BILL ANALYSIS �
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 P�jaro Valley C�sar Ch�vez
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
AB 1795
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