personnel decisions and it’s a policy I want to keep moving forward unless there is a problem,” she said.
Ken Ude, whose background is in running businesses, opined that concurrence could help shield the city from liability in some cases.
“If the city manager had carte blanche to hire and fire at will, without your involvement, that would expose us to liability on its own,” he told the City Council.
Having been tabled, the City Council will resume discussion on this item on Dec. 13 — after Jakubowski, Shepherd Romey and Ude are sworn in. Marlowe said she will present options for eliminating the approval requirement and also for better defining “concurrence” if the City Council wishes to retain authority.