6. Discuss Scope of Authority of Board, Committee, Chair and General Manager

Meeting Date: February 2, 2004 Budgeted: N/A

Program/Line Item No.: N/A

Staff Contact: Fran Farina and Cost Estimate: N/A

David Laredo

General Counsel Approval: Yes

Committee Recommendation: N/A

CEQA Compliance: N/A

SUMMARY: The board, its committees, and District staff from time to time struggle with understanding the scope and basis of authority. Each must determine who is authorized to exercise authority, what is the scope or limits to that authority, and what processes apply to the exercise of direct or delegated authority?

This item is intended to provide a discussion vehicle for the board to review the basis for its implementation of statutory authority, and to achieve a consensus as to how and when delegated authority is to be exercised.

This staff note, and its attachments, reviews existing legislation as set by the MPWMD enabling statute, sections of the General Manager’s contract of employment, the District Meeting Rules, and the District Rules & Regulations. The attachments provide examples as to how committee roles and processes can be defined in greater detail.

All authority, by law, must be exercised by or through the board of directors, unless otherwise authorized. The fundamental source of board authority was set by the Legislature in the MPWMD enabling act.

The District enabling act authorizes the board to appoint a secretary, treasurer, attorney, chief engineer, general manager, and auditor as officers of the district, define their duties, and delegate executive, administrative, and ministerial powers to them. The key means for this delegation are through the District Rules and Regulations, enacted by ordinance, by the District Meeting Rules, enacted by motion, or by contract, approved by motion.

District meeting rules designate the Chairman as the spokesperson for the District, when expressing District policy and position. The District meeting rules also provide that only the Chair, the General Manager, and employees designated by the General Manager are authorized to sign correspondence on District stationery.

District Rules & Regulations, enacted by ordinance, define the role of the Carmel River Advisory Committee (CRAC), define its meeting processes, and delegate select powers to that body. The primary charge to CRAC is to recommend policies to the board relating to the management of the riparian corridor of the Carmel River; CRAC also sets guidelines for River Access Permits, and held authority to determine Assessment Appeals for the former riverbank assessment [this assessment has since lapsed].

District meeting rules define the role of the Administrative Committee to advise the Board on administrative matters. Meeting rules require that action taken by the Administrative Committee be subject to final Board approval. The meetings rules do not define the specific roles of any other named committee, but the rules generically discuss the process to appoint standing and ad hoc committees.

The following section sets forth relevant provisions of the MPWMD enabling statute, sections of the General Manager’s contract of employment, the District Meeting Rules, and the District Rules & Regulations.

Attached as Exhibits 6-A and 6-B, respectively, are “Committee Charges” currently in use by another agency. These charges provide examples as to how a committee role and process can be defined in detail. (Note: Although each attached charge is labeled “draft,” these are provided for discussion purposes only. Neither example has been reviewed or approved by any MPWMD board member or staff. These charges are not recommended as applicable to MPWMD in their present form, but each provides an example as to how a specific committee charge could be worded.)

Using the general principles noted above, and the specific provisions of law, ordinance and contract that follow, the board is encouraged to consider each of the following examples where the exercise of delegated authority may arise:

1. A decision of the Chair to retain special counsel.

2. A decision of the Chair to set a matter on a future agenda.

3. A decision of a Committee to change administrative procedures (e.g. Water Demand Committee directing Water Demand Division staff to process permits differently).

4. A decision of the G.M. to change administrative procedures (e.g. Water Demand Committee directing Water Demand Division staff to process permits differently).

5. A decision of the G.M. to execute a contract.

6. A decision of the Carmel River Advisory Committee to set guidelines relating to motor vehicle use on the riverbank or riverbed of the Carmel River.

7. A decision of the Carmel River Advisory Committee to direct staff to undertake research or modify its river work schedule.

8. A decision of a Committee to change wording in a District document (e.g. Public Relations Committee directing re-wording of the annual report, brochure, or web page.)

BACKGROUND:

►Statutory Authorization

Water Code §118-201 All powers, privileges, and duties vested in or imposed on the district shall, except as otherwise provided, be performed by and through the board of directors.

Water Code §118-252 The chairman of the board shall preside at all meetings of the board. […]

Water Code §118-253 A majority of the members of the board shall constitute a quorum for the transaction of business. The board shall act only by ordinance, resolution, or motion. […] Except as otherwise provided by this act, no ordinance, resolution, or motion shall be passed nor become effective without the affirmative vote of the majority of the members of the board.

Water Code §118-254 Votes of the members of the board shall not be cast by proxy.

Water Code §118-255 The board may appoint a secretary, treasurer, attorney, chief engineer, general manager, and auditor as officers of the district, [ … ] to the extent necessary to carry out the provisions of this act. The board shall define the duties and fix the compensation of such officers… .

Water Code §118-256 The board may by ordinance adopt reasonable rules and regulations to carry out its powers and duties… .

Water Code §118-258 The board may delegate and redelegate the exercise of any and all executive, administrative, and ministerial powers to any of the officers appointed or contracted for pursuant to Section 255, except as provided by this law.

Water Code §118-260 The board may delegate and redelegate by ordinance to the officers of the district, under such conditions and restrictions as shall be fixed by the board, the power to bind the district by contract.

►Contract Provisions

G.M. Employment Contract, ¶ I.A. The Board of Directors of the DISTRICT hereby appoints FRAN FARINA to the position of General Manager of the MONTEREY PENINSULA WATER MANAGEMENT DISTRICT to perform the functions and duties reasonable and customary to the General Manager position, and such other duties as the Board of Directors may assign from time to time. The parties agree, however, that FARINA shall not be assigned any duties relating to the negotiation of a labor agreement pertaining to wages, hours, or conditions of employment for DISTRICT staff.

G.M. Employment Contract, ¶ II.A. FARINA shall function as the General Manager of the DISTRICT and shall be vested with the powers, duties and responsibilities for the position of General Manager. The Board of Directors may modify the employment duties of the General Manager from time to time by exercise of its sole discretion, provided all assigned duties shall be reasonable and customary for the General Manager position. In addition, FARINA shall perform such other duties as may be assigned by the Board of Directors, and which are consistent, reasonable and customary with the position of General Manager, without additional compensation.

►Meeting Rules

MPMWD Meeting Rules (Rule 6) SPOKESPERSON The Chairman or the designee of the Chairman shall be the spokesperson for the District, when expressing District policy and position. Public statements by Board Members in the name of the District shall be first reviewed and approved by the Board. Except for this circumstance, only the Chair, the General Manager, and employees designated by the General Manager shall sign correspondence on District stationery. Board Members shall clarify that they are speaking as an individual and not on behalf of the Board when they make oral or written statements regarding water matters.

MPMWD Meeting Rules (Rule 7) COMMITTEES

A. Standing Committees The Board of Directors may create such standing committees as it may deem necessary. The members of said committees shall be appointed by the Chair and approved by the Board.

B. Administrative Committee The Administrative Committee shall consist of the three Directors appointed by the Chair and approved by the Board. Its purpose shall be to advise the Board on administrative matters. The Board of Directors shall not fix the meeting schedule of this committee. The committee may meet on the call of the chair or as decided by the members. Action taken by the Administrative Committee shall be subject to final Board approval.

C. Ad Hoc Committees The Chair may create such ad hoc committees as may be necessary. The members of said committees shall be appointed by the Chair and approved by the Board.

►Ordinances

RULES & REGULATIONS, Rule 120 (CARMEL RIVER ADVISORY COMMITTEE). Added by Ordinance No. 10 (7/26/83); amended by Ordinances No. 22 (3/11/85); and Ordinance No. 69 (6/21/93).

A. Committee Purpose The Carmel River Advisory Committee is a standing committee of the District. The committee shall advise the Board of Directors with regard to management of the Carmel River, and its riparian corridor and to any matter referred to this committee.

B. Committee Organization

1. The Carmel River Advisory Committee shall be comprised of seven (7) members. Each Director of the District shall appoint one member to this advisory committee. Appointed committee members shall serve a term of two (2) years […]. Appointment to any vacancy shall be made by the Board of Directors for the remainder of the unfulfilled term. A vacancy shall be created by resignation or in the event a committee member fails to attend three (3) consecutive regular meetings without good cause as determined by the Board of Directors. Nomination to fill any vacancy or to reappoint any committee member shall be made by the Director's seat which exercised the original appointment to that position.

2. All meetings of the committee shall comply with the Ralph M. Brown Act. At the first meeting held in each fiscal year, the committee shall elect a chairperson and vice‑chairperson to preside at committee meetings. The committee may adopt rules governing the conduct of its meetings.

3. Committee members shall be required to reside within the boundaries of the Monterey Peninsula Water Management District and shall be knowledgeable about issues relating to the Carmel River. Carmel Valley residents shall be given priority in the selection of committee members. […]

RULES & REGULATIONS, Rule 125 A. Added by Ordinance No. 14 (11/12/84) River access permits shall be required by any person who drives, rides, parks or travels in a motorized vehicle upon the riverbank, riverbed, or riparian corridor of the Carmel River. Permits for such activity shall be issued by the General Manager or the District Engineer who shall follow guidelines established by the Carmel River Advisory Committee.

RULES & REGULATIONS, Rule 64 B. Added by Ordinance No. 10 (7/26/83), amended by Ordinance No. 22 (3/11/85).

The Board of Directors shall determine annually the amount of water distribution system user fee to be collected pursuant to this regulation after receiving the recommendation of the Carmel River Advisory Committee (CRAC). […] Prior to setting the user fee and surcharge to be collected for [each] fiscal year […] the District Board shall first conduct a public hearing regarding river management needs, water distribution system services utility user, and water distribution system concerns, and seek the advice of the Carmel River Advisory Committee.

RULES & REGULATIONS, Rule 71. Added by Ordinance No. 9 (2/14/83), amended by Ordinance No. 11 (11/14/83), and Ordinance No. 22 (3/11/85)

[…] The Carmel River Advisory Committee may forward its recommendation regarding this matter. The Board may deny, approve or continue any appeal.

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