BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1795
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          Date of Hearing:  May 7, 2014

                       ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT
                           K.H. "Katcho" Achadjian, Chair
                 AB 1795 (Alejo) - As Introduced:  February 18, 2014
           
          SUBJECT  :  Cities: city council: vacancy.

           SUMMARY  :  Allows a resigning city council member to cast a vote  
          on the appointment of his or her successor.  Specifically,  this  
          bill  :  

          1)Allows, if the city council of a city that elects city council  
            members by or from districts elects to fill a vacancy on the  
            city council as a result of a city council member resigning  
            from office by appointment, the resigning city council member  
            to cast a vote on the appointment 
          if the resignation will go into effect upon the appointment of a  
            successor.

          2)Provides that the office of city council member becomes vacant  
            upon the delivery of a letter of resignation by the resigning  
            council member to the city clerk.

           EXISTING LAW  :

          1)Requires a city council, within 60 days of a vacancy in an  
            elective office, to fill that vacancy by appointment or call a  
            special election to fill the vacancy, as specified.  A person  
            appointed or elected to fill a vacancy holds office for the  
            unexpired term of the former incumbent.

          2)Provides that an office becomes vacant upon the resignation of  
            the person from office before the expiration of the term,  
            among other things.

          3)Provides, pursuant to the California Constitution  
            (Constitution), for the formation of charter cities.

          4)Provides, pursuant to the Constitution, that it shall be  
            competent in any city charter to provide that the city  
            governed thereunder may make and enforce all ordinances and  
            regulations in respect to municipal affairs, subject only to  
            restrictions and limitations provided in their several  
            charters and in respect to other matters they shall be subject  








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            to general laws.  City charters adopted pursuant to the  
            Constitution shall supersede any existing charter, and with  
            respect to municipal affairs shall supersede all laws  
            inconsistent therewith.

          5)Provides, pursuant to the Constitution, that it shall be  
            competent in all city charters to provide for a number of  
            items of governance, including conduct of city elections.

           FISCAL EFFECT  :   None

           COMMENTS  :   

           1)Purpose of this bill  .  This bill allows a resigning city  
            council member of a city that elects city council members by  
            or from districts to cast a vote on the appointment of his or  
            her successor, if the city council elects to fill the vacancy  
            by appointment rather than by a special election.  This bill  
            is author-sponsored.
           2)Author's statement  .  According to the author, "The California  
            Government Code specifies what occurrences constitute a  
            vacancy in public office.  Among the list of occurrences is  
            resignation.  Additionally, in the event that a vacancy occurs  
            on a city council, the Government Code specifies that the city  
            council may choose to call a special election or fill the  
            vacancy by appointment.  However, special elections are often  
            uneconomical and current statute does not specify whether or  
            not the resigning council member may cast a vote in the  
            appointment of his or her successor.

            "In the case of Martinez et al. v. City of Watsonville, CV  
            169473, Sup. Ct. Santa Cruz (2011), it was decided that public  
            policy favors ensuring a city council district's  
            representation by allowing the resigning councilmember to vote  
            in the appointment of the district's next representative.   
            While the language of current statute remains silent on this  
            issue, general law cities that elect their councilmembers  
            through district elections would benefit greatly from a  
            clarification.

            "California has 482 cities - with 361 of those being general  
            law cities.  Moreover, an increasing number of those general  
            law cities are moving towards district elections.  This bill  
            clarifies that a resigning councilmember may represent his or  
            her district by casting a vote on the appointment of a  








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            successor.  This bill will not apply to cities whose charter  
            addresses this issue."

           3)Background  .  Under existing law, when a vacancy occurs on a  
            city council, the council must fill that vacancy by  
            appointment or call a special election to fill the vacancy  
            within 60 days.  The law is silent on whether the resigning  
            councilmember may cast a vote on his or her successor if the  
            vacancy is filled via appointment.  This provision applies to  
            general law cities and to charter cities that do not have  
            applicable provisions in their charters.

           4)Charter cities and general law cities  .  The California  
            Constitution gives cities the power to become charter cities.   
            Of California's 482 cities, 121 are charter cities.  The  
            state's 361 general law cities are subject to the general laws  
            passed by the Legislature.  Under the Constitution, the  
            ordinances of charter cities supersede state law with respect  
            to "municipal affairs," while state law prevails with respect  
            to matters of "statewide concern."  This is often referred to  
            as the home rule doctrine.  The courts decide whether a matter  
            falls within the home rule authority of charter cities.

            While the Constitution does not explicitly define "municipal  
            affair," it does outline four categories that are presumed to  
            be municipal affairs, stating that "it shall be competent in  
            all city charters to provide, in addition to those provisions  
            allowable by the Constitution, and by the laws of the State  
            for: (1) the constitution, regulation, and government of the  
            city police force; (2) subgovernment in all or part of a city;  
            (3) conduct of city elections; and, (4) plenary authority is  
            hereby granted, subject only to the restrictions of this  
            article, to provide therein or by amendment thereto, the  
            manner in which, the method by which, the times at which, and  
            the terms for which the several municipal officers and  
            employees whose compensation is paid by the city shall be  
            elected or appointed, and for their removal, and for their  
            compensation, and for the number of deputies, clerks and other  
            employees that each shall have, and for the compensation,  
            method of appointment, qualifications, tenure of office and  
            removal of such deputies, clerks and other employees."

            The provisions of this bill would apply to all general law  
            cities, and to any charter city that does not stipulate in its  
            charter whether a resigning council member may cast a vote on  








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            the council's appointment of a successor.

           5)Watsonville dispute  .  According to an article in the Santa  
            Cruz Sentinel dated February 28, 2014, "In 2010,  
            then-Councilman (of Watsonville) Emilio Martinez argued  
            (then-Mayor) Luis Alejo couldn't vote for his replacement  
            because his seat wouldn't be vacant until he stepped down from  
            office.  With his wife Kathleen Morgan-Martinez and Corralitos  
            pilot Ken Adelman, Martinez filed a lawsuit to prevent Alejo  
            from casting a ballot.

            "Alejo countered that a vacancy occurred when a council member  
            announced his or her intention to quit, and that the  
            resignation could be made effective upon the appointment of a  
            replacement.  If he couldn't vote, Alejo said, his  
            constituents in District 2 would be disenfranchised as their  
            next representative was chosen by six council members elected  
            from other districts.  The city, championing Alejo's position,  
            prevailed in superior court, though the matter is pending in a  
            state appeals court.

            "The issue continued to rankle, however, and a citizens group  
            collected enough signatures to force the City Council to put a  
            measure on the June 3 ballot that would prevent such a vote by  
            a member of the council in the future.  The Let the People  
            Vote measure defines a vacancy as 'empty,' and bans the  
            appointment of replacements, requiring instead an election in  
            the affected district."

           6)Pending litigation  .  In Martinez et al. v. City of  
            Watsonville, the Santa Cruz County Superior Court found that,  
            "(P)ublic policy favors allowing the residents of a resigning  
            City Councilmember's district to have representation in the  
            decision over who will be appointed to represent them as their  
            Councilmember on the City Council.  For these reasons, it is  
            lawful for a resigning City Councilmember to participate in  
            the vote on the appointment of the successor who will fill  
            that vacancy."  This case is pending before the Sixth District  
            Court of Appeal.

           7)Watsonville Ballot Measure  .  Ballot Initiative Measure H,  
            which will be presented to the voters of the City of  
            Watsonville on June 3, proposes to amend Watsonville's charter  
            to require a vacant Council seat to be filled only by voters  
            at either a general or a special election rather than by  








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            council election, within 90 days after the vacancy occurs.

           8)Arguments in support  .  The Pajaro Valley Cesar Chavez  
            Democratic Club, in support, states, "This important bill  
            protects voting rights and ensures voters will not be  
            disenfranchised in cases where a councilmember resigns.  This  
            bill will simply clarify state law by stating that resigning  
            councilmembers can vote on choosing their successor when the  
            resignation is effective upon the vote of an appointment.

            "This ensures that the people of the particular council  
            district will continue to have a voice in that important  
            decision.  Our city faced this very situation in 2010 when a  
            resigning District 2 councilmember stated in his resignation  
            letter that the effective time of his resignation was when the  
            vote of an appointed councilmember took place.

            "The Santa Cruz County Superior Court reviewed this case and  
            vindicated the City of Watsonville ruling that the resigning  
            councilmember could indeed vote on his successor so that his  
            constituents would have a voice and not be disenfranchised.   
            Otherwise, it would have only been the council members of all  
            other 6 council districts voting on who would represent  
            District 2, leaving the people of that district with no say in  
            that critical decision.

            "This bill makes good sense and good voting rights policy.  It  
            would also provide clarity to the courts in future similar  
            cases, reduce litigation and protects our voting rights."

           9)Arguments in opposition  .  The Watsonville Pilots Association,  
            in opposition, states that 
          AB 1795 was introduced "with the intent of establishing in law  
            (a) ruling (by the Santa Cruz Superior Court) that a resigning  
            member of a city council can stay in office long enough to  
            choose his replacement.  However, this lawsuit is currently  
            pending a decision at an appeals court?Since this decision is  
            still pending, the Legislature should let the Appeals Court  
            rule before interfering in a pending court case?

            "(In addition, a related ballot measure is) on the June 3,  
            2014, ballot?AB 1795 could pass through the Assembly before  
            the June election, thus sending a signal that could suppress  
            the vote of the people?This timing?raises questions about who  
            should decide a pending issue."








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            "AB 1795 would (also) produce unintended consequences, such as  
            possible additional lawsuits as a result of a council's poor  
            policy decisions instigated by behind the scenes special  
            interests?Detrimental unintended consequences of  
            representatives appointed by cliques is deterioration of  
            infrastructure caused by biased council priority  
            decisions?Council representation determined on a vote by the  
            people results in better and more efficient infrastructure  
            maintenance?The key question is:  who does the appointee  
            represent, the appointing councilmember's agenda or the voters  
            and taxpayers of the district?"

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          League of United Latin American Citizens
          Pajaro Valley Cesar Chavez Democratic Club

           Opposition 
           
          Watsonville Pilots Association
          Individual letters (6)
           
          Analysis Prepared by  :    Angela Mapp / L. GOV. / (916) 319-3958