HomeMy WebLinkAbout2012/02/14 Item 12CITY COUNCIL
AGENDA STATEMENT
~~~ CIN OF
CHULA VISTA
FEBRUARY 14, 2012, Item ~ 2-
ITEM TITLE: CONSIDERATION OF CHARTER REVIEW COMMISSION
REPORT AND RECOMMENDATION REGARDING
AMENDING THE CHARTER TO PROVIDE FOR DISTRICT
ELECTIONS
SUBMITTED BY: ASSISTANT CITY ATTORNEY, JILL D.S. MALAND, AND i
THE CHARTER REVIEW COMMISSIOI~~~~I ~ ~~
REVIEWED BY: GLEN GOOGINS, CITY ATTORNE~
4/STHS VOTE: YES ~ NO ~X
SUMMARY
On June 21, 2011, the City Attorney presented the City Council with the Charter Review
Commission's "Report Regarding General District Elections (and Alternatives) for City
Council Seats." The Council accepted the report and directed the Commission to return in
February 2012, following public outreach efforts by the Commission, with a "white
paper" containing the Commission's estimation of the pros and cons of district elections
and data on the election methods utilized by other cities. The report presented tonight has
been prepared in response to that direction. The Report also contains analysis from the
City Attorney with respect to the California and Federal Voting Rights Acts, the
procedural steps the City must follow in order to proceed with a charter amendment and,
with input from the City Clerk, information on the associated costs.
The Report presented tonight follows several months of public outreach work by the
Commission. Since June, the Commission has held seven public outreach meetings
(including attending the meetings of several civic organizations) and ten public
Commission meetings. In addition, the Commission established a web page with
information about district and at-large elections systems. Through the web page, residents
were able to provide weigh-in on the issue by taking an on-line survey or sending an e-
mail. Ultimately, the Commission voted to recommend that the City place a Charter
amendment on the ballot, no earlier than November 2012, to provide for district elections.
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ENVIRONMENTAL REVIEW
The Development Services Director has reviewed the proposed activity for compliance
with the California Environmental Quality Act (CEQA) and has determined that the
activity is not a "Project" as defined under Section 15378(b)(5) of the State CEQA
Guidelines because it involves only consideration of a report regarding district elections
and therefore is an organizational or administrative activity of government that will not
result in a direct or indirect physical change in the environmental; therefore, pursuant to
Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA.
Thus, no environmental review is necessary.
RECOMMENDATION
The Charter Review Commission report details the Commission's recommendation that
the City proceed with a Charter amendment to provide for district elections. Staff
recommends that the City Council accepts the Report and provide direction to the
Commission and staff, as the Council deems appropriate.
DISCUSSION
I. INTRODUCTION
The Chula Vista City Council members are elected in an "at-large" election
system. In June 2011, the City Council directed the Charter Review Commission to
conduct public outreach and prepare a "white paper" for the City Council, to include the
Commission's assessment of the pros and cons of changing to a district election system,
and information on the election systems of other California cities. The Commission has
completed its task. Its recommendation and supporting information are attached as
Exhibit A to this report. As explained in Exhibit A, the Commission recommends that, no
sooner than November 2012, the City Council submit a ballot measure to the voters that
would amend the Charter that would convert the existing "at-large" system for electing
councilmembers to a "by district" election system.
City staff has worked with the Commission throughout this process to conduct
research, provide the Commission with information and resources, and to support the
Commission's public outreach efforts. Accordingly, staff is providing the Council with
the following report to supplement the Commission's recommendation.
II. FACTUAL BACKGROUND
In June 2010, the Council referred several issues and questions to the Charter
Review Commission for review, including the issue of whether the City should amend its
charter to establish council districts and hold district elections. The Charter Review
Commission met in response to that referral. The commissioners concluded that
additional research should be performed prior to any decision-making, including a review
of options for establishing districts and legal issues.
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In July 2010, the City Attorneys' office presented the Council with a report
detailing the Charter Review Commissions discussion and the associated actions.
Following the presentation, the City Council directed staff to return to Council with draft
Charter amendments, one of which would establish City Council geographic voting
districts. The City Attorney's Office presented those draft amendments to the Council on
July 27th. The Council continued the item to August 3, 2010, and also requested that the
City Clerk return with an estimate of costs associated with placing the item on the ballot.
At the August 3, 2012 meeting, the City Clerk provided an estimate of costs
related to a ballot measure and informed the Council that monies would need to be
appropriated in order to pay such costs. Council took no further action with respect to
district elections at that time and the matter was tabled indefinitely.
On May 10, 2011, Councilmembers again introduced the idea of establishing
council districts and holding district elections. The Council referred the matter to the
Charter Review Commission to identify and evaluate election options, including. (i) no
change to the current system (continue with all at-large seats); (ii) district elections
(based on geographic boundaries); or (iii) an alternative that may include a mixed
election system or a hybrid.
In order to take up the Council referral, the Charter Review Commission met on
June 6, 2011. After comments by staff, commissioners and the public, the commissioners
voted unanimously to recommend to the City Council that they continue their discussion
related to district elections, hold public meetings in different locations in order to obtain
public input, research election options, including methods used by other cities within the
state of California, to evaluate the efficacy of such options, and to further understand
some of the legal framework and issues associated with establishing districts and having
district elections.
City staff presented a report to the Council on .June 21, 2011, relaying the
Commission's request. After considering the report, Council directed the Commission to
conduct public outreach, consider election systems of other California cities and prepare
a report with the Commission's assessment of the pros and cons related to district
elections. The Commission met in response to the Council's direction and returned to the
Council on September 13, 2011, to request funding for its public outreach efforts. The
Council did not approve that funding, but requested that the Commission continue with
its efforts, utilizing available City resources. The Commission proceeded accordingly,
has completed its work and presents its report and recommendation for the Council's
consideration tonight.
III. LEGAL ANALYSIS
As a charter city, Chula Vista has plenary authority over the method by which its
officers are elected.' Thus, the City is free to alter its current election system, so long as
it complies with applicable federal and state law, including the Federal Voting Rights Act
~ Cal. Const., art. XI, sec. 5, subd. (b).
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and the California Voting Rights Act. An explanation of the vazious types of election
systems, and a review of the Voting Rights Acts, are provided below.
A. Election Systemsz
In California, most municipal election systems fall withixt one of the
following categories: (i) at-large; (ii) by district; (iii) from district (also known as
"hybrid"); or (iv) a mix of these. These systems are discussed in more detail below.
1. At-Large
An at-large election system is one in which the candidates for
office can live anywhere within the jurisdiction and the entire electorate is entitled to cast
ballots for each office. Chula Vista currently uses an at-large, by seat, system to elect its
City Council members. With this system, each candidate for office must identify the
specific Council seat which he or she seeks to fill. The Councilmembers in Chula Vista
are elected for terms of four years, on a rotating basis. The Mayor and seats one and two
are up for election in one election year; Council seats three and four are up for election in
the alternate election year. With this system, two Council seats are up for election every
two years, with the Mayor's seat included every fourth year.3
According to the 2010 Census, Chula Vista is the 14`t' largest city in the state,
based on population. For the Council's reference, we collected election information on
the 20 largest California cities.4 We determined that six of those cities utilize at-lazge
elections (in order of size, from lazgest to smallest population): (i) Anaheim; (ii) Chula
Vista; (iii) Fremont; (iv) Irvine; (v) Oxnard; and (vi) Fontana. As an at-large city, Chula
Vista is subject to both the state and federal Voting Rights Act, which are discussed in
detail in section IILB., below.
2. "By District"
In elections conducted by district, the candidates live in the district
and are elected by voters in that district, only. The jurisdiction is divided geographically
and each district is represented on the Council by one of its residents. The voters in a
district are entitled to cast their ballots only for the candidates vying for that district's
seat. Eleven of the twenty largest cities elect their Councilmembers by district (i) Los
Angeles; (ii) San Diego; (iii) San Jose; (iv) San Francisco; (v) Fresno; (vi) Sacramento;
(vii) Long Beach; (viii) Bakersfield; (ix) Riverside; (x) San Bernardino; and (xi)
Modesto. All of these except Riverside and San Bernardino are larger in population than
Chula Vista.
With district elections, the City could structure them in a couple of ways. The
z This section will discuss the characteristics of the various election systems. The Council specifically
requested the Charter Review Commission to provide its assessment of the pros and cons of each.
Accordingly, that information is provided m Attachment A, the Commission's section of this Report.
s Chula Vista City Charter, Sec. 300.
"Attached to this Report as Exhibit B is a chart summarizing the information we gathered on these 20
cities.
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City currently holds its general election in June. If a candidate receives-a majority of the
votes, that candidate wins the office. If no candidate receives a majority of the votes, the
two candidates who received the most votes proceed to a runoff election in Novembers
This same process could be utilized for district elections, with only those electors residing
in the district eligible to vote for the candidates for that district, in both the general and
any run-off election. Alternatively, the City could choose to hold just one election. In this
scenario, the top vote getter from the district would win the seat, with no runoff election
required. Another variation of district elections is known as "from district" and is
described below.
"From District' or "Hybrid"
In this type of district election, a candidate for a district seat must
live in the district but is elected at-large. The election could be just a general election or
include a runoff. We found two cities which utilize this type of election process: Stockton
and Santa Ana. Both of these cities use a primary election to nominate candidates; only
those residing in the district may vote for a district candidate in the primary election. The
top candidates then proceed to the general election, at which all voters in the city may
vote for candidates in all districts.
4. Mixed
One other option would be a mix of the election methods described
above. For example, the city of Oakland elects one councilmember (and its mayorb) at-
large, and elects the other seven councilmembers by district. We did not find any other
city that utilized this type of mixed method in California.
In deciding whether to continue with at-large elections, or switch to district
elections, the City should be aware of certain legal concerns, as discussed below.
B. Voting Rights Acts
Federal Voting Rights Act
Both federal and state laws make it illegal to deprive a person of
the right to vote, based on race or color. Section 2 of the Federal Voting Rights Act of
1965 ("FVRA")~ prohibits the imposition of a voting practice or procedure "by any State
or political subdivision in a manner which results in a denial or abridgement of the right
of any citizen of the United States to vote on account of race or color."8 The FVRA
applies nationwide to all voting practices, whether at-large or district based.
A violation of the FVRA occurs "if, based on the totality of the circumstances, it
s Chula Vista City Charter, Sec. 300.G.
e In all of the cities that we looked at, the mayor was elected at-large.
42 USC § § 1973.
s 42 USC 1973(a)
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is shown that the political processes leading to nomination or election ... are not equally
open to participation by members of a [protected class of citizens] ... in that its members
have less opportunity than other members of the electorate to participate in the political
process and to elect representatives of their choice."9 The factors that a court may
consider in determining whether there has been a violation of the FVRA include: (i) the
history of official voting-related discrimination in the political subdivision; (ii) the extent
to which voting in the political subdivision is racially polarized; (iii) the extent to which
the political subdivision has used voting practices or procedures that tend to enhance the
opportunity for discrimination against the minority group; (iv) the exclusion of members
of the minority group from candidate slating processes; (v) the extent to which minority
group members bear the effects of discrimination in areas such as education, employment
and health, which hinder their ability to participate effectively in the political process;
(vi) the use of overt or subtle racial appeals in political campaigns; and (vii) the extent to
which members of the minority group have been elected to public office in the
jurisdiction.10
A minority group is not required to prove intentional discrimination by officials to
show a violation of the FVRA.11 To successfully bring an FVRA claim, the claimant
must show that it is (i) sufficiently large and geographically compact to constitute a
majority in asingle-member district; (ii) politically cohesive; and (iii) able to demonstrate
that the white majority votes sufficiently as a bloc to enable it ... to usually to defeat the
minority's preferred candidate.12
2. California Voting Rights Act
The California Voting Rights Act ("CVRA")13 applies specifically
to at-large elections, or any election system that has an at-large component to it, such as
the "from district" described above. The CVRA was enacted to implement the equal
protection and voting rights provisions of the California Constitution.14 The CVRA
establishes a cause of action for members of a protected class where, because of "dilution
or the abridgement of the rights of voters," an at-large election system "impairs the
ability of a protected class to elect candidates of its choice or its ability to influence the
outcome of an election ... ."15 To prove a violation, plaintiffs must show racially
polarized voting occurs in elections for members of the governing body.~b Factors that
may be considered in determining a violation are: ~~ (i) a history of discrimination; (ii) use
of electoral practices that may enhance the dilutive effects of at-large elections; (iii)
denial of access to processes that determine which groups of candidates will receive
e 42 USC 1973(b).
10 Senate Committee on the Judiciary on the 1982 amendments to Section 2 of the FVRA [S Rep No. 97-
417, 97"' Cong 2d Sess (1982), p. 28.]
~~ Shaw v. Reno (1993) 509 U.S. 630, 641.
i2 Thornburg v. tingles (1986) 478 U.S. 30, 35.
"Cal. Elec. Code §§14025, et seq.
14 Cal. Elec. Code § 14031.
's Cal. Elec. Code §§ 14027, 14032.
16 Cal. Elec. Code § 14026(e).
'~ Cal Elec. Code §14028(e).
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financial or other support in an election; (iv) extent to which members of a protected
class bear the effects of past discrimination in areas such as education, employment and
health; and (v) use of overt or subtle racial appeals in political campaigns.
The CVRA provides a broader cause of action for vote dilution than the FVRA
provides because it eliminates the requirement that plaintiffs show that a geographical
compact majority-minority district is possible. Thus, the only requirements to bring a
successful claim under the CVRA are to show that the minority group is politically
cohesive and that its ability to elect its candidate of choice has been blocked.tg Any voter
who is a member of a protected class and resides in the City has standing to bring a cause
of action under the CVRA. Like the FVRA, the CVRA does not require proof of intent to
discriminate in order to establish a violation. A violation of the CVRA could subject the
City to court-imposed, district-based elections, and liability for a claimant's attorneys'
fees.19 Violation of the CVRA could subject the City to court-imposed district-based
elections, and liability for a claimant's attorneys' fees and costs of suit.
C. District Proportionality
If the City opts to proceed with establishing district elections, the
boundaries cannot be drawn to either illegally benefit or discourage participation in the
electoral process of any constitutionally protected group. The lines must be drawn to
create districts that have reasonably equal populations and avoid either intentional or
unintentional discrimination and must be established in a manner that is based on
"substantial equality." 20 Furthermore, the lines must be drawn in a rational manner and
cannot be drawn to intentionally separate voters into different districts on the basis of
race, unless the use of race passes strict scrutiny?~ zz
IV. CHARTER REVIEW COMMISSION RECOMMENDATION
Pursuant to the City Council's direction in June 2011, the Charter Review
Commission has spent the past several months conducting public outreach and reviewing
other information on district elections. On January 18, 2012, with all four current
members of the Charter Review Commission present, the Commission voted
unanimously to recommend to the City Council that, no sooner than November 2012, the
City Council place a Charter amendment on the ballot to change the current election
system to a "by district" election system for the four City Councilmembers. On February
7, 2012, with Commissioner Rhamy absent, the Commission voted 3-0 to recommend to
'$ Sanchez v. City of Modesto (2006) 145 Ca1.App.4`" 660.
19 Cal. Elec. Code §§14028(d); ]4029-14032.
20 Reynolds v. Sims (1964) 377 U.S. 533, 579.
Z~ Shaw, supra, at pp. 644, 649.
zz The Council may be aware of the lawsuit recently filed against the City of Escondido. That suit alleges
that Escondido's at-large election system has resulted in disenfranchisement of the Escondido's Latino
population and, therefore, violates both the FVRA and the CVRA. The City of Escondido disputes the
claim and the suit is currently pending in Vista Superior Court. We are not aware of any facts in Chula
Vista that would support such a claim, and have not received any threats of a similar lawsuit.
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the City Council that the process to draw district lines be done by- an independent
commission, whose members should be appointed by Superior Court judges.
The Commission's report detailing its public outreach efforts, the pros and cons
of the various election processes, and additional information supporting its
recommendation is attached to this report as Exhibit A. In addition, the following
documents which were considered by the Commission during this process, are attached
as indicated: (i) the estimated costs associated with district elections, based on
information provided by the City Clerk and County Registrar of Voters, Exhibit C; (ii)
City of Elk Grove, "Charter Exploratory and Election Reform Report," Exhibit D; (iii)
City of Modesto, "Charter Review Committee Final Report," Exhibit E.
V. NEXT STEPS
If the Council chooses to follow the Commission's recommendation and proceed
with a charter amendment to allow district elections, there are several steps and decisions
which the Council will need to consider. Those are outlined below.
A. Ballot Measure
California's next general election will be held on November 6, 2012. In
order to place a measure on that ballot, the City must provide a signed City Council
Resolution with full ballot language to the County Clerk at least 88 days prior to an
election. For the November 6, 2012 election, the deadline would be August 10, 2012.
Prior to that time, City staff, in conjunction with the Charter Review Commission, would
have to draft the ballot language. The measure, if placed on the November 2012 ballot
would take effect, if the measure passes, for the 2014 election cycle.
The estimated cost of placing the measure on the ballot would vary
depending on the number of pages contained in the ballot measure The estimated costs
for a: 5-page measure: $53,000 to $68,000; 10-page measure: $71,000 to $87,000; and
18-page measure: $99,000 to $115,000.
There was some previous discussion at previous City Council meetings
about potentially placing the measure on the June 2012 ballot. Neither the Commission
nor City staff aze recommending that the City go forward on the June ballot. The deadline
to provide the ballot language and resolution to the County Registrar for the June 5, 2012
election is Mazch 9, 2012. As described in detail below, there are several decisions that
the Council must make and a substantial amount of work to be done, including the
retention of outside counsel. Also, pursuant to the Municipal Code, the Commission
should be involved in drafting the Charter amendment language. This would require
additional Commission meetings. In addition, the cost to go to ballot in June would be
higher than it would be in November [the cost estimates for June range from $80,000 to
$95,000 (5-page measure) to $168,000 to $183,000 (18-page measure).] Finally, whether
the measure goes on the June or the November ballot, any resultant change to the election
system would not take effect until the 2014 election cycle.
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B. Effective Date
The charter amendment language should address specify when the district
elections will begin. For example, if the charter amendment is placed on the ballot in
November 2012, it could take effect for the next election cycle in 2014. However, the two
councilmembers who are elected in 2012 would still have two years left on their terms.
As a result, the Council would then consist of a mayor elected at-large, two
councilmembers elected by district, and two councilmembers elected at-large.
Alternatively, the amendment could provide that the two councilmembers elected in 2014
would be elected, at-large, for atwo-year term in 2014, and all councilmembers would
then be elected by district starting in 2016. With either alternative, all four
councilmembers would be elected by district as of 2016; the second alternative would
avoid having a split council (two elected at-large and two elected by district) for two
years.
B. Establishment of Districts
Prior to placing the measure on the ballot, the City must determine the
number of districts, how the district boundaries will be drawn, and the process by which
the councilmembers will be elected by district. The amendment must determine the
procedure for establishing, amending and redistricting (the City would be required to
redistrict every ten years, based on the most recent census data). There are three basic
procedural methods of establishing district boundaries:
1. Council-established districts
The City Council could establish the districts itself through public
hearings required by the district Charter provisions. The Council would also act on minor
boundary adjustments caused by annexations. Every ten years, it would start the process
anew and adjust boundaries to reflect changes in demographics to keep the district
boundaries in compliance with federal and state election laws.
2. Council-appointed Commission
The City Council could pick members of the commission to hear
public testimony, study the issue and either make recommendations to the City Council
or adopt the district plan themselves. The same process would apply to redistricting every
ten years. Sometimes, minor adjustments due to annexations are made by the City
Council under this model to eliminate the need for establishing a redistricting
commission every time there is an annexation. Under this option, the City Council would
choose a commission each ten year period to begin the redistricting process. Often, the
charters that call for the formation of an independent commission require that its
members refrain from running for a district office for at least five years.
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3. Third Party-established Commission
Third party established commissions usually have an independent
person or body choose the commissioners for each district/redistricting cycle. This option
is usually found in very large jurisdictions. In the City of San Diego, the Presiding Judge
of the San Diego division of the Superior Court chooses the Commission members. The
Commission members are usually precluded from seeking office for a specified period of
time. There is also a default procedure when the designated person or body fails or
refuses to perform their duties.
C. Consultants and Public Outreach
Regardless of whether the Council, or a separate commission will
establish the boundaries, it is recommended that significant public outreach be conducted
in the process. It is also anticipated that outside consultants will be needed to ensure that
the boundazies are drawn in a legally defensible manner. This is a highly specialized
practice area. We have consulted preliminarily with four firms specializing in elections
law. Based on those consultations, it appears that this process will require the hiring of
outside experts such as mappers, demographers and redistricting consultants to draw the
district boundaries. Work by the consultants and legal counsel would include analyzing
the demographics, reviewing past election activity in the City and analyzing the role of
minority voters in selecting candidates, as well as drawing the actual district maps. It is
estimated that this process (retention of consultants, public outreach, and drawing of
district boundaries) will take approximately six months to one year. The City of San
Diego recently undertook its decennial redistricting process. This included adding a ninth
district. According to the San Diego Redistricting Commission's website, the
Commission spent $105,000 on consultant services ($15,000 on outside legal services
and $90,000 on mapping and outreach services).
VI. RECOMMENDATION
If the Council follows the Commission's recommendation and opts to place a
charter amendment on the November 2012 ballot, staff recommends the following
process:
1. Council determines: the number of districts and the process by
which districts will be drawn, amended and redistricted; and the
effective date and any changes to future councilmember terms;
2. Staff proceeds with identifying the appropriate types of consultants
and other outside assistance that may be required for the charter
amendment process;
3. Staff returns to the Council by the end of March with a timeline for
Council's approval;
4. Staff retains consultants and prepares draft ballot for Council's
approval;
5. Council adopts necessary resolutions to place charter amendment
on November 2012 ballot (must be forwarded to County Clerk by
August 10, 2012);
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6. If the measure passes, the City retains outside consultants to assist
with mapping process, and the Council or commission proceed
with public outreach to identify and establish appropriate district
boundaries;
7. Council adopts an ordinance by June 30, 2013, establishing or
approving district boundaries.
If the Council does not choose to follow the Commission's recommendation, the
staff requests alternative direction from the Council as to how to proceed with this matter.
VII. CONCLUSION
As detailed above, there are many legal and procedural issues for the Council to
consider in determining whether to move forward with a charter amendment to allow for
district elections. The Commission and staff are prepared to move forward, as the
Council may direct.
DECISION MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that it is
not site specific and consequently, the 500-foot rule found in California Code of
Regulations section 18704.2(a)(1), is not applicable to this decision.
CURRENT YEAR FISCAL IMPACT
The fiscal impact would depend on the direction given by Council If Council directs the
Commission and staff to conduct additional study, research, and outreach, the out-of-
pocket cost would be nominal; however attorney staff time could be significant. In the
event that Council directs the preparation of a ballot measure, the City Attorney's office
would need to retain specialized, outside counsel; the cost of this would depend upon the
complexity of the ballot measure proposed and other unknown factors. Based on input
from prospective outside counsel, the estimated cost for this work would be in the range
of $5,000 to $7,500. In addition, there would be the cost to place the item on the ballot
discussed above.
ONGOING FISCAL IMPACT
Based on information provided by the County Registrar's office, there would be a
reduction in the cost of the biannual elections (for 2012, the difference would be
approximately $65,000 per seat; for 2014 the estimated difference would be
approximately $30,000 per seat). District elections would also result in an additional
expense every ten years to conduct the redistricting process. (San Diego's Redistricting
Commission spent approximately $500,000 on its recent redistricting efforts.)
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Attachments:
Exhibit A: Charter Review Commission Report
Exhibit B: Table of Election Processes of Top 20 California Cities
Exhibit C: Estimated District Election Costs
Exhibit D: City of Elk Grove, ``Charter Exploratory and Election Reform Report''
Exhibit E: City of Modesto, "Charter Review Committee Final Report"
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~_or~~( ~~C7Mq S
Jerry Thomas 619 3024410 February 14, 2012
1339 Second Avenue, Chula Vista CA 91911
The Southwest has more variety of lifestyles, flora, fauna,
ethnic groups and people doing their own thing -with more
sheer difference than any place I know. Every day I meet
people who are fleeing persecution and those looking for a
better life. Many people come from other places to improve
the lives for themselves, their families and their community.
People want a chance to participate in the local government.
The districts must be made honestly and fairly, Everything I
know about district elections is based on first- hand
experience. Today with the citizen united Supreme Court
decision, a handful of people, who have been elected to
nothing, can buy our system. Corporations are not people;
they are creations of the government. tt is a major victory for
special interest that marshals their power to drawn out the
voices of everyday Americans. Corporations are not people;
they are creations of the government. We can't allow our
districts to be drawn unfairly. The voters must pick the
council, not the council picking the voters. The districts must
be made without partisan logrolling, you scratch my back and
I'll scratch yours. The districts must be made with integrity,
representative and fair. It is important that we hold district
elections and the districts represent common community
interest
1. District elections will increase access to city government for
ordinary people living, working, studying and playing in their district.
2. District elections will make the council people more responsive in a
timely manner to the people's concerns and be more easily available
at town halls and other neighborhood civic and community meetings.
3. District elections will decrease the cost of running for city council, a
public service position. (Registrar of voter's costs, slate costs, signs,
flyers, gasoline, etc., etc.)
4. District election will have the elected council people more
informatively speak up for the community interests, issues and family,
educational, recreational, transit, economic needs.
5. District elections is the model for local representative democracy
values and action and goad for both the voters and candidate's
representation of the American values, basic rights and principles.
Jerry Thomas 619 3024410 February 14,
2012 1339 Second Avenue, Chula Vista CA 91911
EXHIBIT A
CHARTER REVIEW
COMMISSION REPORT
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Report of the Charter Review Commission Re: District Elections for the
City of Chula Vista
Overview
In June of 2011, the Chula Vista City Council requested a recommendation from the
Charter Review Commission about the idea of creating a system of elections based
on districts rather than at-large. When the Charter Review commission met to
discuss the issue, the commission felt that additional time and public input was
necessary before making a suggestion to the City Council. The commission voted to
request additional time to study the issue and to reach out to the public in order to
gain insight into how the citizens of Chula Vista felt about the issue before making a
recommendation.
The following report includes a recommendation by the Charter Review Commission
as well as additional information gathered by the commission during its review of the
issue. Among the information included in this report are the potential costs of placing
a measure on an upcoming ballot along with the costs experienced by other cities
that have council members elected by district. The report also includes information
on outreach efforts taken on by the commission and the results of those efforts.
Process for determining recommendation
The City Attorney's office provided a variety of information as requested by the
Commission. In addition, the Commission felt that it was important to obtain public
input prior to making a recommendation. The Commission learned of other cities
which recently examined the issue; Elk Grove and Modesto. The most
comprehensive report was produced by the City of Elk Grove which used outside
consultants to conduct studies and provide a finished product. The studies and
report were costly. Because no funding was allocated by the City Council, and with
the tight budget in the City, the Commission decided to use a "grass roots" approach
and conduct its own research with the assistance of the available resources.
The Charter Review commission began its outreach efforts by creating a
presentation that contained: 1. a review of the current system of electing council
members in Chula Vista; 2. the benefits and drawbacks of that system; 3. an
introduction of "by-district" and "from district" types of elections; 4. the pros and cons
of those systems; 5. the costs of voting on making a change and the costs the city
12-14
may incur in implementing districts; 6. asking for feedback on whether or not change
is necessary.
The commission determined to use two methods of outreach to the public. One
method would be through an on-line posting of the presentation and request for
feedback described in the paragraph above. Although the process of posting this
information on-line took a little longer than the commission had anticipated, this
method did prove fairly popular and generated numerous responses.
The second method of outreach was through presentations in the community. For
the most part the commission piggybacked onto meetings already scheduled by
other community groups. Presentations were made to the following groups:
Southwest Civic Association, Northwest Civic Association, Crossroads II, Chula
Vista Chamber of Commerce, and the Chula Vista Kiwanis. The commission also
held two additional meetings at community centers in the eastern part of the city.
Feedback
Based on the results of surveys returned at the community presentations and the
comments received through the on-line survey, support and opposition to change
the method of election are about equally divided.
Issues raised in meetings and on-line input include (in no particular order):
- a lot of people on the East side felt like they were not being represented sufficiently
by the current system
- some people worried about the cost of having an election on this issue
- if districts are created, people asked to not split communities
- some people felt that having districts would help candidates with fewer resources.
- One person noted that with district elections you would not need a "big daddy" as
much as you would if you had to run an at-large campaign. By this, the resident
meant that the way the system is set up currently, someone who wants to run a
viable campaign must have the support of a person or small group of people with a
lot of money.
- lower costs to run a campaign would encourage more people to run
- some thought that the city was not big enough for districts while others thought that
it was
- some were concerned as to who would draw the lines for the district
- some felt that bigger or smaller would not matter and that money would still
influence
- some felt that districts would create parochialism
- a few people wanted to see a map of the districts before voting
- some suggested to have the election at the lowest expensive election (General)
12-15
-some people wanted to see a hybrid system: one north district, one south district,
and two at-large seats
- many felt strongly that having districts would make representatives more
accountable to their constituents
- some brought out other issues like how outside influences affect local elections
Recommendation
On January 18, 2012, with all four current members of the Charter Review
Commission present, the Commission voted unanimously to recommend to the City
Council that, no sooner than November 2012, the City Council place a Charter
amendment on the ballot to change the current election system to a "by district"
election system for the four City Councilmembers.
On February 7, 2012, with Commissioner Rhamy absent, the Commission voted 3-0
to recommend to the City Council that the process to draw district lines be done by
an independent commission, whose members should be appointed by Superior Court
judges.
Reason for recommendation
Outreach and feedback from the public on the issue of district elections was nearly
equally split, 50/50 in favor and against. Opinions were strong on each side of the
issue. Given the results were not overwhelmingly against forming district elections,
the commission believes this issue should be presented to the electorate for a vote.
12-16
February 9, 2012
To: Mayor Cheryl Cox and Members of the City Council
From: Chula Vista Charter Review Commission
Dear Mayor Cox and members of the City Council:
Over the past several months, the Charter Review commission has studied the pros and cons of several
systems used to elect city council members in cities around the state. We have listened to the opinions
and concerns of dozens of Chula Vista citizens who have attended our presentations or given feedback
on our on-line survey. Our project began with the commission basically split on whether or not to
recommend a vote on district elections. Even after months of research and hearing from the public, it
has not been easy to agree on a recommendation. The following report, which we respectfully submit,
contains an overview of our research and outreach activities, along with the conclusions our commission
drew from that research.
The Chair would like to thank the members of the commission including Egbert Oostberg and Brandon
Marvin, who had to leave the commission before this report could be completed, for the time and
energy they voluntarily committed to this project. The Commission would like to express their
appreciation to City Attorney Glen Googins and his staff, especially Assistant City Attorney Jill Maland,
and Cheryl Ponds for their assistance in this process. As a commission, we also want to thank those
members of the public who took the time to express their views on this important issue.
Respectfully,
City of Chula Vista Charter Review Commission
Randy Bellamy -Chair
Ron Kelley-Vice Chair
William Richter
Carra Rhamy
12-17
Comparison of costs to the city for "at large" and "by
district" elections over a period of 10 years*
Current reported cost of running "at-large" elections:
$90,118 per seat per election
Estimated cost of "at-large" elections over 10 years:
$90,118 per seat x 2 seats x 5 elections = $901,180
Estimated cost of "by district" elections:
$25,314 per seat per election
Estimated cost of "by district elections over 10 years:
$25,314 per seat x 2 seats x 5 elections = $253,140
Cost to create maps, decennial redistricting costs:
Estimated cost of initial ballot measure: $75,000***
Estimated total cost of "by district"
elections over a 10 year period: $811,140
*Utilizing estimated election costs reported to Charter Review commission by the
San Diego County Clerk's office.
**Cost reported to the commission of the redistricting process in San Diego, a city
with nearly 5 times the population of Chula Vista.
***Avg. cost of ballot measure on Nov. 2012 ballot
72-18
EXHIBIT B
TABLE OF ELECTION
PROCESSES OF TOP 20
CALIFORNIA CITIES
12-19
ELECTION S
1 Los Angeles YSTEMS O
•„
3,792,621 F THE TOP 20 CAL
Mayor IFORNIA CITI
~
15 ES (BY POPU
Charter LATION) (21
467 18/12)
..-
2,500
2 San Die o 1,307,402 Ma or 9 Charter 342 2,760
3 San Jose 945,942 Ma or 10 Charter 178.2 2,500
4 San Fran 805,235 Ma or 11 Charter 46.9 6,830
5 Fresno 494,665 Ma or 7 Charter 54.7 1,030
6 Sacramento 489,488 Ma or 8 Charter 97 812
7 Lon Beach 462,257 Ma or 9 Charter 50.29
8 Oakland 390,724 Mayor + 1 City
Councilmember 7
Charter 55.79 1,000
g Bakersfield 347,483 Mayor - No vote
unless even 7 elected in
November,
no run-off
Charter 142 437
10 Anaheim 336,265 Ma or+4 Cit NO Charter 50 1,461
11 Santa Ana 324,528 Mayor + 6 City
Councilmembers Nominate 6
Charter 27.3 459
12 Riverside 303,871 Ma or 7 Charter 81.1 993
13 Stockton 291,707 Mayor + 6 City
Councilmembers Nominate 6
Charter 61.7 603
14 Chula Vista 243,916 Ma or+4Cit NO Charter 50 262
15 Fremont 214,089 Mayor+4 City NO General Law 77.5 134
16 1rvine 212,375 Mayor+4 City NO Charter 66.1 135
17 San Bernadino 209,924 Mayor 7 Charter 59.2 256
18 Modesto 201,165 Mayor 6 Charter 36.9 456
19 Oxnard 197,899 Mayor+4 City NO General Law 26.9 361
20 Fontana 196,069 Mayor+4 City NO General Law 42.4 283
12-20
EXHIBIT C
ESTIMATED DISTRICT
ELECTION COSTS
12-21
ESTIMATED DISTRICT ELECTION COSTS - CHULA VISTA - 2012
The information presented below constitutes preliminary, estimated costs. It is
informational only and should not be relied on for any purpose. It is based
primarily on historical data; the actual costs associated with any given election will
vary based on several factors, including: the number of jurisdictions participating
in the election, whether it is a presidential or gubernatorial election, the number of
pages in a proposition, the number of voters in a jurisdiction, how district lines are
drawn and federal minority language requirements.
I. Estimated Cost of Placing a Proposition on the Ballot in Chula Vista
5-page
Pro
10-pa a Prop 18-page
Pro
Jun. 2012 $80K-$95K $114K-$129K $168k-$183k
Nov. 2012 $53K-$68K $71 K-$87K $99K-$115K
IL Estimated Costs Associated with Conducting Primary Elections In Chula Vista
Estimate Estimate BY DISTRICT AT-LARGE
per voter - per voter - Cost per seat Cost per seat
By District At Large (101,257voters/4) (101,257
voters)
PRESIDENTIAL 1.00 .89
6/2012 $25,314.25 $90,118.73
GUBERNATORIAL 42 .39
6/2014 $10,631.99 $39,490.23
12-22
EXHIBIT D
CITY OF ELK GROVE
"CHARTER EXPLORATORY AND
ELECTION REFORM REPORT"
12-23
Charter
Exploratory
and Electiol
. -t~~ ELk GR~
~'U G\
~~~_
~r
i
. O ~_ ~ ~P~
~V ~ (FOR i
12-24
The Elk Grove City CouncIl appointed afive-member committee to "research and enumerate the
advantages ox disadvantages of the General Law and City Charter fozms of government"
General Law vs. Charter City Issues
When discussing the advantages and disadvantages of general law and charter cities, the committee
looked at five characteristics of general law cities and six characteristics of chaxtex cities. Several of the
characteristics for general law cities were either disadvantages ox could not be categorized as an advantage
ox disadvantage.
When categorizing the characteristics of charter cities, the advantages and disadvantages were about
equal. The overall feeling from the committee was that general law offered cities a good template for
government, but could be restrictive in some circumstances. Being a charter city, in contrast, offered a
wide range of options, but could open up a city to additional litigation depending on the novelty of
provisions a city seeks to include in the chaxtex.
Election Reform Issues
Both general law and charter cities may choose between a dixectiy elected mayor and a mayor selected by
the city councIl. The powers of the mayor axe determined by whether a city is general law or charter.
When discussing the advantages and disadvantages of the election and selection of the mayor, the
committee felt that a charter city had more flexibility when determining which process to use when
selecting a mayor.
When discussing the various types of election systems, the committee reviewed characteristics of "at
large" elections, district based elections both by and from, mixed and hybrid elections. Overall the
committee felt each type of election system had an equal number of advantages and disadvantages and
determining which one to use would be based on what was best for the city.
The committee also tacked through the advantages and disadvantages of instant run-off or "ranked
choice" voting. The disadvantages outweighed the advantages fox this type election, mainly because of
cost and potential confusion for voters. Only charter cities can use this type of election.
The characteristics of primary and general elections were also discussed. Many of the characteristics were
specific to either a general law or charter city. One of the major disadvantages with having a primary and
general election was the cost associated with it.
Fifty-percent plus one elections, which require that the winning candidate receive a majority of the ballots
cast, can only be used in charter law cities. General law cities are limited to using "plurality" elections
where the candidate who receives the most votes wins even if that number is less than a majority of the
votes cast.
The committee also discussed 13 characteristics of campaign finance reform and ethics. Overall, the
committee felt that while campaign finance reform generally positive. The challenge was that some things
such as expenditure limits and following a code of ethics axe voluntary. Even if all candidates agreed to
certain parameters, they were not bound legally to follow them. And if one candidate chose not to follow
the set requirements, then others might follow suit, thus defeating the purpose of the reforms.
O
12-25
«~~~~~~~ ~~~~~~>,~~~y
II IIIV~JV~..IIV11
The Charter Exploratory and Election Reform Committee was Formed under the direction of the City
CouncIl following public input regarding selection of the mayor and election of council members during
the December 13, 2006 meeting. The Council directed City staff to prepare a resolution
establishing a committee to "research and enumerate the advantages or disadvantages of the
General Law and City Charter forms of government "
At the January 24, 2007 Councfl meeting, the Council expanded the criteria to include: selection/election
of the mayor, district elections, instant run-off voting, election by 50 percent plus one, primary/general
elections and campaign reform. A six-month time limit was set for the committee to cover the directed
items with support from City employees and outside consultants, the time limit was to become effective
once the committee members were selected and announced at a Council meeting. This took place at the
June 13, 2007 Council meeting.
Each Council member appointed one member to the ad-hoc committee. Committee members were [o be
Elk Grove residents, at least 18 years old and registered voters. The committee members were appointed
as follows:
• Jake Allen, appointed by Council member Michael Leary
• Nancy Chaires, appointed by Mayor Jim Cooper
• Clifford Loveland, appointed by CouncIl member Gary Davis
• Michelle Oxrock, appointed by CouncIl member Sophia Scherman
• Pat Perez, appointed by Council member Patrick Hume
The City contracted with Lucy & Company, a public outreach firm, to provide meeting facilitation
services; Lucy Eidam facilitated the meetings. The City also contracted with Olson, Hagel & Fishbuxn
LLP, a law firm specializing in election law, campaign finance law and government and constitutional law,
to educate committee members on each of the topics they were directed to consider and to provide legal
services. The law firm's attorneys, Lance Olson and Richard Miadich, provided committee members with
over S00 pages of reading material fox the topics they were asked to consider and gave presentations at
each meeting where the topics were discussed. They provided committee members with written materials
that form the basis for the narrative portions of this report and drafted the "characteristics" referenced
that Lucy & Company relied on to facilitate consensus among the committee members on the advantages
and disadvantages. Finally, Mr. Olson and Mr. Miadich assisted in editing and preparing this report.
The Elk Grove Charter Exploratory and Election Reform Committee held public meetings on the
following dates: June 28, July 9, July 23, August 13, August 27, September 10, September 24, October 8,
October 22, November 13 and November 26. All committee meetings were open to the public.
Committee meeting agendas, minutes and supplemental materials totaling 825 pages have been made
available in the City Clerk's Office and online aC ~x~~;emu elhgrnvecitv.or~r/charter-election/agendas.htm.
12-26
Resolution
1. Research and enumerate the advantages and disadvantages of the general law vs. the city charter
forms of government.
2. Study election reform issues:
a. Election/selection of the mayor
b. District Elections
c. Instant run-off voting (ranked-choice voting)
d. Election by 50-percent plus one
e. Primary/General elections
£ Campaign finance reform
12-27
LJ
Introduction to Local Government in California
Article XI of the California Constitution provides that counties and cities shall be the sources of local
government in California.
Pursuant to Article XI, ~ 1(a) of the California Constitution, California "is divided into counties which
are legal subdivisions of the State."' The primary function of counties is to assist the state in administering
state programs.'' The Constitution thus requires that the state legislature "shall provide for the county
powers, an elected county sheriff, an elected district attorney, an elected assessor and an elected
governing body in each county."'
Cities axe instruments of local self-government created by the residents who inhabit the city.a Cities axe
not legal subdivisions of the State. Cities receive their power from the State Constitution and, in some
instances, from laws enacted by the Legislature.'
Overview of Differences between General Law Cities and Charter Cities
California law recognizes two different types of cities: general law cities and charter cities. As of 2007,
there are 478 total cities in California; 370 axe general law cities (including Elk Grove) and 108 are charter
cities.'
A. General Law Cities
"General law" refers to state laws that have a uniform statewide operation." Article XI, g 2(a) of the
California Constitution requires the Legislature to prescribe uniform roles for city formation and provide
for city powers. These rules are found in the Government Code.y A "general law" city is therefore a
city10 that is organized according to a standard blueprint provided in the Govemment Code."
Fox example, the Govemment Code provides that general law cities shall be governed by a city council
consisting of five members and the city dexk, city treasurer, police chief, fire chief and other subordinate
officers as required by law." By a vote of its citizens, general law cities may exercise the option to be
governed by only those alternative forms of government set forth in the Government Code - e.g., by
establishing a city council consisting of up to zone, but not less than four, members."
~ Cal. Coast. arC.XI, §1(a).
'- Maria County v. Superior Ct. (1960) 53 Ca1.2d 633, 638-9.
s Cal. Coast., art XI, § 1 subd. (b).
"California Municipal Law Handbook (2007 Ed.) §1.1.05 subd. (B)(1).
s hag u. City ofFremo (1964) 225 Ca1.App.2d 59, 65.
~ Cal. Coast., art. XI §§2, 3; Gov. Code, §§ 34100-34102.
~ League of California Cities Web site<www.cacides.org>as of Qune 8, 2007).
s Cal. Coast., azt. IV, § 16.
See Gov. Code, §§ 34452-61.
10 The term ""city includes a `city and county' and an `incorporated town"' (Gov. Code, § 20.)
" Gov. Code, § 34102.
~~ IA. ae § 36501.
t3IA. at § 34871.
12-2B
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~.i~caNic~ i
General law cities derive their power from Article XI, ~7 of the California Constitution and the general
laws enacted by the Legislature. to Article }iI, g 7 provides that general law cities may make and enforce
unthin their geographic limits "all local, police, sanitary and other ordinances and regulations not in
conflict with general laws."'' A local law conflicts with state law if it duplicates, contradicts, or enters a
field which has been fully occupied by state law, whether expressly ox by legislative implication.' When a
conflict exists between a state law and a general law city ordinance, state law governs. Laws enacted by
general law cities that conflict with state law, are therefore, void."
B. Charter Law Cities
Article XI, ~ 3(a) of the California Constitution authorizes a city (ox a county)'" to adopt a charter "fox its
own government." A charter is a written document that serves as a constitution fox the adopting city.t~ A
"charter city" is a city that is organized according to a chartex.'0
1. Charters
A city charter represents the supreme law of a charter city anti has "the force and effect" of state law."
The pro~nsions in a city charter are subject only to those limits imposed by conflicting provisions in the
federal or state constitutions, and (as discussed later) preemptive state law on matters of statewide
~~
concern. ""
A city adopts a charter when the majority of voters in a city election held on the question vote in favor of
adopting a charter. The city council may directly propose a charter fox the voters' adoption.'"'
Alternatively, the city council can ask the voters to establish and select the membership of a charter
commission to draft the charter.2° Once approved by the voters, a charter becomes effective upon filing
with the California Secretary of State.'S
City charters may generally be amended or repealed in the same manner as a charter is adopted. That is,
the city council may directly propose to amend or repeal the charter, or it may ask the voters to establish
a charter commission to do so."~ Additionally, charter city voters may directly propose to amend ox repeal
a charter through the initiative process." The initiative process refers to voters' power to directly place
legislation on the ballot and vote to enact the same. City voters also possess the referenda power -the
power to approve ox reject statutes enacted by the city councIl.
All voters in California cities possess the rights of initiative and referenda.'" However, unlike general law
cities, charter cities may adopt their own election procedures to govern the local initiative process,
provided they do so in a way that does not reduce any of the rights secured to voters by the federal ox
state constitutions.' Initiatives and referenda in general law cities axe governed by state law, primarily the
" See Irwin v. City (Manhattan Beath (1966) 65 Ca1.2d 13.
~~ Ibid.(underscoxe added).
10 People ex reL Deukm jiarr v. County ofMerrdoano (]984) 36 Ca1.3d 476, 484.
~~ IGId.
~"Because they axe legal subdivisions of the S[a[e, charter counties enjoy less autonomy than charter cities.
~~ Municipal Law Handbook (2007 Ed.) §1.1.10 subd. (B)(2)(a).
20 Gov. Code, § 34101.
~~ Cal. Cons[., art. %I, § 3 subd. (a).
~~ Harman a C:ay and County of San Frarrcirco (1972) 7 Ca1.3d 150, 161.
23 Gov. Code, § 34458.
"~ Id. at § 34452-34457.
zs Gov. Code, § 34459. Charters must also be published in state statute. (Id. at § 34461.)
zc Gov. Code, §§ 34455; 34458.
~~ Cal. Contr., art. II, § ] 1 subd. (a); Elec. Code, § 9255.
zs Cal. Const, art. II, § 11 subd. (a).
~~ See Pettye v. City And County of San Franrirco (2004) 118 Catdpp.4th 233.
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12-29
Elections Code. Oftentnnes, charter cities opt to be governed by state elections procedures governing the
initiatives and referenda to the extent they do not conflict with specific pro~nsions in the chaxter.~0
2. Charter City Powers
Chaxtex cities derive their powers from the state constitution and enjoy broader authority to act than
general law cities. The "home rule" provision in Axtide XI, ~ 5(a) of the California Constitution
affirmatively grants charter cities plenary and exclusive power to act with respect to "municipal affairs."
At the same time, courts have interpreted the "home rule" provision to implicitly recognize State
legislative supremacy over all matters that ate not municipal affairs - e.g., matters of "statewide
concern."'t This means that as to municipal affairs, a city chaxtex ordinance will trump a conflicting state
law, but not on matters of statewide concern.
In addition to the "home rule" provision, the California Constitution expressly giants chaxtex cities the
power to regulate certain "core" aspects of municipal governance, including the creation and regulation
of a police force, asub-government within the city and the conduct of city elections.3' Chaxtex cities also
have "plenary authority ...subject only to the restrictions" in the California Constitution to determine
the "manner in which, method by which, the times at which and the terms fox which" city officers who
axe paid by the city shall be elected or appointed." TMs "plenary authority" includes the power to
provide for the removal and compensation of elected ox appointed city officials, as well as the number of
clerks, deputies and other such employees that each shall have, and fox [he compensation, method of
appointment, qualifications, tenure and removal of the same."
3. Resolving Conflicts Between State Law and Charter Provisions
Since the California Constitution does not define the phrase "municipal affairs," courts have determined
on a case-by-case basis those matters charter cities may regulate under their "home rule" authority and
those that are "statewide concerns." These terms, therefore, represent conclusions of law, not factual
descxiptions.35 In particular, the definition of what constitutes a "municipal affair" is fluid and changes
over time as matters once considered municipal concerns later become matters of statewide concern.'fi
The California Supreme Court, in a case called California Fed Savings ~ LoanAssn. v. City ofL.orAngeler"
ox "Gaffed,"set forth atwo-step approach for determining whether a state law preempts a charter
provision. First, it must be determined whether an "actual" and "unresolvable" conflict exists between
state law and the chaxtex pxovision.38 If no such conflict exists, the court's inquiry ends and both laws can
be given effect. The requirement of an "actual conflict" thus ensures that courts do not unduly interfere
with state ox municipal legislative authority.
As the California Supreme Court explained in Called, to the extent difficult choices between competing
claims of municipal and state governments can be forestalled in this sensitive area of constitutional law,
they ought to be. Courts can avoid making such unnecessary choices by carefully ensuring that the
30 See, e.g., Long Beach City Charter § 2000; Sacramento City Charter § 160.
3i California Fed. Savings er Loan Assn. v. City of Los Angeles (1991) 54 Cal.3d 1,13 (hereafter Calfed).
is-Cal. Const., art XI, § 5 subd. (b).
s3 Ibid
sa 767d.
35 Calfed supra, 54 Ca1.3d at 17.
36 Calfed, supra, 54 CaL3d at 13; Isaac v. City of Los Angeles (1998) 66 Ca1.1,pp.4th 58G. See ako Municipal Law Handbook, § 1.1.20
subd. (B).
3v (1991) 54 Ca1.3d 1.
38 Id at 16-17.
• I
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12-30
purported conflict is in fact a genuine one, unresolvable short of choosing between one enactment and
the othex.;s
Where state law does conflict with an act of a chaztex city implicating a municipal affair, a court must
proceed to the second prong of the Calfed analysis and detemvne whether the matter being regulated is a
"statewide concern."'0 The "hinge" of this inquiry is the identification of a "convincing basis" -
grounded in "sensible, pragmatic consideration[s]" -that state legislative supremacy on the matter is
necessary. 41
If the state statute does not qualify as a matter of statewide concern, the conflicting charter city measure
(or practice) is a "municipal affair" and "beyond the reach of legislative enactment." If the state statute
qualifies as a statewide concern, [a court] must next determine whether it is both (i) reasonably related to
the resolution of that concern, and (ii) "narrowly tailored" to limit incursion into legitimate municipal
interests. If it meets this final test, "then the conflicting charter city measure "ceases to be a `municipal
affair' ...and the Legislature is not prohibited by article XI, section 5(a), from addressing the statewide
dimension by its own taIlored enactments".°'
Thus, only those conflicting state laws that are reasonably related to awell-founded statewide concern
and narrowly taIloxed to limit their intrusion on charter cities' authority may trump the actions of a
charter city. In all other respects, charter city law remains supreme as to municipal affairs unless it
conflicts with the federal or state constitutions.
In summary:
• General law cities are governed by state general law, even as to municipal affairs. They axe organized
and operated under rules and procedures established by state law.
• Charter cities have broader authority to act than do general law cities. Under the "home rule"
provision in the California Constitution, charter cities have supreme authority to regulate judicially-
recognized "municipal affairs." However, state law controls over acts of a charter city as to matters of
statewide concern.
• Based on their broad giant of constitutional authority, charter cities may therefore taIlor their
organization and elective offices, taking into account any unique community needs and/ox
conditions. This includes having greater flexibility to set their own rules in the areas of city elections,
as well as the qualifications, terms and compensation of elected city officials.
• On the other hand, novel charter provisions may give rise to litigation over whether they implicate a
"municipal affair" versus a "statewide concern." Comparatively speaking, there is also less case law
from which to evaluate legal exposure to charter provisions than with respect to actions by general
law cities. There are also costs associated with holding elections to adopt, amend or repeal a charter,
although it may be possible to mitigate some of these costs by combining charter-related ballot
questions with regularly scheduled state and/or municipal elections where possible.
39 Ibid.
^~ Id at ] 7.
~'Idat18.
'~'- Jobn.ron v. Bradl~i (1992) 4 Ca1.4th 389, 404 [quoting Calfed, 54 Ca1.3d a[ 171.
• I
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12-31
C. Comparison Chart: General Law and Charter Citiesas
The chart provides a comparison between the powers of general law cities and charter cities on select
matters.
General Law City vs. Charter Law City Comparison Chart
Forms of Government State law proscribes city's farm of Charter can provide for any
government, but voters may adopt form of government
ordinance that provides for including the strong mayor
alternative forms as provided in and city manager forms.
state law.
• State law also authorizes the city
manager form of government.
Elections Generally Municipal elections must be Not bound by the California
conducted in accordance with the Elections Code.
California Elections Code. May establish own election
dates, rules and
rocedures.
Methods of Elections Generally, "at large" elections May establish procedures
whereby voters vote for any for selecting officers.
candidate on the ballot. May hold "at large" or
• Cities may also choose to elect the district elections.
city council "by district" or "from
district," so long as the election
system has been established by
ordinance and approved by the
voters.
• Mayors may be elected by the city
council orb vote of the ea le.
City Council Member Minimum qualifications include: Can establish own criteria
Qualifications U.S. citizen. for city office, provided ii
• At least 18 years old. does not violate the U.S.
• Registered voter. Constitution.
• Resident of the city at least 15 days
prior to the election and throughout
term.
• If elected "by district" or "from
district," be a resident of the district
from when the are elected.
Public Funding in Municipal State law prohibits general law city May provide for public
Elections officers and candidates from financing of election
expending or accepting public campaigns.
money for the purpose of seeking
election.
Term Limits May provide for term limits. May provide for term limits.
43 The following information is taken from Chazt-General Law v. Charter Law (Febmary 2Q 2007), League of
California Cities Web site <www.cacities.org> (as of Nov. 5, 2007).
• I
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Vacancies & Termination of State law provides for vacancy May establish criteria for
Office upon death, resignation, removal, vacating and terminating
election irregularities, unexcused city offices so long as it
absences from meetings and non- does not violate the state
resident . and federal constitutions.
Council Member Compensation Salary-ceiling is set by city May establish council
& Expense Reimbursement population. members' salaries.
• Salary increases are set by state
law except for compensation
established by city electors.
Legislative Process Ordinances may not be passed May establish own
within five days of introduction procedures for enacting
unless they are urgency local ordinances.
ordinances.
• Ordinances may only be passed at
a regular meeting and must be read
in full at time of introduction and
passage, except when, after
reading the title, further reading is
waived.
Quorum & Voting Requirements A majority of the city council May establish own
constitutes a quorum for procedures and quorum
transactions of business. requirements.
• All ordinances, resolutions and However, certain legislation
orders for the payment of money requiring supermajority
require a recorded majority vote of votes is applicable to
the total membership of the city charter cities, including
council, where a charter city wishes
• Specific legislation requires to exercise the power of
supermajority votes for certain eminent domain..
actions.
44 See CaGfomia Code of Civil Procedure section 1245.240 xequiring a vote of two-[hixds of all the members of the governing
body unless a greater vote is required by charter.
• I
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Committee Input
The following chart outlines the advantages and disadvantages as developed by committee members.
• - • - - .
Characteristics Advanta es Disadvanta es
General law cities derive their This characteristic was discussed, but was identified as neither an
power from the state constitution advantage nor disadvantage.
and the state legislature.
General law cities are organized It establishes clarity across the The boilerplate nature restricts the
under existing state general laws, state. ability of local government to
which provide uniform rules for respond to local issues.
general law city organization and
operation.
General law cities may not deviate This characteristic was discussed, but was identified as neither an
from general law rules far advantage nor disadvantage.
organization/operation unless
permitted by general law - e.g.,
general law cities with an elected
mayor may only provide for a city
council consisting of four, six or
eight seats.
General law cities' powers are Noshing was identified. "Father knows best" scenario may
subject to state general law, not be advantageous for cities.
meaning that if a conflict exists General law limits the ability to
between a city ordinance and state deal with issues specific to Elk
law, state law prevails. (This is true Grove.
even if the matter being regulated
is of local concern.)
Powers can also be reduced (or The state level addresses broader State could take away powers
expanded) by the state legislature. issues and regional needs, relied on by the city.
allowin for greater flexibility.
. - - -
Characteristics Advanta es Disadvanta es
Charter law cities derive their It is clear where authority is. Nothing was identified.
power from the state constitution, More protected from state
but not from the state legislature. encroachment than a general law
cit .
Charter law cities are organized Charters are derived from local The more unique a charter is, the
under a city charter which acts like people dealing with local issues: more likely it would be challenged
a constitution for the city. Freedom to customize it as needs in court.
dictate.
The city charter is proposed by the Charter law cities can choose to If the charter was very detailed, it
city council (itself or through a include general law rules in their might overload voters with
commission) and then adopted by charter. information.
majority vote of the city's voters. The approval process requires If the charter was too i
bu -in from voters and su ort s ecificlcom lex, it increases
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• I
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•
from citizenry. controversy and is more likely to
• The process of charter design fail.
itself is beneficial because it If not approved, it would be a
requires voter involvement. waste of resources.
• Could contribute to voter fati ue.
Characteristics Advanta es Disadvanta es
City charters may be altered or Elk Grove citizens could adopt Special interest groups could
repealed in the same way they are and amend the city's charter, influence changes.
proposed/adopted, as well as by which is less difficult than lobbying Elected officials are not required
initiative. the legislature for change. to make the tough decisions.
• The difficulty in making changes
to charters is a barrier to flexibility.
• No amendments can be made
without voter a royal.
Possess "home rule" authority, Allows for Elk Grove citizens to Could contribute to voter fatigue.
meaning that charter cities have define the city's needs and create
plenary and exclusive power to its own rules.
regulate the "municipal affairs" of Makes it clear who is responsible.
the city, subject only to the
restrictions imposed by the state
and federal constitutions.
The lawslactions of a charter city Local control. The subjective nature of narrow
are only trumped by a conflicting State would have high burden in tailoring leaves the city open to
state law if the matter being order to interfere with local issues. having its laws challenged in
regulated is a "statewide concern" court.
and the state law is both
reasonably related to the statewide
concern and narrowly tailored to
avoid undue interference with city
power.
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• I
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Both general law and charter cities may choose between a directly elected mayor and a mayor selected by
the city councIl. The differences between general law and charter tides comes into play when considering
what powers the city wishes to vest in the mayor. Specifically, the extent of the mayor's powers will
usually depend on how the city has structured the mayor's role in city government and, particularly, the
mayor's relationship to the city council. In other words, it could depend on the city's internal governance
stxuctuxe. As a general principle, charter cities have more authority to tailor the mayor's powers than do
general law cities. This is true regardless of the internal governance structure used or whether the mayor
is elected ox selected.
Forms of Internal City Governance
There are four types of internal governance structures generally used by cities in California and the
United States. "Internal governance stxuctuxe," refers to the structure that allocates the city government's
power among its various parts. They axe: counc$-manages; counc$-mayor; commission and town
meeting.
A. Council-Manager
This is the most common structure of internal government used by cities in California and throughout
the United States. Approximately 58 percent of cities in the United States are council-manager, including
Elk Grove.
Characteristics of the council-manager form of government include:
• The city council exercises both legislative and executive powers,45 meaning it has the power to make
city policy, set the budget and exercise any and all powers not delegated to the city manager.
• The mayor is usually selected by and from the ranks of the city council and exercises only litnited
functions beyond his ox her role as a city council member.
• The city council hires a city manager to manage the affairs of the city pursuant to the policy decisions
made by the city council. The city manager is typically selected by and responsible to the city council.
• The powers of the city manager typically include (1) manage the day-to-day operations of the city; (2)
hire and fire city employees and (3) perform any/all other such functions as directed by the city
council.
Some cities use a variation of the councIl-manager form that vests less power in the city manager. This is
called the council-administrator form of government It differs from the councIl-manager form of
government in that:
• The power of the city administrator is confined to simply administering the day-to-day operations of
the city.
• The council retains significant authority over certain executive matters, including hiring and fuing city
department heads, financial transactions, contracts and similar arrangements.
as The term "legislative" here has the same meaning as it does in our federal sys[em of government; e.g., Congress, as the
legislative branch, has the power [o enact laws generally and the power to adopt/approve [he budget. Executive power
generally refers to the power to set the policy agenda, propose a budget, implement programs, and appoint/remove
department heads.
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Both general law and charter cities may establish a councIl-manager or council-administrator form of
government Both general law and charter cities have the power to establish the extent of the city ^
manager's power. ` ,
Proponents of the council-manager form of government assert that this stmcture "centralizes supervisory
ll
i
h
i
di
id
l'
i
l
k
ow
ng t
e
n
v
ua
s expert
se and
and administrative responsibility in one individua
, a
nowledge of
administrative activities to be developed while vesting all power in an elected governing body to promote
representative democxacy.i46 ...F.
Some scholars have also suggested that cities with council-manager forms of government tend to tax and
spend at lower levels than other forms of government, particularly the councll-mayor form of ~
government°' Other scholars have found no significant difference in taking and spending between these w
~ ~+
forms of government. There does not appear to be a scholarly consensus at this time.`A
B. Council-Mayor (Sometimes called "Strong-Mayor")
The second most common form of city government structure is the council-mayor form. Approximately
38 percent of cities in the United States use acouncil-mayor form of government. It is most common in
large, urban cities like Los Angeles and San Francisco.
Characteristics of the council-mayor form of government axe:
• Separation of powers between the elected city council and an elected mayor who normally serves full-
time.
• Mayor exercises executive powers, while city council exercises legislative powers (similar to the
federal system - e.g., executive power in the president, legislative power in Congress).
• May also include a city manager to assist in the day-to-day operations of the city; usually the city
manager's role is more limited in this form of government.
Both general law and charter cities may choose to have acouncil-mayor form of government. However,
charter cities have more flexibility to determine the extent of the mayor's authority. Fox example, only
charter cities may establish a "strong-mayor" Form of government.
Some scholars have found that cities that use the council-mayor form of government "tend to be more
responsive to the demographic characteristics of their constituencies" than are other forms of city
govexnment49 Other scholars have noted a possible correlation between voter turnout and the degree of
authority vested in the mayor, suggesting that voter turnout is higher in cities with strong mayors than in
cities where mayors have little ox no authority. Again, there does not appear to be a scholarly consensus
on this point.
C. Commission
The commission form of government is the oldest form of government in the United States, but today it
is used in only a small percentage of tides in the United States. It is modeled after the governance
stzucture used by private coxporations.so
40 DeSantis & Renner, City Governmeud Strurturer: An Attemyt ad Clarr~ration, (Spring 2002) State & Local Govt. Rev., Vol. 34,
No. 2 at 96. (hereafter DeSantis & Renner).
'" DeSantis & Renner, supra, 96-97
ae IGid.
a~ DeSantis & Renner, rupra, 96.
50 DeSantis & Renner, rupra, 96.
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Characteristics of the commission form of govemment include:
Voters elect individual commissioners to a small governing board that exercises both legislative and
executive powers.
Each commissioner is responsible fox one aspect of government: fire, police, public works, health
and/or finance.
• One commissioner is designated as the mayor and presides over meetings.
Scholars have suggested that one flaw of the commission form of government is that it fragments
administrative functions of government among several individuals and lacks a true unifying executive.''
D. Town Meeting
This is the rarest form of city government in the United States and today is used by only a few small cities
in New England states.
Characteristics of the town meeting form of government include:
• All citizens can attend and participate in town decision malting.
• Individuals are chosen by the general electorate to represent them in voting.
• Each town meeting must be announced and a prepared warrant that provides the date, time and
location of the meeting and specifies the items to be discussed.
• The executive branch is referred to as the "board of selectmen" and it is responsible fox
implementing the policies of the locality, such as calling town meetings and elections, "appointing
employees, setting certain fees, overseeing certain volunteer and appointed bodies and creating basic
xegulauonss5'
Characteristics/Extent of Selected/Elected Mayors' Power in Council-Manager and
Council-Mayor Forms of Government
A. Mayors in Council-Manager Form of Government
For purposes of studying mayoral power, the 58 percent of United States cities that use the councIl-
manager form of government can be subdivided into three groups: councIl-manager with a selected
mayor (37.2 percent); counc$-manager with an elected mayor (46.8 percent) and council-manager with an
empowered mayor (14.4 percent). The other 1.6 percent cities were not relevant to the discussion.
Generally speaking, selected mayors' roles are largely ceremonial and they have no more authority than
any other member of the city council.
Elected mayors in general law cities have slightly more authority than selected mayors. Elected mayors ir.
charter cities may have more powers and/or duties than elected mayors in general law cities, as provided
in the charter or by ordinance.
1. Selected Mayors in Council-Manager Form
General law cities that use the council-manager form of government and select their mayor do so by vote
of the members of the city council fox the purpose of choosing one of its members to serve as the
mayor. s' Under this form of government, the mayor is also a fully participating member of the city
council and has no more power or authority than other members of the city councIl.
si DeSan[is & Renner, rupra, 96,[citing Nolting 1969; Stillman 1974].
sx Board ofSekctorr Wikipedia <http://en.wikipedia.org/wild/Boazd_of_selectmen> (as of Nov. 5, 2007).
53Gov. Code, ~ 36801 ["The city council shall meet at the meeting at which the declaration of the election results for a general
municipal election is made pursuant to Sections 10262 and 10263 of [he Elections Code and, following the dedazation of the
election results and the installation of elected officials, choose one of its number or as mayor, and one of its number as mayor
peo tempore"].
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Charter cities with selected mayors may use this system, ox may devise a different way of selecting their
mayor. The city of Folsom is a charter city that selects its mayor in the same way as provided in general /'~
law.54 The duties of selected mayors in general law cities axe set out in the Government Code. Those ` ,
duties include:
• To preside at the meetings of the councils
• To make ox second any motion and present and discuss any matter as a member of the councils6
• To direct that a sufficient number of peace officers to attend and keep order at any public meeting in
the city at which, in his ox her opinion, a breach of the peace may occurs' ~
`V
• To sign all warrants drawn on the city treasury, all written contracts and conveyances made ox entered ~
into by the city, and all instruments requiring the city seal; se
• To administer oaths and affirmations, take affidavits, and certify them under his hands
• To acknowledge the execution of all instruments executed by the city and required to be
acknowledged. f °
Like Elk Grove, the city of Rancho Cordova (population 71,722)`' is a general law city that operates
under acouncil-manager form of government with a selected mayor.
Charter cities may vest more or less extensive powers/duties in a selected mayor than can general law
cities. Fox example, the Chaxtex of the city of Folsom provides that its selected mayor shall have the
power to suspend implementation of any action taken by the council (except emergency ordinances) and
force the council to reconsider the action. This power may only be used once for any given action." The
Folsom mayor's duties also include meeting regularly with the city manager. "...fox the purpose of
providing policy guidance relative to the actions of the council, expressing desires of the council and its
members, and to monitor the administrative implementation of council policies."" The procedures
established by a charter city for choosing a mayor override any conflicting provisions in state law.R4
2. Elected Mayors in Council-Manager Form
General law cities that use acouncil-manager form of government may also provide fox direct election of
their mayor. The city of El Cajon (population 66,809) is one such example. In addition to the powers
described above fox selected mayors, the elected mayors in general law cities are vested with the power to
make all appointments to boards, commissions and committees, subject to approval by the city councIl.~s
Elected mayors may draw a salary in addition to the salary established fox members of the city council if
approved by the voters ox by an ordinance enacted by the city council.~~
54 Folsom City Charter, § 2.03.
ss Gov. Code, g 36802.
su Id at § 36803.
s' Id. at § 38638.
ss Id. at § 40602. Note, however, that the city council, by ordinance, may provide by that these instmments be signed by an
officer other than [he mayor, e.g., [he city manager (Id. at § 40602(d).)
5974 at §40603.
eu Id at §40604.
m dll subsequent population statistics are from the league of California Cities Web site
<http://~wnv.cacities.org/resource_files/20455.city%20list.pdf> (as of Nov. 5, 2007).
~-' Folsom City Charter, § 2.04 subd. (H).
63 Folsom City Charter, § 2.04 subd. (L).
64 See Reer v. Layton (1970) 6 Cal.dpp. 3d 815, 820-22.
4s Gov. Code, § 40605.
~L Gov. Code, § 34903.
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The only qualification fox a person to run for mayor in a general law city is that the person must be a
registered voter (and hence, a resident) in the city at the time he or she files noxination papers for the
office of mayor,R' but in no event latex than 88 days before the election.`" Put differently, a candidate fox
mayor must be a registered voter in the city for approximately two and one half months before the
election and must maintain that status up to the time he or she "assumes" that office. They must then
maintain that status thorough out the duration of their term.
Charter cities may establish their own duties, powers and qualifications for the office of an elected mayor,
subject only to constitutional restraints. The city of Sacramento (population 433,355) is a charter city that
uses acouncil-manager form of government with an elected mayor. The Sacramento Charter provides
that in order to be eligible to run fox mayor, a person must be a city resident fox at least 30 days prior to
the date of their candidacy.` Since a person becomes a candidate upon filing their nomination papers,
which in turn are filed at least 88 days before the election, a person wishing to be the mayor of
Sacramento must be a resident fox approximately four months before his or hex election. The
Sacramento mayor must then reside in the city during his ox her entire term. In addition to the typical
powers and duties provided in general law, the mayor of Sacramento has the power to "remove"
members of boards, commissions and advisory agencies.'0
B. Mayors in the Council-Mayor Form of Government
O~ilv charter cities may establish acouncil-mayor form of government. Usually, the mayor's powers and
duties are set Eoxth in the city charter, meaning that they can only be expanded or contracted by a vote to
amend the charter. Contrast this to mayors in general law cities with acouncil-manager form of
government, whose powers can be altered at any time by the state legislature or, in some cases, by the city
council.
Cities with acouncil-mayor form of government almost always dixecdy elect their mayor. Indeed, we
were unable to find any example of a city with acouncil-mayor form of government and a selected
mayor. Mayors in cities with a councIl-mayor form of government typically have broader power than
mayors in the council-manager form of government.
The range of power granted to mayors in these cities is varied, but typically includes:
• Veto power
• Formal role in budget preparations/presentation to council
• Authority to appoint/remove fire, police and other department heads
• Authority to appoint/remove city manager
• Involved in day-to-day operations of the city; usually full-time job
The city of Oakland (population 412,164) is an example of a council-mayor government with a "strong-
mayor." Among the Oakland mayor's powers is the power to appoint and remove the city administrator.
While appointments require council consent, the mayor may remove the administrator without council
consent.
~~ Gov. Code, § 34904. ["r1 person is not eligible to hold office as mayor unless he or she is a[ the time of assuming that ofEce
an elector of the city, and was a registered voter of the city at the time nomination papers are issued to the candidate as
provided for in Section 10227 of the Elections Code."] (Underscore added.)
es Gov. Code § 34904: A person is not eligible to hold office as mayor unless he or she is at the time of assuming_that office an
lee ctoc of [he city, and was a re ig_stered voter of the city at the time noailnation papers are issued to [he candidate as provided
for in Section 10227 of the Elections Code.
ee Sacramento Ciry Charter, art IV, § 41.
~0 Id. a[ § 40 subd. (7).
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Procedure for Changing From Selected to Elected Mayor and Vice-Versa
Charter cities may establish an elected mayor system by charter or in an ordinance. If the mayor's office is
established in the charter, it can only be altered by a vote to alter the charter.
Voters in general law cities establish a system for the direct election of the mayor by holding an election
for that purpose." At that election, the voters also determine whether the mayor serves atwo- or four-
yeax term."
If the voters of a general law city approve a proposal to create an elected-mayor system, then at the next
general municipal election held in the city, one of the council seats is designated as the mayor's seat."
The mayor is typically elected in an "at large" election, meaning all of the city's voters can cast a vote fox
the office. In the event of a vacancy, the city council has 30 days to appoint a successor to serve the
remainder of the unexpired term.' IE the council does not act within 30 days, then a special election
would be held to fill the vacancy. The city council may not independently reinstate a selected mayor
system. However, the councIl may place a measure before the voters asking them to reinstate a selected
mayor system.'S
Finally, one consequence of changing to an elected mayor system is the possible need to redraw
("redistrict") the remaining city councIl districts to account fox the loss of the seat designated as the
mayor's seat. Thus, the costs of moving to an elected-mayor system include the potential costs associated
with holding an election to determine whether to directly elect the mayor, as well as potential redistricting
costs.
~~ Gov. Code, §§ 34900-34906.
~~ Gov Code, § 34907. ["The questions shall be printed on the ballots used at the election in substantially the following form:
'Shall the electors elect a mayor and four city councilmen?"" Shall the term of office of mayor be two years?"" Shall the term
of office of mayor be four years?' The words ""Yes and ""No and `two yeazs' and `four years' shall be so printed on the ballots
that the voters may express their choice. The term of office of mayor shall be that preferred by a majority of those voting on
the proposition."]
~s Gov Code § 34900, ["At any genera] municipal election, or at a special election held for that purpose, the city council may
submit to the electors the question of whether electors shall thereafter elect a mayor and four city councilmen, and
whether the mayor shall serve atwo-yeaz or four-yeaz term. In cities presently having elected mayors, [he city council may also
submit to the electors the question of whether the mayor shall thereafter serve atwo-year or a four-year term."] (Onderscore
added.)
-ra Gov. Code, § 34902. ["(a) If a majority of the votes cast on the proposition is for it, the office of mayor shall [hereafter be
an elective office, except as provided in subdivision. (b) <1t the next succeeding general municipal election held in the city one
of the offtces of city councilperson, to be filled at the election, shall be designated as the office of mayor, to be filled at the
election The person elected at the election as mayor shall hold office from the Tuesday succeeding his or her elec[ioq and
until his or her successor is elected and qualifies. In the case of a vacancy in the office of the mayor fox any reason, the council
shall fill the vacancy by appointment. If the council fails to fill ii within 30 days, it shall call an election to fill the vacancy to be
held on the next established election date to be held not less than 114 days thereafter. r1 person appointed or elected to fill a
vacancy shall hold office for the unexpired term of [he former incumbenv"]
~~ Gov. Code § 34902_ subd. ["(b). diter an office of elective mayor has been established, the city council may subsequently
submit to the electors the question of whether or not to eliminate the elective office of mayor, pursuant to the procedures
enumerated in this article, and thereby reestablish the procedure of selection of [he mayor by the city council. If a majority of
the votes cast on the proposition are in favor of the elimination of the office of elective mayor, the office shall be eliminated
on the expiration date of the incumbent's term, and on the date the procedure of selection of [he mayor by the city council
shall be reestablished."]
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Committee Input
The following chart outlines the advantages and disadvantages as developed by committee members.
• • - • - - .
Characteristics Advanta es Disadvanta es
State law fixes the powers of Public knows what the mayor can No flexibility.
elected mayors in general law do.
cities. Mayor understands hislher
authority
The only additional power a Three council votes are needed for Nothing was identified.
general law elected mayor has is concurrence.
the power to make appointments Allows for greater checks and
to boards, commissions and balances.
committees, subject io approval
by the city council.
Procedures for establishing an Rules are already tested; defined. No flexibility.
elected mayor system in a general No ambiguity. In a city rapidly
law city are fixed by state law. growing, it is advantageous to have
established general law procedures
that voters are familiar with.
Voters in general law cities Procedure is clear. Could be substantial cost if
establish a directly elected mayor People know what to expect and special election were necessary.
system by holding an election for what the outcome will be.
that purpose.
At that election (see above), It is good that voters make the Could be confusing to voters if
voters determine whether the decision and that more than one perceived as too much
mayor serves atwo- or four-year issue can be brought before them information to decipher.
term. to be decided atone time. Might be a cause of voter apathy.
Mayor is typically elected in an "at It is an important position, so it is Nothing was identified.
large" election, meaning all of the good that voters would have a
city's voters can cast a vote. choice.
• Elected mayor is less likely to have
a myopic view and would be more
accountable to residents.
State law provides that the only Everyone has the opportunity to Threshold for qualification is too
qualification for an elected mayor serve. easy to meet.
in a general law city is that he or
she be a registered voter in the
city at the time they seek that
office and throughout the duration
of the term, if elected.
In addition to election costs to Nothing was identified. Multiple ballot issues may lead to
decide if a mayor should be inconclusive results (e.g.
elected, there may be costs to selecting a mayor, redrawing
redraw remaining council districts districts and going to "at large"
unless city decides at the same districts .
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election to eliminate districts and Potential additional costs.
elect members "at large."
Characteristics Advanta es Disadvanta es
General law city's ability to have a Nothing was identified. Pool of candidates is reduced.
selected mayor is provided by Public may not know how council
state law; state law requires reached decision.
selected mayors be selected by Can create perception of vote
the city council; state law requires trading, back room deals, skirting
selected mayor be a city council around issues.
member. Takes power away from voters
on making decision regarding
who should serve as mayor.
• When voters vote for a council
member they may not
necessarily believe the individual
would be well qualified to serve
as ma or.
State law sets the powers that a It is clear who is in charge. No flexibility to create additional
selected general law city may Easy to understand the mayor's powers.
exercise. Powers of selected role. Well defined but limited.
mayors in general law cities Essentially only a ceremonial
include: position.
1. Preside al council meetings.
2. Make or second any motion and
present and discuss matters as member
of council.
3. Direct a sufficient number of peace
officers to attend/keep order at any public
meeting at which in his or her opinion a
breach of peace may occur.
4. Sign warrants drawn on city treasury
written contracts and conveyances made
or entered into by city and all instruments
requiring city seal.
5. He or she may administer oaths and
affrmations and certify affidavits andlor ~
acknowledge documents executed by city
and required to be acknowled ed.
• • - • • - • -
Characteristics Advanta es Disadvanta es
There are costs associated with holding Costs are lower with Costs are increased with special
the election to change from a general scheduled elections. elections.
law city to a charter city. The extent of Process requires public If a charter commission was
those costs will vary depending on involvement which in and of used instead of being directly
whether the question is added to the itself might help solve proposed by the council it would
ballot of an already scheduled problems in the city. increase costs.
municipal election and whether the city
opts to form a charter commission.
Under home rule authority charter cities Provides citizens with Nothing was identified.
may choose to have elected or selected choices.
mayors.
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Characteristics Advanta es Disadvantages
Charier cities may establish an elected More flexibility. Nothing was identified.
or selected mayor system through its Careful crafting of a charter
charter or by ordinance. could allow for addressing
certain issues more
expeditiously through
ordinances.
Charter cities may grant a mayor any Greater flexibility to shape the Powers could possibly lead to
degree of power desired (provided powers of the mayor to best fit being legally challenged.
powers tlo not violate the state or the community.
federal constitution) including the power
to establish a strong mayor system.
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~.r~ca~i~~ ~
Review of Elk Grove's Current System for Electing City Council Members
• Elk Grove city council members are currently elected in a "from district" system.
• The city is divided into five districts and one council member resides in each district.
• Candidates for city councIl must be "from" (e.g., reside in) the district from which they seek to be
elected.
The last redistricting of Elk Grove's council districts occurred in 2004. At that time, Elk Grove's
population was 81,079 and the districts population ranged from 15,529 to 16,849. The city is scheduled
to redistrict again in 2010.
A. "At Large" Elections
"At large" elections are available to both general law and charter cities.
• An "at large" election is an election system in which all the voters in a given political unit, in this case
the city of Elk Grove, can vote fox a given office.
• There axe no districts used; all "at large" members serve the entire city.
• Candidates may live anywhere in the city.
• The top vote getter for each "seat" or "chair" wins. (Note: there is NO requirement that top vote
getter receive greater than 50 percent of the vote.)
According to the National League of Cities, nearly two-thirds (64 percent) or all municipalities use "at
large" elections in some way. "At large" elections tend to be more popular in small cities and more
affluent areas.
B. District Elections
District elections axe available to both general law and charter cities and there are two es of district
elections, "by district" and "from district."
1. "From District"
• Districts are drawn within the city.
• Candidates reside in the district they seek to represent.
• All city voters are entitled to vote fox all candidates fox all counc$ seats.
• The top vote getter from each district wins.
Cities that use "from district" elections include Santa Ana (population 348,143), Alhambra (population
88,938) and Reedley (population 21,383). Elk Grove is a "from district" city.
2. "By District"
• Districts are drawn within the city.
• Candidates reside in the district they seek to represent.
• Only the district's voters vote to elect their council member - e.g., each voter only casts one vote fox
the council seat representing the voter's home district.
• The top vote getter from each district wins.
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Larger cities axe more likely to use "by district" elections. Nine of California's 15 largest cities use "by
district" elections. Only four California tides with populations of 50,000 or less use °`by district" ^
elections. They axe Watsonville, Colton, Hanford and Bradbury. ` ,
C. Mixed & "Hybrid" Systems
"Mixed" and "hybrid" systems axe only available to charter cities. ii
• Approximately 21 percent of United States cities use a combination of "at large" and district elections
to elect council members. .F
• "Mixed" systems are chaxactexized by a council comprised of both by-district and "at large" elected
members (e.g., Oakland.). ~
• "Hybrid" systems axe chaxactexized by a district primary election. The top two candidates go on to ' - `
run in an "at large" general election for the seat (e.g., all city voters are entitled to participate in the W
final choice of who will represent the district on the councIl). (e.g., Compton, Eureka and Stockton.)
Oakland is an example of a mixed city: Seven council members axe nominated/elected "from district"
and one councilmember is nominated/elected "at large."'~ Another variant is where districts nominate
candidates in a primary election, but then elect candidates .Cities that use this type of hybrid system
include: Compton (population 96,996), Eureka (population 26,271) and Stockton (population 261,253).
The Stockton Charter provides that six council members axe nominated "from district" and then elected
"at large." Voters of each district nominate two candidates fox councilmember at the primary municipal
election; each candidate must be resident of the district they seek to represent. The voters of the entire
city shall elect the councllmembex for each district at the general municipal election. The councilmembet
elected fox each district must be one of the two candidates nominated at the primary municipal
election.""
Procedures & Options for Establishing "At Large," District or Mixed Elections Systems
A. General Law Cities
The default rule is that general law cities elect their council member in "at large" elections. However, the
Government Code also gives general law cities the option to choose to hold elections "from" or "by"
distxict.7e
1. Procedure
• Decision to go to "from" ox "by" district elections must be enacted in the form of an ordinance
approved by the voters.
• The ordinance may be placed before the voters by the city councIl ox through the initiative process."
• The ordinance shall state the number of districts and their boundaries, as well as whether the
members shall be elected "by" district ox "from" district, except for an elective mayor.RO
• The ordinance may be amended ox repealed in the same manner, but the term for a current council
member shall not be affected.81
'~ Oakland Ciry Charter, art II, § 203.
~~ Oakland City Charter, art. IV, § 601.
~s Gov. Code, § 34871.
~~ Gov. Code, § 34871.
B0 IA at § 34872.
ai Id. at § 34873.
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22
2. Options "By District"
General law cities have the following options in "by district" elections: ^
• Five, seven or nine districts with a selected mayors' ` ,
• Four, six or eight districts with an elected mayors'
"
3. Options "From District
"
"
from district
General law cities have the following options in
elections:
• Five, seven ox nine districts with a selected mayox.84
85 ~~
• Foux, six or eight districts with an elective mayor
4. Potential Costs Associated with Switching Elections Systems
"
"
• There would be costs associated with an election to switch from
at large
to district based elections.
• The cost to hold a special election in Elk Grove is approximately $240,000.
• The cost to add a question (including whether to move to "by district" elections) to the ballot of an
already scheduled election would be substantially less.
B. Charter Cities
Char[et cities have "plenary authority" to provide for the "conduct of city elections" and may therefore
establish any system of elections they choose, provided it does not violate the state or federal
constitutions.se
Legal Issues regarding "At Large" vs. District Elections
A. Proportional Representation
The Government Code provides that districts "shall contain, as nearly as possible, an equal number of
inhabitants.""' This tracks decisions of the United States Supreme Court that have declared that the
United States Constitution requires that districts in district-based elections system to have reasonably
equal populations.ss The idea here is to ensure that everyone's vote is weighted proportionately. This is
why the state and federal constitutions require that congressional and state legislative districts be adjusted
following each decennial census in a process called "redistricting."
B. Voting Rights Act (VRA); California Voting Rights Act (CVRA)
Federal and state laws also exist to protect people's ability to effectively exercise their fundamental right
to vote. These laws prohibit voting systems that "dilute" the voting strength of certain groups of voters.
Vote dIlution refers to the impermissible discriminatory effect that an election system (or district plan)
has when it operates to cancel out ox minimize the voting strength of racial groups. The essence of a vote
dIlution claim is that a governmental entity has created districts that unacceptably impair a tninoxity
group's ability to elect the candidates its members prefer.
"At large" elections systems may give rise to concerns that they dIlute the voting strength of minorities in
violation of the United States Constitution and/or federal ox state statutes. The United States Supreme
Court has said "at large voting schemes...tend to minimize the voting strength of minority groups by
permitting the political majority to elect all representatives of the distxict.se'
ss Gov. Code, Q 34871 subd. (a).
837d at § 34871 subd. (c).
sa Gov. Code, §34871 subd. (b).
as Id. at §34871 subd. (d).
86 Cal. Const., azt. XI, §5 subd. (b).
w Gov. Code, § 35323.
ae See &}~noldr u. Simr (1964) 377 U.S. 533.
s9 Ragerr v. Lodge (1982) 485 U.S. 613.
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23
1. Federal Voting Rights Act
• Section 2 of the Federal Voting Rights Act prohibits voting practices or procedures tha[ discriminate ^
on the basis of race or ethnicity.
l
h
"
h
li
i
l `~'
ution w
ere
t
e po
t
ca
processes leading to nomination or
• Section 2 creates liability for vote di
election ...axe not equally open to participation by member of a [protected) dass...in that its
members have less opportunity than other members of the electorate to participate in the political •~
process and to elect representatives of their choice.s90 V
• To successfully bring a claim, a minority group must be able to demonstrate that it is: (1) sufficiently m~
•
large and geographically compact to constitute a majority in asingle-member district; (2) politically ~
cohesive and (3) able to demonstrate that the white majoxitj~ votes sufficiently as a bloc to enable ~
it ..usually to defeat the minority's preferred candidate.""
• Most of the cases arising under Section 2 since its enactment involve challenges to "at large" election
schemes.'
2. California Voting Rights Act (CVRA)
• The CVRA provides more expansive rights than federal law.
Section 14027 states that "an at large method of election may not be imposed or applied in a manner
that impairs the ability of a protected class to elect candidates of its choice or its ability to influence
the outcome of an election, as a result of the dilution or the abxidgtnent of the rights of voters who
axe members of a protected class."~'
Example of CVRA in action: Sancbeti v. City ofModerto. v" In Sanc%eti a Crty of Mode to, a group of Latino
voters filed suit against the city of Modesto under the CVRA. They claimed that the city's "at large"
voting system diluted minority votes based on the Fact that few minority candidates had been elected
to city council. The CVRA vote dilution claim differs from the federal VRA version by eliminating
the need to prove the possibility of creating a geographically compact majority-minority district In
order to succeed in a CVRA case, the plaintiffs only need to show polarized voting and denial of a
group's ability to elect candidates of its choice. The court upheld the constitutionality of the CVRA in
this case, but the outcome of Modesto's election system is still undecided.
C. Demographics of Modesto 8~ Elk Grove
Modesto: currently has a population of 203,294. In the Census from 2000, its reported population was
188,856.
Population Demoeraphics (from 2000
White 69.6%
Black ox African American 4.0%
American Indian and Alaska Native 1.2%
Asian 6.0%
Native Hawaiian and Other Pacific Islander 0.5%
Some Other Race 12.7%
Two or More Races 5.9%
Hispanic ox Latino (of anv racel __ 25.6%
Non-Hispanic or Latino 74.4%
~° 42 U.S.C. g 1973(6).
~' Tbanr6urg u. Ginglea (1986)478 U.S. 30, 50-51.
~' Section 2 also applies nationwide to any voting standard, practice, or procedure that results in the denial or abridgement of
the right of any citizen to vote on account of race, color, or membership in a language minority group.
vs Elec. Code, g 14027.
94 (Dec. G, 2006, F048277) _Cal.dpp.4th_ <http://www.courtinfo.ca.gov/opinions/archive/F048277.PDF> (as of Nov.
5, 2007).
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In 2004, Elk Grove's population was approximately 81,079. Its current population is 136,318.)5 /'~
on Demo ra hics from 20041
Pooulati ` ,
~
White 58.56%
Black ox African American 7.97% ^
American Indian and Alaska Native 1.13% ii
Asian 15.91%
Native Hawaiian and Other Pacific Islander 0.46% ~F
Some Other Race 1.21%
Two or Moxe Races 1.29% ~
Hispanic or Latino (of a~ xacel 13.47%
Non-Hispanic or Latino 86.53%
Scholarship regarding "At Large," District and Mixed Elections Systems
A. "At Large" Elections
Some scholars have found that:
• Council members in an "at large" system can be more impartial. They concern themselves with the
problems of the whole community rather than focusing on the limited or individual interests of their
district.
• Vote trading is minimized.
• Better qualified individuals are elected to the couricil (as there is a broader base of candidates)
• There is a "strategic advantage in having a unified delegation.°`"
• The "at large" election is a fundamental component of a simple government. It is ideal fox
communities not polarized by region.
Other scholars have found that:
• "At large" elections may dilute minority representation, especially ethnic and racial groups that axe
concentrated in a specific district.'
• This link was questioned, however, in a 1978 article entitled "City Council Election Procedures and
Minority Representation: Are They Related?i98 The article received much criticism and subsequent
studies and articles disputed its findings.'
• More recently, Paul Edelman, a professor of Mathematics and Law at Vanderbfft University, wrote an. -- ;
article entitled "I_n Defense of At large Representation- A Positive Approach." He c_on_du_ded that
minority participation was not diminished by the use of "at large" elections.
• There is no conclusive link between electoral systems gender equality on city councils.'oo
es See Demographics Aeport California Department of Finance Web site
9G Edelman, Paul, In Defence of At-Large Representation: A Pontine Approach. (2004) Vanderbilt Law and Economics Reseazch
Paper No. 04-02, at 4. (hereafter Edelman))
°1 See, Leal, David, The Politics of Latino Education: The Biases of At-Large Elections (2002) The ]oumal of Poetics."
98 MacManus, Susan, City Council Election Procedures and Minority Aeprerentation: Are They Related? (1978) Social Science Quarterly,
59, 1, 153-61.
~~ See, e.g., Engstom & McDonald, The Election of Blacks to Ciry Councils Qun., 1981) The American Political Science
Review, Vol. 75, No. 2. 344-354.
10° Bullock and MacManus, (Feb. 1991) Municipal Electoral Stmcture and the Election of Councilwomen The Joa<rnal ofPoliticr,
Vol. 53, No. 1, 75-89.
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B. "From District" Elections:
Some scholars have found that: -
• Neighborhoods have more of a voice on the council, though not as much as provided by the "by
district" approach.
• Some people who live in large cities say the feel a better sense of representation/more connected
with the city in "from" and "by" district systems than in "at large" systems. (National Civic League)
Other scholars have found that: f
• A district's representative may not have won the votes of a majority within the district
• Candidate's election campaign costs tend to be higher than "by district" elections as all city residents '~
(not just district residents) vote in the election. w
C. "By District" Elections
Some scholars have found that:
• Neighborhoods have more of a voice on the council.
• Council members selected "by district" axe more sensitive to problems that residents experience, such
as needed stop signs, trash pick up, etc.
• Candidate's campaign costs tend to be lower than in "from" district ox "at large" elections. (See
National Demographics' Study)
• District elections reduce voter alienation by bringing city government closer to the people.
Other scholars have found that:
Citywide planning and concerns sometimes are supplanted in favor of neighborhood issues
Focus on district service may necessitate additional city staff to provide support for city council
members.
Single district representation risks localism and "corrupt `ward' politics.s101
D. Mixed & "Hybrid" Elections
Some scholars have found that:
Mixed elections can provide a sound compromise between the need to make all regions of city
represented in government and the goal of choosing public officials who will serve the interest of the
city as a whole rather than any one constituency.
Hybrid elections, because of their use of districts, may help avert challenges under the Voting Rights
Act.
Other scholars have found that:
Mixed electoral systems rarely elect minority groups.
Similar to the "pure at large" system, mixed systems tend to elect some officials by a majority vote of
all the city's voters. Campaign costs axe typically higher fox "at large" seats in mixed systems.
Creating a "mixed" system can be time consuming and more expensive and the success of such a
system will depend on factors such as size, diversity and complexity of the city.
~~~~ Edleman, Paul, rupra at 4.
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Committee Input
The following chart outlines the advantages and disadvantages as developed by committee members.
• . - • ~ • .-
Characteristics Advanta es Disadvanta es
In "at large" elections, candidates for Broadens candidate Council members might focus
elected city offices are selected by all constituency (e.g. the entire less on the needs of their districts
the city's voters (e.g., all voters are city considers candidates when voted on "at large."
entitled to cast votes for each office instead of only voters within a Would increase campaign costs
listed on the ballot). district). to educate "at large" voters, as
• Increased ownership of the opposed to district only.
democratic process. Could increase influence of
• Candidates are accountable special interest groups (e.g.
to everyone in the community. developers -the wealthy and
• More open process. powerful have resources to take
• Diffuses influence of special issues to all members of council).
interest groups (e.g. NIMBY - Voters have to spend more time
Not In My Backyard issues educating themselves about all
where resources could be the candidates, which may result
funneled to a smaller pool of in voter fatigue.
district-onl candidates .
There are no districts, thus no need to Would result in cost savings Could result in all five council
create district boundaries and/or to the city. members residing in the same
engage in redistricting. Would decrease the area of the city.
probability of NIMBY issues. May dilute direct representation
(e.g. if all council representatives
lived in one area and favored it
for services over less affluenU
unre resented areas .
Candidates/office holders may reside Nothing was identified. Could result in all five council
anywhere in the city. members residing in the same
area of the city.
• May dilute direct representation
(e.g. if all council representatives
lived in one area and favored it
for services over less affluenU
unre resented areas.
Some scholars have found that when Council members may work Residents would not know which
city council members are all elected "at more effectively and council member to communicate
large," they tend to work more cooperatively as a team to with for district-specific issues if
cooperatively to solve city-wide issues. resolve issues more quickly council elected "at large."
and have a broader
perspective.
• There is less likely to be a
hold out for special interests
or pushing their own agenda
on the council.
• Council members would be
free to focus on what they see
as important, rather than
district-s ecific issues.
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• Provides alternatives to
residents who can approach
an member of the council.
Characteristics Advantages Disadvantages
Some scholars have said that when city Tough decisions are easier to Council members are more
council members are all elected "at make by council members susceptible to special interests.
large," they pay less attention to without political retribution There may be some communities
concerns of specific communities (e.g. affordable housing with special needs that could be
andlor neighborhoods. project -voted no by the overlooked if no council member
affected district council represented the area.
member, but could be
approved with four other yes
votes .
Use of "at large" elections may also Majority of voters elect A voting block could dilute
cause voting rights problems, council members. minority group votes.
particularly by diluting minority groups' "At large" elections may The cost of running a campaign
ability to select candidates of their increase the number of for an "at large" election could
choice election is higher. candidates. restrict the participation of under-
funded minorit groups.
. - ~ :. -. -
• ~ - •
Characteristics Advanta es Disadvanta es
Districts are created within the city and Nothing was identified. District boundaries might be
are subject to requirement that districts more advantageous to some
contain reasonably equal populations. areas over others and could
divide communities.
Candidates reside in the district they Candidates have the Could cause the candidate to
seek to represent. opportunity to develop in focus on their district at the
depth knowledge about a expense of other areas of the
specific district. city.
• Candidates may feel a May limit the candidate pool.
greater sense of loyalty to Candidates have to raise funds
their district. necessary to communicate
• Avoid situations where more qualifications and stance on
than one candidate resides in issues with all potential voters
the same geographical area. within the city.
• District voters may feel that
they know who to contact to
voice their concerns.
All city voters are entitled to vote for all City wide approval is a higher Candidates do not need to make
candidates for all council seats. standard to meet because the needs of residents of their
candidates have to appeal to district a priority in order to be
the interests of their district as elected.
well as those of residents Residents of a district do not
across the city. have a way to hold the
• Voters could feel that they are councilmember from their district
better represented in that they accountable for his or her
have an opportunity to vote effectiveness in advocating on
for all the candidates. behalf of their district.
• Greater burden on voters to learn
about candidates.
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• Greater burden on candidates to
raise money to communicate with
voters.
• Minority votes could be diluted by
votes from other voters who do
not reside in their district.
• Candidates would have to appeal
to a broader range of voters by
focusing oncity-wide or other
district issues.
Characteristics Advantages Disadvantages
Some scholars have suggested that "From district" eliminates the "From district" increases potential
"from district" elections may provide possibility of having all council special interest involvement.
neighborhoods andlor other members reside in the same Campaign costs are higher for
communities within a city with a greater area of the city. "from district"I"at large" election.
voice on the city council, although not to "From district" requires
the same degree as "by district" candidates to appeal to
elections. everyone in the community.
Scholars have suggested that since city Reduces influence of special Candidates and office holders
council members are still elected at- interests. are not compelled by the
large in "from district" elections, that this "From-district" makes it more electoral rules to represent their
type of system can exhibit the same likely that the council will districts.
types of problems as at-large districts reach consensus and act on Citizen-driven groups will also
(e.g., vote dilution of minority groups, behalf of the city as a whole. have a higher burden to get their
lack of responsiveness to community message to the public.
issues.
~ - •
Characteristics Advanta es Disadvanta es
Districts are created within the city and Residents may have greater Establishing and re-establishing
are subject to periodic redistricting to voice on neighborhood districts can be expensive.
ensure population equality. concerns. May create a situation of a
This ensures that candidates concentration of voters with
must appeal to a comparable cultural or other bonds are split.
number of people, and that as
officeholders they answer to a
comparable number of
constituents.
Candidates reside in the district they In order to win, candidates Candidates may be less likely to
seek to represent. must demonstrate an address citywide issues and
understanding of issues that concerns.
are relevant to the residents Could cause the candidate to
of their district. Council focus on their district at the
members can be held expense of other areas of the
accountablefortheir city.
effectiveness in addressing
issues of concern to the
residents of their district.
Candidates may feel a
greater sense of loyalty to
their district.
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• Avoid situations where more
than one candidate resides in
same geographical area.
• District voters may feel that
they know who to contact to
voice concerns.
• Allows the voters to focus
their efforts on evaluating the
qualifications of only
candidates from their district.
Characteristics Advantages Disadvantages
Only the district's voters vote to elect Council members may be Council members may only be
their council member (e.g., each voter more accountable to voters in accountable to voters in district.
only casts one vote for the council seat their district. Council members don't have io
representing the voters home district). Decreased campaign costs. deal with broader issues of the
community.
• Special interests could target a
district, increasing their influence
on the voters.
• Ma limit the candidate ool.
Some scholars have found that "by This characteristic in and of Nothing was identified.
district" elections provide itself is an advantage.
neighborhoods andlor other
communities within. a city with a greater
voice on the city council.
Other scholars have said that "by Nothing was identified. This characteristic in and of itself
district" elections can tend to polarize a is a disadvantage.
city council andlor make the city council Someone very unpopular overall
less effective at addressing citywide could get elected through the by-
issues. district process.
• - . -. -
Characteristics Advanta es Disadvanta es
Council is comprised of some members Provides an option where it May create confusion for voters
who are elected "by district" while may not exist otherwise. and lead to decreased turnout.
others are elected "at large" (e.g. The "at large" council member
Oakland). could be the "voice of reason"
and counterbalance to
district-focused opinions.
• Could be solution to
perceived problems (e.g.
underrepresented groups
could organize and support
an "at large" candidate).
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..
Characteristics - -
Advanta es Disadvanta es
Combine use of both "by district" and Elected officials would have This system requires a lot more
"at large" elections by holding primary buy-inlsupport from both work for candidates and
elections "by district" and then allowing district voters and entire city. escalating campaign costs for
all voters to select which candidate is Gives voters an opportunity to two elections.
elected in an "at large" election (e.g. all consider candidates opinions Could cause confusion to voters
city voters are entitled to participate in on broader citywide issues. resulting in decreased turnout.
the final choice of who will represent the Would require that candidates The process might dissuade
district on the council). Examples be more informed. some candidates from running.
include the cities of Compton, Eureka Candidates might be less likely to
and Stockton. focus on difficult district issues.
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v~~a.rp+~c~ ~
A. What is IRV?
Instant Runoff Voting ("IRV") is a method of selecting the winner of an election for a paxdculax office,
e.g., city councH ox mayor. It is an alternative to plurality ("winner take all") and runoff elections. IRV is
oftentimes referred interchangeably as "ranked choice," "ranked order," "preferential" or "alternative"
voting.
B. Can All Cities Implement IRV?
No. Currently only charter cities have the legal authority to implement IRV fox municipal elections.
Assembly Bill 1294 (2007) would have empowered general law cities to use IRV, but it was vetoed.
Voters in four charter cities have amended their charters to provide for IRV -San Francisco, Oakland,
San Leandro and Berkeley. Of these, only San Francisco has actually implemented IRV. This is because,
to date, other cities have not acquired approved voting systems to handle IRV.
The voters of Davis, a general law city, recently held an "advisory vote" indicating their support fox IRV,
notwithstanding their recognition that as a general law city, Davis could not implement such a system
without prior state authorization.
C. How does IRV Work?
IRV allows voters to rank candidates fox a particular office in order of preference, e.g., 1, 2, 3, etc.
Typically the number of "preferences" the voter may make corresponds with the number of candidates
for a particular office.102 In the event the city's voting system or equipment cannot accommodate the
number of candidates fox a given office, San Francisco and Oakland permit the city clerk to limit the
number of preferences that voters can make, provided voters are always given at least 3 preferences.103 If
a voter selects the same candidate more than once, only the initial preference fox that candidate will be
counted. As explained below, a voters' second, third, etc. choice are counted o~lv if their first choice
candidate is eliminated in an instant runoff.
After the ballots axe turned in, elections officials tabulate the results using only voters' first preference. If
any one candidate is the first choice of a majority (greater than 50 percent) of voters, that candidate is
elected to the office in question. Under this scenario, the manner in which voters ranked other candidates
is not considered.
In the event none of the candidates is the first choice of a majoxiry of voters, an "instant runoff' takes
place in which some voters' second choice is considered. This occurs by eliminating the candidate(s) who
received the fewest "first choice" votes. (Several options exist for dealing with a scenario in which two ox
more candidates tie fox the lowest number of votes from among the voters' initial preferences, including
eliminating both candidates or choosing between the candidates by lot.)10i In the vote-off, all voters who
initially preferred the eliminated candidate(s) axe then redistributed among the remaining candidates
according to those voters' second choice. If, after this redistribution of votes, any one candidate holds a
majority of the votes, he ox she is declared the winner and the election is over. If none of the candidates
1p2 See, e.g, San Francisco City SF Chaser, § 13.102 subd. (b).
103 San Franusco City SF Chaser, § 13.102 subd. (b); Oakland City Chazter, art. XI, § 1105 subd. (k)(1).
103 See, e.g, Oakland Ciry Charter, § XI, § 1105 subd. (e).
`3]J
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has won a majority of the votes after the first redistribution of votes, the process described above is
repeated until one candidate does have a majority of the votes.
So, as long as the number of preferences corresponds with the number of candidates, the eventual
winner will have received a majority of the votes. However, if the number of preferences that voters may
indicate on the ballot is less than the number of candidates running fox that office, than the possibility
exists that a candidate could win the election with only a plurality (less than 50 percent) of the vote.
D. Write-In Candidates 8 IRV
The charters of San Francisco and Oakland both expressly provide that the use of IRV shall not interfere
with voters' ability to write-in candidates on the ballot. Thus, IRV ballots used in San Francisco include a
space under each "choice" fox the name of a write-in candidate.
As a legal matter, it is unsettled whether a city could totally bar voters from writing in candidates in IRV
style elections. The United States Supreme Court upheld Hawaii's prohibition on write-in candidates on
the basis that the other avenues of ballot access that the state provides axe sufficient to protect voters
rights under the federal constitution to effectively cast their votes.10' Prior to that case, the California
Supreme Court had struck down San Diego's prohibition on write-in candidates in the general (but not
primary) elections on the basis that it violated the more expansive protections afforded to voters under
the California Constitution. Recently, however, the California Supreme Court appeared to overrule that
decision, at least in part, when it held that San Francisco's ban on write-in votes in traditional runoff
elections did not violate the state or federal constitutions.106
E. Voters' Experience with IRV
During the November 2004 general election, the first of which San Francisco voters used IRV, San
Francisco State. University conducted a survey in an attempt to gage voters' overall "experience" with
IRV. The results of the SFSU survey revealed that 51.6 percent of voters at the polls and 54.3 percent of
absentee voters responded that they "understood perfectly well" how IRV woxked;10' 34.8 percent of
voters at the polls and 35.1 percent of absentee voters reported that they "understood fairly well" how
IRV worked.
On August 27, 2007, Ms. Jill Lavine, County of Sacramento registrar of voters, reported to the
committee that there is currently no voting equipment certified to conduct an instant run-off/rank choice
election. Benefits of this voting process were touted to increase in voter turnout; however, John Arntz,
San Francisco duector of elections, believed that quality candidates increase voter turnout, not the
method of voting. According to Ms. Lavine, an extensive public outreach effort was undertaken in San
Francisco and Mr. Arntz stated that the city is still paying fox these costs after three years.
Ms. Lavine estimated that astand-alone runoff election in Elk Grove would cost over $233,000, whereas
a runoff consolidated with a general election would cost $32,000. Voting equipment must be certified at
both the state and federal level, which could take six to 12 months. The cost fox federal certification can
be as much as $500,000 and state certification costs estimated to be approximately $400,000. Currently
there are no state-wide uniform codes, policies ox procedures for instant run-off voting because they can
only be implemented at a charter city level. When IRV is combined with a regularly scheduled municipal
election the process requires two ballots. Ms. Lavine stated that she believes that voters can be easIly
confused about varying processes and candidates might be concerned about voters understanding of the
system.
10i Burdiek v. Takurhi (1992) 504 U.S. 428.
tue Edektein v. City and County of San Franezrco (2007) 29 Cal.4[h 164.
10~ Neeley, Francis, San Francisco Slate University, An dssessment of Ranked Choice Voting in the San Francisco 2004
Election (May 2005) page 16.
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Hypothetically, the estimated costs fox unplementing an instant runoff voting process within Elk Grove
could be as much as ~1 million for equipment, certifications, added staff and voter education.
CommitFee Input
The followin chart outlines the advanta es and disadvanta es as develo ed b committee members.
Characteristics Advanta es Disadvanta es
Instant runoff voting (IRV) allows voters . Would be an advantage in a Would be a disadvantage if a
to rank candidates for a particular office race with a large number of voter wanted to only vote for their
in order of preference rather than being candidates. first choice candidate.
forced to choose only one candidate for Generally ensures the Could easily lead to voter
each office. winning candidate has confusion and frustration
majority of votes. Elk Grove may not often have a
• Avoids a runoff election. large number of candidates.
• Could "game" the system (e.g.
groups could get together and
collectively agree to vote for
second and third choices to
manipulate system).
• The successful candidate may not
have a true "majority" of votes
because it is a hybrid type
system.
• IRV has not proven itself as a
cost savin stool.
According to some news articles from Nothing was identified. This characteristic in and of itself
other states and some county elections is a disadvantage.
officials, IRV may have the potential to
confuse voters.
Unlike plurality voting, in IRV elections Would be an advantage in a IRV has not proven itself as a
a candidate must usually receive a race with a large number of cost savings tool.
majority of votes in order to be elected candidates.
to a particular office. Ensures the winning
candidate has majority of
votes.
• Avoids a runoff election.
According to the only academic This characteristic was discussed, but was identified as neither an
studylsurvey conducted in the only advantage nor disadvantage.
California city to have actually
implemented IRV in the modern era,
approximately three out of four voters
who used it reported that they
understood IRV and had a positive
ex erience with it
Currently, there are no voting tabulation Nothing was identified. Assuming that certified voting
machines in California that are certified tabulations machines were
for use in IRV elections. available, there could be
significant costs associated with '
urchasin the e ui ment.
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\.-II~.If.JICI J
A. Primary Elections
Primary elections are typically used by political parties to notinate their "standard bearers" - e.g., the
candidates who will represent the political party in the general election.10B
There are several varieties of partisan "nominating" primary elections, including closed, semi-closed and
open. There axe also "blanket primaries," although the Supreme Court has cast doubt on whether blanket
primaries are constitudonal.109 Rather than using primary elections [o nominate candidates, some states
have experimented with ways to use primary elections to simply narrow the field of candidates who
compete in the general election. Some examples include Washington and Louisiana.
Some cities also use primary elections to "nominate" candidates to the general election ballot without
reference to party affiliation. Although these are sometimes called "nominating" primaries, in effect they
merely narrow the field of candidates (usually to two) who will appear on the general election ballot.
B. General Elections
A general election is an election that occurs at a regular interval of time at which all voters have the
opportunity to decide who will be elected to certain offices.
In California, general elections are typically held throughout the state on the second Tuesday after the
first Monday in November in each even-numbered yeax.10 Additionally, the Elections Code authorizes
general elections to be held on (a) the second Tuesday of April in each even numbered year; (b) the first
Tuesday after the first Monday in March of each odd-numbered year; (c) the first Tuesday after the first
Monday in]une in each year and (d) the first Tuesday after the first Monday in November of each year."'
C. Use of Primary and General Elections by California Cities
1. General Law Cities
Municipal (city) elections in general law cities must be conducted in accordance with the provisions of
the Elections Code."' This includes holding elections only on those dates provided in Paxt B above. The
California Constitution and the Elections Code both specify that elections fox city offices must be
"nonpartisan," meatung that political parties may not nominate candidates for those offices."'
Since city elections are nonpartisan, the provisions of the elections code providing fox primary elections
to nominate party candidates do not apply to general law cities. Nor does the Elections Code giant
general•law cities the power to hold primary elections for reasons other than nominating party candidates
- e.g., to "narrow" the field of candidates who appear on the general election ballot.
Thus, general law cities are only authorized to hold "general" municipal elections. They are not
authorized to hold "primary" elections. This is why Elk Grove holds only a single "municipal election"
for purposes of selecting members of the city council.
108 See Elec. Code, g 341 ["Primary election includes all primary nominating elections provided fox by this code"].
109 See Calfornia Demovatic PaKy u. Janet (2000) 530 U.S. 567. [Holding CaliEomia's blanket primary installed by Prop 198
unconstitutional.]
110 Elec. Code, g 324 subd. (a)(1).
"' Id. at g 324 subd. (a)(2).
112 Elec. Code, g 10101 et seq.
113 Cal. Const., azt. II, g 6; Elec. Code, g 334.
35
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2. Charter Cities
Pursuant to their "home rule" authority, charter cities may establish any elections system they desire,
provided they do so consistently with the state and federal constitutions This includes the power to set
election dates different than those provided in general law.
Since the California Constitution expressly provides that city elections must be nonpartisan, a charter city
may not establish a partisan election system ox primary elections for the purpose of nominating party
candidates. tt4
A charter city may, however, use its "home rule" authority to establish primary elections fox other
purposes, including narrowing the field of candidates who appear on the municipal general election
ballot. Examples of charter cities that do this axe discussed in Section II below.
Committee Input
The following chart outlines the advantages and disadvantages as developed by committee members.
Characteristics Advanta es Disadvanta es
Primary elections may be used by The primary election allows It would be an unnecessary
charter cities to narrow the field of an opportunity for voters to hurdle and expense if there were
candidates that appear on the general consider multiple candidates. a small number of candidates.
election ballot. It narrows the field of
candidates if there were a
large number.
• Could help elicit key issues
that community is most
interested in.
General law cities may not use primary Helps to keep election costs If there were a large number of
elections and must hold general down. candidates, it would be more
elections on the dates specified in the difficult for voters to understand
Elections Code. the positions of each.
Charter law cities may hold primary Flexibility to address issues of A special election would Increase
andlor general elections on any dates importance on dates most costs to the city.
they choose. advantageous to the city. Subject to politics (e.g. could
choose date beneficial to desired
outcome .
Some scholars have suggested that Nothing was identified. This characteristic in and of itself
holding multiple elections, including is a disadvantage.
possibly use of the primary-general
format, may reduce voter turnout.
"^Cuxrent Artide II, g 6 of the California Constitution was adopted on November 7, 1972 as Article II,g 5. Prior to its
adoption, the state constitution did not require city elections [o be nonpartisan. Thus, in a 1956, the California Attorney
General opined that charter cities could provide for partisan city elections pursuant to their "home rule" authority. 27
Ops.Cal.Atty.Gen. 197 (1956). As a result, for approximately 16 years, charter cities appeared to have the power to implement
partisan elections. However, since charter cities must exercise [heir "home rule" au[hority within the limits set forth in the
California Constitution, and since Ar[cle II, g 6 now expressly requires all city elections to be nonpartisan, charter city do no[
currently possess the power to establish partisan elections.
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Characteristics Advanta es Disadvanta es
Some scholars have also suggested Nothing was identified. This characteristic would be a
that voter turnout in city elections is disadvantage if voter turnout was
lower when they are not held on the decreased.
same day as national elections. A stand-alone election might
draw voters to issues of local
interest.
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The California Elections Code provides that "the persons for whom the highest number of votes were
cast for each office" win election, regardless of whether they received more than 50 percent of the
vote."' This is called a "plurality" system. Most California cities use this system.
In elections that use the "50-percent plus one" method, the highest vote getter wins the election, but only
if the total votes he ox she receives is greater than 50 percent. This type of system is also known as the
"majority" system.
General law cities may only use "plurality" system elections because that is the only option they given in
the Elections Code. The Elections Code does not give general law cities the option to use a 50-percent
plus one system.
Charter cities may use plurality ox 50-percent plus one style elections. Below is a description of the
system used in several charter cities:
Sacramento: Sacramento uses primary elections to narrow the field of candidates for city council seats
and mayor to two fox each office. The top two candidates from the primary then go on to compete in the
general election. City councIl seat elections axe "by district;" mayor elections are "at large." The
"majoxiry" style of elections is used at two points in this process. First, if any candidate receives a
majority of all votes cast in the primary, that person is automatically elected to the office they seek
without the need to compete in a general election. Second, since the general election is limited to two
candidates fox city council seats and mayor, the winning candidate will always be the candidate who
receives greater than 50-percent of the vote. (Note: except where provided differently, as above, the
Sacramento charter provides that city elections shall be held in accordance with the Elections Code.)
Modesto: All candidates fox elected office in Modesto run in the "regular" municipal election held on the
fast Tuesday in November of each odd-numbered year. If a candidate receives a majority of the votes
cast in that election fox a given office, he ox she is elected to that office. If no candidate receives a
majority, the top two vote getters compete in a "second regular election" held on the second Tuesday in
November. The winner of that election is elected to office. Both the "regular" and "second regular"
elections are conducted on an "at large" basis for all elected offices.
Oakland: Candidates for city council first run in a primary election; six in "by district" primaries; one in
an "at large" primary. (The Oakland city council is comprised of seven seats total, six axe "by district"
and one is elected "at large.") Mayoral candidates first run in an "at large" primary election If any city
councll ox mayoral candidate receives a majoxiry of the votes cast in the primary, he ox she is elected to
that office. If no candidate receives a majority, then the top two vote getters in the primary compete in
"second or general municipal election." Fox the six "by district" city counc$ seats, only voters from the
district which a candidate seeks to represent may cast votes in the general municipal election for that
office. All city voters may cast votes in the general municipal election for the "at large" city council seat
and the office of mayor. The candidate who receives the highest number of votes fox each of these
offices in the general election is elected.
ns Elec. Code, ~ 10263.
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Stockton: City council candidates first run in a "by district" primary election; mayoral candidates mn in
an "at large" primary. The top two vote getters in the primary election for a given city council seat then ^
compete in an "at large" general election. The candidate with the highest number of votes wins. Fox ` J
mayor, if any candidate receives a majority in the primary, they axe elected. If no mayoral candidate
receives a majority in the primary, then the top two vote getters compete in an "at large" general election. ~1
The highest vote getter in the general election is elected mayor.
San Diego: All candidates for city councfl first run in "by district" primary elections. If a candidate y^
receives a majority of the votes cast in the primary fox a given seat, he or she is elected to that office. If m
no candidate receives a majority, the top two vote getters compete in the general election. Like the ~
primary, voting in the general election for council seats is "by district." (The mayor and city attorney axe
elected using the same type of system, except that both the primary and general fox those offices are "at
large.")
Committee Input
The following chart outlines the advantages and disadvantages as developed by committee members.
Characteristics Advanta es Disadvanta es
Fifty-percent plus one elections require Candidates have to appeal to It would almost guarantee the need
the winning candidate to receive a a broader/diverse electorate. to hold both a primary and general
majority of the votes cast. It is beneficial to candidates election which would increase
to have the support of a costs.
majority of voters in the Increases voter fatigue in having to
community. vote twice and voters may be less
likely to follow through on both
elections.
General law cities are limited to using There is simplicity in the Nothing was identified.
"plurality" elections where the candidate process; no one has to wait
who receives the most votes wins even between a primary and
if that number is less than a majority of general election to know who
the votes cast. elected officials will be.
• Campaign expenses are
lessened.
• Reduces perception of
special interest
involvement/impact.
Charter cities may use 50-percent plus Provides choice and General law cities cannot use 50-
one type elections. opportunity to exercise percent plus one voting method.
options.
Primary elections may be used by The primary election allows It would be an unnecessary hurdle
charter cities to narrow the field of an opportunity for voters to and expense if there were a small
candidates that appear on the general consider multiple candidates. number of candidates.
election ballot. It narrows the field of
candidates if there were a
large number of candidates.
• Could help elicit key issues
that community is most
interested in.
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Campaign Disclosure Laws
A. Registration of Committees and Candidates
State law requires all candidates for elective office at any level to file a Candidate Statement of Intent
(FPPC Foxm 501) declaring what office they axe seeking prior to raising campaign contributions. FPPC
Form 501 is filed with the filing officer where the candidate files hex campaign reports (e.g., City Clerk
fox City candidates).
State law also xequixes all candidates at any level that raise $1,000 ox more in a calendar year to register a
campaign committee with the Secretary of State. FPPC Form 410 is used to register the committee. A
copy of the registration form is also filed with the local filing officer for local candidates (e.g., City Clerk
fox City candidates).
State law requires all "committees" that raise $1,000 or more in contributions in a calendar year to
support ox oppose state and local candidates ox ballot measures to register with the Secretary of State
using FPPC Form 410. Local committees also file a copy of the Foxm 410 with its local filing officer. The
Form 410 xequixes the following information:
• Name, street address and phone number of the committee;
• Name, street address and phone number of the treasurer and any principal officers of the committee;
• Name and office sought ox held by any candidate controlling the comrittee as well as information
regarding the controlled committee's bank account.
• Foxm 410 also requires information about committees support ox opposing candidates and/ox ballot
measures. For example, if the committee is "sponsored," meaning another organization (e.g., labor
union, nonprofit trade association) directs the contributions and expenditures of the committee, then
the names, street addresses and phone numbers of each sponsor must be listed on the form. In
addition, the name of the sponsor must be reflected in the name of the committee, although
committees with multiple sponsors may use a generic term identifying the "industry ox group."
Form 410 is not required be to be filed electronically with the Secretary of State, so access to the
information on the form is not xead$y available to the public.
Both general law and charter law cities may enact separate registration requirements for local candidates
and local committees. However, cities may not adopt rules that preclude candidates and committees from
complying with state law. Thus, fox example, a city could not raise the threshold of $1,000 fox
registration.
As a practical matter, lowering the threshold fox registration is not likely to capture many more
"committees." In fact, we axe not aware of any local jurisdictions which have different
candidate/committee registration requirements that differ from state law.
Some local jurisdictions require electronic filing of local committee forms including the Form 410; such
filing may increase public access to such information. Electronic filing can be expensive for either a
municipality that chooses to provide software ox for candidates and committees that may be required to
purchase such software commercially.
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B. Reporting and Disclosure of Contributions and Expenditures
State law imposes a comprehensive reporting and disclosure scheme upon candidates and committees, /'~
including those active at the local level. Generally all receipts, including contributions, and all ` ,
expenditures of $100 or more in a calendar year must be itemized on a campaign disclosure form. The
FPPC adopts forms fox disclosure and candidates and committees axe required to use these forms. ^
Itemized information fox contributors includes:
• Name, address, occupation and employer fox individuals. .•
• Date and amount during the period covered by [he xepart and the cumulative amount contributed
during the calendar year. ~
• Note: contributions include monetary contributions, loan and in kind donations of goods and
services.
Itemized information fox expenditures includes:
• Name of payee, address, amount and brief description of the purpose of the expenditure. If the
expenditure is a contribution to a candidate or another committee, then the candidates ox committees
name, office sought for candidates and jurisdiction must be disclosed.
• Sub-vendor information must also be disclosed for any person who is paid $500 ox more by another
vendor of the committee.
• Accrued expenses of $100 ox more in a reporting period of a committee must be disclosed.
Disclosure reports axe filed with the appropriate filing officer. For example, committees active at the state
level, even if also active at the local level, file original reports with the secretary of state and copies with
the committee's county of domicile. Committees active only in one county, file with the county registrar
of voters. Committees active only within a city, file with the city clerk.
Most committees axe active at the state level and do not file reports with cities. However, even state or
county committees must file with a city if the committee makes independent expenditures of $1,000 or
more in connection with a city election.
Disclosure reports are required to be filed at least semi-annually for the periods January 1 through]une
30 and July 1 through December 31, regardless of committee activity. In addition, committees may be
required to file two pre-election xepoxts if certain thresholds axe met (generally $500 in contributions
made in connection with an election). Pxe-election reports are filed 40 days and 12 days prior to the
election disclosing information from the last disclosure report through 45 days and 17 days, respectively,
prior to the election.
"Late contribution" (LCR) and "late independent expenditure" (LIER) xepoxts are required to be filed
within 24 hours during the final 16 days prior to an election for contributions and independent
expenditures of $1,000 ox more. Thus, if a candidate receives an LCR a week before the election, he or
she must disclose that contribution within 24 hours of receipt. If a committee makes a LCR or LIER a
week before the election if must also file a report disclosing the LCR or LIER within 24 hours.
State law imposes additional "late" reporting requirements upon state candidates and some state
committees. These requirements can include electronic reporting of contributions of $5,000 ox more
within ten business days, without regard to reporting periods. The same rules apply to the making of
independent expenditures by committees supporting state candidates. The thresholds drop to $1,000
during the final 90 days of an election fox state candidates and committees.
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Both general law and charter cities may enact additional reporting requirements for local candidates and
committees, but may not relieve candidates and committees of state law requirements. Fox example, /~
some local jurisdictions require local candidates and local committees to disclose contributions and ` ,
expenditures at thresholds of $25 ox more. Those same jurisdictions could not raise the reporting
threshold above the $100 state law requirement. ^
Other local jurisdictions impose additional requirements fox disclosure xepoxts. For example, the cities of
San Jose and Davis require the filing of a third pre-election campaign disclosure report for city candidates ~F
and committees the Friday immediately before the election. rn
The lowering of reporting thresholds for itemizing contributions and expenditures, and the imposition of •w
additional requirements to file campaign disclosure statements axe the two most common additional
requirements imposed by local jurisdictions. Lowering itemization thresholds and adding xeparting
deadlines can improve public awareness, but the same requirements impose an additional burden upon
local candidates and comnuttees.
\X/bile candidates and committees active at the state level can be required to file campaign disclosure
reports electronically with the secretary of state, those same committees axe not required to file electronic
xepoxts with local jurisdictions. State law does not impose electronic filling upon local candidates and
local committees.
Some local jurisdictions impose electronic filing requirements on local candidates and local committees
(e.g., Los Angeles, San Francisco and San Jose). Most small cities do not require electronic filing.
Electronic filing can improve public access to important campaign disclosure information prior to an
election. However, the costs of implementing an electronic filing program can be costly to either the
local jurisdiction ox the local candidates ox committees.
Limited Contributions & Expenditures, Independent Expenditures, Issue Ads
`[CJontnbution and expenditure limitations operate in an area of the mart fundamental FirstAmendment activities.
Discussion of public issues and debate an the qualifications of candidates are integral to the operation of the ystem of
government established by our Constitution. The FirrtAmendment affords the broadest protection to .ruck political
expression in order `to assure (the unfettered interchange of ideas for the bringing about ofpolitical and social changes
desired by the people. "'
-The United States Supreme Court in Buckley v. Valeo."`
A. Contribution Limits
1. Limits on Amounts
Contribution limits restrict the amount of money a candidate ox committee can accept from an individual
ox entity. The lower the contribution limit, the more individuals and entities a candidate must collect
from for a particular election. If the contribution limit is higher, a candidate ox committee can collect
more resources from fewer entities and individuals. In turn, the higher the contribution limit, the less
time a candidate must spend raising money. Many cities in California limit the amount of money and/or
non-monetary contributions that individuals and other entities may contribute to candidates and the
candidate's campaign committees.
Since contributions limits infringe on the contributor's ability to engage in free speech and association,
they impact the First Amendment. However, the state's interest in eliminating corruption of officials and
the appearance of corruption associated with large contributions justifies the burdens placed on the First
Amendment freedoms. The Supreme Court's ruling in Buckle a Valeo held that contribution limits were
110 (1976) 424 U.S. 1, 14.
i2-ss
42
constitutional because they involve little direct restraint on political communication, and permitted the
symbolic expression of support evidenced by a contribution but did not in any way infringe the
contributor's freedom to discuss candidates and issues. Therefore, contribution limits could be upheld if
the government demonstrates a sufficiently important interest and employs means closely drawn to avoid
unnecessary abridgment of associational freedoms.
While it is likely that contribution limits will continue to be upheld by the courts, the Supreme Court
recently held in Randall v. Soren"' that a contribution limit can be too low. The Court cited five factors in
determining whether contribution limits were too low to survive constitutional scrutiny:
1. Significant restrictions on the amount of funding available for challengers to run competitive
campaigns;
2. Threat to the right to associate in a political party because contribution were limited to the same
amount from individuals as those from political parties
3. Limits on a volunteer's expenses harmed the volunteer's right to associate with campaigns;
4. Failure to index limits to inflation, and
5. Failure of a justification for the low amounts, such as corruption in the jurisdiction being more
widespread than elsewhexe.1e
State law does not currently impose contribution limits to local candidates, but permits local jurisdictions
to institute their own limits on local elections as long as the limitations and prohibitions do not conflict
with the membership communication provisions of the Act.
Many cities have opted not to limit contributions to local candidates and committees, including:
• Stockton (Chaxtex)
• Modesto (Chaxtex)
• Lodi (General law)
Citrus Heights (General law)
Rancho Cordova (General law)
Other cities do impose limits on contributions to local candidates and committees, including:
• Folsom (Chaxtex)
• Sacramento (Charter)
• Los Angeles (Charter)
• San Francisco (Chaxtex)
• San Diego (Charter)
• Oakland (Charter)
Some cities have one limit for all offices, some have two limits for different types of candidates and some
have limits based on whether a candidate accepts a voluntary expenditure limit, which will be discussed
further below. The attached chart (6-1) specifies the limits used in each of aforementioned cities.
2. Donor Limits
Generally, under state law there axe no different limits for different types of contributors. The only
exception to this rule is the small contributor committee and contributions by lobbyists. For
contributions to candidates fox state assembly, senate and statewide candidates (except govemox), small
contributor committees can give around twice the amount individuals and other committees can give.
~~~ Qune 26, 2006, Nos. 04-1528, 04-1530, 04-1697) _ U.S._
<http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vo1=000&invo1=04-1528> (as of Nov. 5, 2007).
ita Ibid.
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Of the comparable cities, only Sacramento (charter) and Oakland (charter) have a similar provision to /'~
state law. Sacramento has a separate contribution limit from "large political committees." A large political ` ,
committee is defined as a political committee of persons that has been in existence fox more than six
months, receives contributions from 100 ox more persons and makes contributions to one or more ^
candidates fox city elective office. The contribution limits for large political comtruttees axe almost four
l
did
f
or mayora
can
ates.
tunes the limit fox city councIl candidates and over five times the regular limit
.y..
Oakland has a similar provision for "broad-based political committees." The definition is the same as rn
•
Sacramento, and the limits are two to three times the regular contribution limits. w
3. Aggregate Limits V
An aggregate limit is a ]itnit on the total amount one contxibutox may make to all candidates in the
jurisdiction per election.
San Francisco (charter) and Los Angeles (chaster) have this type of a contribution limit. San Francisco
limits a contributor to $500 times the number of city offices on the ballot in the election. Los Angeles
limits a contxibutox to $500 times the number of city councIl candidates on the ballot plus $1000 times
the number of city-wide candidates on the ballot. State law does not have an aggregate limit.
4. Candidate Contributions/Loans to Self
As will be discussed later, a candidate is not lirrnted to the amount of his ox hex own money he ox she can
spend on their own campaign. In addition, under state law, a candidate is not limited in the amount he or
she can contribute to their own campaign committee. However, the Political Reform Act prohibits a
candidate from having loans to his ox hex own campaign of more than $100,000 outstanding at any one
time and may not charge interest on loans made to the committee. This limit applies to loans from the
candidate's personal funds as well as to loans obtained by the candidate from a commercial lending
institution.
5. Time Restrictions on Contributions
There axe no time restrictions on contributions under state law. However, other states have attempted to
limit contributions during legislative session. Upon judicial review, courts have differing opinions on the
constitutionality of these provisions. A Georgia state law prohibiting contributions to members of the
legislature during session was upheld, but a Florida court struck down a similar provision holding that
although a ban may be justified by a compelling interest in pxeventingtorxuption and the appearance of
corruption, the law was not narrowly taIloxed to prevent the corruption because it puts limits on some
public officials and candidates who could not possibly be subject to a quid pro quo arrangement.
However, a law was upheld which banned contributions by lobbyists and certain political committees
during legislative sessions.
The city of San Jose's ordinance currently only allows contributions to be made during the "campaign
collection period." This period runs from 180 days before the election and ends 17 days before election
day.
6. Source Prohibitions
Federal law prohibits contributions in any federal, state or local election from foreign nationals and
national banks. Therefore, a state or local jurisdiction must abide by these limitations as well.
a. Corporations/Unions
State law does not limit contributions from corporations or labor unions, but federal law regulates
both. Bans on corporate and labor union contributions have been upheld as constitutional because a
legislative body might be concerned that a corporation would use its vast resources to incur political
ii
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debts from legislators who axe aided by the contributions. This concern justifies a state's treatment of
unions, corporations and similar organizations differently from how individual donors are treated. A ^
state may ban an organization like a corporation or labor union from seeking contributions to be ` J
used as political contributions. ~
Currently, San Francisco prohibits contributions from corporations, including non-profit ^^
i.i
corporations, which by definition includes labor unions. San Diego prohibits contributions from any
entity other than individuals. ~}.
b. PACs
State law cuxxendy limits the amount of money a state PAC may contribute to a state candidate, but
~
contributions by PACs axe not prohibited. Of the comparable jurisdictions, only San Diego prohibits
PAC contributions to candidates, thereby allowing contributions only from individuals.
c. Lobbvists
Under state law, lobbyists may not make a contribution from their own personal assets to an elected
state official, a candidate for state office, a state ox local committee controlled by the state official ox
candidate or a committee primarily formed to support ar oppose a candidate if the candidate is
seeking an office with, or the official is an elected officeholder of, an agency the lobbyist is registered
to lobby. In addition, a lobbyist may not contribute to a local committee controlled by such a state
candidate.
d. Contractors
Under state law, no officer of an agency can accept, solicit ox direct a contribution of more than $250
from any party ox participant while a proceeding involving a license, permit ox other entitlement fox
use is pending before the agency. This applies for three months following the date a final decision is
rendered if the officer knows or has reason to know the participant has a financial interest.
San Francisco prohibits those who have a contract with the city and county from making campaign
contributions to city officers that may be involved in the approval of the contract.
e. Out of District Donors
Some states and local jurisdictions have attempted to ban contributions from outside the district.
Oregon voters amended their constitution to penalize state and local candidates who accepted more
than ten percent of their funds from out-of-district contributors. It was found unconstitutional
because the ban was not narrowly tailored to prevent corruption because it bans all out-of-district
contributions, regardless of size ox any other factor that would tend to indicate corruption. However,
Alaska instituted a ban on campaign contributions from non-residents, but the Alaska Supreme Court
distinguished it from the Oregon case. It upheld the ban because the Oregon ban applied to both
nonresidents and residents of Oregon, while Alaska's provision only applied to non-residents of
Alaska and did not limit speech of those most likely to be affected by the outcome of a campaign for
state office.
Cuxxendy, only one California local jurisdiction has a similar ban. In 2006, Humboldt County voters
adopted a ban on all non-local corporation contributions, including independent expenditures, in
connection with any county candidate, initiative, referendum ox recall election. The constitutionality
of this provision has not been tested.
12-69
Limits on Contributions to PACs
a. Election vs. Calendar Year
Under state law, contributions to PACs axe limited on a calendar year basis, while contributions to
candidates are limited on an election cycle basis. Some cities limit contributions to PACs on a
calendar year basis and some have a per election limit. By way of example, the city of Sacramento
limits contributions to $900 per calendar year. Folsom, however, limits contributions to city
committees to $150 per election.
~F
b. Time Restrictions on Contributions to PACs
State law does not currently limit contributions to PACs during specific time periods. Some local ~
jurisdictions do. For example, the city of San Jose's contribution collection period fox candidates (see
ILA.S above) also applies to city political action committees, so a political action committee cannot V
collect money for use in city candidate elections except during the contribution collection period.
c Tvpe of PAC (support candidates vs. ballot measures)
Contributions to PACs for use in making contributions to state candidates are limited to $6,000
under state-law. Contxrbutions to a committee not for contributions to state candidates axe not
subject to limit. Therefore, PACs formed to support ballot measures axe not subject to the
contribution limits established by the Political Reform Act. Many of the comparable jurisdictions
limit contributions to committees that will use the funds to support or oppose local candidates. The
cities of Folsom, San Diego, San Francisco, Oakland, Los Angeles and San Diego all have provisions
with these limits.
B. Expenditure Limits
Expenditure limitations are restrictions on the amount that a person may spend directly ox indirectly on a
political communication. In Buckley v. Valeo,"~ the United States Supreme Court held that the expenditure
limits under the Federal Selections Campaign Act (FECA) violated the First Amendment to the United
States Constimtion.
The reason the court in Buckley held that the Constitution permits the government to impose
contribution limits but not expenditure limits has to do with the difference in how these restrictions
impact a person's ability to engage in free expression. When a person spends money fox political speech,
they axe doing so to get out a specific message - e.g., "Vote for Susan for City CouncIl. She's the
candidate who will best represent our district on the council." Expenditure limits thus necessaxdy restrict
the uanti of direct political speech that a person may engage in by reducing the number of issues they
can discuss, the depth of their exploration, and the size of the audience reached. By contrast, the act of
making a contribution to Susan's campaign involves only "symbolic" speech and does not directly convey
a specific message about Susan ox why the donor supports hex. In other words, contribution limits
primarily impact only indirect speech. It was this distinction that the U.S. Supreme Court relied on in
Buckley when it upheld the FECA's contribution limits, but struck down its expenditure limits as
unconstitutional.
1. Mandatory Expenditure Limits
Consistent with the Court's holding in Buckley, no California city or county currently imposes mandatory
limits on the amount that a person may spend to finance a political communication. Likewise under
Buckley, no city ox county may impose mandatory restrictions on how much a candidate may spend on his
or hex own campaign. As discussed later, however, some jurisdictions do allow candidates to opt into
voluntary expenditure limits.
n9 (1976) 424 U.S. 1, 14.
12-70
46
2. Voluntary Expenditure Limits
Some cities and counties in California have voluntary expenditure limit ("VEL") ordinances that allow /'~
candidates to opt into expenditure limits that local governments could not otherwise constitutionally
f
id
t
th
i
b
i
l
t
ll
i
d
h
VEL ` ,
res
en
n
evan
c
ty, county or
e num
er o
s
e re
y t
e
to t
s axe usua
re ,quire them to abide by.
district. For example, if Elk Grove instituted VELs based on a $ 0.50 per resident formula, the VEL fox a
city council candidate would be approximately $68,000.00 per election [136,000 residents"'° x $0.50 =
$68,000].
f
The primary benefit of VELs is that they reduce the amount of money being raised and spent fox rn
political campaigns. On the other hand, VELs are no different from mandatory expenditure limits in the ~
sense that they reduce the total amount of political speech that a candidate may engage in.
Many cities and counties offer incentives fox candidates to opt into VELs, fox example, by permitting
them to accept larger contributions than they could otherwise accept under local law if they didn't accept
VELs.
Cities with these types of ordinances include:
• Beverly Hills (General law)
• Hayward (Chaxtex)
• Murxieta (General law)
• Oakland (Charter)
• Roseville (Chaxtex)
• San Jose (Charter)
• Ventura (Chaxtex)
Local governments that seek to experiment with this type of VEL program must be careful though not to
make rejection of VEL so unattractive fox candidates that they essentially force candidates to opt in,
thereby creating de facto mandatory expenditure limits. Most cities and counties allow VEL candidates to
accept contributions up to about double what non-VEL candidates may accept. Others, like Oakland
(charter) have contribution limits fox VEL candidates that are six-times higher than non-VEL candidates.
To date, there have been no cases decided that provide definitive guidance on how far a city ox county
may go to entice candidates to accept VEL.
Finally, it should be noted that VELs are oftentimes used in conjunction with public financing of
election campaigns. This relationship will be discussed as part of the presentation on public financing.
C. Limits on Independent Expenditures
An "independent expenditure" (IE) is a payment for a communication that expressly advocates on behalf
of a particular candidate but is not made at the request of or in coordination with that candidate. The
difference between IEs and "issue ads" (discussed latex) is that while IEs contain "express advocacy" -
e.g., words that explicitly ask voters to support or oppose acandidate -issue ads do not.
In Buckley v. T/aleo, the United States Supreme Court struck down a provision in the FECA that would
have placed a ceiling on the amount of money that persons could spend for IEs. The government
attempted to justify the restriction on IEs by arguing that such limits were necessary to prevent
circumvention of the contribution limits. The Buckley Court rejected that argument though, primarily on
the basis that since IEs are not coordinated with the candidate they are meant to benefit they pose less of
120 The number of residents in this example is equal to the number of residents in the entire city because Elk Grove city
council candidates aze elected "from district" - e.g., they must reside in the district they run in but are elected by all of the
city's voters.
~2-7~ I
a danger of corruption than direct contributions. While a person making an IE may intend to help a
candidate, the impact of the IE may be just the opposite. Put differently, since a candidate does not have
control over the content ox timing of an IE they are less valuable to the candidate than a direct
contribution over which the candidate does have control.
Since Buckly, the United States Supreme Court has consistently reaffirmed that limits on making
independent expenditures axe unconstitutiona1.121
Despite the several U.S. Supreme Court decisions holding that limits on IEs are unconstitutional, some
cities and counties have nevertheless attempted to restrict their use by imposing contxibudon limits on
committees that make IEs. In a recent decision, however, a federal appellate court struck down a city of
Irvine ordinance limiting contributions to IE committees Lincoln Club v. City of Irviue. "' The Court held
that contribution limits at issue in that case were unconstitutional because they operated to reduce the
amount of direct political speech that the Lincoln Club could engage in independently of a candidate -
e.g., speech that carries little to no danger of corrupting a candidate. A similar ordinance enacted by the
city of San Jose was struck down by a federal district court in 2006 and is now on appeal in the same
federal appellate court that struck down the Irvine ordinance.
D. Issue Ads
As the name suggests, an issue ad is a communication that discusses issues, not candidates. Thus, as
mentioned above, while IEs contain express advocacy, issue ads do not. A classic example of an issue ad
is one that asks voters to "Contact Senator Jones and tell her to vote no on the Tax Hike Initiatve."
While the ad mentions a candidate, it only advocates a position on an issue (here, the Tax Hike Initiative)
and does not directly advocate a position on the election ox defeat of Senator Jones.
Issue ads have the potential, however, to at least indirectly convey a message about a candidate. Some
groups have attempted to use issue ads in this way by timing them close to an election or by addressing
topics that may be associated with particular candidates. Congress responded to this practice by including
Section 203 in the Bipartisan Campaign Reform Act ("BCRA" ox "McCain-Feingold"), which prohibits
nonprofit organizations and corporations from broadcasting issue ads within certain "blackout" periods
before a federal election. Section 203 therefore amounts to both a source and time restriction in that it
only applies to corporations and nonprofit entities and then only limits their ability to run issue ads
during a specific time period.
In McConnell v. Federal Election Comm.,"' the United States Supreme Court said that this limit was not
unconstitutional "on its face" - e.g., as a general principle - to the extent that it regulates express
advocacy or its functional equivalent.14 However, the court in McConnellleft open the possibility that
Section 203 could be challenged in a latex case on an "as applied" basis - e.g., in response to the
provision being applied to a specific entity and set of facts.
In 2004, the Wisconsin Right to Life Committee ("WRTL") brought an as-applied challenge to Section
203 after it aired an issue advertisement over the radio during the blackout period. WRTL's
advertisement asked voters to contact Wisconsin Senators Kohl and Feingold and urge them to oppose a
filibuster in the Senate concerning several judicial nominees. Eventually the case made its way to the
United States Supreme Court. On June 25, 2007, the court issued its decision in Federal Election Comm. v.
"-~ See, e.g., Colorado RepuUG2an Fed Campaign Comm. v. Federal Election Comm'n., (1996) 518 U.S. 604, 614; Federal Election Comm'n
v. Nat'l Can.rervative PaliticalActian Com., 470 U.S. 480, 497-498 (1985).
'~~ (9th Cir. 2002) 292 F.3d 934.
"x(2003) 540 U.S. 93.
'~^ Id. at 206.
I
rt
V
I ~
~2-72 •
IY/itconrin I~zght to Life,125 holding that Section 203 was unconstitutional as applied to WRTL's radio
advertisement Moxe significaritly, however, the Chief Justice said that in order fox an issue ad to be ^
subject to Section 203 it must be susceptible to "no reasonable interpretation other than as an appeal to ` ,
vote for ox against a specific candidate."`" Most legal scholars read this new test to mean that the court is
unlikely to approve of any future restrictions on issue ads except in the most extreme cases. /1
Presently, neither the state nor any California city or county have enacted laws that seeks to limit an
entity's ability to engage in issue advocacy. Following W/ATL II, it would appear that such efforts would y~
likely be found unconstitutional.
Disclaimers and Sender Identification Requirements ~
State law imposes upon all candidates and committees at any level sender identification requirements fox V
mass mailings. Thus, aw mail of 200 or more identical pieces must identify the following criterion on the
outside of the mailer:
• Name of the candidate or committee paying the majoxiry of the costs of the mailer; and
• Address (P.O. Box permitted) fox the candidate ox committee
This information must be printed in contrasting color in at least six point type.
State sender identification rules only apply to mail. Literature which is walked door to door, handed out
at public forums ox otherwise distributed in ways that do not use the mail system is exempt from the
requirement Nor does state law impose requirements fox disclaimers on other forms of printed media
such as lawn signs and billboards.
State law does impose identification requirements on phone bank calls for all candidates and comtxiittees
at any level. In summary, the name of the candidate or comtittee which authorized ox paid for 500 or
more calls (live or robo) must be disclosed in the call. For committees, their full name as shown on the
Statement of Organization (Form 410) must be used.
Federal law imposes "sponsorship" identification of radio and TV broadcasts. In summary, the name of
the organization paying for any broadcast ad must be visually disclosed at the beginning or end of the ad
for at least four seconds in a specified size.
General law and charter cities may impose additional disclaimer rules upon local candidates and local
committees that do not preclude compliance with state ox federal laws. Some cities require local
candidates and local committees to include identification on non-mailed printed literature, lawn signs and
billboards. Some cities also impose additional disclaimer information on mailed literature. For example,
some cities require committees making independent expenditures in support or opposition to local
candidates to indicate on the communication that no candidate has authorized the communication. Other
cities require that the cost of the communication be disclosed on its face. Some cities also require local
candidates and local committees to provide copies of campaign literature, phone bank scripts and
broadcast scripts to the local "Ethics Commission."
Providing additional disclaimer information can provide greater awareness to the voting public.
Imposing too many disclaimer requirements upon candidates and committees can cause First
Amendment problems by imposing "forced speech" upon the candidate ox committee by the
Government which may detract from the candidate ox committees message.
12i ~une 25, 2007 No. 06-969) _U.S._ < http://supreme.justia.com/us/new-cases/06-969.pdf>. [551 U.S. 1 (2007)
(hereafter WATL In.]
~2b ld. at 16.
I ~
12-73
Local Ethics Commissions
Several larger cities (e.g., Los Angeles, San Jose, San Diego and San Francisco) have created local ^
enforcement agencies to oversee local compliance with campaign, lobbying and ethic laws. Usually these ` ,
cities have civIl ox administrative authority to enforce local laws, but not criminal authority. ^^~
Generally, local ethic commissions can interpret their local laws through opinions, advice letters ox Li
regulations and often provide training and other educational outreach programs. The closest city to Elk
Grove in population that has an Ethics Commission is Oakland. It staffs the Commission with one .}.
executive officer and the city attorney's office provides compliance services to the Commission. (~
Local ethics commissions can provide greater enforcement of local laws that might not otherwise be "Z
available However, there are costs associated with local enforcement which can range from high to V
relatively low. Fox example, the city of Los Angeles has a full time staff of enforcement attorneys and
investigators to enforce its local ethics laws. The city of San Jose contracts its enforcement out to a
private law firm. The cities of Oakland and San Diego use their elected City Attorney to enforce their
local laws.
Code of Fair Campaign Practices
State law provides that every candidate for elective office in the state, at all levels, should voluntarily
subscribe to a code of conduct based on "decency, honesty and fair play." The law provides that
candidates be provided a form at the time they take out their nomination papers. The form contains the
text of a "Code of Fair Campaign Practices."
Elements of the Code include:
• Campaigning openly about issues and policies in a frank and sincere way.
• Avoiding character defamation, whispering campaigns, libel, slander ox scuxxIlous attacks on
opponents.
• Avoiding appeals to negative prejudice based on race, religion, national origin, disability, marital
status, sexual orientation ox gender identity.
• Avoiding dishonest ox unethical practices that undermine system of free elections.
• Avoiding asking employees for campaign contributions.
• Publicly repudiating support from any person or group that uses tactics proscribed by this code.
State law further provides that the Foxm, once subscribed by a candidate becomes a matter of public
record. The law is clear, however, that subscribing to the Code is voluntary. We are not aware of any
statistics indicating if many, ox any, candidates subscribe to this Code. Our impression is most, if not all,
do not. There may be local jurisdictions which have a separate Code, although we could not locate any.
This may be due to the fact the State law covers local candidates as well.
Chart of Selected California Cities Campaign Contribution Ordinances
(Chart 6-11
(Charter) None None None None
(Charter) None None None None
(General) None I None I None
12-74
Citrus Heights None None None None
(General)
Rancho Cordova None None None None
(General)
Folsom $150 per election None None $150 to
(Charter) committees
supporting or
opposing city
candidates.
Sacramento City Council: City Council: None $900 per calendar
(Charter) Contribution by persons: No candidate year from
$900 per election. can accept individuals to
• Contributions by large contributions committees
political committees: totaling more supporting or
$3,500 per election. than $17,550 opposing city
in any single candidates.
Mavor: off-election
• Contribution by persons: year. $3,500 per
$1,150 per election. calendar year
• Contributions by large Mavor: from large political
political committees: No candidate committees.
$5,850 per election. can accept
contributions
totaling more
than $35,159
in any single
off-election
year.
Los Angeles City Council: None None $500 per calendar
(Charter) $500 per election. year to
committees that
Mavor Citv Attorney & support or oppose
Controller: city candidates.
• $1,000 per election.
Aggregate Limit:
$500 multiplied by the
number of city council offices
appearing on the ballot at
that election plus $1,000
multiplied by the number of
city-wide offices appearing
on the ballot at that election,
but in no case less than
$1,000 in connection with all
candidates in that election
seeking election to all elected
cit offices.
12-75
l 1
f
V
51
San Francisco $500 per election. None Corporations $500 per calendar
(Charter) $250 per election in runoff year to
elections. committees that
make
Aggregate Limit: expenditures to
• $500 multiplied by the support or oppose
number of City elective city candidates.
offices in the election.
San Diego City Council: None Organizations $270 to general
(Charter) $270 per election. (only purpose
contributions committees for
Mavor & City Attorney: from use in supporting
• $320 per election. individuals are or opposing city
permitted). council
candidates.
$320 to general
purpose
committees for
use in supporting
ar opposing
mayoral and city
attorney
candidates.
Oakland Individual Contributions: Persons who
(Charter) $600 per election if the make independent
candidate has accepted expenditures in
the voluntary support or
expenditure limit (VEL). opposition to city
• $100 if the candidate candidates are
has not. limited to $100 per
election.
Broad-based Political
Committees:
• $1200 with VEL.
• $300 without VEL
acceptance.
San Jose City Council: Contributions may Card rooms, $250 to
• $100 per election without only be collected card room committees chat
VEL acceptance. during the employees make
• $250 with VEL "campaign and card expenditures in
acceptance. collection period." room owners. support of city
Usually from 180 candidates.
Mavor: days before an
• $250 per election without election until 5
VEL acceptance. p.m. on the 17th
• $500 with VEL day before the
acceptance. election.
i2-~s
I
^~
i.i
V
52
Public Financing of Political Campaigns
Public financing of political campaigns refers to programs that provide public money or other support to /'~
qualified candidates to run campaigns for public office. Municipal public financing programs are funded ` ,
by city revenues, either in a specific amount provided by ordinance ox charter - e.g., "$XX amount
annually shall be set aside fox public financing," ox through an annual appropriation by the city council -
e.g., city council shall make appropriation "sufficient to fund all candidates for the city office eligible to
receive limited matching funds." San Francisco is an example of the former and Sacramento an example
of the latter. ~~
General law cities in California ~ not implement public financing programs because it is prohibited by
the Political Reform Act. "No public officer shall expend and no candidate shall accept any public
moneys for the purpose of seeking elective office."'"
However, charter cities in California m~ implement public financing programs. In a case called Johnson v.
Bradly ,"a the California Supreme Court ruled that regulation of local elections is a municipal affair that
falls within charter cities' home rule authority. Since charter cities' actions taken pursuant to their home
rule authority prevail over conflicting state laws as to municipal affairs, charter cities may implement
public financing programs notwithstanding the prohibition against use of public funds fox political
campaigns contained in the Political Reform Act.
Cuxxendy, five charter cities in California have public financing programs:
• Long Beach (enacted 1994)
• Los Angeles (enacted 1990)
• Oakland (enacted 1999; suspended for 2004 election)
• Sacramento (enacted 2003)
• San Francisco (enacted 2000)
Broadly speaking, there are two types of public financing programs (1) "full" public financing and (2)
"partial" ox "matching funds" public financing. As the name suggests, "full" public financing programs
provide qualifying candidates with all of the funding necessary to run a campaign. The most common
type of public financing program, however, is the "matching funds" type program. In matching funds
programs, qualified candidates are provided with some -but not all - of the money necessary to run a
campaign. Public funds axe distributed to candidates in accordance with the formula or methodology
specified by the city. This is usually a ratio linked to the amount of certain private contributions raised by
the candidate.
All of the California cities mentioned above have elected to use the "matching fund" option.
Participating candidates in those cities generally receive $1 in public funds for every $1 in qualifying
private contributions raised. Some, like Long Beach, provide higher amounts of matching funds fox the
general election than fox the primary (i.e $1 in matching funds fox every $1 raised in the general vs. $1 in
matching funds fox every $2 raised in the primary).
~~~ Gov. Code, g 85300.
~~" (1992) 4 Cal.4th 389, 401.
12-77
53
Participating candidates in public financing programs must typically abide by several conditions. These
may include all or some of the following: /'~
• Ouali inp fun~dxaising thresholds: To qualify fox public financing, candidates must usually raise a ` ,
specified amount of money via contributions to demonstrate that he or she has a substantial base of
popular support. To qualify for public financing in Sacramento, for example, a candidate must raise at
least $5,000 in contributions of $250 ox less for a city council campaign and at least $10,000 in
l
i
25
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f
b
f
or a mayora
campa
gn.
0 ox
ess
contri
utions o
$
• Limits on the size. timing. and/or source of matchable contributions: Many cities limit the types of
ib
i
d
I
S
l
f $250
hi
bli
f /~•
~
y contr
ut
ons o
un
n
acramento, on
, or
ng pu
c
s.
contributions that will trigger matc y
less per contributor that are raised within 90 days of the election are eligible for matching funds. ~
Under New Yoxk City's public financing program, only contributions from natural persons (e.g., not
committees ox corporations) qualify fox matching funds.
• ExoenditT ure Limits: All of the California cities that have public financing programs require
participating candidates to abide by expenditure limits. In Sacramento, the expenditure limits axe
$82,000 each fox the primary and general for city council campaigns and $548,000 each fox the
primary and general fox mayoral campaigns. In Long Beach, the expenditure limits for city council
campaigns are $46,000 fox the primary and $23,000 fox the general, while the mayoral campaign
expenditure limits are $230,000 for the primary and $115,000 fox the general.
Most cities also provide a mechanism fox lifting the expenditure limits on participating candidates based
on the activities of opposing non participating candidates in the same race and/or the degree of
independent expenditure activity in the race. Thus, the expenditure limits in Sacramento are lifted for
participating candidates when either (1) an opposing non-participating candidate accepts contributions or
makes expenditures totaling greater than 75 percent of the expenditure limits or (2) if an independent
expenditure committee ox committees in the aggregate spend more than 50 percent of the expenditure
limits in support of ox opposition to any other candidate fox the office in question.
• Ceiling on total amount of public funds received by candidate: Most cities impose ceilings on the
total amount of public funds that a candidate may receive. In Sacramento the ceilings are $32,800 per
elecdon for city council and $109,600 per election fox mayor. In Long Beach, a candidate may
receive no more than 33 percent of the primary spending limit and 50 percent of the general
spending limit. Fox the Long Beach city council this breaks down to approximately $15,180 fox the
primary and $11,500 for the general. Fox the Long Beach mayoral campaigns the ceilings are
approximately $75,900 for the primary and $57,500 fox the general.
One of the major advantages of public financing programs is that they can increase the number and
diversity of candidates fox public office. Candidates who have run for office and won under public
financing programs in the United States tend to be candidates who lack personal wealth ox access to
wealthy campaign contributors; many axe women and/ox persons of color. For example, Los Angeles city
councilman Ed Reyes has been quoted as attributing his election to the fact that he received over $55,000
in public funding during his first race.
Public financing programs can also allow candidates to devote less time to fundraising and more time to
discussing the substantive issues in a campaign. Fox example, in matching fund type programs the
expenditure litnits serve as the "fundraising goal" for participating candidates. Once a candidate has
reached that limit, he or she can shift their attention away from fundraising and towards other aspects of
the campaign. In theory then, the expenditure limits operate to reduce the overall amount of money
being raised and spent in election campaigns.
12-78
Public financing programs also encourage candidates to reach out to small contributors by requiring them
to collect specified amounts of small contributions as a prerequisite fox receiving public funding. This
increases the importance of small contributions and can reduce the importance of large campaign
contributions. For challengers, public financing pxogxams can also level the playing field against
incumbent officeholders who traditionally enjoy fundraising advantages that could discourage
competition.
The major drawback to public financing programs is that participation is voluntary. Nonparticipating
candidates may spend as much as they like on a campaign, while the activities of participating candidates
are limited by the conditions attached to public financing. Nonparticipating candidates may include those
with substantial personal wealth that can be spent on their campaign and/ox those with access to enough
wealthy donors to raise and spend moneys fax in excess of the expenditure limits. Moreover, since
independent expenditures and issue ads cannot constitutionally be limited, these types of
communications can be used to influence the outcome of an election by circumventing the limits
imposed by a public financing system. As discussed above, many cities attempt to protect against this by
lifting the expenditure limits on participating candidates when, fox example, a nonparticipating opposing
candidate raises or spends money in an amount close to our in excess of the expenditure limits, ox when
the expenditures of independent expenditure committees exceed a certain threshold in a given contest.
When this occurs, it puts participating candidates right back in the position of having to raise more
private campaign contributions -something that public financing is supposed to reduce. Further, because
of limits on the total amount of public financing they may receive, the raising of more private
contributions is unlikely to trigger more matching public funds.
Assuming expenditure limits fox participating candidates remain in place throughout an election, they
could artificially limit the amount of political speech that occurs in a campaign. Thereby reducing the
amount of time the candidate could use to interact with the voters and opposing candidates.
Finally, there can be substantial costs associated with public financing pxogxams. In Sacramento, for
example, if two candidates fox mayor and two candidates fox city council qualify fox public financing,
they would collectively be entitled to receive up to $569,600 in public funds for their campaigns.
[$109,600 X 2 fox mayoral primary + $109,600 X 2 fox mayoral general + $32,800 X 2 fox council
primary + $32,800 X 2 fox coundl general = $569,600.] This does not include the additional costs
associated with the administration of the public financing program.
Committee Input
The following chart outlines the advantages and disadvantages as developed by committee members.
.
Characteristics • - . ~
Advanta es
Disadvanta es
All cities may enact registration City can tailor its laws to The only laws a city can enact
requirements for local candidates and match its needs. are those which are more
local committees so long as those restrictive than state law.
requirements do not prevent
candidates and committees from
complying with state law.
Lowering local registration It would capture one-time It might be considered a waste of
requirements below the thresholds in special interest committees. public resources.
state law is not likely to capture activity
b man more committees.
12-79
• I
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i.i
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Characteristics Advanta es Disadvanta es
All cities may also enact laws requiring Provides more transparency Creates more paperwork and
the itemized disclosure of receipts and and information to the citizens. increased costs.
expenditures by local candidates and People and or special interest
local committees so long as they do groups will find loopholes and
not prevent candidates and committees figure out ways to get around the
from complying with state law. rule.
Lowering the reporting thresholds for Provides more transparency Creates more paperwork and
itemizing contributions and and information to the citizens. increased costs.
expenditures and requiring more People and or special interest
frequent disclosure of such activity are groups will find loopholes and
two common ways that cities can figure out ways to get around the
improve public awareness of activity by rule.
political campaigns.
Requiring more frequenUmore detailed Increasing information is May serve as another opportunity
disclosure of information by local always advantageous. for candidates to unwittingly fail
candidates and local committees raises to comply with the rules.
the costs of running local campaigns. More expensive/more prohibitive
to artici ate.
By requiring local candidates and local Creates easy access to No advantage for those without
committees to file their forms information for those with computer access.
electronically, cities can increase public computers and particularly for
access to that information. younger citizens.
• Is environmentally sound
because it eliminates the need
for transportation to physically
appear to view documents.
• Decreases a erusa e.
Electronic filing can be expensive fora It's cost effective in the long- Is more expensive in the short-
city to implement and for candidates run. term.
andlor committees to comply with. It is ultimately where Initial learning curve increases
technology is headed. the probability of making
• Is environmentally sound mistakes.
because it eliminates the need
for transportation to physically
appear to view documents.
• Decreases paper usage.
• Electronic filing is convenient
and could allow for easier
com liance.
. . -
Characteristics Advanta es Disadvanta es
All cities may impose contribution limits City can tailor its laws to If limits were set too low, it could
on contributions to local candidates so match its needs. be legally challenged and would
long as they do not violate the U.S. be expensive to defend.
Constitution (e.g., by being too low).
Contribution limits restrict the amount In theory, it could force a It ultimately would not be
of support that persons andlor entities candidate to broaden their successful because wa s will be
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can give to candidates andlor base of support instead of found to get around it.
committees for a particular election. focusing on large donors.
Characteristics Advanta es Disadvanta es
The lower the contribution limit, the In theory, it could force a It ultimately would not be
more persons that a candidate or candidate to broaden their successful because ways would
committee must receive contributions base of support instead of be found to get around it.
from in order to amass enough focusing on large donors.
resources to run a campaign.
Higher contribution limits permit Incumbents could focus on Higher contribution limits may
candidates and committees to obtain governing rather than exclude some candidates from
the resources to run a campaign campaign fundraising. participating.
through the support of fewer persons. Candidates would recover
expenses more quickly.
• Candidates could focus more
on communicating with voters
rather than fundraisin .
Cities may also prohibit certain entities, Keeps large special interests May dissuade people/groups
including corporations and labor out of the election process. from participating in local
organization, from directly making It provides flexibility to tailor government.
contributions. rules as needed to deal with Could be perceived as
issues that arise. undemocratic or exclusionary;
could be subject to a lawsuit and
be ex ensive to defend.
All cities may enact registration City can tailor its laws to The only laws a city can enact
requirements for local candidates and match its needs. are those which are more
local committees so long as those restrictive than state law.
requirements do not prevent
candidates and committees from
comp) in wish state law.
- • ~ . -
Characteristics Advanta es Disadvanta es
All cities may enact disclaimer Enhances local jurisdiction's Can only make laws more
requirements for political ability to make information restrictive -not less than current
communications run in connection with more transparent. state or federal laws.
local campaigns so long as they do not Allows local government to Raises potential First
prevent candidates or committees from tailor disclaimers to address Amendment issues.
complying with state law. local concerns.
Imposing additional disclaimer Enhances accountability and May act to discourage
requirements on political transparency. minoritylunpopularyoints of view
communications can increase public Public has more information from being supported.
access to information about the and knows more about issues Might provide disincentive for
activities of persons andlentities and who is in support or people to provide contributions.
involved in local campaigns. opposition. Costs would increase to
candidates for campaigns and to
the city for monitoring
requirements.
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Characteristics Advanta es Disadvanta es
Additional disclaimer requirements can Beneft to public in knowing Candidates may not be forthright.
cause First Amendment problems by where candidates stand.
imposing forced speech on the
candidate or committee that may
detract from the candidate's or
committee's message.
Additional disclaimer requirements can Could discourage candidates Forces candidates to raise more
also result in increased costs for from running who are funded money to pay for the additional
candidates and their campaigns. by one or limited sources. requirements.
• May keep marginally funded
candidates from runnin .
. . - •
Characteristics Advanta es Disadvanta es
All cities may create ethics Puts enforcement into the It is one more level of
commissions to oversee compliance hands of local residents. bureaucracy.
with local campaign finance, lobbying Provides a clear mechanism Would be easy to create a
and ethics laws. for addressing complaints or smokescreen instead of actual
expressing concerns. compliance.
• Allows for an independent There may be temptation to
group to make objective create illusion of enforcement
decisions regarding dispute (e.g. a law without teeth) as
resolution of ethical issues. opposed to genuine
enforcement.
Ethics commissions can assist Provides local assistance to Burdens city staff in being
candidates andlor committees by clarify matters that are responsible for making decisions
interpreting local campaign finance unclear. that would traditionally be
laws through opinions, letters or Provides a safety net and handled by campaign legal staff.
regulations. advice to less experienced Could expose the city to
candidates. liabilityllegalchollenges.
• Mitigates cost in complying
with the law.
Ethics commissions can facilitate Puts enforcement into the Nothing was identified.
greater enforcement of local laws than hands of local residents.
might otherwise occur by bringing Provides a clear mechanism
enforcement actions against for addressing complaints or
candidates andlor committees. expressing concerns.
• Allows for an independent
group to make objective
decisions regarding dispute
resolution of ethical issues.
There are costs associated with Cost could be minimal if ethics Candidates and special interests
creating an ethics commission that can commission's charge was could overwhelm the commission
vary from minimal to substantial narrowly tailored to fit local resulting in costs that would be
depending, among other things, on the need. so substantial, it would be
number of attorneys and investigators unaffordable for the city.
on staff.
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Characteristics Advanta es Disgdvanta es
All cities have the option of enacting a Nothing was identified. Must have teeth to be
campaign "code of ethics" like the one enforceable.
provided instate law with voluntary It's voluntary so one candidate
enforcement. could agree to it and another not;
difficult to enforce due to its
subjectivity.
• Although candidates may pledge
to abide by such ethics codes,
they oftentimes depart from that
pledge during the course of a
campaign.
• Codes of ethics for political
campaigns are difficult if not
impossible to enforce due to
potential First Amendment
issues.
Characteristics Advanta es Disadvanta es
For constitutional reasons, cities may Candidates could be more It's voluntary so candidates don't
only enact voluntary expenditure limits focused on issues than raising have to comply.
(VELs) for candidates. Mandatory campaign funds. Counterproductive to goal if it
expenditure limits are unconstitutional. provides incentive not io abide by
it
.
• Because a city cannot force
candidates to accept VELs,
participating candidates may
suffer a competitive
disadvantage compared to non-
. participating candidates, who are
free to raise and spend as much
money as they like.
• Even if all the candidates in an
election agree to VELs, large
amounts of money may still be
spent on the election in the form
of independent expenditures and
issue ads which cannot be
limited.
VELs reduce the amount of money that Candidates can focus on town Could lead to less information to
is spent on political campaigns by the hall/one-on-one voter contact voters.
candidates who agree to them. This instead of buying and
may lead to less political speech by communicating through fliers,
participating candidates. radio, television, etc.
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.. - .. ...
Characteristics Advanta es Disadvanta es
Only charter cities may implement Nothing was identified. Can cost the City a lot of money,
public financing programs. General law especially if there were a large
cities are prohibited from doing so by number of candidates.
the Political Reform Act. Does not guarantee that the
election is free of undue
influence.
• Limits options of where
candidates can get money for
cam ai ns.
Public financing can result in less For some candidates, relying It costs less to manipulate
money being spent on an election and on public fnancing may result political system by running non-
canallow candidates to spend more in them not relying on big viable candidates with no
time talking about issues and less time special interests. intention of winning (e.g. spoiler
fundraising. Could expand field of effect).
candidates.
Public financing can make candidates Nothing was identified. Increases fundraising burden on
less dependent on campaign candidates.
contributors and therefore reduce the
influence that contributors have on
candidates.
Public financing can increase the Could increase breadth of Nothing was identified.
number and diversity of qualified issues discussed during
candidates who run. campaign.
• Might open the field for more
eo le to run for office.
Since participation in public financing Nothing was identified. Could spend large sums of public
programs is voluntary, many of the funds and ultimately have no
potential benefts of publicly financed candidates abide by restrictions.
campaigns can be defeated when not No incentive to abide by intent of
all of the candidates participate. the law.
Even when all candidates agree to Nothing was identified. Could spend large sums of public
participate in a public financing funds and ultimately have no
program, large sums of money may still candidates abide by restrictions.
be spent on the election in the form of No incentive to abide by intent of
independent expenditures and issue the law.
adds which cannot be limited. Cost-benefit analysis would fail
(e.g., could spend a lot of money
for nothin
Publicly financing elections can be very Nothing was identified. Other programs in the city could
costly for cities. Substantial amounts be adversely affected because
of money must be set aside for use as for every dollar spent in public
"matching funds," as well as to cover financing it would mean money
the costs associated with staffing and that is not being allocated for
administering the program. something else.
• Other cit riorities would suffer.
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The appendix includes the materials Olson, Hagel & Fishburn, LLP distributed to committee members
prior to the bi-monthly meetings. The material is organized to coincide with the seven chapters and can
be found online at anvw.elkgrovecitv.org/charter-election/a~endas.hun.
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EXHIBIT E
CITY OF MODESTO
"CHARTER REVIEW
COMMITTEE FINAL REPORT"
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AGENDA ITEM NO. 4.3
FINAL REPORT
September 13, 2007
2006-2007 CITY OF MODESTO
CHARTER REVIEW COMMITTEE
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FINAL REPORT
September 13, 2007
2006-2007 CITY OF MODESTO
CHARTER REVIEW COMMITTEE
EXECUTIVE SUMMARY
I. INTRODUCTION
6
10
II. CHARGE OF THE MAYOR AND CITY COUNCIL 11
III. PUBLIC INPUT
12
PJ. PROCEEDINGS AND ISSUES ADDRESSED AND LSSUES
NOT ADDRESSED 13
V. RECOMMENDATIONS
A. District Elections
15
15
Interim Recommendation (UNANIMOUS):
Public Outreach, Education Effort, and Advisory Vgte to be held
November 6, 2007;
Final Recommendation (UNANIMOUS):
Binding Vote on February 5, 2008 on One of Two Options of The
Elect the City Council by Districts Measure of 2008 based upon
results of Public Outreach, Education Effort, Advisory Vote and
Final City Council Decision.
1
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B. Accountability of City Hall
Final Recommendation (UNANIMOUS):
23
Binding Vote on February 5, 2008 on The Increase Accountability in
City Hall Measure of 2008.
(1) Delineate Additional Powers for the Mayor 24
(2) Revise the Budget Process to Involve Budgeting
Priorities of the Mayor and City Council Early in the
Process 25
(3) Create a Process where the Mayor and City Councff,
with Staff Input, Create Written Statements of Policy
for Charter Officers and for City Department
Heads 25
(4) Require that the Mayor and City Council Utilize These
Statements of Policy in an Annual Evaluation of Charter
Officers and that the City Manager Utilize These Statements
of Policy in an Annual Evaluation of Department
Heads
26
(5) Create a Citizen s Salary Setting Commission with Strict
Salary Limits that will Consider Appropriate
Compensation of the City's Elected Officials 27
(6) Mandate. an Independent City Auditor as a Fourth
Charter Officer with Specified Duties 29
(7) Increase Disciplinary Authority for Deputy Directors
of City Departments 30
(8) Make Deputy Directors and Attorneys that Work
for the City At-Will Employees 30
C. February Election 31
Final Recommendation (UNANIMOUS):
2
~2-as
Limit February Ballot Measures to the Two Key Themes that
Emerged During Committee Proceedings.
D. Disposition of Municipal Run-Off Election 31
Final Recommendation (UNANIMOUS):
Current November to December Runoff Election is Broken and
Must be Fixed.
Final Recommendation (UNANIMOUS):
Consideration of Method to Remedy Broken Runoff Election
Should Await Final Decision by Voters on District Elections But be
Completed Before Next Regular Municipal Election.
Final Recommendation (UNANIMOUS):
Together with the Final Decision on Municipal Run-Off Elections,
Charter Language Should be Reviewed and Adjusted, if Necessary,
to Avoid Confusion of the November 2005 Election as to "Vote"
Definition.
Final Recommendation (4 - 3):
Recommend Elimination of Runoff Election.
E. Technical Amendments 33
Final Recommendation (UNANIMOUS):
Recommend Binding Votes on Tecludcal Amendments After
February 5, 2008.
F. Multiple 2008 Elections to Address Municipal Issues 35
Final Recommendation (UNANIMOUS):
Note Availability of Three Statewide Regular Elections Prior to
November 3, 2009 Municipal Election to Address All Municipal
Election Issues Studied by Committee.
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I. CONCLUSION 35
MILESTONES IIV THE HISTORY OF CHARTER GOVERNMENT
IN THE CITY OF MODESTO 37
ACKNOWLEDGMENTS
3A
MEMBER BIOGRAPHIES OF THE 2006-2007 CHARTER REVIEW
COMMITTEE 42
EXHIBITS
1. Elect the City Council by Districts Measure of 2008 - [Option (a) that
Matches the "By District" System in Measure J Advisory Vote]
2. Elect the City Council by Districts Measure of 2008 - [Option (b)
that Matches the "Mixed" System in Measure J Advisory Vote]
3. The Increase Accountability in City Hall Measure of 2008
4. Proposed Charter Revision to Eliminate Municipal Run-Off
Election
5. Proposed Charter Revisions to Eliminate Board of Personnel
Appeals and Transition the Selection of Hearing Officers in
Personnel Matters from this Board to Joint Selection by the City and
the Affected Employee
6. Proposed Charter Revision to Elimnate Mandatory Requirement
that Some Members of the Culture Commission Live Outside the
City Limits
7. Proposed Charter Revision to Merge the Human Relations
Commission and the Equal Opportunity and Disability
Commission into One Human Relations, Equal Opportunity and
Disability Commission
8. Proposed Chartei Revisions to Make Consistent Various References
Throughout the Charter to the Newspaper in Which Public Notice
be Given to Change References in the Charter from "Telegram' to
"Electronic Communication."
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9. Comparison of All Proposed Charter Revisions to Existing Charter
Provisions
APPENDICES.
A. Public Input Meetings and Major Written Materials Utilized
B. Civic Presentations on Charter Review
C. Committee's Home Site on City's Web Page at
www.modestogov/CharterReview/ and E-Mail Suggestion Box
D. Introductory Note from Committee's Resource Binder
E. Disposition o(Issues Raised in Public Input Process
F. Election Reform Act of 2007
G. Interim Report of Charter Review Committee
H. Text of Advisory Measure I and Advisory Measure J
I. Charter Committee Ballot Argument Submitted in Favor of
Measure I.
J. City Attorney's Impartial Analyses and One-Page Summary of
Measure I & Measure J Advisory Measures Disiributed by City
K. Measure U from City of Stockton
L. Separate Commentary from Individual Committee Members
[No Separate Commentary Was Submitted by Any Committee
Members]
TECHNICAL APPENDICES
iThe Technical Appendices are available under sepazate cover and include
consultant reports, written public input, samples of chazter language from
other cifles reviewed by the Committee, Modesto Bee azticles relevant to
"city charter' issues, and minutes of Committee s meetings. If you are
interested in reviewing, please direct such inquiries to:
chazterreviewC~modestogov.com
ox by call the Mayor's office at 571-5169]
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EXECUTNE SUMMARY
The 2006-2007 Modesto Charter Review Committee (the "Committee') is
pleased to submit its final report to the Modesto City Council.
Background
The Committee was charged by the Mayor and City Council to undertake a
review of the Modesto City Charter, a procedure that the City generally
undertakes at least every decade. The Committee undertook an extensive
public input process where it sought input from elected officials, City
Charter Officers and-heads of City departments, interested parties, and,
most especially, the citizens of Modesto. The Committee conducted twenty-
eight (28) public input meetings or presentations at civic organizations
requesting information on the Charter Review process.
Two key themes emerged from this process that drove the proceedings of
the Committee: a perceived need to move from an at-large system to some
form of district elections in electing Modesto city councilmembers and a
perceived need to increase the accountability of the City Hall to.the electors
and taxpayers of Modesto. In addition to these two key themes, the
Committee believes attention is needed regarding, first, Modesto's
unsatisfactory municipal run-off election system and, second, various
technical amendments to the City Charter.
The Committee researched, received testimony, deliberated and developed
recommendations regarding these issues in over thirty meetings of the
Committee. The results of the Committee's work were set forth in a Public
Review Draft (which preceded this Final Report) that was presented at a
public meeting for final public comment on September 13, 2007. The
recommendations that follow in this Final Report are a result of the public
input, deliberations, and final public comment process.
Electing Councilmembers
Regarding the method that Modesto elects councilmembers, the Committee
presented an Interim Reportto the Council on July 10, 2007 recommending
a Public Outreach, Education Effort, and Advisory Vote on this important
issue. The Council agreed with the recommendation and approved a Public
6
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Outreach and Education Effort that will culminate in a public Advisory
Vote on the November 6, 2007 election ballot.
This vote consists of two advisory measures: Measure I which asks whether
Modesto voters desire to change the method of electing city
councilmembers and Measure J which asks Modesto voters to advise the
City Council which of two systems recommended by the Committee voters
prefer were Modesto to make a change in its Election System. One
recommended system entitled "By District" is a system where six council
districts would be created and candidates would have to live in the district
they wish to represent, and the voters who live in the district would vote on
who will represent the district. This system would have six
councilmembers. In essence, this system would switch Modesto's city
council elections from an at-large, or citywide, basis to a by district basis.
The other recommended system entitled "Mixed" is a system which would
create the six council districts of the first system but would also have two at-
largecouncil seats where candidates may live anywhere in the City, and are
voted upon by alI City voters. This system would have eight
councihnembers. Ixi essence, this "Mixed" system would combine the "By
District" proposal of six eouncilmembers but add two councihnembers who
would be elected in the same manner as the current. system.
The Committee unanimously believed that Modesto should move to a
different system that had some manner of district representation. There
was not consensus of what system should replace the current system and ,
that was one of the reasons the Committee recommended the Public
Outreach, Education Effort, and Advisory Vote process in its Interim
Report.
The Committee also believes that the City Council should inform itself
about the district election issue, understand and consider the two systems
recommended by the Committee, consider the results of the November
advisory election, and then be prepared to place a binding measure on the
February ballot for final resolution by Modesto voters of this important
issue.
In an effort to assist n1 implementing the outcome of this public advisory
process, the Committee has drafted two versions [Option (a) and Option
(b)] of the "Elect the City Council by Districts Measure of 2008" and
recommend that the Council utilize them in its final decision on what to
place on the February 5, 2008 ballot for a binding vote of Modesto voters.
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Increase Accountability at City Hall
On the accountability issue, the Committee found itself facing mpch input
and many ideas revolving around the notion of increased accountability of
City Hall to the citizens, residents, voters, and taxpayers of the City. The
Committee considered many facets of this issue. We heard suggestions that
Modesto should jettison its "City Manager' form of government in favor of
a "Strong Mayor' form of government; should hire and fire heads of city
departments currently responsible to the City Manager; should make the
Finance Dueetor a fifth Charter Officer; and should publicly disseminate
confidential employee reviews.
As in the prior issue, the Committee undertook much research, received
much testimony and engaged in many deliberations revolving. around this
accountability issue.
The Committee's recommendation is to maintain our City Manager form of
government (formally, the "Council-Manager' form), but to enhance
various powers and duties of the City elected officials to institutionalize a
partnership between City elected officials and Charter Officers in an
expectation that Modesto will be more effectively operated and
accountability to the voters and taxpayers of City Hall will increase.
The Committee recommends that tluspartnership-building be achieved
through the #ollowing: (1) delineate additional accountability powers for
the Mayor; (2) revise the budget process to involve budgeting priorities of
the Mayor and City Council early in the City Manager directed budgeting
process; (3) create a process where the Mayor and City Council, with
appropriate staff input, create written Statements of Policy for Charter '
Officers and for city departmerit heads; (4) require that the Mayor and City
Council utilize these Statements of Policy in an annual evaluation of Charter
Officers and that the City Manager utilize these Statements of Policy in an
annual evaluation of department heads; (5) create a Citizen s Salary Setting
Commission with strict salary limits that will consider increasing
compensation of the City's elected officials; (6) mandate an independent
City Auditor as a fourth Charter Officer with specified duties; (7) increase
disciplinary authority for deputy department directors, police captains, and
fire battalion chiefs,; and (8) make deputy directors and attorneys that work
for the City at-will employees.
To implement the institutionalization of this partnership building, the
Committee has drafted the "Increase Accountability in City Hall Measure of
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2008" and recommends that the City Council place it on the February 5,
2008 ballot for a binding vote of Modesto voters.
Municipal Run-Off System
In addition to the key themes of district elections and accountability in City
Hall, the Committee believes Ivlodesto's unsatisfactory municipal run-off
election system iequires reform. The Committee unanimously believes that
the current run-off system which consists of a December eIecfion on the
heels of a November election is broken. On a close vote, the Committee
recommends elimination of the run-off entirely. However, as the
Committee refined the district election proposals, it became evident that if
Modesto voters choose a district election system for city councihnembers, it
could affect one's view of the need for arun-off system. Consequently, the
Committee recommends that the Council address how to fix the broken
run-off system after the voters have made their final decision on district
elections. In this way, a more thoughtful and focused discussion can occur
on how the elimination of or the better implementation of run-off elections
might work in Modesto. Tn any case, the Committee recommends that this
issue be addressed, no sooner than the June 3, 2008 election ballot.
However, this issue should be addressed in a timely manner so that the fix
of the broken run-off system in place prior to the next municipal regular
election on November 3, 2009.
Technical Amendments
In addition to these major matters, the Committee has recommended a
number of technical amendments to the City Charter. The Committee
recommends that these be addressed no sooner than the June 3, 2008 ballot.
However, these amendments could also be placed on the November 2009
regular municipal ballot election without adverse consequences. We note
for the Council's consideration that there are three elections in 2008; the two
previously mentioned and the tturd general presidential election. This
plethora of elections provides the CouncIl with many options to resolve the
election-related issues prior to the next regular municipal election in
November 2009.
9
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I. INTRODUCTION
The Modesto City Charter is the "local constitution' by which the electors
of Modesto govern themselves. As the Mayor noted in his charge letter to
the Committee, "(a) city charter, like the state and federal constitutions, is a
statement of basic principles, outlining powers, relationships and
responsibilities."
City charters are authorized under the California Constitution, which
allows a city to choose either to be a "general law' city under the laws of the
state orbecome aself-governing "charter' city. Modesto became a charter
city in 1911 after it approved its first city charter on September 14,1910
when Modesto's population was- approximately 4,032. Modesto undertook
major revisions of its Charter in 1949,1950, and 1962. The Charter under
which Modesto operates today was first adopted on November 6,1962,
when Modesto's population had reached somewhat over 36,585. Section
1604 of the Modesto City Charter requires that the City Council shall cause
the City Charter to be reviewed at least every 10 years. Since its 1962
adoption, previous charter review committees have met nt 1971,1980,1989,
and 1999. A brief history of historical milestones may be found at the end of
this report.
The City Council appointed eleven (11) members to the 2006-2007 Charter
Review Commission (Modesto City Council Resolution No. 2006-087 and
2006-225.) These Committee members were: Solange Altman, Susan
Azevedo, Marie Bafrey, Carolina Bernal, David Cogdill, Jr., Chris
Harrigfeld, Sandra Lucas, George Petrulakis, John Shores, Jeremiah
Williams and Thomas Wright. George Petrulakis was appointed by Mayor
Ridenour to serve as Chairperson of the Committee. During our
proceedings, Susan Azevedo resigned from the Committee due to an
unavoidable and heavy travel schedule.
Traditionally, Charter Review Committees have been charged with various
duties by the Mayor and have submitted a final written reportto the Mayor
and City Council. This effort constitutes our continuation of the tradition of
providing a final written report to the Mayor and City Council on our
deliberations and recommendations.
10
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IT. CHARGE OF THE MAYOR AND CITY
COUNCIL
On July 11, 2006, Mayor Ridenour confirmed the Committee's charge from
the Mayor and City Council. The Mayor noted:
The function of your committee is to review
Modesto's City Charter, make sure that we have a
charter that provides the best organization, powers,
and functions and essential procedures for the best
possible City government.
Each member of the City. Councll believes this
committee is vital to the future of Modesto. Due to
repetitive issues of accountability and responsibility in
City Hall, I believe we all expect this committee to do
more than a caretaker's job in reviewing our local
constitution. Be thorough in your ideas to improve
our local government and governance.
One of the major themes I see for your work is the
need for more accountability in City Hall. Please
spend adequate time on this issue and help us
determine what we can do to improve our
accountability to our citizens, residents, voters, and
taxpayers. This City Council has worked hard to fix
the neglect of past years and decades. Despite the
difficulty of the task, this City Council continues to
believe that we must better meet the expectations of
our citizens.
The Mayor went on to note that he had included a list of issues developed
by the City Council and our City Department Heads and that, while the
committee should "consider these as a starting point for your work;' both
the Mayor and the City Council provided the Committee "a wide charge to
review the entire City Charter and make recommendations as you see
appropriate for our City."
11
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III. PUBLIC INPUT
Early in its proceedings, the Committee undertook an extensive public
input process to solicit the views of Modesto's citizens regarding necessary
revisions of the Charter. The Committee hosted seventeen (17) meetings at
various locations geographically dispersed throughout the City. Two of the
meetings were held in the City Council chambers so that they could be
telecast on public access cable television to facilitate public participation,
and two meetings were held on Saturday mornings to ensure that
commuters who were unavailable during the work week would be afforded
an opportunity to address the Committee and provide input. These
meetings, locations, dates, and times, and the major written materials
utilized at these meetings, are shown in Appendix "A." While the
Committee did not obtain as much public input as it hoped during these
public input meetings, the Committee is grateful to members of the public
that did attend. To the extent public input was received, it reaffirmed the
pervasive two themes heard throughout our deliberations: a desire for
district elections and a desire to increase accountability in City Hall.
In addition to these public input meetings, the Committee also made
presentations to any civic. organizations requesting presentations and on
talk radio shows. These presentations are summarized in Appendix "B."
These presentations uniformly included robust discussion by members of
the various organizations with input and ideas that were shared with the
Committee. These presentatons also revolved around the pervasive two
themes of the Committee's proceedings: district elections and a desire to
increase accountability in City Hall. These presentations to civic
organizations continued throughout our proceedings and more were
scheduled even as we completed our Final Report.
The Committee invites interested members of the public to request a
presentation on the Charter's Final Report. Such requests can be made to
charterreyiewC modestogov,com or by calling the Mayor's office at 571-
5169.
In addition to these public meetings, a section of the City's website. was
devoted to Charter Review issues. The site was easy to use and was
accessible from the City's "front page' of its website. Public questions and
suggestions were encouraged through an a-mail mail box on the website. A
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copy of the first page of the Committee's home site and of the a-mail
suggestion box is included as Appendix "C."
In addition to these methods, members of the Committee obtained public.
input in the form of letters, e-mail correspondence, individual conversations
with the members of the public, and presentations made by members of the
public at our Charter Review Committee meetings.
IV. PROCEEDINGS AND ISSUES ADDRESSED
AND ISSUES NOT ADDRESSED
The Committee began its proceedings with the public input meetings
described in Section III of this report and early orientation sessions
regarding the purpose of a City Charter. A resource binder-was provided to
the Committee members and copies were provided to the City Council.
Resource binders were also provided to the Stanislaus County Free Library,
the Stanislaus County Law Library, and the League of Women Voters of
Stanislaus County, all of which agreed to be depositories for these materials.
The Resource Binder included an Introductory Note to Interested Citizens
of Modesto, California and Annotated Table of Contents which is reprinted
in Appendix "D: ' The additional major resources provided Committee
members were: GUIDE FOR CHARTER COMMLSSIONERS, FIFTH EDTTION,
National Civic League (1991); MODEL CITY CHARTER, 8TH EDITION, DEFINING
GOOD GOVERNMENT IN A NEW MILLENNIUM, National Civic League. (2003) ;
TAILOR-MADE GOVERNMENT: A CTTIZEN'S GUIDE TO CALIFORNIA'S CHARTER
CITIES AND COUNTIES, California State Legislature Senate Local Government
Committee (February 1998); and, THE ADAPCED CTCY: INSTITUTIONAL
DYNAMICS AND STRUCTURAL CHANGE, Frederickson, Johnson, and Wood
(2004.)
Excluding the specified Public Input Meetings, the Committee has held over
thirty Committee meetings to hear testimony, deliberate, and develop this
final report, The Committee identified approximately forty (40) areas
where suggestions were made during the public input process for Charter
revision. These suggested changes had been brought to the Committee's
attention either by Councihnembers, members of the public, civic
organizations, city staff or members of the Committee. Of these areas of
interest, the Committee a number of them were either not germane to
Charter matters or were not specific enough to warrant additional attention.
Thus, approximately twenty-three (23) potential changes to the Charter
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were left for the Committee to consider. The Committee has made
recommendations on a number of these in this report. The disposition of all
the issues raised is shown in Appendix "E."
During deliberations of the Committee, two general categories of issues
emerged upon which recommendations have been made. The "Technical"
items involved tidying up provisions of the Charter, non-controversial
issues, ox addressing archaic or superseded Charter references. The
"Major' items involved significant issues of governance for the future of
Modesto such as the method by which city councihnembers are elected,
increasing accountability in City government by refinirig the duties of the
mayor, whether and how elected officials should be compensated,
expansion of the role of the City Auditor as an independent Charter Officer,
elimination or change in City's run-off election for city councihnembers,
and increasing the disciplinary authority of deputy department directors,
fire battalion chiefs, and police captains.
The Committee conducted research, heazd testimony and invited elected
officials from other Charter cities to provide information on the Major
issues. At the request of the Committee, the City Council authorized the
retention of subject matter experts to assist the Committee in understanding
some of the more complex issues: Specifically, the Cfty retained the
services of Doug Johnson of National Demographics Corporation for issues
related to the methods of election of councilmembers, and various
professors affiliated with the Center for Public Policy Studies at California
State University, Stanislaus for other issues that arose in the Charter Review
process. The Technical issues were very ably presented by city staff
members, most often with suggested draft language, which was very
helpful to the Committee. Final votes for all recommendations may be
found in the minutes of the Committee meetings.
The following recommendations resulted from these deliberations and
proceedings:
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V. RECOMMENDATIONS
A. District Elections.
Interim Recommendation (UNANIMOUS):
Public Outreach, Education Effort, and Advisory Vote
to be held November 6, 2007;
Final Recommendation (UNANIMOUS):
Binding Vote on February 5, 2008 on One of Two
Options of The Elect the City Council by Districts
Measure of 2008 based upon results of Public
Outreach, Education Effort, Advisory Vote and Final
City Council Decision.
The issue of highest interest addressed by the Committee has been how
Modesto voters elect city councihnembers. The Committee has devoted
considerable time and resources to understanding, deliberating upon, and
winnowing down the best methods for electing city councihnembers in
Modesto's future.
The Committee obtained extensive public testimony on this issue, devoted
two televised meetings to the matter, and heard from Mayor Dennis Donohue
of Salinas regarding how one "By District" system operates and from Mayor
Edward Chavez of Stockton regarding how one form of "From District"
system operates. In addition, substantive presentations and workshops were
presented to the Committee by Doug Johnson of National Demographics
Corporation. The Committee also heard a presentation from Robert Ruben of
the Lawyers Committee for Civil Rights, one of the attorneys for plaintiffs in
the- Sanchez a. City of Modesto case, regarding various matters related to
district elections. In addition, the Committee heard testimony regarding the
Election Reform Act of 2007 from various citizens and reviewed a copy of the
proposed initiative that is sponsored by Carmen Sabatino, William Thomas
Jensen, Miguel Donoso, Ramon Magana, Exnie Foote, and Allen James. A
copy of this proposal is attached as Appendix "F."
No members of the Committee support the current at-large system. of electing
councihnembers. However, there was no consensus on what form of election
system should be considered to replace the current system.
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Half of the committee members supported. a "Mixed" system where six
councihnembers are elected in six districts where a candidate must live in the
district he or she wishes to represent and each district elects it own
covncilmember and two councilmembers are added to city council (for a total
of eight councihnembers) and these two new members run at-large in the
same manner as current councihnembers.
Some committee members supported a "By District" system of six districts for
councilmembers where a candidate must live in the district he or she wishes
to represent, and each district elects its own councihnember.
One committee member supported a "From District" system under which a
candidate for council must live in a particular geographic district but runs
city-wide in an at-large election. One committee member supported a "From
District" variation involving atwo-election system where candidates are
nominated by districts in a first election and the top two vote getters then run
in a second at-large election city wide. The committee also reviewed and
discarded numerous other systems and variations.
In the end, however, two systems had much more support than any others so
the Committee recommended in its Interim Report to the City Council that a
Public Outreach, Education Effort, and Advisory Vote be conducted so that
the electors of Modesto could participate in resolving which, if any, of the two
proposed systems - "By District" or "Mixed" -should be presented to the
community for a binding vote. This Interim Report was presented to the City
Council on July 10, 2007. A copy of the interim report is included in
Appendix "G:' The Committee supported such an approach for a variety of
reasons:
First, the method of electing councihnembers had become a recurring concern
over the years and an acute community concern in recent years. The first
mention we found in recent Charter review history regarding the method of
electing councilmembers was in the 1970 report where the issue of electing
councilmembers by district was one of six issues studied by that Charter
Review Committee. The 1970 Committee affirmed the at-large election
system. The 1989 Charter Review Committee also studied the City's electoral
system as found in Sections 500, 501, and 700 of the Charter. The 1999
Charter Review Committee was again presented with the issue and it chose to
"strongly recommend to the City Council that the issue of district elections
and other possible alternatives to the current system of election'by Chair' be
studied and addressed further in a manner to be determined by the City
Council." On the basis of this recommendation, the City Council appointed a
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separate committee to address district elections. The resulting Ad Hoc
Committee on District Elections and Term Limits presented its final report to
the City Council on district elections on July 17, 2000. This report
recommended that Modesto maintain its at large election system. However,
an initiative proposal for district elections appeared as Measure L on the
November 6, 2001 ballot. While this measure was:rejected by the voters by a
two to one margin [16,589 "No" votes (33.68%) to 8,423 "Yes' votes (66.32%)],
supporters of the measure have repeatedly complained over the years that the
district election measure did not receive a fair hearing and vote because of
undue prominence given the portion of the initiative thatchanged municipal
election dates in Modesto from odd-numbered years to even-numbered years.
In this rendering of the history, a combination of voter confusion and
reluctance of the electorate who votes in odd-numbered years to switch to
even-numbered years resulted in the defeat of the combined measure.
Second, the entire concept of district elections has received much press
attention in recent years since due to the coverage of Sanchez v. City of
Modesto, a case brought by voter plaintiffs against the City under the
California Voter Rights Act of 2001. While the.lawsuit was not a focus of the
Committee s deliberations, as noted above, an attorney for the plaintiffs made
a presentation to the Committee, and one of the plainiiffs in the lawsuit,
Salvador Vera, organized a community meeting on-the district elecflon issue.
Third, the Committee noted a need to increase the quality and engagement of
the debate surrounding how we elect councllmembers in Modesto. We noted
much suspicion and distrust among various stakeholder groups and
neighborhood representatives that we felt necessitated an effort to increase
the quality and quantity of dialogue among citizens in our community.
With these reasons as a backdrop, it became evident to the Committee that
the community should engage in a Public Outreach and Education Effort in
an attempt to build communfty trust. The Committee believes this extra
effort might lead to community consensus on whether and, if so, how
Modesto should alter its method of electing city councihnembers. The
Committee recommended such an effort to the Council culminating in an
advisory vote on November 6, 2007. It is the Committee's hope that such a
process will allow voters to engage the issue of how to elect councilmembers
in a deliberative and thoughtful manner.
The Council agreed with the Committee s recommendation and two
advisory measures will appear on the November 6, 2007 ballot after an
extensive Public Outreach and Education Effort. This advisory vote consists
of Measure I which asks whether Modesto voters desire to change the
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method of electing city councilmembers and Measure J which asks Modesto
voters to advise the City Council which of two systems recommended by
the Committee voters prefer if Modesto is to make a change in its Election
System.
The two recommended systems are:
By District: One system is a "By District" system where six council districts
would be created and candidates would have to live in the district they
wish to represent and the voters who live in the district would vote on who
will represent the district. This system would have six councilmembers. Iri
essence, this system would switch Modesto's city council elections from an
"at-large' and citywide basis to a "by district" basis.
Mixed: One system is a "Mixed" system which would create the six council
districts of the first system but would also have two at-large council seats
where candidates may live anywhere in the City and are voted upon by all
City voters.. This system would have eight cauncIlmembers. In essence,
this "Mixed" system would combine the "By District" proposal of six
councilmembers but add two councilrnembers that would be elected in the
same manner as the current system.
The wording of Measure I and Measure J appear in Appendix "H."
Because the Committee unanimously believed that Modesto should move to a
different system that had some manner of district representation, the
Committee chose to file a ballot argument in support of Measure I. The ballot
argument appears in Appendix "I."
We hope Modesto electors will avail themselves of the following education
opportunities on the issue: (1) read the City Attorney's impartial analysis that
will appear in the sample ballot booklet and the one-page mailer thaf will be
sent to Modesto voters [this mailer appears in Appendix "J"]; (2) attend one
of the many public information meetings scheduled; (3) view on public access
television the informational briefings to the City Council, or view them at
their convenience on the City Charter page of the City Council website -
www.modestogov/CharterReview/ or (4) read the longer report prepared by
NDC that is available on the webpage, at the Stanislaus County Library, or
the Stanislaus County Law Library.
In addition, we recommend that the Councilmembers attend the City Council
briefings on the- matter, read the orie-page summary and longer report, obtain
public input at a meeting the week of the November election and be ready to
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decide which measure, if any, to place upon the February ballot for a binding
decision on this important matter.
One of the lessons that the Committee has drawn from its deliberations on
this important issue is that no election system is perfect. Each system
involves trade-offs among various important values and factors.
However, even given this reality, the Committee recommends that the
Council choose one of the two systems presented in the advisory election for
a binding vote on February 5, 2008. It was the unanimous opinion of the
Coxrunittee that the Modesto has outgrown its current system. The
Committee also believes that the two systems presented in the advisory vote
weie superior to other possible systems. To make this clear, we offer a
sixrrunary of why other systems were rejected (we do not list the many
advantages of the various systems, as indicated above, all systems involve a
trade-off; only the most pertinent reasons why the system was rejected are
included.)
From District (under this system a candidate would have to live in a district
but would run city-wide; similar to the election system used by the City of
Elk Grove)
---This system does not allow a district to actually elect a candidate of the
district's choice. The candidate is elected city-wide and is not elected in a
district.
--Also, because candidates must run city-wide, this system still makes
campaigns expensive to run.
From District with Primary and General Elections (under this system a
candidate would run in two elections: the first one in a district where the
district would nominate two top vote getting candidates and a second one
where these nominees would run city-wide; similar to the election system
used by the City of Stockton)
---This system does not allow a district to directly elect a candidate. Because
the district nominates two candidates, the preferred district candidate could
lose city-wide.
---Also, because candidates must always run in two-elections with the second
being citywide, this system makes campaigns expensive to run, even more
expensive than some other city-wide elections.
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At Large in a Group (under this system candidates would run n1 one group
and the top vote getters would be elected; similar to the election system used
in many general law cities, the Modesto City Schools- Board, and the City of
Modesto before 1963.)
---This system does not provide the geographic dispersal of a district election
system.
---This system dilutes accountability of elected councilmembers because they
run in a group. No one person can necessarily beheld accountable to the
electorate.
' ---Also, because candidates must run city-wide; this system still makes
campaigns expensive to run.
At Large By Chair (Modesto's current system.)
---This system does not provide the geographic dispersal of a district electon
system.
---This system has led to various groups feeling disenfranchised in
community decision-making.
--Also, because candidates must run city-wide, this system makes campaigns
expensive to run.
Other ems. The Committee also considered Cumulative Voting, Limited
Voting, Proportional Voting, and Single Transferable Voting. Each of these
was deemed inappropriate for Modesto.
After long deliberation, the Committee has drafted two versions of the "Elect
the City Council by Districts Measure of 2008" for consideration for
placement. on the ballot in the February 5, 2008 election. The two versions are
the same in establishing a Districting Commission appointed by the-City
Council (under the criteria listed below} that creates six council districts for
future elections. They differ only in that the Mixed option adds language for
two at-large councilmembers, elected in alternating terms. This at-large
language is modeled on current provisions in the Charter. In either option,
the Mayor continues to be elected at-large, that is, city-wide.
The proposed measures divide Modesto into six districts for purposes of
electing six district councihnembers. The Citizen s Districting Commission
(the "Commission') is created to determine the fiist districts and then to
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redistrict after each Federal Decennial Census (every ten years.) The first
Commission would be appointed no later than sixty (60) days after the
effective date of the amendment and would meet and recommend a
Districting Plan for implementation in the November 2009 and November
2011 municipal elections. Three districts would be voted upon in each
election, The Council is required to appropriate adequate funds for the work
of the Commission.
The Commission is appointed by the Council and consists of nine (9) voters
within the city limits. Strong consideration must be given to having a retired
Stanislaus County judge be the chairperson of the Commission and to
appointing members that represent bona fide taxpayer, voter rights, civil
rights, and previous Civil Grand Jury organizations. Additional members
must have demonstrated civic involvement and a capacity to serve in an
honest, independent, and impartial fashion. The Commission must reflect the
demographic and geographic diversity of the City.
There are numerous prohibitions on who can serve on the Commission to
prevent conflicts of interest. Relatives of the Mayor, Councihnembers,
Charter Officers and City departmentheads and deputy department heads
cannot serve on the Commission.
City employees, employees of labor unions for City employees or persons
receiving compensation from the City or its labor unfons cannot serve on the
Commission.
Lobbyists and other persons with business before the City Council in a
financial amount that would cause a conflict of interest under the City's
TINCUP ordinance cannot serve on the Commission.
A member of the Commission cannot run for election to the City Council in
any district whose boundaries were drawn. by the Commission on which he
or she served. Members of the Commission do not get paid for their service.
Objective criteria are set for consideration by the Comrission in creating
district boundaries including geographic compactness and contiguousness,
following natural and man-made features, and representing communities of
interest. Boundaries are not to be drawn with regard to where incumbents or
challengers live or for the advantage or disadvantage of any political party.
The City must hire competent and experienced independent consultants to
assist in the districting procedure. Numerous public hearings must be held
during the districting process with the districting plans available to the public
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well in advance of decision on them. The Councff must approve or
disapprove the recommended districting plan in its entirety. Any Council
objections to the plan must be put irr writing and are to be considered by the
Commission. However, the Commission chooses the Final Districting Plan
after consideration of any objections by the Council.
Any Final Districting Plan is subject to referenda.
Transition provisions are created, to assign current councilmembers to a
district based upon their current council chair number until the next election
whether or not a councilmember lives in a particular district.
The Committee believes the Districting Commission is the superior method
to create election districts for Modesto. Many cities allow the city council to
create districts with little or no guidance in the Charter. The Committee
believes this system will not be credible to Modesto voters who are looking
for more accountability from City Hall. In addition, such a system is too
susceptible to political shenanigans. Other cities delineate the actual
districts in their city charter, including listing census tracts and other
information that describe the district. The Committee believes such a
system is too cumbersome in that it would require a Charter revision vote
merely to update election districts.. The Election Reform Act of 2007
presented to the Committee had some points, especially regarding
districting criteria that are in our proposal, but the mechanism setup in that
proposal did not have enough flexibility to ensure compliance with the
Federal Voting Rights Act and would likely have to be amended at some
point in the future in yet another election to achieve such compliance. in
addition, it put the City Clerk in the difficult position of establishing
election districts for her direct employers, the City Couricil.
Consequently, the Committee recommends that the Council place one of the
two election systems being considered in the Advisory Election on the
February 5, 2008 for a binding vote. Recommended language for the "By
District" system option of "The Elect the City Council By Districts Measure
of 2008" is included in Exhibit "1:' Recommended language for the
"Mixed" system option of "The Elect the City Council By Districts Measure
of 2008" is included in Exhibit " 2."
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B. Accountability of City Hall.
Final Recommendation (UNANIMOUS):
Binding Vote on February S, 2U08 on The Increase
Accountability in City Hall Measure of 2008.
Other than how we elect our city councihnembers in Modesto, the theme that
the Committee. heard about the most was increasing "accountability" in City
Hall. What "accountability" means is certainly in the eye of the proponent
and the Committee undertook much work to define the perceived
inadecLuacies of our current system and to propose solutions.
Increasing accountability had different meanings for different people. Some
meant it as urging that Modesto abandon its long tradition of a strong city
manager form of government in favor of a strong mayor form of government
that is common in eastern, Midwestern and some very large California cities
such as Oakland, Fresno, San Diego and Los Angeles. Others thoughtthe
Mayor or City Council should drrectly hire and fire city department heads
that currently are under the jurisdiction of the city manager. A proposal was
made that the Finance Director should be a fifth Charter Officer responsible
to the Council; another that the City should disseminate publicly confidential
employee reviews.
As we undertook research, heard testimony, and deliberated, it was clarified
that persons interested in this issue were describing increasing two kinds of
accountability:
-the accountability of the City bureaucracy to the elected officials and
to the electors and taxpayers of the City;'and
-the accountability of elected officials to the electors and taxpayers of
the City.
The Commfttee heard testimony from citizens, taxpayer advocates,
Chamber of Commerce representatives and advocates of district
elections on the need to increase the accountability of City Hall. Mayor
Ridenour provided his views on how City Hall could be made to
operate better. Former Mayor Gary Pdesto of Stockton provided
testimony on similar' issues in his city thatled to the passage of
Measure U in Stockton in 2000. The text of Measure U may be found
in Appendix "K. "
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After our deliberations, the Committee's recommendation is to maintain our
"City Manager' form of government, but (1) to enhance various powers and
duties of the City elected officials to institutionalize apartnership between
City elected officials and Charter Officers so that Modesto will be better run
and accountability to the electors and taxpayers of the City bureaucracy will
increase and (2) create new mechanisms to increase the accountability of the
elected officials and administrative staff to each other and to the electors and
taxpayers of the City. We believethese recommendations are consistent with
modern trends ofwell-governed American cities. To understand some of the
challenges faced by the Committee in navigating these waters, we urge
interested persons to see a leading book-length treatment of the changing
dynamics of political leadership, political responsiveness and administrative
effectiveness in American cities entitled THE ADAPTED Ct rr: INSTITUTIONAL
DYNAMICS AND STRUCTURAL CHANGE cited above. This book nicely
summarizes the issues in straightforward, if academically dense, fashion.
The Committee recommends these eight improvements be made through
various revisions to the City Charter which are found in The Increase
Accountability in City Hall Measure of 2008:
(1) Delineate Additional Powers for the Mayor.
Under the current City Charter, the Mayor of Modesto is largely a figurehead.
Other than presiding at City Council meetings, most of the duties specified
for the Mayor are ceremonial in nature.
The Committee rejected the idea that Modesto abandon its City Manager
form of government in favor of a Strong Mayor form of government, but the
Committee does believe specific and limited new powers should be provided
to the Mayor so that the Mayor can encourage accountability in City Hall.
Some of these are discussed in detail in the following subsections. Among
the powers proposed that are not discussed below are: the ability to review
the city councIl agenda with Charter Officers and add items to the agenda, if
necessary; the ability to make policy recommendations to the city managet;
the ability to gather information from Charter Officers; various committee
appointing powers; the ability to hire independent, confidential staff to assist
the Mayor and Councihnember in their duties; and the ability to nominate,
for Council consideration, two nominees for the office of City Manager when
a vacancy occurs.
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(2) Revise the Budget Process to Involve Budgeting Priorities of the Mayor
and City Council Early in the Process.
Under the current City Charter, all budget prioritization authority lies with
the City Manager. The current city budget process essentially has the Mayor
and Council react to a staff prepared budget.
The proposed revisions to the City Charter will allow the Mayor and Council
to enter the budget process earlier in an effort to help set budget priorities for
the City. Under the revisions, the City Manager will provide a five (5) year
economic forecast of expenditures and revenues. Thereafter, the Mayor will
prepare and deliver to the Council the Mayor's Proposed Budget Priorities
and Direction. The City Manager will provide amid-yeaz budget report to
the Mayor and Council and the Mayor will deliver a Mayor's Budget Message
upon which the Mayor and Council will hold a public hearing. The Council
may revise the budget message prior to its final adoption.
This Final Mayor's Budget Message will be utilized in the preparation of the
draft city bixdget that the City Manager provides to the Mayor and Council.
The Mayor may propose final Budget Modifications that will be considered
by the Council. The Mayor and Council will consider and adopt any final
modifications and the City Manager will then prepare the Proposed Budget
that will be set for public hearing by the City Council for final adoption.
(3) Create a Process where the Mayor and City Council, with Staff Input,
Create Written Statements of Policy for Charter Officers and for City
Department Heads.
Under the current City Charter, the Committee did not see a mechanism for
the Mayor and Council to set clear policy priorities for the City
administration.
Under the Charter revisions, the Council will be required to adopt a written
Statement of Policy for each Charter Officer and for each City department
which is under the adminisiration of the City Manager. The Statement of
Policy will set forth the broad goals, objectives and aspirations to be
accomplished by that department. The City staff will be involved in drafting
these Statements of Policy by providing drafts of them to the Council that the
Council may revise and amend.
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The Statements of Policy are required to be reviewed and, if necessary,
amended, every two years and when there are vacancies in Chazter Offices or
City department heads. When such review is conducted due to a vacancy in
position, the Mayor and Councihnembers may adopt a set of questions which
are intended to elicit responses from each prospective appointee concerning
the goals, objectives and aspirations in the Statement of Policy, Prior to
appointing any head of a City department, the City Manager is required to
submit to the Mayor and Councilmembers, for their review, the responses to
the Mayor and Councihnembers' questions submitted by the finalists for
appointment to the vacant position.
Language which currently applies to the Mayor is added to apply to the City
Council to make it clear that none of these revisions are to be construed in
any way as an infringement or limitation on the powers and duties of the City
Manager as chief administrative officer and head of the adrnirristrativebrsnch
of the City government.
(4) Require that the Mayor and City Council Utilize These Statements of
Policy in an Annual Evaluation of Charter Officers and that the City
Manager Utilize These Statements of Policy in an Annual Evaluation of
Department Heads.
Currently, the City Charter does not require annual performance evaluations
of key City officials. The Committee believes that these annual reviews
should be required to confirm to the citizens of the community that the city
organization is constantly being evaluated and, presumably, improved. The
recommendations of the Committee would require that the Council annually
conduct a written performance evaluation of the Charter Officers and that the
City Manager annually conduct a written performance evaluation of each
head of a City department that the City Manager administe;s.
In addition, the Committee believes the annual evaluations of key City
officials should address the previously adopted written Statements of Policy.
Thus, the CouncII could evaluate- policy implementation by Charter Officers
in their annual evaluation and the City Manager could do the same for City
department heads. The Committee believes this will help solidify the
partnersMp between key officials in City Hall.
As noted above, language which currently applies to the Mayor is added to
apply to the City Council to make it clear that none of these revisions aze to
be construed in arty way as an infringement or limitation on the powers and
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duties of the City Manager as chief administrative officer and head of the
administrative branch of the City government.
(5) Create a Citizen s Salary Setting Commission with Strict Salary Limits
that will Consider Appropriate Compensation of the City's Elected
Officials.
Under the current City Charter, the salaries of the Mayor and City CouncIl
are limited to $800 per month. The Committee believes this is inadequate for
a city the size of Modesto. The Committee also believes the Mayor should be
compensated more than the City Council because the Mayor has significantly
more duties and responsibilities.
The Committee also believes that the electors and voters of Modesto expect
any compensation system for elected officials to be reasonable, independent,
and not susceptible to manipulation. Consequently, the Committee
recommends the creation of a Citizen's Salary Setting Commission with strict
limits on compensation for the Mayor and City Councihnembers.
The Committee believes that any compensation should be established by
ordinance only after: the Citizen s Salary Setting Commission has made a
written recommendation for compensation pursuant to the strict limits of the
Charter revisions; such written recommendation has been published for
review pursuant to the Charter requirements; and mandated public hearings
have been held on the recommendation
Under the Charter revisions, a Citizen's Salary Setting Commission is
established whose function is to recommend the compensation it deems
appropriate for the Mayor and councilmembers. This Commission shall meet
between March 1st and Apri130th of every even-numbered year.
The Citizen's Salary Setting Commission shall consist of five (5) voters who
live in the City of Modesto. Strong consideration must be given to having a
retired Sfanislaus County judge be the chairperson and to appointing
members that represent bona fide taxpayer, voter rights, and previous Civil
Grand Jury organizations. Additional members must have demonstrated
civic involvement and a capacity to serve in an honest, independent, and
impartial fashion.
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There are numerous prohibitions on who can serve on the Commission to
prevent conflicts of interest. Relatives of the Mayor, Councilmembers,
Charter Officers and City department heads and deputy department heads
cannot serve on the Commission
City employees, employees of labor unions for City employees or persons
receiving compensation from the City or its labor unions cannot serve on the
Commission.
Lobbyists and other persons with business before the City Council in a
financial amount that would cause a conflict of interest under the City's
TINCUP ordinance cannot serve on the Commission,
Commission members will not be paid for their service. Commission
members will serve for four (4) year terms. The terms will be staggered so
the terms of commission members will be expiring every two years.
Commission members are limited to serving two (2) terms.
The salary of the Mayor cannot be more than fifty percent (50%) of the
amount of the salary of a Judge of the Superior Court of Stanislaus County.
Under 2007 calculations, the Mayor's salary could be no higher than $88,
824.00. While we believe this amount is too high for Modesto s current size,
we wanted to create a formula that allowed future increases as the difficulty
of the Mayor's job grew. We emphasize that amount is a maximum. Many
cities set minimums. We do not believe setting a minimum is good public
policy. The Citizen s Salary Setting Commission should have the discretion
to set a salary less than the maximum.
The salary of a Councilmember cannot be more than fifty percent (50%) of the
median family income for the Modesto Metropolitan Statistical Area as
reported by the United States Census Bureau. The salary of each
Councilmember must be the same. Under the 2005 data initially available to
the Committee, the salary for a councihnember could be no higher than
$26,298. Under the 2006 data reported in the Modesto Bee on August 29, of
this year,.the salary could be no higher than. $26,812. Again, we emphasize
that this amount is a maximum. Many cities set minimums. We do not
believe setting a minimum is good public policy. The Committee should
have the discretion to set a salary less than the maximum In the case of
Council salary, we also approve of linking the amount to median family
income as an objective standard of community prosperity.
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Any monthly salary shall be reduced by one-fourth for each regular meeting
of the Council not attended by the Mayor or a councihnember each month. In
no case can compensation include retirement benefits or pension benefits of
any sort for the Mayor and City Councilmembers.
Compensation revisions can only be made every two years inodd-numbered
years. If the Commission does not make a recommendation, that will mean
that no changes will be made in compensation levels. There are not
automatic raises under the proposed provisions. Recommendations by the
Commission must be in writing and available to the public for review. The
Commission must hold two public hearings on the recommendations before
they are sent to the Council. After a final recommendation has been
submitted to the Council, it cannot be changed. The Council must hold a
public hearing if it desires to adopt the compensation and there must be
twenty (20) days public notice prior to this hearing. The Council may only
adopt the actual recommendation of the Committee or adopt a lower
compensation amount. It can in no case adopt a higher compensation
amount than that recommended by the Commission.
Any final decision by the Council on compensation under this Secfion shall be
subject to the referendum provisions of the Charter.
(6) Mandate an Independent City Auditor as a Fourth Charter Officer
with Specified Duties.
While the current Charter provides for a City Auditor, this office exists
in the Charter without any significant duties ox functions. The City
Auditor is currently combined with the City Clerk in one office. The
Committee believes Modesto requires afull-time, fourth Charter
Officer that is not combined with any other Charter Officer to conduct
the audit function. The Committee iilso believes the Charter must
detail the duties of the City Auditor as it does for the other three
Charter Officers so the office will have equal dignity with those offices.
The proposal by the Committee creates the Office of City Auditor who
is appointed by the City Council like the City Manager, City Attorney
and City Clerk. The City Auditor may conduct fiscal audits,
performance audits, and special audits and investigations. The City
Auditor will have access to all City records and all City employees
shall have a duty to permit access and examination of such records.
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An additional proposal would prevent the Charter Officers -City
Manager, City Clerk, City Attorney, and City Auditor -from being
combined except in an emergency and in no case for more than three
(3) months. This revision is meant to prevent the combining of the
City Auditor position with the City Clerk as is currently done. The
Committee believes that the City of Modesto must have afull-time
auditor to monitor the performance of City Hall.
(7) Increase Disciplinary Authority for Deputy Directors of City
Departments.
The current City Charter limits the persons that can impose employee
discipline in the organization to the City Manager and department
heads. The Committee heard testimony and agrees that the staff of the
City of Modesto has grown too large for this to be effective. The
recommended revision to the Charter would allow the City Manager
and department heads to authorize deputy directors, police captains
and fire battalion chiefs to recommend and impose discipline. The
City Council also could enlarge this authorized list through city
ordinance.
(8) Make Deputy Directors and Attorneys that Work for the City At-
Will Employees.
Currently, deputy directors in city departments and attorneys in the
City Attorney's Office are not at-will employees. The Committee
heard #estimony that this state of affairs makes it exceedingly difficult
for policy to be implemented throughout the City bureaucracy. The
Committee thus recommends that these key employees in the City
organization be made at-will employees in an effort to increase
accountability and responsiveness in the city organization.
In short, the Corrunittee believes modest yet robust revisions are
appropriate to institutionalize a partnership between elected officials
and key city administrators to improve accountability in City Hall.
We, for that purpose, have drafted the "Increase Accountability in City
Hall Measure of 2008" and recommend that the Council place it on the
February 5, 2008 ballot for a binding vote of Modesto voters.
Recommended language for this proposal is included in Exhibit " 3."
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C. February Election.
Final Recommendation (UNANIMOUS):
Limit February Ballot Measures to the Two Key
Themes that Emerged During Committee Proceedings.
The Committee believes action on Charter revisions during the February
election should be limited to the two major items addressed by the
Committee: (1) one version of The Elect the City Council by Districts
Measure of 2008 [Option (a) or Option (b)]; and (2) The Increase
Accountability in City Hall Measure of 2008. The Committee believes that the
electorate should be provided an opportunity to give their full attention to
these two most important issues for Modesto's future. More. than two major
items would unduly clutter an election ballot. Timely and early resolution of
both of these issues is important to the citizens of Modesto. The technical
amendments and disposition of our run-off election measure should be
addressed later. -
D. Disposition of Municipal Run-Off Election.
Final Recommendation (UNANIMOUS):
Current November to December Runoff Election is
Broken and Must be Fixed.
Final Recommendation (UNANIMOUS):
Consideration of Method to Remedy Broken Runoff
Election Should Await Final Decision by Voters on
District Elections But be Completed Before Next
Regular Municipal Election.
Final Recommendation (UNANIMOUS):
Together with the Final Decision on Municipal Run-
Off Elections, Charter Language Should be Reviewed
and Adjusted, if Necessary, to Avoid Confusion of the
November 2005 Election as to "Vote" Definition.
Final Recommendation (4 - 3):
Recommend Elimination of Runoff Election.
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hi addition to the key themes of district elections and accountability in City
Hall, the Committee believes Modesto s unsatisfactory municipal run-off
election system requires reform. The Committee unanunously believes that
the current run-off system which consists of a December election on the
heels of a November election is broken and must be fixed. The Committee
heard testimony from the City Clerk of the difficulty of conducting the
December election. There is simply not enough time between the
November and December runoff dates to conduct an efficient election. The
conduct of the election is so difficult that the County Clerk-Recorder's
Office refuses to conduct the election, and the City Clerk must conduct it
utilizing outside contractors.
In addition, in recent years, two December run-off elections have been
clouded by the broken run-off system. In 2001, the run-off election failed
and had to be conducted again in the spring of 2002. In the 2005 November
election, the vote was so close that arun-off was conducted but it was not
clear if the run-off actually needed to be conducted due to confusion in the
vote tally provided by the Courity Clerk Recorder's office.
On a 4-3 vote, the Committee recommends elimination of the run-off
entirely. However, as the Committee refined the district election proposals,
it became evident that whether Modesto voters choose a district election
system for city councIlmembers could affect one's view of the need for a
run-off system. Consequently, the Committee recommends that the Council
address how to fix the broken run-off system after the voters have made
their final decision on district elections. In this way, a more thoughtful and
focused discussion can occur on how the elirination of, or the better
implementation of, run-off elections mightwork in Modesto.
In any case, the Committee recommends that this. issue be addressed after
the final decision by the voters on district elections but before our next
regular municipal election on November 3, 2009. We believe the final
decision should be made on how councihnembers are to be elected without
the confusion that may ensue from incorporating the run-off discussion into
those deliberations. Critics of City Hall contend that the Measure L vote in
2001 was clouded by deliberate confusion created over the District election
that also included changing the date of municipal elections from odd-
numbered to even-numbered years. Whatever the merits of such an
argument, the Committee believes such arguments can be obviated by
deferring final consideration of the run-off until after voters decide how to
elect councilmembers in the future.
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In addition, as part of the final resolution to the broken run-off system,
attention should be given to the definition of "vote" in the City Charter to
avoid confusion in any future election of the sort that besoiled the
November 2005 municipal election when it was unclear whether arun-off
election was necessary,
The correction for the broken run-off election system fully should be in
place prior to our next regular municipal election. Should the Council
choose to propose elimination of the run-off election, recommended
language for this proposal is included in Exhibit "4."
E. `T'echnical Amendments.
Final Recommendation (UNANIMOUS):
Recommend Binding Votes on Technical Amendments
After February 5, 2008.
The Committee heard various proposals for technical amendments to the
City Charter. The Committee approves of four technical amendments.
First, the Committee recommends elimination of the Board of Personnel
Appeals and the transition of the selection of hearing officers in personnel
matters from this Board to joint selection by the City and the affected
employee. The Board of Personnel Appeals has been superseded by
collecrive bargaining agreements between the City and labor unions. The
Board serves no purpose, has not met in many years, and no appointees
have been made in many years. Hearing officers are now jointly selected by
the City and the affected employee. The recommended revisions would
conform the Charter to the current state of the law, collective bargaining
agreements, and modern practice. The recommended language for this
proposal is included in Exhibit "5:'
Second, the Committee recommends elimination of the mandatory
requirement that some members of the Cultural Commission live outside
the city limits. It has been difficult to identify people who live outside the
city limits who want to serve on the Commission. The recommended
revision would allow, but would not mandate, such a residency
requirement. The recommended language for this proposal is included in
Exhibit "6:'
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`Fhir~d, the Committee recommends merger of the Human Relations
Commission with the Equal Opportunity and Disability Coaunission into
one Human Relations, Equal Opportunity and Disability Commission. The
Committee found that these two separate committees have related
responsibilities. Merging them will allow synergy and better representation
of these important issues at City Hall and to the City Council. The
recommended language for this proposal is included in Exhibit "7."
Fourth, the Committee recommends that various references throughout the
Charter to the newspaper in which public notice be given be made
consistent and further recommends that references in the Charter to
"telegram' be changed to "electronic. communication." Currently,
newspaper references in the Charter exist in many different versions.
However, Charter Section 1603(h) suggests that such references properly
would be made to a"(n)ewspaper of general circulation within the City."
We recommend that this defined term be used throughout the.Charter so
the references are clear and consistent. References, for example, to the
"official" newspaper of the City-are inappropriate as the City operates no
"official" newspaper. In addition, vazious provisions of the Charter refer to
providing notice by "telegram." Telegram operators no longei exist. The
Committee recommends all such references be switched to "electronic
communication." The retonunended language for this proposal is included
in Exhibit "8i'
The Committee recommends that these technical amendments be
considered after February 5, 2608 so that the focus of the February election
remains on the two key themes that emerged during Committee's
proceedings. These revisions are so technical in nature that placement of
the ballot during the next regular municipal election on November 3, 2009
would be prudent if it saves tax dollars.
For ease of review, text showing the comparison of existing Charter
language with the recommendations in this report are shown in Exhibit "9."
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F. Multiple 2008 Elections to Address Municipal Issues.
Final Recommendation (UNANIMOUS):
Note Availability of Three Statewide Regular Elections Prior
to November 3, 2009 Municipal Election to Address All
Municipal Election Issues Studied by Committee.
This is not an official recommendation as much as a "point of
information' for the Council: Three separate regular statewide
elections are being held in California in 2008 -the February
presidential primaries, the June state legislative primaries, and the
November presidential election.
The Committee believes it is important that the City first address and
focus on the two key themes that emerged during our proceedings.
We elsewhere recommend that these key issues initially be addressed
in the February 5, 2008 election. Here we merely note that all Charter
issues related to the election of councihnembers and the municipal
run-off election may be addressed in 2008 during the three regular
statewide so that they can be resolved and implemented for the 2009
municipal election.
VI. CONCLUSION
We would- like to thank the Mayor and City Council with providing us
the opportunity to serve on the 2006-2007 Charter Review Committee.
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We believe we have identified modest yet robust improvements to
Modesto city government that should implemented, especially those
related to district elections and the Increase Accountability in City Hall
Measure of 2008.
We hope you will place these items on the February 5, 2008 ballot for
consideration by the electors of Modesto.
We, the undersigned, submit this Final Report of the 2006-2007
Charter Review Couunittee to the Modesto City CouncIl.
George Petrulakis, Chairman
Solange Adman, Member
By:
By:
Marie Bairey, Member
By:
Carolina Bernal, Member
David Cogdill, Jr., Member
By:
By:,
By:
By:
36
Chris Harrigfeld, Member
Sandra Lucas, Member
John Shores, Member
Jeremiah Williams, Member
Thomas Wright, Member
12-123
Milestones in the History of
Charter Government in the City of Modesto
Voters approved Modesto's first charter on September 14,1910. Modesto's
population in 1910 was 4,034.
The city government established by this first charter was acommission-style
of government under which city councilmembers were selected. as
commissioners of city departments. The mayor was the chief executive
officer of the city with a wide azray of duties. The number of
councihnembers established was four. Councibnembers are elected in an at-
large group system and winners must receive a majority of the vote.
A major revision of the charter was adopted by voters on November 8,1949.
This charter was found legally deficient and a second major revision of the
charter was adopted by voters on February 15,1951. Modesto's 1950
population was 17,389.
The city government established by the 1951 charter changed Modesto from a
commission-style to a city manager (formally called "wuncil-manager'
government) form of government. The nixmber of councilrnembers was
increased to six. Councihnembers are elected in an at-large system group and
winning candidates required a plurality of the vote.
Another revision of the charter was adopted by voters on November 6,1962.
Modesto's 1960 population was 36,585. This charter, as amended over the
years, is the charter Modesto operates under today. This charter maintained
-the number of councilmembers at six. However, the method of election
changed from at-large group to at-large by chair. Wiruung candidates still
required a plurality of the vote.
The first amendment to this charter was approved by voters four months later
on Apri126,1963, and added variousceremonial duties to mayor and
clarified that the mayor's duties were not to infringe on the city manager's
prerogatives.
On Apri120,1971, the Charter was amended to require that the charter be
reviewed at least every ten years commencing in 1980.
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On June 2,1987, the Charter was amended to require wimiing candidates for'
mayor and city council to receive a majority of the vote; thus, arun-off
election was instituted.
On November 3,1998, the Charter was amended to mandate binding
arbitration for employee negotiation disputes between the City and police
and fire department employees.
On November 4, 2003, the Charter was amended to impose term limits on the
mayor and city council.
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Acknowledgements
The Charter Review Committee would like to thank the many people who
assisted us iti our efforts. Our work could not have been completed without
their contributions.
Thank you to the Mayor and City Council for providing us the opportunity to
assist them in addressing the issues surrounding the governance of our city.
City Clerk Jean Morris and Stephanie Lopez in her officer, City Attorney
Susana Wood and Anne McGrew in her office, and City Manager George
Britton. and Judith Ray in his office all assisted our efforts, as did Kathy
Espinoza, the assistant to the Mayor and City Council
Special recognition is due to Bryan Whitemyer, formerly of the City
Manager's Office, for his special interest and energy in helping the
committee. We wish Bryan much success in his new position as the Deputy
City Managez of Patterson.
The Committee would also like to thank Ellen Wright of the City Managef s
Office; Public Information Technician Jessica Smart of the Parks and
Recreation Department; Phillip Galbreath, Nick Reggiani, Julie Corgiat and
Chief Information Officer Gary Cook of the City IT Department for their hard.
work on the Committee s website, newspaper advertisements and other
informational items sent to the public on behalf of the Committee.
Recognition is also given to Director Jim Niskanen of the Parks, Recreation
and Neighborhoods Department and Director Robin Renwick of the
Personnel Department for the presentations they made to the Committee on
various technical items in the Charter that needed to be addressed. The
Committee would also like to show its appreciation for Kathy Wright,
assistant to Robin Renwick for acting as a liaison between the Charter Review
Committee and the members of the Human Relations Commission and the
Equal Opportunity/ Disability Committee.
The Modesto City Schools also proved to be a tremendous help in the
Committee's effort to provide public outreach by opening many of their
campuses to host Public Input Meetings and Public Information Meetings on
the District Elections Issue. As such, the Committee would like to thank
Board Member Cindy Marks for the special interest she showed in our work,
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as well as Sherri Jenkins and Christine Borja of the District's Facilities
Department.
The Committee would also like to thank the staff of the following facilities for
hosting Charter Committee meetings on their grounds: Beyer High School,
Davis High School Downey High School, Johansen High. School, Modesto
High School, Enochs High School, Prescott Elementary, Shackelford
Elementary, Orville Wright Elementary, Lakewood Elementary, Modesto
Senior Center, King Kennedy Center, EI Concilio Center, and the Red Shield
Community Center.
The Committee expresses sincere appreciation to Mayor Edward Chavez of
Stockton, Mayor Dennis Donohue of Salinas, and former Mayor Gary Podesto
of Stockton for traveling to Modesto to share their experiences with the
Committee.
Stanislaus County CEO Rick Robinson and Deputy CEO Keith Boggs assisted
the Committee in retrieving information necessary for our deliberations.
Similar assistance was provided by Michael Tozzi, CEO and Jury
Commissioner, Superior Court, Stanislaus County.
Consultants to the Committee Doixg Johnson of National Demographics
Corporation Professors Dave Kohlic and Paul Shinn associated with the
Center for Public Policy Studies at, California State.University, Stanislaus
helped the Committee understand various complex issues. Mr. Johnson of
NDC should be singled out for helping the Committee navigate the heady
waters of the election format issue for city councihnembers. Councilmember
Janice Keating deserves recognition for alerting us to the excellent work of the
Rose Institute at the Claremont Colleges which led us to NDC.
Radio talks show hosts Dave Diamond, Bill Mick both with the able
assistance of Heather Voortman, Tim St. Martin, and Carmen Sabatino
allowed members of the Committee to discuss the Committee's work on their
radio shows and engage in spirited discussion. The Modesto Bee Editorial
Board patiently listened to explanations of our efforts and this Final Report.
We thank the many civic organizations and service clubs listed elsewhere in
the report who took an interest in our proceedings. Voluntary associations
such as those are the underappreciated backbone of civic engagement and
good citizenship, values still important in Modesto if less so elsewhere.
Our thanks are extended to the following persons for agreeing to have their
organizations be depository organizations for the basic materials of the
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Committee that were made available to the public: Vanessa Czopek,
Stanislaus County Librarian, Susan Lilly, Librarian and Jo Roullard, Resource
Librarian; Janice Miliken, Stanislaus County Law Librarian, Assistant
Librarian Alex Kern and the Law Library Board of Trustees - President Bruce
Ramsey and trustees the Honorable Marie S. SIlveira, the Honorable Hurl W.
Johnson, the Honorable Susan D. Siefken, the Honorable John G, Whiteside
and Secretary Michael J. Krausnick; Pat Lundy, Past President, League of
Women Voters of Stanislaus County.
The Committee would like to extend sincere and special thanks to Joshua
Wilkerson and Joseph Flores of Petrulakis Jensen & Friedrich, LLP and San
Joaquin Valley Advisors for their invaluable assistance. These young men
aided the Committee throughout its work. Andrea Coffman and Carrie
Rasmussen of Petrulakis Jensen & Friedrich, LLP also contributed much and
Mr. Petrulakis would like to single out Ms. Coffman for her paiience with
revision after revision after revision of many documents dealt with by the
Committee.
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Member Biographies of the 2006-2007
Charter Review Committee
Solange Altman is a Modesto attorney in private practice emphasizing
immigration and social security matters. Prior to private practlce, she worked
for a public interest law firm providing legal services to low income clients
and specialized in health issues. A mother of two, Mrs. Altman is an active
parent volunteer for various school organizations and is a member of the
American Immigration Lawyers Association, the Stanislaus County Bar
Association, and the State Bar of California.
Marie Bairey Yetired after a distinguished career at Modesto City Schools as
an elementary school teacher and administrator. Mrs. Bairey was the
principal of Sonoma. Elementary School from 1988 to 1998. After retirement
in 2001, Mrs. Bairey joined the League of Women Voters of Stanislaus County
where she has served as President, Local Action Director and is currently
Secretary. She is also a past president and former secretary for Country
Crossroads Quilters and is active in the Modesto Garden Club and McHenry
Mansion Docents..
Carolina Bernal is the President and CEO of the Hispanic Chamber of
Commerce for Stanislaus County. A Modesto resident since 1976, Ms. Bernal
originally enjoyed a career in television that spanned 25 years. Her work
included writing, producing,and hosting several shows on Univision Channel
19, Her award-winning work was recognized by groups such as the National
Commission Against Drunk Driving in 2001. She also serves on the Board of
Directors for the United Way, Modesto Chamber of Commerce, and the
Modesto Symphony Orthestra.
Dave Cogdill Jr. is the owner and president of Cogdill & Giomi; Inc. Real
Estate Appraisers and Consultants. The father of two hasbeen a member of
the City of Modesto Plamiing Commission, the City of Modesto Board of
Zoning Adjustment, and the Modesto Junior College Foundation. In
addition, Mr. Cogdill has served on the Board of Directors of the Modesto
Chamber of Commerce and Modesto Rotary Club.
Chris Harrigfeld is owner and President of California Mortgage Associates, a
regional home loan firm. He serves as the Chairperson for the City of
Modesto Housing Rehabilitation Loan Committee and is a member of the
Board of Directors of Habitat for Humanity Stanislaus. He is a former
President of the Mortgage Lender's Association of Stanislaus County. Mr.
Harrigfeld organizes the annual fundraising golf tournament of that
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organization benefiting Habitat for Humanity Stanislaus. He also
participated on the committee conducting the five year review of the City's
General Plan Housing Element.
Sandy Lucas is a licensed Marriage Fanuly therapist and current serves as
Director of Family Court for Stanislaus Superior Court. She was the former
Vice President of the Latino Community Roundtable and is member of the
League of Women Voters. Mrs. Lucas was along-time member of the
Stanislaus County Democratic Central Committee and served as Chairperson.
Mrs. Lucas has also hosted a televised political talk show on area elections for
the past nine years.
George A. Petrulakis is a partner at Petrulakis Jensen & Friedrich, LLP, a
Modesto law firm. He served on the 1999 Charter Review Committee fox the
City and on its General Plan Steering Committee from 1992-1995. Mr.
Petrulakis was the 2005 Chairman of the Board of Directors of the Modesto
Chamber of Commerce. Mayor Ridenour selected Mr. Petrulakis to chair the
2006-2007 Charter Review Committee.
John Shores is retired after working for the Weyerhaeuser Packing Group as
a salesman, sales manager and general manager since he moved to Modesto
in 1967. Ivlr. Shores currently serves on the Stanislaus County Planning
Commission and previously served on the 1995-1996 Stanislaus County Civil
Grand Jury and as the public member (alternate and regular) on the
Stanislaus Local Agency Formation Commission from 1996-2004. He also
was a director of the McHenry Mansion Board of Directors, serving as
President in 2001-2002. Mr. Shores and his wife; Marion, were recipients of
the Julio and Ahene Gallo Humanitarian Award in 2002.
Jeremiah Williams is the owner of Oak Crafts by Jeremiah. Mr. Williams has
served as President of both the Modesto Chapter of the NAACP and the
Modesto's Kiwanis club. He has served on the Board of Trustees for the Gallo
Center for the Arts and on the Board of Directors for the Doctors Medical
Center Foundation. The father of three children, Mr. Williams is also a
licensed Minister for United Pentecostal Church International.
Thomas Wright is retired after 39 years in banking. Mr. Wright was on:the
original Board of Directors of Community Hospice and Children s Crisis
Center, and has served as Chairman of the Board of Directors of both. Mr.
Wright was a Board Member of the Modesto Chamber of Commerce and
President of the Ceres Chamber of Commerce. Mr. Wright is presently
involved with the North Modesto IGwanis Club and serves on a number of
committees for St. Paul's Church and the Diocese of San Joaquin.
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~.~-~~1~~ ~~4vM~~
~-.o,~~ i~n~a s
Jerry Thomas 619 3024410 February 14, 2012
1339 Second Avenue, Chula Vista CA 91911
The Southwest has more variety of lifestyles, flora, fauna,
ethnic groups and people doing their own thing -with more
sheer difference than any place 1 know. Every day 1 meet
people who are fleeing persecution and those looking for a
better life. Many people come from other places to improve
the lives for themselves, their families and their community.
People want a chance to participate in the local government.
The districts must be made honestly and fairly, Everything I
know about district elections is based on first- hand
experience. Today with the citizen united Supreme Court
decision, a handful of people, who have been elected to
nothing, can buy our system. Corporations are not people;
they are creations of the government. It is a major victory far
special interest that marshals their power to drown out the
voices of everyday Americans. Corporations are not people;
they are creations of the government. We can't allow our
districts to be drawn unfairly. The voters must pick the
council, not the council picking the voters. The districts must
be made without partisan logrolling, you scratch my back and
I'll scratch yours. The districts must be made with integrity,
representative and fair. It is important that we hold district
elections and the districts represent common community
interest
1. District elections will increase access to city government for
ordinary people living, working, studying and playing in their district.
2. District elections will make the council people more responsive in a
timely manner to the people's concerns and be more easily available
at town halls and other neighborhood civic and community meetings.
3. District elections will decrease the cost of running for city council, a
public service position. (Registrar of voter's costs, slate costs, signs,
flyers, gasoline, etc,, etc.
4. District election will have the elected council people more
informatively speak up for the community interests, issues and family,
educational, recreational, transit, economic needs.
5. District elections is the model for local representative democracy
values and action and goad for both the voters and candidate's
representation of the American values, basic rights and principles.
Jerry Thomas 619 3024410 February 14,
2012 1339 Second Avenue, Chula Vista CA 91911