BILL ANALYSIS �
AB 1795
Page 1
ASSEMBLY THIRD READING
AB 1795 (Alejo)
As Amended May 15, 2014
Majority vote
LOCAL GOVERNMENT 7-0
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|Ayes:|Achadjian, Levine, Alejo, | | |
| |Bradford, Mullin, Rendon, | | |
| |Waldron | | |
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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)Prohibits 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)Prohibits 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.
4)Prohibits this bill's provisions from applying to any city council
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member who is resigning from the city council due to an accusation
of, or conviction for, corruption or criminal behavior.
5)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.
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, with specified exceptions and conflict-of-interest
prohibitions, if the city council elects to fill the vacancy by
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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 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
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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 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.
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"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 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
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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 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: 0003418