City Manager is immune from oversight; time for change?

Here is a rough argument that our city charter makes the City Manager position too powerful and too far removed from sunshine. This argument looks at the tenure, authority, and reporting requirements of the City Manager.

Tenure

The City Manager is politically appointed for an indefinite period. A majority vote of council is required to remove the City Manager but no vote at all is required to retain the City Manager. Consequently, there is no reliably regular, open ended review of a City Manager’s performance. The politically appointed City Manager has to win one council vote and then, if the cards are played right, never has to be voted on again. If the City Manager’s appointment had to be periodically reaffirmed by a majority vote with public input, after an open-ended review, City Managers would be under greater pressure to prove their worth.

Authority

The charter makes the City Manager something like the “City’s CEO”. The City Manager is the direct boss of all department heads and indirect boss of all city employees. Per the charter, council is placed in a weak position. The charter forbids council from even speaking with the administrative staff other than for informational inquiries:

Article VII Section 28 (b) Except as otherwise provided in this Charter, to appoint, discipline or remove all officers and employees of the City, subject to the Civil Service provisions of this Charter. The appointment of a department head by the City Manager shall become effective upon affirmative vote of five members of the Council.

Neither the Council nor any of its committees or members dictate or attempt to dictate, either directly or indirectly, the appointment of any specific person to office or employment by the City Manager. Except for the purpose of inquiry, the Council and its members shall deal with the administrative service solely through the City Manager, and neither the Council nor any member thereof shall give orders to any of the subordinates of the City Manager, either publicly or privately.

You can see the reasonable safeguards there against overly politicizing, say, the Chief of Police position, but that’s not the whole picture.

The City Manager has exclusive power to review performance and misconduct of the very same people the City Manager hires. Council is forbidden, by charter, from trying to influence that process.

The net effect is that department heads (for example) are untouchable by council unless the City Manager agrees otherwise. This is the same indefinitely appointed City Manager who nominates the department heads, subject only to a vote by council based on the nominee’s qualifications. If council did want to remove a department head they could (a) advise the City Manager who may or may not take that advice; or (b) fire the City Manager and hope that the next one will agree to dismiss the department head in question. There is no other way with the current charter.

Lack of sunshine

The City Manager oversees essentially all city business and has the best perspective on what’s really going on at City Hall. Alas, the City Manager’s reporting requirements to the public record are  enumerated in the charter and do not extend beyond those periodic reports spelled out there.   Historically, City Manager’s do not seem to go much beyond the charter’s requirements.

There is a conflict of interest there. Transparency is of value in a democratic institution like this, but our charter explicitly limits the amount of transparency which the City Manager is obliged to provide. Should a City Manager voluntarily go much further? The incentives align otherwise because the City Manager is appointed for an indefinite period. A City Manager has to commit some gross error that can’t be ignored to risk losing the job. Voluntary aggressive transparency by a City Manager, from the City Managers’s perspective of self-interest, is all downside risk with relatively little upside benefit (other than “feel good” praise, perhaps).

A conclusion, of sorts

The combination of transparency limited by charter, indefinite appointment, and exclusive control over city operations makes the City Manager the most powerful political position in Berkeley government. It also makes it a position with very limited public and council review and oversight. This leads me to the (very tentative) suggestions:

1) The charter should be altered to require a periodic review and affirmative vote by council to retain the City Manager: an end to indefinite appointment.

2) The charter should expand the City Manager’s reporting requirements to council and the public, in an open ended way. This can be accomplished by authorizing council and voter initiatives to expand the City Manager’s reporting obligations by ordinance, limited only by privacy laws. The City Manager’s performance at improving transparency should, by charter and ordinance, become a factor in council’s periodic review and reappointment vote for the City Manager.

(Perhaps the currently unused “Title 5” or “Title 8” of our ordinances could be reserved for this purpose.)

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