Modesto Municipal Code Art. IX Officers and Employees

The officers of the City of Modesto shall consist of a Mayor, the Council, a City Manager, a City Attorney, a City Clerk, a City Auditor and such other or subordinate officers, assistants, deputies and employees as the Council may deem necessary to provide by ordinance or resolution.

The City Attorney, the City Clerk and the City Auditor shall be appointed by and may be removed by the affirmative votes of four members of the Council; provided, however, that neither the City Attorney, the City Clerk nor the City Auditor shall be removed from office during or within a period of 90 days next succeeding the election of a member of the Council. The purpose of this provision is to allow any newly elected member of the Council to observe the actions and abilities of these officers in the performance of the powers and duties of the respective offices.

The City Manager shall be appointed and removed as provided by Section 800 of this Charter. Except as otherwise provided in this section, all other officers and department heads of the City shall be appointed by the City Manager and shall serve at the pleasure of the City Manager.

The City Auditor shall have such powers and be required to perform such duties, consistent with the provisions of this Charter, as may be required by the Council.

The City Manager, the City Attorney, the City Clerk, and the City Auditor may be referred to collectively in this Charter as "Charter Officers."

(As amended November 4, 1980, and February 5, 2008)

The office of the City Clerk is hereby established. It shall be the duty of the City Clerk to:

(a) Attend all meetings of the Council and be responsible for the recording and maintaining of a record of all the actions of the Council;

(b) Keep all ordinances and resolutions of the Council in such manner that the information contained therein will be readily accessible and open to the public; the City Clerk shall attach to the original copy of each ordinance a certificate which will state the date that the ordinance was adopted, and as to an ordinance requiring publication, that the same has been published in accordance with the Charter;

(c) Keep all records of the Council and of the City Clerk's office in such manner that the information contained therein will be readily accessible and open to the public until such time as any of the records may be destroyed, or reproduced and the original thereof destroyed, in accordance with State law;

(d) Be the custodian of the seal of the City;

(e) Administer oaths or affirmations, take affidavits and depositions pertaining to the affairs and business of the City and certify copies of the official records;

(f) Have charge of all City elections;

(g) Be responsible for the publication of all official advertising of the City; and

(h) Perform such other duties consistent with this Charter as may be required of the City Clerk by the Council.

(As amended November 7, 1989)

The Office of the City Attorney is hereby established. The City Attorney shall be an attorney-at-law, and shall be licensed to practice the profession in the State of California. In addition, the City Attorney should have had at least five years' experience in the practice of law prior to appointment. The City Attorney shall have the power and duty to:

(a) Represent and appear for the City, its Council, boards and commissions in all actions or proceedings in which they are concerned or are a party; and represent and appear for a City officer or employee, or a former City officer or employee, in all actions or proceedings in which such officer or employee is a party-defendant due to the performance of the person's official duties, provided such representation and appearance, in the opinion of the City Attorney will not conflict with the City Attorney's duties to the City and will not affect the interests of the City;

(b) Advise the Council and all City officers in all matters of law pertaining to their offices;

(c) Attend all meetings of the Council, except when excused or disabled, and give such advice or opinion on the legality of all matters under consideration by the Council or by any of the boards, commissions or officers of the City;

(d) Prepare ordinances, formal resolutions, contracts and other legal instruments as shall be required or as may be deemed necessary by the City Attorney for the proper conduct of the business of the City, and approve the form of such contracts and the form of all bonds given to the City;

(e) Upon direction of the Council prosecute on behalf of the people all criminal cases for violation of City ordinances;

(f) Perform such other legal duties as may be required by the Council.

The Council may retain or employ other attorneys to take charge of any litigation or legal matter or to assist the City Attorney therein.

(As amended November 7, 1989)

The Office of the City Auditor is hereby established. The City Council shall appoint the City Auditor.

(a) Qualifications. The City Auditor shall possess adequate professional proficiency for the job, demonstrated by relevant certifications such as Certified Internal Auditor (CIA), Certified Public Accountant (CPA), or Chartered Accountant (CA), or have an advanced degree and at least five (5) years of experience in government auditing, evaluation, or analysis.

(b) Appointment. Within thirty (30) days of a vacancy, the Mayor shall initiate the recruitment process by recommending the selection of a recruitment firm or other recruitment process, and the Council shall thereafter appoint a City Auditor as soon as practicable. The Council shall appoint the City Auditor for an indefinite term.

(c) The City Auditor shall have the following powers and duties:

(1) The Auditor shall have authority to conduct financial and performance audits of all departments, offices, boards, activities, agencies and programs of the City in order to independently and objectively determine whether:

i. Activities and programs being implemented have been authorized by government Charter or Code, state law or applicable federal law or regulations and are being conducted and funds expended in compliance with applicable laws;

ii. The department, office, or agency is acquiring, managing, protecting, and using its resources, including public funds, personnel, property, equipment, and space, economically, efficiently, equitably, and effectively and in a manner consistent with the objectives intended by the City Council or enabling legislation;

iii. The entity, programs, activities, functions, or policies are effective, including the identification of any causes of inefficiencies or uneconomical practices;

iv. The desired result or benefits as intended by the City Council are being achieved;

v. Financial and other reports are being provided that disclose fairly, accurately, and fully all information required by law, to ascertain the nature and scope of programs and activities, and to establish a proper basis for evaluating the programs and activities including the collection of, accounting for, and depositing of, revenues and other resources;

vi. Management has established adequate operating and administrative procedures and practices, systems or accounting internal control systems and internal management controls; and

vii. Indications of fraud, abuse or illegal acts are valid and need further investigation

(2) Conduct special audits and investigations, as requested by the Council. "Special audits and investigations" mean assignments of limited scope, intended to determine:

i. The accuracy of information provided to the Council.

ii. The costs and consequences of recommendations made to the Council.

(d) Standards. Audits shall be conducted in accordance with recognized government auditing standards.

(e) Funding. Sufficient funds shall be proposed and approved to carry out the responsibilities specified herein. The Office of the City Auditor's budget shall be submitted to Council in accordance with the City's annual budget process.

(f) Staffing. The City Auditor may appoint and prescribe the duties of the professional, technical, and clerical employees employed in the Office of the City Auditor; provided, however, that the City Auditor shall not appoint to any position any business associate or any person related to him or her or to the City Manager or to any member of the Council by blood or marriage within the second degree. All such appointees shall serve at the pleasure of the City Auditor in the Unclassified Service; and shall serve under such terms and conditions, salaries and benefits as are similar to other employees in the City's service. In the event an employee of the City, who holds a Classified Service position, is appointed to a position in the Unclassified Service under this Section, he or she may return to a position in the Classified Service. Such return to the Classified Service shall be without loss of any rights or privileges that currently pertain to the Classified Service.

Neither the Council nor any of its members shall in any manner dictate the appointment or removal of any such officer or employee whom the City Auditor is empowered to appoint, but the Council may express its views and fully and freely discuss with the City Auditor anything pertaining to the appointment and removal of such officers and employees. Nor may any person coerce or attempt to coerce the City Auditor relative to the City Auditor's work.

(g) Access. The City Auditor shall have, unless prohibited by law, access to, and authority to examine any and all documents including but not limited to books, accounts, internal memoranda, writings and tapes, reports, vouchers, correspondence files and other records, bank accounts, money and other property of any City department, office or agency, whether created by the Charter or otherwise, with the exception of the office of any elected official. It is the duty of any officer, employee or agent of the City having control of such records to permit access to, and examination thereof, upon the request of the City Auditor or his or her authorized representative. It is also the duty of any such officer, employee or agent to fully cooperate with, and to make full disclosure of all pertinent information.

(h) Audit Schedule. At the beginning of each fiscal year, the Auditor shall submit a one (1) to five (5) year audit schedule to the Audit Committee and Council for review and comment. The schedule shall include the proposed plan, and the rationale for the selections, for auditing departments, offices, boards, activities, subcontractors, and agencies for the period. This schedule may be amended after review with the Audit Committee and Council, but the Auditor shall have final authority to select the audits planned.

(i) Reports. Each audit will result in a report, written or in some other retrievable form. The report shall contain relevant background information and findings, and recommendations. The Auditor shall prepare and submit to the Audit Committee, at their regularly scheduled public meetings, quarterly reports or updates of the City Auditor's activities and findings, together with any recommendations requiring immediate action to improve the administration of the City.

(j) Report of Irregularities. If, during an audit, the Auditor becomes aware of abuse or illegal acts or indications of such acts that could affect the City, the Auditor shall report the irregularities to the Audit Committee or appropriate law enforcement authority, as appropriate.

(Added February 5, 2008 and November 8, 2022)

(a) Purpose and Duties. The purpose of the Audit Committee is to advise the City Council on items related to the work of the City Auditor and the City's financial statement audits. Among other duties, the Audit Committee shall:

(1) Review the Auditor's audit plan annually and submit annually to the City Council;

(2) Provide suggestions and comments for the annual audit plan;

(3) Review and consult with the Auditor on quarterly reports or updates of the City Auditor's activities and findings;

(4) Report irregularities raised by the Auditor to the City Council;

(5) Ensure that audit reports are transmitted to the legislative body and to the public;

(6) Monitor follow-up on reported findings to assure corrective action is taken by management;

(7) Report to the legislative body on problems or problem areas at such times as deemed appropriate;

(8) Provide input on, and participate in, the selection of the firm conducting the annual financial statement audits; and

(9) Review and forward to the City Council materials related to the City's annual financial statement audit conducted pursuant to Section 1306 of this Charter.

(b) Audit Committee Composition:

(1) The Audit Committee shall be comprised of the Mayor, two (2) members of the City Council, and two (2) members of the public who are residents of the City of Modesto and shall possess a minimum of two (2) years of experience in financial or performance auditing. Strong consideration shall be given to residents who are Certified Public Accountants.

(2) No public member of the Committee shall be a relative by blood or marriage to the third degree of the mayor, member of the Council, any Charter Officer, or any department head or deputy department head.

(3) No public member of the Committee shall be an employee of the City nor any bargaining unit for employees of the City, nor a person who receives compensation from the City or from bargaining units of the City in any manner, including retirement benefits.

(4) No public member of the Committee shall be a lobbyist or other person with business before the City that represents an economic interest in excess of the limit for material financial effect established by local ordinance for the time periods established by local ordinance.

(5) Public members of the Committee shall serve without compensation.

(Added November 8, 2022)

After obtaining and considering the recommendations of the City Manager, the Council shall provide by ordinance or resolution, not inconsistent with this Charter, for the powers and duties of all officers and employees of the City.

Where the positions are not incompatible, the Council may combine in one person the powers and duties of two or more offices created or provided for in the Charter. Notwithstanding this provision, the offices of the City Manager, City Clerk, City Attorney and City Auditor shall not be combined except in cases of emergency, and in no event shall such combination exceed a period of three months.

No office provided herein to be filled by appointment by the City Manager may be combined with an office provided herein to be filled by appointment by the Council.

Notwithstanding the foregoing, the Council may transfer or consolidate functions of the City government to or with appropriate functions of the State or County government or may make use of such functions of the State or County government, and in case of any such transfer or consolidation, the provisions of this Charter providing for the function of the City government so transferred or consolidated shall be deemed suspended during the continuance of such transfer or consolidation, to the extent that such suspension is made necessary or convenient and is set forth in the ordinance or resolution establishing such transfer or consolidation. Any such transfer or consolidation may be repealed in like manner.

(As amended February 5, 2008)

The compensation of all City officers and employees, except as otherwise provided in this Charter, shall be by salary to be fixed by ordinance or resolution. No officer or employee shall be allowed any fees, perquisites, emoluments, rewards or compensation, aside from the salary or compensation as fixed by the Council, but all fees received by an officer or employee in connection with said person's official duties shall be paid into the City Treasury.

(As amended November 7, 1989)

Every officer of the City, before entering upon the duties of the person's office, shall take the oath of office as provided for in the Constitution of this State, and shall file the same with the City Clerk.

(As amended November 7, 1989)

The Council shall fix by ordinance the amounts and terms of the official bonds of all officials or employees who are required by ordinance to give such bonds. All bonds shall be approved as to form by the City Attorney and shall be filed with the City Clerk. Premiums on official bonds shall be paid by the City.

There shall be no personal liability upon, or any right to recover against, a superior officer, or a superior officer's bond, for any wrongful act or omission of a subordinate, unless such superior officer was a party to or conspired in such wrongful act or omission.

(As amended November 7, 1989)

The provisions of Article 4, Chapter 1, Division 4, Title I of the Government Code of the State of California, as the same now exist or hereafter may be amended, relating to prohibitions applicable to specified officers, are hereby adopted by reference and shall apply to the City of Modesto.

No person shall be appointed to a salaried position with the City of Modesto who is a relative by blood or marriage within the second degree of the Mayor, a member of the Council, the City Manager or the officer of the City exercising the appointive power.

(As amended November 4, 1980)

Except as otherwise provided by the general laws of this State heretofore or hereafter enacted, no appointment to any position under the City government shall be made or be withheld by reason of any religious or political opinions or affiliations or political services; and no appointment to or selection for or removal from any office or employment and no transfer, promotion, reduction, reward or punishment shall be in any manner affected by such opinions, affiliations or service.