City of Berkeley v. Jensen

PETERS, P. J. This is a petition for a writ of mandate to compel the auditor of the city of Berkeley to issue her warrant for the payment of a designated sum of money to the East Bay Municipal Utility District for fire hydrant rental for the month of December, 1946. There is no dispute concerning the intrinsic validity of the claim, but respondent places her refusal to issue the warrant on the sole ground that the approval of the claim by City Manager Fitch Robertson, which approval is required by the Berkeley charter (§61), was invalid because the appointment of Robertson as city manager was illegal, being, so it is charged, in violation of certain charter provisions. The sole issue presented relates to the validity of the appointment of Robertson as city manager.

The facts are alleged in the petition and admitted by the demurrer of respondent. Robertson was elected mayor of Berkeley for a four-year term commencing July 1, 1943, and terminating June 30, 1947. Under the charter provisions then and now in effect the mayor is a member of the city council, is the president of that body (Charter, §39) and has the right to vote on all matters coming before the council (Charter, §21). When Robertson assumed the duties of mayor on July 1, 1943, one Fisk was city manager serving at a salary fixed by the council of $7,500 per annum. In June of 1944 Fisk resigned and Vander Ende was appointed city manager by the council of which Robertson was then a member , to serve at a salary fixed by the council of $8,500 per annum. On July 1, 1945, the council of which Robertson was then a member increased the salary of Vander Ende as city manager to $10,000 per annum. In December, 1946, Vander Ende resigned at city manager, such resignation to be effective January 15, 1947. This resignation was accepted by the council on December 17, 1946, and on December 20, 1946, by formal [923]resolution the council of which Robertson was then a member appointed Robertson city manager to take office January 16,1947, at an annual salary of $9,000. On January 14, 1947, the council, Robertson still being a member, by formal resolution rescinded its resolution appointing Robertson city manager. This resolution of rescission was apparently adopted to avoid the legal effect of the charter provisions hereafter mentioned. On the same day—January 14, 1947—Robertson resigned as mayor of Berkeley, such resignation to take effect immediately, and the council accepted such resignation. A week later—January 21, 1947—the council, Robertson not then being a member—by resolution appointed Robertson city manager to take office January 22, 1947, at an annual salary of $9,000. It is the validity of this appointment that is involved in this proceeding.