BILL ANALYSIS �
SENATE GOVERNANCE & FINANCE COMMITTEE
Senator Lois Wolk, Chair
BILL NO: AB 1795 HEARING: 6/18/14
AUTHOR: Alejo FISCAL: No
VERSION: 5/15/14 TAX LEVY: No
CONSULTANT: Urquiza
CITIES: CITY COUNCIL: VACANCY
Allows a resigning city council member to cast a vote on
the appointment of his or her successor.
Background and Existing Law
The California Constitution allows cities to adopt charters
that give local voters and elected officials control over
city elections, including the manner, the method, the
times, and the terms municipal officers are elected or
appointed. California has 121 charter cities and 361
general law cities. General law cities must follow state
law.
State law allows public officials to be elected by all of
the voters of the jurisdiction through at-large elections
or from political subdivisions through district-based
elections. State law sets out the criteria for determining
when public offices become vacant, including death, absence
without leave, removal from office, felony convictions, and
resignation. Under state law, when a vacancy occurs in a
city council for a general law city, the council has 60
days from the commencement of the vacancy to either appoint
someone to fill the position or call a special election. A
person appointed or elected to fill a vacancy holds office
for the unexpired term of the former incumbent.
State law is silent on whether a resigning councilmember
may cast a vote on his or her successor if the vacancy is
filled via appointment. Some legislators want to clarify
that it is lawful for a resigning city councilmember to
cast a vote on the appointment of his or her successor in a
city that has district-based elections.
Proposed Law
AB 1795 -- 5/15/14 -- Page 2
Assembly Bill 1795 allows a resigning city council member,
in a city that elects city council members by or from
districts, to cast a vote on the appointment of a vacancy
if his or her resignation will go into effect upon the
appointment of a successor.
AB 1795 provides that the office of the city council member
becomes vacant upon the delivery of a letter of resignation
by the resigning city council member to the city clerk.
The bill 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.
AB 1795 prohibits a city council member who elects to cast
a vote for the appointment of his or her successor, from
the following activities for two years:
Advocating on any measure or issue coming before
the city council in which the city council member may
have a personal benefit;
Entering into a contract of any kind with the city
or a city vendor;
Accepting a position of employment with the city or
a city vendor; and,
Applying for a permit that is subject to the
approval of the city council.
The bill prohibits any city council member who is resigning
from the city council due to an accusation of, or
conviction for, corruption or criminal behavior, from
casting a vote for his or her successor.
State Revenue Impact
No estimate.
Comments
1. Purpose of the bill . In Martinez et al. v. City of
Watsonville (2011), the Superior Court ruled that it was
lawful for a resigning City Councilmember to participate in
AB 1795 -- 5/15/14 -- Page 3
the vote on the appointment of the successor who will fill
that vacancy. Specifically, the court ruled 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." Current law remains silent on whether a
resigning city council member may cast a vote on his or her
successor. AB 1795 allows a resigning councilmember to
protect the interests of residents in his or her district
by casting a vote on the appointment of a successor.
2. Pending litigation . Martinez et al. v. City of
Watsonville is now pending before the Sixth District Court
of Appeal. The appellate court will decide whether the
office of city councilmember can qualify as "vacant" while
at the same time the resigning incumbent casts a vote to
appoint his/her own successor. The Legislature
traditionally does not involve itself in matters that
directly relate to pending litigation, as it creates the
appearance that the Legislature is a "shadow court," where
parties can go for a decision when litigation is pending
and to circumvent the judicial system. For these reasons,
it may not be appropriate for the Legislature to interfere
with the case through the current bill proposal. The
committee may wish to consider whether it is prudent to
wait for the court to rule on this policy issue before
making changes to the law.
3. An occupied vacancy ? It is not common practice in
California to allow a resigning city council member to vote
on his or her successor. Under current law, if a council
member resigns office, the office becomes vacant. A
vacancy implies that the council member is no longer able
to exercise the powers of the vacant office. AB 1795
provides that a vacancy in a city council occurs "upon the
delivery of a letter of resignation by the council member."
The council member may designate in the letter that the
resignation will go into effect upon the appointment of a
successor. However, as long as the city council member
submits the letter of resignation, the office would be
considered vacant under AB 1795. The committee may wish to
consider whether it is reasonable for a resigning council
member to vote on his or her successor while the council
seat is defined by state law as vacant.
4. Accusations . AB 1795 prohibits any council member who
AB 1795 -- 5/15/14 -- Page 4
is resigning due to an accusation of, or conviction for,
corruption or criminal behavior from casting a vote on his
or her successor. This language allows anyone to accuse a
departing city council member for criminal behavior in
order to prevent him or her from voting. The language in
AB 1795 is unclear with regard to who decides whether the
member is resigning due to an accusation or for another
reason.
5. Who shouldn't vote ? AB 1795 is silent on whether a
council member would be authorized to vote on a successor
if the member resigns due to a pending recall. The
committee may wish to consider amending the bill to
prohibit any member that is subject to a recall election
from voting on his or her successor.
6. Addressing conflict of interests ? AB 1795 prohibits a
city councilmember who casts a vote for his or her
successor from engaging in certain actions for a period of
two years, including entering into a contract with the city
or accepting a position of employment with the city. For
instance, the former councilmember would not be able to
apply for a business permit after casting a vote for his or
her successor. The intent of these restrictions is to
prevent conflict of interests. However, Section 1090 of
the Government Code already establishes conflict of
interest laws for city officers and employees. The
committee may wish to consider whether the bill's
provisions are necessary or whether they place unreasonable
restrictions on members who wish to vote on their
successor.
7. Technical . The committee recommends the following
technical and clarifying amendments:
On page 5, line 12, insert "by appointment" after
"council"
On page 5, line 13, strike out "by appointment"
On page 5, line 21, after "years" add "after the
AB 1795 -- 5/15/14 -- Page 5
appointment of a successor."
Assembly Actions
Assembly Local Government: 7-0
Assembly Floor: 47-22
Support and Opposition (6/5/14)
Support : League of United Latin American Citizens; Pajaro
Valley Cesar Chavez Democratic Club.
Opposition : Watsonville Pilots Association.