BILL ANALYSIS Ó AB 1795 Page 1 ASSEMBLY THIRD READING AB 1795 (Alejo) As Introduced February 18, 2014 Majority vote LOCAL GOVERNMENT 7-0 ----------------------------------------------------------------- |Ayes:|Achadjian, Levine, Alejo, | | | | |Bradford, Mullin, Rendon, | | | | |Waldron | | | ----------------------------------------------------------------- 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 the 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. AB 1795 Page 2 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 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 AB 1795 Page 3 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 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 AB 1795 Page 4 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 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 AB 1795 Page 5 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 council election, within 90 days after the vacancy occurs. 8)Arguments in support. The Pajaro Valley Cesar Chavez Democratic Club 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 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 AB 1795 Page 6 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." "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?" Analysis Prepared by : Angela Mapp / L. GOV. / (916) 319-3958 FN: 0003374