BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1795
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          CONCURRENCE IN SENATE AMENDMENTS
          AB 1795 (Alejo)
          As Amended  August 21, 2014
          Majority vote
           
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          |ASSEMBLY:  |47-22|(May 19, 2014)  |SENATE: |22-10|(August 25,    |
          |           |     |                |        |     |2014)          |
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           Original Committee Reference:   L. GOV.  

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

           The Senate amendments  :

          1)Provide that a resigning city council member's letter of  
            resignation may specify a date on which the resignation will  
            become effective.

          2)Specify that the provisions of this bill shall not apply to  
            any city council member who is resigning from the city council  
            due to charges of criminal behavior or who is subject to a  
            recall election; and,

          3)Make technical and clarifying changes.

           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  








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            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.

           AS PASSED BY THE ASSEMBLY , this bill:

          1)Allowed, 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)Prohibited a city council member from casting a vote for a  
            family member or any other person with whom the city council  
            member has a relationship that may create a potential conflict  
            of interest.

          3)Prohibited a city council member who elects to cast a vote  
            under the bill's provisions from the following activities for  
            two years:

             a)   Advocating on any measure or issue coming before the  
               city council in which the city council member may have a  
               personal benefit;

             b)   Entering into a contract of any kind with the city or a  
               city vendor;

             c)   Accepting a position of employment with the city or a  
               city vendor; and,

             d)   Applying for a permit that is subject to the approval of  
               the city council.









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          4)Prohibited this bill's provisions from applying to any city  
            council member who is resigning from the city council due to  
            an accusation of, or conviction for, corruption or criminal  
            behavior.

          5)Provided 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.

           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, with specified exceptions and  
            conflict-of-interest prohibitions, 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, Superior Court 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."

          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  








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            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:  a) the constitution, regulation, and government of the  
            city police force; b) subgovernment in all or part of a city;  
            c) conduct of city elections; and, 
            d) 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  
            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  








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            (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 the voters of the City of Watsonville approved on June  
            3, 2014, proposed 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 Pájaro Valley César Chávez  
            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.








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            "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 this bill 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?

            "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: 0005372 








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