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					                                    DRAFT - 3/5/2009

                             APPOINTMENTS AND REMOVALS



A.      Relevant Charter Provisions.

        1.     Sec. 4.02. Powers.

       All powers vested in the City shall be exercised by the Council except as otherwise
provided in this Charter. In addition to the foregoing, the Council shall have the following
powers:

        (a)    To provide for the organization, conduct and operation of all departments,
               bureaus, divisions, boards, commissions, offices and agencies of the City.

        (b)    To create, alter or abolish departments, bureaus, divisions, boards, commissions,
               offices and agencies other than those specifically established by this Charter.

        (c)    To create, alter or abolish and to assign and reassign to departments, all bureaus,
               divisions, offices and agencies except where such bureaus, divisions, offices or
               agencies are specifically assigned by this Charter.

        (d)    To provide for the titles, qualifications, powers, duties and compensation of all
               officers and employees of the City, subject in the case of members of the
               classified service to the provisions of § 5A.03 of this Charter.

        (e)    To provide for the form of oaths and the amount and condition of surety bonds to
               be required of certain officers and employees of the City.

(Acts 1998, ch. 711)

        2.     Sec. 4.14. Appointments and removals generally.

         The council in making appointments and removals shall act only by affirmative votes of
at least five members. It may remove any person appointed by it for an indefinite term, for any
lawful reason or no reason. The decision of the council shall be final.
(Acts 1998, ch. 711; Acts 2004, ch. 514, § 1; Acts 2004, ch. 877, § 1; Acts 2004, ch. 898, § 1)

        3.     Sec. 5.02. Power of appointment and removal.

        The chief administrative officer shall appoint for an indefinite term qualified officers and
employees to head all the administrative departments of the city, and shall appoint, dismiss and
discipline, in accordance with the city's personnel regulations, all officers and employees in such
departments, except as otherwise specifically provided by law or this charter. Department heads
who are appointed by the chief administrative officer shall serve at the pleasure of the chief
administrative officer.


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       The chief administrative officer shall designate some other officer or employee to
perform the duties of any office or position of the administrative service under his/her control
which is vacant or which lacks administration due to the absence or disability of the incumbent.
(Acts 1998, ch. 711; Acts of 2004, ch. 877, § 1; Acts of 2004, ch. 898, § 1)

       4.      Sec. 5.03. Involvement of mayor and council in appointment and removals.

        The mayor may participate in the hiring and removal of heads of city departments. The
mayor and members of council may (i) communicate publicly or privately their approval or
disapproval of the performance of any particular city employee, (ii) recommend persons to the
chief administrative officer for consideration for hiring or promotion, or (iii) request of the chief
administrative officer that he remove or take other disciplinary action against any particular city
employee, as they may see fit. Ultimate responsibility for hiring, removal and other personnel
decisions, and for the directing of city personnel, shall reside in the chief administrative officer,
unless expressly provided otherwise in this charter. Except for the purpose of inquiry, the mayor,
council and its members shall deal with the administrative services solely through the chief
administrative officer, and neither the mayor, council nor any member thereof shall give orders
either publicly or privately to any subordinate of the chief administrative officer.
(Acts 1998, ch. 711; Acts 2004, ch. 514, § 1; Acts 2004, ch. 877, § 1; Acts 2004, ch. 898, § 1;
Acts 2005, ch. 844, § 1)

B.     Issue 1: Legislative v. Administrative Classifications.

       1.      Issue Presented.

        Should the Charter reflect with more specificity the “split” recognized by Judge Spencer
in her opinion of November 29, 2007, between legislative and administrative personnel?

       2.      Recommendation.

       Yes. The Charter should reflect these classifications and the relevant Charter sections
should be amended to better harmonize in this regard.

       3.      Analysis and Specific Language Recommendations.

        As a general rule, the Mayor and the CAO should appoint and remove department heads
and the officers and employees in all administrative or executive areas of responsibility and
function. The Council should appoint and remove department heads and the officers and
employees in all legislative areas of responsibility and function. The Charter should reflect this
dichotomy between administrative and legislative areas. The adoption of a system of
government with three distinct branches—Executive, Legislative and Judicial—necessitates that
the control over the appointment and removal of the officers and employees within each branch
lie with the leader or governing body of that branch. Otherwise the branches do not operate
independently and the actions of one to intercede on the staff and employee decisions of the
other politicize and impair the efficient operations and decision-making of the other.



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      To reconcile the existing Charter provisions and to implement this recommendation, we
recommend that:

       (1)    Section 4.02(d) be amended as follows:

              (d)    To provide for the titles, qualifications, powers, duties and compensation
                     and to appoint and remove the officers and employees of the City who           Deleted: of all
                     serve the Council, such as the Council’s Chief of Staff, support staff and
                     analysts; Council members’ liaisons; the staff of any City Department
                     head appointed by the Council under the Charter; and any other person
                     acting in a legislative capacity. This power is subject to the provisions of
                     § 5A.03 of this Charter for any officials and employees covered by
                     § 5A.03.                                                                       Deleted: , subject in the case of
                                                                                                    members of the classified service to the
                                                                                                    provisions of § 5A.03 of this Charter.
              After such amendments, the section would read as follows:

              (d)    To provide for the titles, qualifications, powers, duties and compensation
                     and to appoint and remove the officers and employees of the City who
                     serve the Council, such as the Council’s Chief of Staff, support staff and
                     analysts; Council members’ liaisons; the staff of any City Department
                     head appointed by the Council under the Charter; and any other person
                     acting in a legislative capacity. This power is subject to the provisions of
                     § 5A.03 of this Charter for any officials and employees covered by
                     § 5A.03.

       (2)    Section 4.14 be amended as follows:

              In exercising its powers under § 4.02(d), the Council shall act only by the           Deleted: T
              affirmative votes of at least five members of the Council. The Council may            Deleted: c
              remove any person appointed by the Council for an indefinite term, for any lawful     Deleted: in making appointments and
              reason or for no reason. In such instance, the decision of the Council shall be       removals shall act only

              final.                                                                                Deleted: It
                                                                                                    Deleted: it
              After such amendments, the section would read as follows:                             Deleted: T
                                                                                                    Deleted: c
              In exercising its powers under § 4.02(d), the Council shall act only by the
              affirmative votes of at least five members of the Council. The Council may
              remove any person appointed by the Council for an indefinite term, for any lawful
              reason or for no reason. In such instance, the decision of the Council shall be
              final.




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(3)   Section 5.02 be amended as follows:

      The Chief Administrative Officer shall appoint for an indefinite term qualified      Deleted: c
      officers and employees to head all the administrative departments of the city, and   Deleted: a
      shall appoint, discipline and remove, in accordance with the city's personnel        Deleted: o
      regulations, all officers and employees in such departments, except as otherwise     Deleted: dismiss and
      specifically provided by law or this charter. Department heads appointed by the      Deleted: who are
      Chief Administrative Officer shall serve at the pleasure of the Chief
                                                                                           Deleted: c
      Administrative Officer. The authority of the Chief Administrative Officer under
                                                                                           Deleted: a
      this § 5.02 shall not apply to the persons appointed and removed by the Council
                                                                                           Deleted: o
      pursuant to § 4.02(d) of this Charter.
                                                                                           Deleted: c

      The Chief Administrative Officer promptly shall designate some other officer or      Deleted: a
      employee to perform the duties of any office or position of the administrative       Deleted: o
      service under his/her control which is vacant or which lacks administration due to   Deleted: c
      the absence or disability of the incumbent.                                          Deleted: a
                                                                                           Deleted: o
      After such amendments, the section would read as follows:

      The Chief Administrative Officer shall appoint for an indefinite term qualified
      officers and employees to head all the administrative departments of the city, and
      shall appoint, discipline and remove, in accordance with the city's personnel
      regulations, all officers and employees in such departments, except as otherwise
      specifically provided by law or this charter. Department heads appointed by the
      Chief Administrative Officer shall serve at the pleasure of the Chief
      Administrative Officer. The authority of the Chief Administrative Officer under
      this § 5.02 shall not apply to persons appointed and removed by the Council
      pursuant to § 4.02(d) of this Charter.

      The Chief Administrative Officer promptly shall designate some other officer or
                                                                                           Deleted: m
      employee to perform the duties of any office or position of the administrative
                                                                                           Deleted: city
      service under his/her control which is vacant or which lacks administration due to
                                                                                           Deleted: . T
      the absence or disability of the incumbent.
                                                                                           Deleted: c
                                                                                           Deleted: c
(4)   Section 5.03 be amended as follows:                                                  Deleted: a
                                                                                           Deleted: o
      The Mayor and the Council may participate in the hiring and removal of heads of      Deleted: c
      any departments, officers and employees appointed and removed by the Chief           Deleted: a
      Administrative Officer pursuant to § 5.02 in that the mayor and members of           Deleted: o
      Council may: (i) communicate publicly or privately their approval or disapproval
                                                                                           Deleted: Ultimate responsibility for
      of the performance of any particular city employee, (ii) recommend persons to the    hiring, removal and other personnel
      Chief Administrative Officer for consideration for hiring or promotion, and/or       decisions, and for the directing of city
                                                                                           personnel, shall reside in the chief
      (iii) request of the Chief Administrative Officer that he remove or take other       administrative officer, unless expressly
      disciplinary action against any particular city employee, as they may see fit.       provided otherwise in this charter.

      Except for the purpose of inquiry, the Mayor, Council and its members shall deal     Deleted: m
                                                                                           Deleted: c



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                with such departments, officers and employees solely through the Chief                 Deleted: the administrative services
                Administrative Officer, and neither the Mayor, Council nor any member thereof          Deleted: c
                shall give orders either publicly or privately to any subordinate of the Chief         Deleted: a
                Administrative Officer.                                                                Deleted: o
                                                                                                       Deleted: m
                After such amendments, the section would read as follows:
                                                                                                       Deleted: c
                                                                                                       Deleted: c
                The Mayor and the Council may participate in the hiring and removal of heads of
                                                                                                       Deleted: a
                any departments, officers and employees appointed and removed by the Chief
                Administrative Officer pursuant to § 5.02 in that the mayor and members of             Deleted: o

                Council may: (i) communicate publicly or privately their approval or disapproval
                of the performance of any particular city employee, (ii) recommend persons to the
                Chief Administrative Officer for consideration for hiring or promotion, and/or
                (iii) request of the Chief Administrative Officer that he remove or take other
                disciplinary action against any particular city employee, as they may see fit.
                Except for the purpose of inquiry, the Mayor, Council and its members shall deal
                with such departments, officers and employees solely through the Chief
                Administrative Officer, and neither the Mayor, Council nor any member thereof
                shall give orders either publicly or privately to any subordinate of the Chief
                Administrative Officer.

C.      Issue 2: The Appointment and Removal Power over Certain Positions.

        1.      Issue Presented.

       Should certain positions be specifically excluded from control by the CAO, including the
Council’s support staff, Council members’ liaisons, the City Auditor’s personnel, the City
Assessor’s personnel, and the City Attorney’s personnel?

        2.      Recommendation.

       We recommend that City Council support staff and Council members’ liaisons be
excluded from control by the CAO.

        We request that the Committee Chairman ask the research team at the University of
Richmond Law School to contact the National League of Cities to obtain information about the
reporting relationship of the City Assessor and the City Auditor in American cities today. We
would like information about the various models that are used (and where they are used) and the
most prevalent model in use in other localities.

        3.      Analysis.

        We think that it is relatively clear that legislative staff that are hired to be part of the
legislative branch of government should not be subject to firing by the executive branch. The
current language of the Charter should be changed to reflect this in an unequivocal way.




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        Our initial sense is that the City Assessor (and staff), the City Auditor (and staff) occupy
different roles in city governments and are not only employees of the Legislative Branch. At the
same time, we do not believe that we have enough information at this time to make a
recommendation and are requesting that further research be conducted. Once this research is
conducted, our sub-committee will propose specific language about Council staff/liaisons and the
City Assessor and City Auditor offices. It is our understanding that another subcommittee is
focused on the City Attorney's selection and reporting relationship.

C.     Issue 3: CAO Removal Powers.

       1.      Issue Presented.

       Should the removal power of the CAO over administrative positions be subject to a vote
by City Council?

       2.      Recommendation.

       No.

       3.      Analysis.

       Our subcommittee failed to see a compelling argument for making this change.




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