BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     AB 952


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          Date of Hearing:  April 15, 2015


                       ASSEMBLY COMMITTEE ON LOCAL GOVERNMENT


                              Brian Maienschein, Chair


          AB 952  
          (Cristina Garcia) - As Amended April 8, 2015


          SUBJECT:  Local government:  vacancies.


          SUMMARY:  Provides an alternative procedure for filling a  
          vacancy on a city council, to allow for vacancies that occur  
          early in a council member's term.  Specifically, this bill: 


          1)Repeals a requirement that a person appointed to fill a  
            vacancy on a city council holds office for the unexpired term  
            of the former incumbent (absent an alternative ordinance as  
            authorized pursuant to current law).



          2)Requires, instead, for the following procedure when a city  
            council vacancy occurs (unless a council adopts an alternative  
            ordinance as authorized pursuant to current law):



             a)   If the council calls a special election, the special  
               election shall be held on the next regularly established  
               election date not less than 114 days from the call of the  
               special election.  A person elected to fill a vacancy holds  
               office for the unexpired term of the former incumbent.








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             b)   If the council fills the vacancy by appointment, the  
               person appointed to fill the vacancy shall hold office  
               pursuant to one of the following:



               i)     If the vacancy occurs in the first half of a term of  
                 office and at least 130 days prior to the next general  
                 municipal election, the person appointed to fill the  
                 vacancy shall hold office until the next general  
                 municipal election that is scheduled 130 or more days  
                 after the date the council is notified of the vacancy,  
                 and thereafter until the person who is elected at that  
                 election to fill the vacancy has been qualified.  The  
                 person elected to fill the vacancy shall hold office for  
                 the unexpired balance of the term of office; or,



               ii)    If the vacancy occurs in the first half of a term of  
                 office, but less than 130 days prior to the next general  
                 municipal election, or if the vacancy occurs in the  
                 second half of a term of office, the person appointed to  
                 fill the vacancy shall hold office for the unexpired term  
                 of the former incumbent. 


          3)Specifies that, if a city council adopts a specified  
            alternative ordinance governing the procedures for filling  
            council vacancies, the person appointed to fill a vacancy  
            holds office only until a special election is held or until  
            the next regularly scheduled citywide election.


          EXISTING LAW:  









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          1)Requires a city council, within 60 days of a vacancy in an  
            elective office, to fill that vacancy by appointment or by  
            calling a special election to fill the vacancy.


          2)Requires a special election held pursuant to 1), above, to be  
            held on the next regularly established election date not less  
            than 114 days from the call of the special election.


          3)Provides that a person elected or appointed to fill a city  
            council vacancy holds office for the unexpired term of the  
            former incumbent.


          4)Provides alternative procedures that city councils can follow  
            to fill a vacancy by enacting an ordinance that does any of  
            the following:


             a)   Requires that a special election be called immediately  
               to fill every city council vacancy and the office of mayor,  
               as specified.  The ordinance shall provide that the special  
               election shall be held on the next regularly established  
               election date not less than 114 days from the call of the  
               special election.



             b)   Requires that a special election be held to fill a city  
               council vacancy and the office of mayor, as specified, when  
               petitions bearing a specified number of verified signatures  
               are filed.  The ordinance shall provide that the special  
               election shall be held on the next regularly established  
               election date not less than 114 days from the filing of the  
               petition.  A governing body that has enacted such an  
               ordinance may also call a special election pursuant to 1)  
               and 2), above, without waiting for the filing of a  








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               petition.



             c)   Provides that a person appointed to fill a vacancy on  
               the city council holds office only until the date of a  
               special election which shall immediately be called to fill  
               the remainder of the term.  The special election may be  
               held on the date of the next regularly established election  
               or regularly scheduled municipal election to be held  
               throughout the city not less than 114 days from the call of  
               the special election.



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



          6)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.



          7)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.











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          8)Provides a procedure for filling a vacancy in any elective  
            office of the governing board of a special district that match  
            those contained in this bill (except a municipal utility  
            district or an irrigation district containing 500,000 acres or  
            more).


          FISCAL EFFECT:  None


          COMMENTS:  


          1)Bill Summary.  This bill provides for an alternative procedure  
            for filling city council vacancies to account for vacancies  
            that occur early in a council member's term.  It repeals law  
            stating that an appointed successor holds office for the  
            remainder of the term.  Instead, it allows an appointed person  
            to hold office for the unexpired term only if the vacancy  
            occurs in the second half of the term or if it occurs in the  
            first half but less than 130 days before the next general  
            municipal election.  Otherwise, an appointed successor holds  
            office until the next general municipal election scheduled 130  
            days or more after the council is notified 
          of the vacancy, and thereafter until the person elected at that  
            election has been qualified.  This bill is sponsored by the  
            author.



          2)Author's Statement.  According to the author, "When a vacancy  
            is created at a city council?(the) body (has) two options: 1)  
            to call a special election to fill the vacancy or 
          2) fill the vacancy by appointment.  The problem lies in that  
            sometimes calling a special election is cost prohibitive, and  
            in those situations appointments are made, deprives the voters  
            of the ability to choose their representative.  The appointees  
            may not face an election for years and by then, they have  
            already gained the advantage of being an 'incumbent.'  








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          AB 952 would allow local governments the ability to hold an  
            election, allowing voters to participate in the process, at  
            the next regularly scheduled election.  The appointee, if they  
            wish to continue in their position would be placed on the  
            ballot, to be essentially confirmed by voters to complete the  
            remainder of their term."



          3)Background.  According to materials provided by the author's  
            office, this bill was prompted by "unfortunate events in Bell  
            Gardens, where Mayor Daniel Crespo was killed.  Crespo had  
            just begun his term of four years.  Not able to call a costly  
            special election, his vacancy was filled by appointment.  The  
            appointee would be serving as an 'elected official' for over  
            three years, without ever having to run for election."



            Under existing law, when a vacancy occurs on a city council,  
            the council must fill that vacancy by appointment or by  
            calling a special election to fill the vacancy within 60 days.  
             The person elected or appointed to fill the vacancy holds  
            office for the remainder of the term.  Cities may pass  
            ordinances with alternative procedures, as specified above.





            This bill amends the law governing this process to match the  
            process used to fill vacancies in any elective office of the  
            governing board of special districts.





          4)Charter Cities and General Law Cities.  The California  








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            Constitution gives cities the power to become charter cities,  
            should voters in that city approve the charter.  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 (unless they adopt an alternative ordinance as outlined  
            above) and to any charter city that does not stipulate in its  








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            charter the procedure for filling vacancies on the city  
            council.





          5)Technical Amendment.  The Committee may wish to amend the bill  
            to correct a drafting error:



            On page 8, in lines 27 and 28, delete "or until the next  
            regularly scheduled citywide election"





          6)Previous Legislation.  AB 1795 (Alejo), Chapter 725, Statutes  
            of 2014, allowed a resigning city council member to cast a  
            vote on the appointment of his or her successor.  



            AB 1668 (Knight), Chapter 38, Statutes of 2010 extended, from  
            30 to 60 days, the time for a city council to fill a vacancy  
            by either appointing a replacement or calling a special  
            election.  





          7)Arguments in Support.  None on file.



          8)Arguments in Opposition.  None on file.








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          9)Double-Referral.  This bill is double-referred to the  
            Elections and Redistricting Committee.


          REGISTERED SUPPORT / OPPOSITION:




          Support


          None on file




          Opposition


          None on file




          Analysis Prepared by:Angela Mapp / L. GOV. / (916) 319-3958



















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