The URL can be used to link to this page

Home My WebLink About2012/02/28 Item 15ITY COUNCIL STATEMENT „~;~ clTV of "` CHULA VISTA FEBRUARY 28, 2012, Item ~Jr' ITEM TITLE: CONSIDERATION OF CITY COUNCIL PROPOSED BALLOT INITIATIVES IDENTIFIED AT THE FEBRUARY 14, 2012 CITY COUNCIL MEETING FOR PLACEMENT ON THE JUNE 5, 2012 BALLOT A. EVFRASTRUCTURE BOND TO FINANCE CITY PART{S, STREETS AND/OR OTHER PUBLIC INFRASTRUCTURE B. PRESERVATION OF CITY PARKS THROUGH VOTER APPROVED LAND USE RESTRICTIONS C. A MEASURE TO AMEND CITY CHARTER SECTION 503 AND ADD SECTION 503A TO ESTABLISH THE OFFICE OF LEGISLATIVE COUNSEL AND AMEND THE ELECTED CITY ATTORNEY ACT (SEE PROPOSED RESOLUTION AND AMENDED CHARTER PROVISIONS IN ATTACHMENT "A") SUBMITTED CITY ATTORNEY ~~`'~ Bl'~ CITY CLERIC ~/ CITY MANAGER 4/STHS VOTE: YES ~ NO ~X SUMMARY On February 14, 2012, Councihnember Aguilar under her cormnents identified potential ballot measures to be presented for future discussions and deliberations and asked other Councilmembeis to do the same. She identified three potential measures, and Couucilmember Castaneda identified a fourth. The City Council approved putting tlu'ee of the four potential ballot measures on the February 28, 2012 Council meeting Agenda for discussion. The following Agenda Statement addresses each of the three identified potential ballot measures: 15-1 FEBRUARY 28, 2012, [tem~5 Page 2 of 6 A. Infrastructure Bond to Finance City Parks, Streets and/or Other Public Infrastructure; B. Preservation of City Parks Through Voter Approved Land Use Restrictions; C. A Measure to Amend Ciry Charter Section 503 and Add Section 503a to Establish the Office of Legislative Counsel and Amend the Elected City Attorney Act. In relation to the proposed measure to amend the City Chatter Section 503 and add Section 503a, Councilmember Castaneda has presented through the City Clerk a proposed Resolution and proposed amended Charter language found in this Agenda Statement as Attachment "A". ENVIRONN[ENTAL REVIEW The City has reviewed the proposed activity, Infrastructure Bond Initiative to Finance City Pars, Streets and/or other Public Infrastructure, for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a Project pursuant to California Code of Regulations Title 14, Chapter 3 (the "State CEQA Guidelines") section 15378(b)(4) and therefore is exempt from environmental review. Notwithstanding the foregoing, the City has fitrther determined that there is no possibility that the activity may have a significant effect on the environment because no actual projects have been defined; therefore, pursuant to section 15061(b)(3) of the State CEQA Guidelines the activity is exempt from the provisions of the California Environmental Quality Act. The City has reviewed the proposed activity, Preservation of City Parks Initiative through doter Approved Land Use Restrictions, for compliance with the California Environmental Quality Act and has deternned that there is no possibility that the activity may have a significant effect on the environment because no actual projects have been defined; therefore, pursuant to section 15061(b)(3) of the State CEQA Guidelines the activity is exempt from the provisions of California Environmental Quality Act. The City has reviewed the proposed activity, a Measure to Amend Ci0~ Charter Section 503 and add Section 503a Initiative to establish The Office of Legislative Counsel, and ,4ntend The Elected City Attorney gct, for compliance with the California Environmental Quality Act and has determined that there is no possibility that the activity will have a significant effect on the environment because the activity is a legislative act; therefore; pursuant to section 15061(b)(3) of the State CEQA Guidelines the activity is exempt from the provisions of the California Environmental Quality Act. RECOMMENDATION Staff recommends that the City Council consider the issues presented by staff and outside counsel with respect to each of the three proposals, and take action as the Council deems appropriate. BOARDS/COMMISSION RECOMMENDATION These items have not been submitted to any City Board or Commission for consideration. 15-2 FEBRUARY 28, 201?, Item ~5 Page 3 of 6 DISCUSSION Each of the three proposed ballot measures presents its own issues and questions. Accordingly, this section is divided into three parts. Part four presents issues and procedures that are common to all three proposals. A. Infrastructure Bond to Finance City Parks, Streets and/or Other Public Infrastructure Due to the magnitude of the infrastructure needs within the City of Chula Vista (estimated at approximately $400 million), avoter-approved infrastnicture bond issue may be the only way to address the need. There have been a munber of successfi bond measures passed in other communities in recent years. Staff has included (see Attachment `B") the language that the City of San Francisco utilized in their successful Proposition B campaign in November of 2011. That bond measure passed with a 68.02% of the vote. This infrastructure bond provides funding for repairing and upgrading city streets, sidewalks, lighting and traf£c signals. 1n 2007, the City of Denver, Colorado passed an infrastructure bond. This bond measure was comprehensive in nature and activities leading up to its successful passage are included in Attachment "C". A local example would be the TransNet sales tax extension that was approved by voters in 2004. The TransNet extension was a regional measure that inchided funding to be spent over a period of 40 years. There also was strong community support and a privately-funded, stakeholder coordinated campaign. The measure fiords highway improvements, transit improvements, local streets and roads, environmental mitigation projects as well as other items (the language is shown in Attaclnnent "D"). There are several commonalities with all of these successful measures. First, there was a thorough review in order to determine the specific project needs and required costs to address them. For Chula Vista, this should include a clear explanation of specific projects that would be constructed in the various commrmities that make up the city. Second, in all cases, there were well thought out campaigns. These campaigns included involvement of all key stakeholders, overwhelming support and commitment from elected officials and a very extensive information campaign. Due to Che various components of the campaigns (determination of specific needs, accurate cost estimates, identification of and negotiation with key stakeholders, voter education, etc.), they are at a minimum a 1-year effort, but typically two years. Staff believes that an infrastructure bond may be the only way to address the capital improvement ^eeds in Chula Vista. Staff recommends that we be directed to further investigate what would be necessary (i.e., accurate determn7ation of need, timing, cost, stakeholder involvement, education component, etc.) to bring forth an infrastnicture bond proposal to the Chula Vista voters. Staff tail report back to City Council within 90 days. 15-3 FEBRUARY 28, 2012, Item~_ Page 4 of 6 B. Preservation of City Parks Through Voter Approved Land Use Restrictions Staff contacted both the City of San Francisco and the City of San Diego. The City of San Diego has as a part of their Charter (Section 55) the following langnage: "All real property owned in fee by the City heretofore or hereafter formally dedicated in perpetuity by ordinance of the Council or by statute of the State Legislature for park, recreation or cemetery purposes shall not be used for any but park, recreation or cemetery purposes without such changed use or purpose having been first authorized or later ratified by a vote of two-thirds of the qualified electors of the City voting at an election for such purpose". The last time this section was amended was December 1, 1975. The City of San Francisco has language that states "no park land may be sold or leased for non-recreation purposes, nor shall any struch~re on park property be built, maintained or used for non-recreational purposes, unless approved by a vote of the electors". City of San Diego staff did some research for us on tlus matter and stated there had been no park preservation bond measures since at least 1998. Lf the City Council were to pursue a park preservation measure, it would be beneficial to be very careful in determining the specific language. For example, the intent may be preservation, but if drafted too narrowly, might preclude opportunities for transfer of land that could provide a better park location and more public beneftts. If the City determines to pursue a park preservation measure, staff would recommend that we first be directed to work with the City Council on determining the clear intent, and then drafC specific language for City Council review. The proposal should be reviewed by both the Planning Commission and the Parks and Recreation Commission before determination would be made by the City Council to place the matter on the ballot. C. A Measure To Amend City Charter Section 503 And Add Section 503a To Establish The Office Of Legislative Counsel,And Amend The Elected City Attorney Act The City Attorney's Office has been presented with the proposed Resolrrtion and proposed amended Charter language as identified and provided to the City Clerk by Councilmember Castaneda. (See Attachrnent "A".) The proposal as drafted contains some parts that could directly impact the personal financial interests of the cun-ent elected City Attorney. Consequently, independent outside legal counsel has been retained to provide legal analysis, advice, and services on both the substance of this item and ou the process for getting the item on the ballot. Attorney Thomas B. Brown of the Law firm of Burke, Williams & Sorensen will act as legal counsel to the City. 15-4 FEBRUARY 28, 2012, Item ~5 Page 5 of 6 Mr. Brown obtained his Juris Doctorate degree from the University of Califomia, Hastings College of Law, in 1952. He has specialized in public and municipal law for 30 years. Mr. Brown has served for 12 years as the City Attorney for the City of Napa and prior to his tenure at the City of Napa, he served as Senior Deputy City Attorney for the City of Berkeley. Mr. Brown is a partner of the Burke, Williams and Sorensen law fine. The fine has been practicing public law since 1938 and is recognized as one of the foremost law firms in California in the specialized areas of public and municipal law. Mr. Brown has prepared a Memorandum for the Council on this item found as Attachment "E". The City Attorney will also be presenting advice and perspective on the role and function of the City Attorney. D. General Issues and Ballot Initiative Procedures Dl Citv Manager Input: Although we have made tremendous progress iu recent years in addressing the huge budget deficits that were in existence at the time, we continue to have challenges in meeting a projected budget deficit of approxhnately 5758,000 in this current fiscal year, and as we have previously stated, we are facing a $3 million deficit in the 2012/2013 fiscal year budget Since the cost of each individual measure will range from $85,000 to $190,000 (depending on the number of pages in the proposition), we would recommend that the Council be very pnident in determining the need to go forward with various ballot items at this time. It should also be noted that any ballot measure which would have a financial impact on voters may also be impacted by Governor Brown's sales tax proposal and potentially others, which are going forward in Jtme. Further, if the infrastructure bond is placed on the ballot for voter approval premauuely and fails, the City will face a greater challenge on a future bond measure to address this critical need. D2. CityCled<Lzput: On February 14, 2012, the Council adopted Resolution No. 2012-018 calling a General Election to be held June 5, 20 L2, consolidating the election with the state-wide election, and requesting the services of the San Diego County Registrar in the conduct of the election. [n order to place a City measure on the June 5, 2012 ballot, California Elections Code section 10403 requires that a resolution be filed with the County of San Diego at least 88 days prior to the date of the election, or March 9, 2012. The following elements should be included with the resohttion: 1) The full text of the proposed ordinance or Charter amendment; 2) The ballot label, which is a maximum of 75 words that summarize the measure, and is written u1 the form of a question. (EC 13247); 3) Council authorization, if desired, for member(s) of the City Council to file a written argument and rebuttal argument, if necessary, for or against the measure. (EC 9282(b)); and 4) Council direction to the City Attorney to prepare an impartial analysis of the measure for inclusion in the sample ballot. In the case of a measure affecting the office of the City 15-5 Attorney, the City Council may direct the City Clerk to prepare an impartial analysis. (EC 9280) 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 tlris decision. CURRENT YEAR FISCAL IMPACT Based on the information provided by the County of San Diego Registrar of Voters, the following table reflects the estimated cost of placing a proposition on the ballot for the June 2012 election. Description Estimated Cost 5 age proposition $85,000 - $100,000 10 age pro osition $115,000 - $130,000 18 pave proposition $170,000 - $190,000 These estimates represent the most recent costs provided by the Cormty of San Diego Registrar of Voters, these estimates were effective January 27, 2012. The fiscal year 2011-12 budget includes $600,000 for ballot measures, therefore no appropriations are requested for this item. [n addition to these costs, staff recommends further investment in the Asset Management Program to inventory assets, evaluate their condition, and determine the investment needs required to sustain their use in preparation for the Infrastructure Bond ballot measure. ONGOING FISCAL IMPACT Costs associated with placing these measures on the ballot are one-time costs. The ongoing fiscal impact of each measure cannot be determined at this time. Further analysis is required to determine the ongoing fiscal impact of these ballot measures. A preliminary analysis of the Attorney ballot measure indicates that if approved this measure would result in a negative fiscal impact to the General Fttnd. This preliminary analysis is based on the difference between the projected savings resulting from the proposed salary reduction for the elected City Attorney and the cost of adding a new attorney position. The actual costs of this proposed ballot measure would depend on the actual salary and benefits set for this new position and the cost of any support staff. ATTACHMENTS Attachment A-Proposed Resohition No. 2011- Attachment B -Road Repaving and Street Safety Bonds Attachment C -Public Stewardship by Marilyn Miller and Margaret Browne Attachment D -Ballot Language Attachment E - Memorandum of Thomas Brown Prepared bl'~ C(ay Attorney, City M¢nager, Cin~ Clerk 15-6 ATTACHMENT A 15-7 ATTACHMENT B 15-15 46 Local Ballot Measures -Proposition B B Road Repaving and Street Safety Bonds SAN FRANCISCO ROAD REPAVING AND STREET SAFETY BOND, 2011. To fix YES ~ ~ potholes and repave deteriorating streets in neighborhoods throughout San NO ~ ~ Francisco, repair and strengthen deteriorating stairways, bridges and overpasses, improve safety for pedestrians and bicyclists, improve disabled access to sidewalks, and construct and renovate traffic infrastructure to improve Municipal Transportation Agency transit reliability and traffic flow on local streets, shall the City and County of San Francisco issue $248,000,000 in general obligation bonds subject to independent oversight and regular audits? ~IQeSt hythe Ballot Simplification Committee The Mayor and the Board of Supervisors would approve the final list of projects. The Way It Is Now:The City is responsible for main- taining about 850 miles of streets and more than 300 street structures, such as bridges, tunnels, and stair- ways. ACity study shows that about half of these streets and many of the structures need major repairs and upgrades. The City's 10-year Capital Plan identifies road repaving and street safety improvements as a high priority. With approval of the voters, the City may issue general obligation bonds to pay for capital projects such as road repaving and street safety.The City uses property tax revenues to pay the principal and interest on gen- eral obligation bonds. The Proposal: Proposition B is a bond measure that would authorize the City to borrow up to $248 million by issuing general obligation bonds to improve and repair streets, sidewalks, and street structures. The City could only use this money to: • repair and repave City streets and remove potholes; • strengthen and seismically upgrade street structures; • redesign street corridors by adding or improving pedestrian signals, lighting, sidewalk extensions, bicycle lanes, trees, and landscaping; • construct and renovate curb ramps and sidewalks to increase accessibility and safety for everyone, including persons with disabilities; and • add and upgrade traffic signals to improve Muni service and traffic flow. Proposition B would allow for an increase in the prop- erty tax, if needed, to pay for the bonds. It would per- mit landlords to pass through 50% of any resulting property tax increase to their tenants. Proposition B would require the Citizens' General Obligation Bond Oversight Committee to provide independent oversight of the spending of bond funds. One-tenth of one percent (0.1%) of the bond funds would pay for the committee's audit and oversight functions. This measure requires approval of two-thirds of the votes cast. A "YES" Vote Means: If you vote "yes;' you want the City to issue $248 million in general obligation bonds to repave streets; seismically upgrade bridges, tunnels, and stairways; improve safety for pedestrians and bicy- clists; upgrade traffic signals; and improve sidewalk access and safety. The bonds are subject to indepen- dent oversight and audits. Landlords are authorized to pass through 50% of any resulting increase in property taxes to their tenants. A "NO" Vote Means: If you vote "no;' you do not want the City to issue these bonds. This measure requires 66%% affirmative votes to pass. Arguments for and against this measure immediately follow. The full text begins on page 109. Some of the words used in the ballot digest are explained on page 36. 38-E N-N tt-CP46 15 -16 ATTACHMENT C 15-17 ;e ,.e � �,,, � �.�; yy _ �. N � Y' ��' u•, i � s � � � �I « � k, �. � 1�� r '.;xir- . '� �I �- .. _ _ _. lur:��r�,r.,ra�,r;.a1.,�edd:- ` „ -� „i °r li(r,,�'n-�ii,' ;i�6 -.,” The City of Denver's Public Stewardship for a City Beautiful initiative was one of the Government Finance Association's 2008 Awards for Excellence winners. hroughout the United States, critical public infrastruc- ture is in desperate need of repair and replacement afteryears of neglect and deferred maintenance.Much of the current built environment, above and below ground, was designed and completed more than 50 years ago, during the post-war boom. But the public does not tend to under- stand the extent of the deterioration, and [here is no obvious champion for the repair and replacement of infrastructure until a major disaster strikes. Citizens tend to take notice of the infrastructure issues they deal with daily -potholes in their streets, or the condition of their playgrounds.They are much less likely to be aware that the jurisdiction's 50-year-old fire station needs to be rehabilitated, or that maintenance facilities are unsafe, wastewater treatment facilities are inadequate, bridges are dete- riorating, oranimal shelters are out of date. There are always constituencies for new parks, new or bigger recreation centers, more landscaped medians, or expanded museums. When the prospect of another bond election appears on the horizon, interested parties line up with proposals for new and expanded facilities. But where is the constituency that advocates for govern- ment to maintain what it already has? In the City and County of Denver, Colorado, middle managers became critical advo- cates for infrastructure maintenance and repair.They saw the condition of the trash transfer station and its impact on effi- ciency Building engineers understood that buildings were deteriorating and sometimes unsafe. They understood that failing to adequately maintain streets would result in higher replacement costs in the future. Recognizing that the existing capital planning and budget- ing process was not adequately maintaining the city's infra- structure, the director of capital budgeting and the finance director proposed that the mayor address the situation. Denver established two task forces to develop policies that would ensure proper capital maintenance in the future. The If the city was going to move to a capital management phi- losophy that would sustain the existing infrastructure at levels that would be both cost effective and acceptable to the public, it needed to implement a more directed fnancial strategy first group assessed the condition of the current infrastruc- ture, developed maintenance standards, and established cri- teria for setting priorities.The second group developed a cap- ital funding policy to provide along-term framework based on the results of the first group.Armed with compelling infor- mation and sensible proposals, the mayor worked to get buy- in from the City Council and the public. As a result of this "Stewardship for a City Beautiful"initiative,Denver succeeded in getting voter approval to increase property taxes for capital maintenance and a major capital maintenance bond issue. TELLING THE STORY Denver's capital maintenance program had fallen behind for a number of reasons.One of the most important was that infrastructure had grown as the city had expanded, and the funding committed to capital mainte- nance did not keep pace with the increased assets. The city also had many assets from apost-war boom in the 1950s that had reached or exceeded their use- ful life of approximately 50 years.The Ci[y and County of Denver had annual dedi- cated capital funds, primarily from a por- tion of the occupational privilege tax (head tax), but the relatively Flat growth rate of that tax - 1 percent per year - has resulted in a 25 percent decrease in buying power since 1988. At the same - time, the city was growing in population, so existing assets were being used more; in addition asset inventory had increased and infrastructure had expanded.The city also faced rapidly increasing construction costs and slow revenue growth. The result was that capital maintenance projects were [riaged,and only the most critical needs were funded. But this problem was not easy to communicate to the city's stockholders -the public -because the case for infrastructure deterioration was anecdotal, disjointed, and not adequately quantified. Managers were requesting more funding to address deteri- orating infrastructure, but those requests were ignored because they were not accompanied by adequate explana- tions. The street maintenance division of the public works department used sophisticated modeling techniques to show timing and determine the most cost efficient maintenance scenarios and costs, but even with compelling documenta- 15-19 December 2008 I Government Finance Review 35 tion,their claims were not readily accepted.Some viewed the recommended standards as too high; others thought the stan- dards were too costly; and some felt that expanding capacity was a higher priority than improving maintenance standards. Other city agencies, however, had not even completed com prehensive inventories and standardized condition assess ments. Policies around standards were not universally trans- parent or accepted -some departments had policies and others did not, and the comprehensiveness and sophistica- tion of the existing standards varied substantially. What was needed was a complete picture that would allow sound deci- sions to be made about all of the city's assets. The city's Budget and Management Office coordinated a standardized evaluation of the city's capital improvement assets.The capital projects director got the ball rolling, creat- ing working relationships with city staff in other departments who a shared vision of the kinds of improvements needed. Departments proposed standards for maintenance, complet- ed easily understood but well-defined condition assessments, and prepared cost estimates for bringing substandard infra- structure up to par and maintaining that infrastructure over time.The task was to quantify not only the city's annual capi- tal maintenance gap but also the one-time cost for bringing all its infrastructure up [o standard. ESTABLISHING THE STANDARDS Before [he city could set a financial strategy, each depart- mentand agency had to establish acceptable levels of service that would be understood across the organization. The rela- tionship between maintenance standards and affordability is to some extent circular, however, since a standard that the municipality cannot afford is unrealistic. This creates a ten- sion between desired standards and affordability- or,in the case of the taxpayer,willingness to pay. Financial Affordability Capital Maintenance Standards u Denver's mayor, a former entrepreneur and small business- man,believed that the public would not accept any method- ology for establishing standards that it had not had a role in setting.Therefore, in 2004, a citizen task farce of experts and activists was set up to thoroughly examine staff's findings and make meaningful adjustments to the city's assessments. City staff made presentations on their evaluations of four major asset groups: public art, recreational facilities and parks transportation and rightof-way,and buildings,including cultural facilities. Staff provided the following information about each asset: ^ Detailed inventory ^ Definition of lifecycle, based on industry standards ^ Information about current condition, determined by [he percentage of the asset inventory in good, fair or poor condition (defining the criteria for each condition category) ^ Proposed standard, defining the desirable standard for the city, based on industry standards, best practice, and staff expertise ^ Rationale for the proposed standard In 2005, the task force issued a report that set forth moder- ate and fiscally prudent standards. But even at a modest level, the baseline established by the task force in 2005 indicated that the City and County of Denver was deferring $27.5 15-20 36 Government Finance Review I DecembeY 2008 million of maintenance per year. The task force found that while some asset categories were in reasonably good condi- tion, other assets such as irrigation systems, traffic controls, city buildings, street signs, and alleys needed significant dol- lars to bring them up to standard. The price tag for bringing infrastructure up to a level where it could be maintained in a pay-as-you-go manner was almost $400 million. NEW STRATEGY NEEDED If the city was-going to move to a capital management phi- losophy that would sustain the existing infrastructure at levels that would be both cost effective and acceptable to [he pub- lic, it needed to implement a more directed financial strategy. In [he past, Denver had sought a bond election every eight to 10 years to catch up on infrastructure maintenance -that is, to fill the gap. As a result, maintenance was often deferred, potentially compromising assets. The question was how the city could develop a better asset management system and strategic financial plan to addresses the cost of maintenance on apay-as-you-go basis. The answer was not readily apparent. The city's director of economic development, finance director, capital budget director, and treasurer considered reallocating existing rev- enues, achieving cost efficiencies, using one-time revenues (e.g.,expiration of tax-increment finance districts),and divest- ing assets where appropriate. But even after applying those measures, a gap remained. They recognized that improving the city's infrastructure would require a tax increase or a bond issue, or both. At the same time, there were competing priorities such as new capital projects and programs that also required voter approval. The director of capital budgeting also met with each of the City Council members to review the find- ings and recommendations of the report, which helped the council to understand the magnitude of the problem.The director of economic development was the finance office's chief advocate in convincing the mayor's office to start dealing with the city's capital maintenance gap, and in late 2006, the mayor agreed to establish a sec- ond infrastrrcture priorities task force.This task force made up of community business the public. and civic leaders,created a capital funding policy for civic infrastructure that provided along-term framework for maintaining and improving the city's civic assets on a sustainable basis while providing capacity and means for new infrastructure to meet the future needs of the community. The policy recognizes that limited financial resources create a tension between maintaining the city's existing assets and building new assets.The policy was based on the following principles: ^ Stewardship Principles > Denver must maintain the civic assets it already has in place. > Denver will add new assets or upgrade existing assets to accommodate growth, future public needs, and contribute to the City Beautiful legacy > Denver will routinely review its asset portfolio to evaluate whether assets should be retired. > Denver will implement a formal, integrated planning, financing, and approval process for projects in the long-term capita] plan. ^ Financial Principles > Denver will fund maintenance and, where appropriate, scheduled replacement of the city's capital assets through annual revenues. > Denver will fund new assets, capacity expansion, and major replacements through scheduled, periodic debt. > Before adding any new capital asset, the city should carefully consider its financial ability to operate and maintain that asset. > Denver will fund infrastructure that is needed for new private development through development-generated revenues whenever possible. and only the needs were The capital financial plan recommend- ed aset of proposals to provide adequate annual capital funding. The first recom- mendation was to change the dedicated annual capital funding source from the occupational privilege tax to property taxes to better keep pace with inflation. The task force also recommended that the city dedicate specific new revenue sources it expected to receive in the future to capita] funding. In addition, the plan recommended that the city consider redi- 15-21 December 20081 Government Finance Review 37 Capital maintenance projects were triaged, most critical funded. But this problem was not easy to communicate to the City's stockholders, s Community representatives with legal, financial, higher education, and other business expertise reviewed, modified, and endorsed a solid fiscal policy. recting existing revenue sources -primarily from the gener- al fund - to provide additional funding for improving the condition of existing infrastructure, providing capital mainte- nance for new assets, and covering the increased cost of cap- ital project management.The plan also recommended a mod- est property tax increase of 2.5 mils (a mil equals one thou- sandth of a dollar), which would not change Denver's stand- ing as having the lowest property tax in the metropolitan region. Establishing a permanent, dedicated mil levy for capi- tal maintenance would put [he city on apay-as-you-go basis for capital maintenance, and the task force was convinced that addressing infrastructure deterioration on apay-as-you-go basis made good business sense. A PUSITIVE ELECTION The message presented to Denver voters was simple: You can pay now, or you can pay more later. The mayor under- stood the kind of buy-in that would be needed and worked hard to bring the message to the public. And he succeeded: Denver voters approved a dedicated mil levy for capital main- tenance in 2007.There were several key factors that ensured this success. ^ City staff in many departments were committed to raising the issue, defining the problem, and finding solutions. ^ Both city staff and community representatives who had expertise in engineering and maintenance vetted the foundation of clearly defined standards, needs, and costs. ^ The city's mayor was committed to sound financial management and public stewardship, and was willing to use his popularity to address the issue. The most heartening responses the city received from the public were From those who appreciated that the issue was seeing the light of day Citizens want a beautiful and function- ing city, town, or state. They want to know if there are problems, and they will step up if credible solutions are pro- posed. Amunicipal bond manager once related that the public financially supports governments when they believe there is a credible need and that the proposed solution efficiently addresses that need. Denvers example proves that to be the case. CONCLUSION Adequately addressing maintenance of critical capital infrastructure is a significant problem for most jurisdictions. The public finance profession has a key The task WdS to qudntify role in planning, fund- not only the city's annual ing, and implementing capital maintenance capital maintenance gap but and improvement plans, also the one-time cost for and they must be effec- tive in addressing these bringing all its infrastructure issues,since there is no up to standard. political constituency - _ to advocate for capital maintenance. Elected officials are under constant pressure to add programs and build new facilities, but someone must act as the steward of public assets to preserve critical infrastruc- ture and plan for the future.) MARI LYN MILLER is the former capital projects director for the City and County of Denver. She has her own consulting business and can be reached at mmmill33@aotcom. MARGARET BROWNE is the former fnance director for the City and County of Denver. She also has a consulting business and can be reached at Margaret@MVBrowne.com. Any questions for the City and County of Denver should be addressed to Ed Scholz, budget director, at edwardscho Iz@denvergov.org. 15-22 39 Government Finance Review I December 2008 ATTACHMENT D 15-23 BALLOT LANGUAGE A SAN DIEGO COUNTY TRANSPORTATION IMPROVEMENT PROGRAM. To relieve traffic congestion, improve safety, and match state/federal funds by: Expanding I-5, I-B, I-15, SR 52, SR 54, SR 56, SR 67, SR 76, SR 78, SR 94, SR 125, I-BOS; Maintaining/improving local roads; Increasing transit for seniors and disabled persons; Expanding commuter express bus, trolley, Coaster services; Shall San Diego County voters continue the existing half-cent transportation sales tax (SDCRTC Ordinance 04-01) for forty years, including creating an Independent Taxpayer Oversight Committee to conduct earl audits ensurin voter mandates are met? YES 000 -- O NO 000 -~ O 15-24 ATTACHMENT E 15-25 BURKE, WILLIAMS & SORENSEN, LLP MEMORANDUM TO: Honorable Mayor And Council Members of the City of Chula Vista FROM: Thomas B. Brown, acting as Independent Legal Advisor to the City of Chula Vista DATE: February 24, 2012 RE: Proposed Amendment to City Charter Introduction The City Council of the City of Chula Vista ("Council") is considering a ballot measure that would amend the Chula Vista City Charter ("Charter"). The amendment would revise the duties and compensation of the elected City Attorney, and also would create a new office and position of Legislative Counsel who would advise on specified issues. The measure's language creating the new Legislative Counsel position appears to have been substantially modeled on similar language in the California Government Code creating the California Legislative Counsel. Question Presented What potential legal issues may arise from the measure being considered for the ballot by the Council? Brief Answer Due to the limited time available, it is not possible to identify and fully analyze all of the potential legal issues raised by the draft measure before the Council. Some key issues and preliminary conclusions include: the Council may place the measure on the ballot without submitting the measure to either the City's Charter Review Commission or the City's Ethics Commission; allowing a Legislative Counsel to provide advice to individual Council members on legislative matters would not constitute an illegal gift of public funds; OAK #4825-0224-0526 v1 r 99 Los Angeles -Inland Emp+re - Marin Coun[ - Oakland ~ ~rfi~e County - Palm Desert -Silicon Valley - Ven[ura County Honorable Mayor and Council Members of the City of Chula Vista February 24, 2012 Page 2 the measure creates a conflict arising from the fact that the Council may not override the City Attorney's professional responsibility to determine his/her own conflict. the measure could create ethical conflicts under California's Rules of Professional Conduct by requiring the Legislative Counsel to simultaneously represent potentially adverse interests of individual City Council members; the measure creates potential personnel issues, and risks of litigation, by simultaneously designating the position of Legislative Counsel as both a Classified Civil Service employee and also an "at-will" employee serving at the pleasure of the Council; • the measure includes language and provisions that are ambiguous and that create numerous other potential internal charter conflicts; because the measure affects the organization and salary of the City Attorney, the Council should request the Elections Official to prepare the impartial analysis if the Council determines to place the measure on the ballot. Discussion The City Council Is Not Required To Submit The Measure To The City's Charter Revision Commission Or Ethics Commission. Chapter 2.29 of the Chula Vista Municipal Code ("CVMC") creates the Charter Review Commission ("Commission"). In creating the Commission, the City states that "[i]t is the purpose and intent of the City Council...to create an advisory body to serve as a resource to advise and make recommendations...on issues affecting the provisions of the City Charter." (CVMC 2.29.020). Nothing in Chapter 2.29 requires mandatory submission of Council-created proposals to the Commission. Instead, the Commission appears to serve as purely an optional "resource" or "forum" where the City can request "research and analysis of matters relating to... proposed provisions of the City Charter." (CVMC 2.29.030(A)). Therefore, it appears that the City may submit the proposed amendments and additions directly to the ballot without first subjecting the proposals to Commission review. OAK#4825-0224-0526 v1 1 rJ-27 Honorable Mayor and Council Members of the City of Chula Vista February 24, 2012 Page 3 Similarly, CVMC Chapter 2.28 authorizes the creation of the City's Ethics Commission. Nothing in Chapter 2.28 expressly requires submission of a proposed ballot measure to the Ethics Commission prior to its placement on a ballot. Under article XI, Section 5 of the California Constitution, a city that has adopted a charter has broad "home rule" authority. The charter represents the supreme law of the City. The power conferred on a City Council by a charter power is "plenary," i.e. unlimited, subject only to conflicting provisions in the federal and state Constitutions and to preemptive state law. (Domar Elec. v. City of Los Angeles (1994) 9 Cal.4th 161, 170- 171.) Any power that is not expressly forbidden by the terms of the charter itself may be exercised by the Council. The charter must be construed in favor of the exercise of the Council's power and against the existence of any limitation or restriction which is not expressly stated. (Domar, 9 Cal.4th 161, 170-171.) Here, the Charter does not expressly require the City to submit proposed Charter amendments to either the Charter Review Commission or the Ethics Commission. In fact, the Charter makes no mention of either commission. Therefore, the Council may place the proposed measure on the ballot without first seeking advice from either commission. 2. Allowing A Legislative Counsel To Provide Advice To Individual Council Members On Legislative Matters Would Not Constitute An Illegal Gift Of Funds. Another issue is whether the measure improperly requires an inappropriate or illegal use of public funds to advise individual Council members on their personal conflicts or ethical issues. We conclude that the likely answer is "no," the measure does not require an illegal use of public funds. Under the California Constitution, general law cities are prohibited from providing "gifts" of public funds. (Cal. Const. article XVI, § 6.) This rule does not apply to charter cities unless an individual charter provision adopts it or contains a similar restriction. (See, e.g., CEB, California Municipal Law Handbook, § 5.13, citing Sturgeon v. County of Los Angeles (2008) 167 Cal.App.4th 630, 637; California Municipal Law Handbook, § 5.277, citing Los Angeles Gas & Elec. Corp. v. City of Los Angeles (1922) 188 Cal. 307.) Nothing in the Chula Vista Charter appears to adopt article XVI, § 6 or any similar prohibition. Moreover, even if it did, as long as there is some "public purpose" for an expenditure, the expenditure does not necessarily constitute an illegal "gift" even where there is an incidental benefit to an individual. (See, e.g., CEB, California Municipal Law Handbook, § 5.278, citing American Co. v. City of Lakeport (1934) 220 Cal. 548.) OAK#4825-0224-0526 v1 ~ 5-28 Honorable Mayor and Council Members of the City of Chula Vista February 24, 2012 Page 4 Indeed, the California Attorney General has opined: "[T]he electorate of a charter city through the adoption of a charter or its amendment has the constitutional authority to determine which, if any, expenses incurred by city officials will be reimbursed. The charter and any implementing ordinances would govern the right to reimbursement in the circumstances presented." (85 Ops. Cal. Atty. Gen. 210 (2002), citing Porter v. City of Riverside (1968) 261 Cal.App.2d 832, 834-839.) In short, we do not believe existing provisions of the Charter prohibit this kind of expenditure. Moreover, the measure would create a Charter provision actually authorizing them, and we believe the City Council properly could articulate a valid public purpose for such expenditures. No illegal gift would occur under that circumstance. 3. The Measure Creates A Conflict Arising From The Fact That The Council May Not Override The City Attorney's Professional Responsibility To Determine His/Her Own Conflict. One potential ambiguity and conflict the measure creates is in the proposed amendment of Section 503(b) with respect to the engagement of outside counsel to advise a City officer when the City Attorney has a conflict. The existing Charter language requires the City Attorney to make a recommendation to the Council, which then approves the engagement. This measure gives the authority to the City Council to determine whether such a conflict exists. This creates a potential for conflict if the City Attorney determines he/she has a conflict under the Rules of Professional Conduct and the City Council determines that the City Attorney does not have a conflict. Although we have not exhaustively addressed or resolved this issue, we entertain serious doubts that an attorney may be required to give up his/her duty to determine if a conflict exists. We also believe substantial doubt exists whether a Council legally may require an attorney to represent any client when he/she has determined a conflict exists under Rules of Professional Conduct. The Council should consider whether the measure should be revised to address these concerns. OAK #4825-0224-0526 v1 15- 2 9 Honorable Mayor and Council Members of the City of Chula Vista February 24, 2012 Page 5 4. In Creating The Legislative Counsel Position The Measure Raises Conflict Of Interest Concerns Under California Rule of Professional Conduct 3-310. California Rule of Professional Conduct ("CRPC") 3-310, which is applicable to all attorneys statewide, prohibits an attorney from representing conflicting interests. Specifically, Rule 3-310(C) states: "A member shall not, without the informed written consent of each client: (1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or (2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or (3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter." Rule 3-310(C) raises issues with the office of Legislative Counsel because according to proposed Charter Section 503A(b), "Legislative Counsel shall serve as legal counsel to each member of the Council and shall maintain. the attorney-client relationship with each member of the Council... "~ By definition, it appears that the Legislative Counsel will serve multiple clients who include each of the City's individual Council members. As a result, the City must prepare for situations where the Legislative Counsel is engaged in simultaneous representation of adverse interests. Simultaneous representation of adverse interests exists when "two or more clients... are concurrently represented by the same lawyer...[and] are adverse to one another, in either the same or a different matter." (Continuing Education of the Bar ("CEB"), California Municipal Law Handbook § 2.189, citing Flatt v. Superior Court (Daniel) (1994) 9 Cal.4th 275.) While clients may give informed consent to simultaneous representation as to different matters, simultaneous representation as to the same Unlike Section 503(d), which requires (among other qualifcations) the City Attorney to be a licensed attorney, the measure does not expressly state what the Legislative Counsel's qualifications must be, or whether the Legislative Counsel must be a licensed attorney. We assume the measure intends the Legislative Counsel to be a licensed attorney, since only licensed attorneys legally may represent and maintain confidential relationships with clients. OAK #4825-0224-0526 v1 ~ 5 - 3 0 Honorable Mayor and Council Members of the City of Chula Vista February 24, 2012 Page 6 matter is per se prohibited because it violates the attorney's duty of loyalty to each client, and clients may not waive such duty. Practically, this situation may arise when two Council members take opposite positions on the same issue, and each Councilmember requests the Legislative Counsel's assistance to advise on the Councilmember's stated position. Here, the primary problem is that the Legislative Counsel, acting as one person, is unable to effectively create an "ethical wall" which would screen off his work on one side of an issue, from his work on the other side of the same issue. The purpose of conflict rules is primarily "to prevent lawyers from entering into situations in which they will be seriously tempted to violate a client's right to loyalty and secrecy." (Castro v. Los Angeles County Bd. of Supervisors (1991) 232 Cal.App.3d 1432, 1444). While courts have recognized that "there are special considerations that must be weighed before public lawyers should be found to have a conflict of interest under rule 3-310," the City's creation of Legislative Counsel differs from situations where the court has allowed a public attorney's office to represent different sides of the same matter. (Practicing Ethics A Handbook for Municipal Lawyers, League of California Cities 14 (2004).) A discussion of some examples serves to illustrate this point. In one case, the court allowed lawyers from two separate branch offices of the public defender to represent criminal co-defendants in the same trial where the co- defendants had adverse interests. (People v. Christian (1996) 41 Cal.App.4th 986). In another case, one of the attorneys for a party challenging a city accepted a job as a Deputy City Attorney for the same city during the litigation. The court found that the City Attorney's office could continue representing the city because the newly hired Deputy was timely and effectively screened from the rest of the office involved in the case. (City of Santa Barbara v. Superior Court (2004) 122 Cal.App.4th 17). The common thread in both of these cases was that the attorneys who represented conflicting sides of the same matter were part of a larger office where neither attorney, individually, represented both sides. Instead, each attorney could be ethically separated from the other side in order to prevent disclosure of confidential information. The City's creation of the Legislative Counsel vests the position in one person. Logistically (and legally), it is impossible to create an effective ethical wall that will screen the Legislative Counsel's work on one side of an issue, from the same Legislative Counsel's work on the opposite side of the same issue. Therefore, it is OAK #4825-0224-0526 v1 15-31 Honorable Mayor and Council Members of the City of Chula Vista February 24, 2012 Page 7 unlikely that a court would uphold the Legislative Counsel's ability to represent adverse interests in the same matter. Moreover, a second problem that prevents the Legislative Counsel from giving advice to Council members who have adverse interests is the fact that the Legislative Counsel's client is the individual Council members, rather than a larger entity such as the Council itself. For City Attorneys, the attorney's client is the City. (CEB, California Municipal Law Handbook § 2.184, citing Ward v. Superior Court (1977) 70 Cal.App.3d 23). This rule derives from CRPC 3-600(A), which states: "In representing an organization, a member shall conform his or her representation to the concept that the client is the organization itself, acting through its highest authorized officer, employee, body, or constituent overseeing the particular engagement." When officials seek advice in their official capacity from the City Attorney, any advice provided is always rendered to the official in his or her official capacity, rather than as individuals with separate and distinct interests from the City itself. Essentially, "[b]ecause the City Attorney represents a single client entity [the City] -manifested in different officials at any given time -there can be no conflict of interest caused by the adverse interests of two or more city officials." (Practicing Ethics: A Handbook for Municipal Lawyers, at 12.) Each official is considered to be a part of the attorney's single client -the City. Here, the measure's proposed Section 503A specifically states that the Legislative Counsel would serve "as legal counsel to each member of the Council." Section 503A also creates individual attorney-client relationships between the Legislative Counsel, and each Council member. Because the Legislative Counsel serves multiple clients under Section 503A, any advice given to Council members will not be considered advice given to an entity as a whole. Rather, the advice will be considered given to separate clients, and any adverse interests that arise between those clients will invoke the conflict of interest provisions of the CRPC. We recognize that this same model is used by the State Legislative Counsel. Because our engagement on this matter allowed for only a very brief review of the issues and applicable laws, we have not exhaustively undertaken to determine whether the State Legislative Counsel is required to conform to Rule 3-310, and if so, on what basis that office may simultaneously advise individual legislators with adverse interests. It should be noted in this regard that the State Legislative Counsel's office has dozens OAK #4525-0224-0526 v1 15-3 2 Honorable Mayor and Council Members of the City of Chula Vista February 24, 2012 Page 8 of attorneys available, and that ethical screening is possible so that each legislator is assigned a different attorney. It is also possible that by virtue of the Government Code provisions creating that position, the Legislature implicitly exempted the State Legislative Counsel from Rule 3- 310. In our view, there is a substantial question to be resolved whether a charter city such as Chula Vista has similar authority to override State ethical and professional responsibility obligations that are otherwise imposed on all California attorneys. Again, however, we have not had adequate time to address or resolve this issue due to the very short span between our engagement and the February 28 Council meeting at which the Council wishes to consider this measure.2 Here again, the Council should consider whether the measure should be revised to address these concerns. The Measure Creates Confusion And Potential Legal Conflicts In Designating The Legislative Counsel Position As Part Of The Classified Civil Service While Simultaneously Requiring That The Position Serve At The Pleasure Of The Council. Establishing a Legislative Counsel position that is selected by, and serves at the pleasure of the Council while, at the same time, specifying that the position is part of the Classified Civil Service has a high potential to create ambiguity and confusion regarding the employment rights and status of the Legislative Counsel because an at-will, Council- selected position, is inconsistent with the basic civil service concept, and with the City Charter's civil service system. The Council should consider revising the proposal to make the Legislative Counsel position part of the Unclassified Service. Proposed Section 503A(a) states, "Legislative Counsel shall be selected by the Council and shall serve as a Classified Civil Service employee at the z We have contacted the Office of Legislative Counsel in an effort to solicit their views on these issues. We have received informal (non-precedential) responses suggesting that the office may believe the State Legislature, in adopting the Government Code sections creating the office, did override any conflicting ethical rules. Moreover, at least one article has argued that the state Legislative Counsel's office avoids the conflict rules by reason of the fact that the Legislative Counsel's client is the Legislature as an institution, as opposed to individual members of the Legislature. (See Robert J. Marchant, "Representing Representatives: Ethical Considerations for the Legislature's Attorneys," 6 N.Y.U.J. Legis. & Pub. Poly 439, 450 (2003)). OAK #4825-0224-0526 vt 15 - 3 3 Honorable Mayor and Council Members of the City of Chula Vista February 24, 2012 Page 9 pleasure of the Council on terms and conditions prescribed by the Council. Appointment or dismissal of the Legislative Counsel shall be approved by atwo-thirds majority vote of the Council then in office." The proposed establishment of a classified civil service position that is selected by, and serves at the pleasure of the Council under terms and conditions prescribed by the Council, is inconsistent with the existing Charter provisions establishing a civil service system, and it is unclear what civil service protections would apply to the Legislative Counsel position. Proposed Section 503A apparently recognizes the inconsistency of the civil service rules in the Charter and the statement that the Legislative Counsel position is appointed by and serves at the pleasure of the Council. Section 503A includes an introductory statement authorizing the Council to establish the office of the Legislative Counsel "[n]otwithstanding any other provision of this Charter." Given this statement, the provision of Section 503A would control over any conflicting terms in the existing Charter. Civil service provisions, including those set forth in the City's Charter, are designed to establish an objective process for the selection and termination of public employees based solely on merit, free from political or other considerations. Chula Vista Charter Article VII, Section 700 explains, "Appointments and promotions in the Classified Service of the City shall be made according to merit and fitness and from eligible lists to be established in accordance with civil service rules and regulations adopted in the manner provided in this Charter." Charter Section 702 requires the Civil Service rules and regulations to address the following core matters: Classification of all positions in the Classified Service. Selection, employment, advancement, suspension, demotion, discharge, and retirement of all persons in the Classified Service. Recruitment of applicants, including advertisement and the establishment of listings "according to the merit and fitness of the applicants to be determined by free examinations," and promotional examinations where practicable. OAK #4825-0224-0526 v1 15 - 3 4 Honorable Mayor and Council Members of the City of Chula Vista February 24, 2012 Page 10 Establishment of eligibility lists and the certification of the three names highest on each list from which the appointing authority must select. The City's existing Civil Service Rules cover all of these matters and also address wages, hours, and working conditions of employees in the Classified Service. The proposal to establish a Legislative Counsel position that is selected by, and serves at the pleasure of the Council, on terms and conditions prescribed by the Council, is inconsistent with the purposes of a civil service system, and the specification that such a position is part of the Classified Civil Service has no clear meaning. This inconsistency and ambiguity could allow an employee serving as Legislative Counsel to argue that he or she is subject to the termination for cause provisions in the civil service rules, and applicants for the position to argue that the civil service selection procedures must be followed. Most public agencies exempt some positions from the civil service system, including positions that are high-level, policy-making, and/or particularly politically or personally sensitive to elected officials or policy-making employees. The City's Charter follows this standard practice. Article VII, Section 701, separates all positions in the City into either the "Classified Service" or the "Unclassified Service." The Charter assigns the following officers and positions (among others) to the "Unclassified Service" (see Sections 500 and 701): All elective officers, The City Manager, Assistant City Manager, Deputy City Manager, Director of Finance, City Clerk, City Attorney, Assistant or Deputy City Attorneys, a private secretary to the City Manager, a private secretary to the Mayor and Council, a private secretary to the City Attorney, department heads, or other positions as provided in Charter Section 500. All members of boards and commissions, Assistant and Deputy Department Heads, Assistants to the City Manager, and new management level positions if any of these positions are placed in the Unclassified Service by a Council ordinance adopted by afour-fifth's vote. OAK #4825-0224-0526 v1 15 - 3 5 Honorable Mayor and Council Members of the City of Chula Vista February 24, 2012 Page 11 Although neither the law nor the Charter specifically prohibits the City from establishing the Legislative Counsel as both a Classified Civil Service position and, at the same time, making the position subject to the selection and at-will dismissal by the Council, the concepts are fundamentally at odds, and it is unclear what part of the Civil Service rules are intended to apply to the Legislative Counsel position. The only provisions of the Civil Service rules that appear potentially applicable would be those set forth in Chapter 2.00 on Wages, Hours, and Working Conditions. The application of these provisions to the Legislative Counsel position also are problematic since the proposed Charter provision calls for the "terms and conditions" of the Legislative Counsel's employment to be "prescribed by the Council." The ambiguity created by these inconsistent references could lead to litigation regarding the selection procedures, terms and conditions of employment, and termination procedures applicable to applicants for, and holders of the Legislative Counsel position. We recommend that the Council again consider amending the measure to exempt any Legislative Counsel position from the Classified Service by adding the position to the list of positions in the Unclassified Service in Charter Sections 500 and 701. Establishing the Legislative Counsel position as part of the Unclassified Service is consistent not only with general civil service concepts and the specific exemptions already provided in the City's Charter, but also with the apparent intent of the proposed measure itself to establish a Legislative Counsel position that is appointed by, and serves at the pleasure of the Council. Finally, establishing the position as part of the Unclassified Service would avoid ambiguity, confusion, and potential litigation regarding the employment procedures, status and rights of the position that may result from establishing the position as part of the Classified Service. The Measure Contains Provisions That Are Ambiouous And Create Numerous Other Potential Internal Charter Conflicts. We have identified several other issues arising from various provisions contained in the measure. Again, due to the short time frame between our engagement and the Council's February 28 consideration of the measure, our list of issues may not be considered exhaustive. Due to the same time constraints, we provide no analysis or conclusion regarding these issues. These issues include: does the creation of the Legislative Counsel position give rise to potential professional liability to the City, and damages, based on the Legislative OAK #4825-0224-0525 v1 15-36 Honorable Mayor and Council Members of the City of Chula Vista February 24, 2012 Page 12 Counsel's violation of ethical responsibilities toward individual Council members? do the duties of the proposed Legislative Counsel overlap with those of the elected City Attorney, and what are consequences if different advice is given? what are "legislative matters" for which the Legislative Counsel would provide advice?3 Under what circumstances would there be a "conflict" with the elected City Attorney to provide such advice now? because the City Attorney currently is responsible for advising the Board of Ethics, and would continue to do so under the measure, would conflicts arise from the Legislative Counsel advising individual Council members on City Ethics issues? Section 1 of the proposed measure states that the City Attorney is elected to act in the best interest of the City, "while at the same time advising individual officers." As explained above, that is not considered to be accurate for most City Attorneys, and we are advised, consistent with that general principle, that the Chula Vista City Attorney has not provided advice to Council members in their individual capacity, and instead have considered the "client" to be the City as an entity. As a result what are the conflicts of interest which are the basis for the creation of the new office of Legislative Counsel? We do not have adequate time prior to February 28 to address, analyze or resolve these issues. 7. Because The Measure Affects The Organization And Salary Of The Office Of The City Attorney The Council Should Request The Citv Elections Official To s It is not always easy to determine what is a "legislative" act. Acts, ordinances and resolutions of a municipal governing body may be legislative in nature or they may be of an administrative or executive character. An act generally is legislative in its nature if it prescribes a new policy or plan. It is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself. Acts constituting a declaration of public purpose, and making provisions for ways and means of its accomplishment, may be generally classifed as legislative. Acts of administration are those which are necessary to be done to carry out legislative policies and purposes already declared by the legislative body. (City of San Diego v. Dunkl (2001) 86 Cal. App. 4th 384, 399-400.) OAK #4825-0224-0526 v1 ~ 5-3 Honorable Mayor and Council Members of the City of Chula Vista February 24, 2012 Page 13 Prepare The Impartial Analysis And Possibly Retain Outside Counsel To Assist With The Impartial Analysis. California Elections Code Section 9280 provides as follows: "Whenever any city measure qualifies for a place on the ballot, the governing body may direct the city elections official to transmit a copy of the measure to the city attorney, unless the organization or salaries of the office of the city attorney are affected. The city attorney shall prepare an impartial analysis of the measure showing the effect of the measure on the existing law and the operation of the measure. If the measure affects the organization or salaries of the office of the city attorney, the governing board may direct the city elections official to prepare the impartial analysis. The analysis shall be printed preceding the arguments for and against the measure. The analysis shall not exceed 500 words in length. In the event the entire text of the measure is not printed on the ballot, nor in the voter information portion of the sample ballot, there shall be printed immediately below the impartial analysis, in no less than 10-point bold type, a legend substantially as follows: `The above statement is an impartial analysis of Ordinance or Measure _. If you desire a copy of the ordinance or measure, please call the elections official's office at (insert telephone number) and a copy will be mailed at no cost to you."' "City measure" includes any proposed amendment to a city charter submitted to the voters of a city. (See Elections Code Section 306.) OAK #4825-0224-0526 v1 15 - 3 8 Honorable Mayor and Council Members of the City of Chula Vista February 24, 2012 Page 14 Because the measure does affect the organization and salary of the office of the City Attorney, the Council should request the City Elections Official to prepare the impartial analysis and authorize the City Elections Official to retain outside counsel to assist with the drafting to the impartial analysis. The analysis shall be printed in the ballot preceding the arguments for and against the measure and may not exceed 500 words.4 Conclusion We hope this memorandum is helpful to the Council. We want to emphasize again that because our time has been very limited, we have not sought or been able to address every possible legal issue raised by the proposed measure. Instead, we have sought only to "spot issues" to assist the Council in its decision whether, and if so when and how, to place the measure on a ballot for the City's voters. ° The City must also adhere to directives in the California Elections Code Sections 9255 through 9269. Such provisions set forth the rules applicable to the procedures for submitting charter amendments to the voters. OAK #4525-0224-0526 vt ~ 5-3 9 ~~ts RESOLUTION NO. 2--0" 2012- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ~' ^ r - ~t~ir~ nT,~n r~r^>r?~rr' r.ir~~t•trr~, r~~: n cv>~~r~r n r ,AMENDING ~T1TF ~37'~ ~.~cf VT-I-i ~ a iTi.~ rvTi~st 'Y-'L_-Ta=. RESOLUTION 2012-018 CALLING A GENERAL MUNICIPAL ELECTION TO BE HELD rr.~ c n rr~ r~i•r•~ n>`r •r•r rr r~ n ~r~~ nr: ~rr rr:• r'rvc~r ~T n •r~«~rn~ ~r ~r'TTn~`TJUNE 5, 2012, TO DOH€~ <^ ~' r ~ n crr QQ ll n~n~~>=o •rr a~ n vuc>r~~~ n r rat, ~rr nc r,~ ~cnr t i~rr/fit rar~~r~ r a i n r ~ CT~.J i~Tl7 a i ~T~^li ~_ a P-FT-P~-OF-SI'~~''T~r'°~ORDER SUBMISSION TO THE QUALIFIED ELECTORS OF THE CITY A MEASURE TO AMEND CHULA VISTA CITY CHARTER SECTION 503 AND ADD SECTION 503:4.11 TO LIMIT THE AUTHORITYAND COMPENSATION OF THE ELECTED CITY ATTORNEY TO ESTABLISH TERM LIMITS FOR THE CITY ATTORNEY, AND TO AUTHORIZE THE CITY COUNCIL TO ESTABLISH THE OFFICE OF LEGISLATIVE COUNSEL .^ ~`~~ .n n;r~~„n ~•.1:-', r~r t~r~•r~;;:~ `~r~r•v t r~rr~c>n t~`% nr~~t,. r~~n~.~crnr rnn•rtnrr, •rrrr~ ~r ~r`~-r1~k~,T ~-ru rru~ crr.arr~z~~rn~ ~r ~~r`~-rrn~.7. unnr ~~crrr~°r, ~ru~ unn v n nr<~ cr Jvr~vc~icnc~c nr~• •r~t tr; r_~n~t r~i•-~ ~~ r~~,r r~r>;r~n v>; ~n,sr•r, i i ~~~-f i~V'T~i-9'l~T~~Ti-~~. ~/ v i e -i 1. ~ ~Lr v t i..7~~ t T a e a T?T~~G~~F~$~€~~~~~~~Br--~nkd~~ "~S~Tr-,u ~r ~rv~rnn~ n i r-rr rnU r rr~.rT, •r'r tt~ r~r~l'v ~~-~ : to :- '~~-l~r~. ~r r-r~~ rn.L~-1 ~4~~1~~-(1~-~f~-~^-=I~~X nT T-r rr•u~ ~.~E'-I-~'~-S~~P~~~r-~~r~r 1~~c ~n~ ~~~~r_r ur -~~r~~rrrtir~, n~rr~~r:r~~rt~~r~ •rrrt~• ~~i,r,~~ n.r..rv~e~~.r>~•v ~t`n ~77j ~]a~ ~ 7~~~'. ,~ ~7 t i Tai, 1 i~~ti. t ~ ~T~r PT~~ r 1 G~."Y"7-'rYC~-i`iiif-I~CTri \ T ~ T~T`n T ~'C2~ O~ Tr-=Tl~-~ `~ ~ c WHEREAS, Resolution No. 2012-018 calling a General Municipal Election to be held on Tuesday, June 5, 2012 was adopted on February 14 2012• and WHEREAS, by adoption of Resolution No._ 2012-018, the City requested that the County of San Diego Board of Supervisors permit the Registrar of Voters to perform and render all services and proceedings related to the conduct of the June 5 2012 election• and WHEREAS, the Charter of the City of Chula Vista, Article V, Section 503 provides for the election, powers, duties, term of office and compensation of the City Attorney; and WHEREAS, the City Attorney is elected to act in the best interests of the public,, ,,,~,~~ t;,,..., ,,,~..;`;,,v ;,,,a;.~;~„nr „~~;,,,,,.~ ,z+ tr,,, r,•~,-; and WHEREAS, ~ ~~•~',~ *~ ~ ~~~ •, "~~•,*~- ~* ~~,*~ -'~' ' ,the City Charter should allow the City Council to establish the office of Legislative Counsel, ."~,~,~'.,,a ~~ *'t., ~~~;~~ +r,.,r r„~ ~ .,~a +r,,, r~„t;~ ,..,;,, r ...~ ..r.,~,,,.,, -,rr +,... „ - ,inn - fr,,, r~,,,,.,,.;r ~. ~' , to advise , on the Citv Council s legislative n ~nd-C~t~t?t~i~1~ duties and on conflict of interest issues; and WHEREAS, " --.,, ... ~------ - -;+>~ the ~+~~City ~+,,,,.,,,,., r,~n ,a,,..,.,, ..~,.,,~,,,~ „ -..a .,, Charter te-should clarify the City Council's responsibility for controlling the budget of the City to increase accountability for legal expenditures; and V' I 1 Li t1l U 1µt U t \/ ._ --..'l I1 •L ` L i.ll tll 4~ / ~ C{1,,.y l- 1 l , Ull ~~ V I •L.4 L Ilµ V ~L• L µl µi t ~ Ll \: ( \.l 'L 1 [ 'f - I fl I l_ 'i•V I .,l ~- I µl }4 L•Ll l V lll: 41i.i,.L Ill l l 4 . L '1V ~'L'\Ill~ \: ~ L 11 \: 1 LP 4. l{1J t Vl L µl t l~l_ µ -F •i,~ / U U~l.( L \ L µl l V \.V J U 1 ~L L~L-L i{ tel. L i{y \. LL i - µ U 4 l L \. 4 ~~,~L~~'i3~~4rEl-j~~`~rE'-c'~-ii~ E:34~~'~3 1 ' - .-1 ' ~ it ~'z{g. ~Yo.~l{ #4819-2106-9326 vl NOW THEREFORE THE CITY COUNCIL OF THE CITY OF CHULA VISTA DOES HEREBY RESOLVE DECLARE DETERMINE AND ORDER as follows: SECTION 1 That the City Council pursuant to its right and authority does hereby place a measure amending Chula Vista City Charter section 503 and adding section 503.1 a copy of which is attached hereto as Exhibit A on the ballot for the General Municipal Election to be held on June 5 2012 and orders submitted to the voters the following Question: ~30AK #4819-2106-9326 vl Shall. the Charter of the City of Chula 'Vista be YES amended to limit the auth©rit~and compensation of NO the elected City Attorney, to establish] term limits'foi- the City Attorney, and to authorize the Cit~• Council to establish the office of Legislative Counsel to advise the City Council on its legislatveduties'and on conflict of interest issues? SECTION 2. Should the question be improved by the requisite vote, the measure attached hereto as Exhibit A, and incorporated by this reference shall be enacted. SECTION 3. Because the proposed measure affects the organization of the office of the City Attorney, the City Clerk shall cause the preparation of an impartial analysis of the measure, which shall be due March 19, 2012. SECTION 4. The City Clerk is directed to prepare and publish a notice of the measures to be voted on. Arguments shall be due by March 21, 2012, and the 10-dampublic review period for the arguments shall begin March 22, 2012. SECTION 5. The City Council hereby acknowledges its authority, pursuant to California Elections Code section 9282, to submit a written argument not to exceed 300 words in len tg_h. SECTION 6. Pursuant to a resolution previously adopted by the Council allowins; rebuttal arguments rebuttal arguments will be allowed in accordance with Elections Code section 9285. Rebuttal arguments may not exceed 250 words. The deadline for rebuttal arguments will be March 29, 2012, in the City Clerk's office. SECTION 7. That in all particulars not recited in this resolution, the election shall be held and conducted as provided by law for holding municipal elections. SECTION 8. The City Clerk is hereby directed to forthwith file a certified copy of this resolution with the Board of Supervisors and the Registrar of Voters of the County of San Diego and to issue instructions to the Registrar of Voters to take any and all steps necessary for the holding of the elections. SECTION 9. The City Clerk shall certify to the passage and adoption of this resolution and file it with the City's original resolutions. Presented by: Approved. as to form b~ SOAK #4819-2106-9326 vl Donna R. Norris Thomas B. Brown City Clerk Special Leal Counsel SOAK #4819-?106-9326 vl +~(a~dl EXHIBIT A PROPOSITION I~ >~~~ AUTHORIZING THE ESTABLISHMENT OF THE OFFICE OF LEGISLATIVE COUNSEL AND LIMITING THE ~BAUTHORITY AND COMPENSATION OF THE CITY ATTORNEY, AND ESTABLISHING TERM LIMITS FOR THE CITY ATTORNEY Section I. PUrpOSc: °"a r""a""`° ~~tft~irsia-m-~cnz vm=c-er~c~ia=atr~^c-coiiira^ccicFra This charter ^'-'^'-"'°~amendment is intended to limit the authority and compensation of the City Attorney, as specified herein, to establish term limits for the City Attorney °~'''"''^ ~';~.^ : °'°°+°a `° ^,.` :~ +>,° i.°^+ ;,..+°•'°~+^ °~~1,° r">,';^ ~e~~t~e-same-time-ad~~is~g-irrd~~~d~ral-e€free~, and to ^ °;a ° ~~';°'^ °~:~+°r°^• wnie-h ^N~~°, *'~° ~'~*<' ~'''^~*°r ~'~°"'a ^"°"'authorize the City Council to establish the office of Legislative Counsel, ~,°a°1°a ,,.. +>,° °~~„° +>,^+,.^.. ~ °a +1,° r^u~ ..~;^ T ° ~,^~,,,.° < ,°ll ~ ,. 9~'e~er~-F`,r~ t6-a~~~t13C-c9i#3Ei~6i~Iegisla~i~~'et°,-" T ° ~1.,+;.,° !'~.,,,,-.~°1 < „1.7 .,1~., 1,° fl' ~' ,t ,7„~:°~ T,-< .,,a ,a;~;,.., ° °„+ ° ° .;tl, +L,° °f~^o „f !'':t:i_O f4,,,.,.°.,' uo ~« . These amendments to the City Charter are intended to achieve these goals. Section 2. Amendment of the Charter A. Section 503 of the ~-Charter of the City of Chula Vista is hereby amended to read as follows: Section 503 City Attorney; Election, Powers and Duties (a) Designation as Officer. The City Attorney shall be an officer of the City, in addition to any other officers designated pursuant to this Charter. 1=tExcept as otherwise provided by this Charter, it is the intent of the voters that the City Attorney shall be sufficiently independent of the City Council and other city officials to advise the. City while also acting in the best interests of the public. (b) Powers of the City Attorney. ~keExcept as otherwise provided by this Charter, the City Attorney shall: (1) Represent and advise the City Council and all city officers in all matters of law pertaining to their offices and advise all boards, commissions, and other agencies of the City on legal matters referred to him or her and render written legal opinions when the same are requested in writing by the Mayor or a member of the Council or the City Manager or any other officer, board or commission of the City;~rovided, however, that the City Council mawprovide by ordinance that the City Attorney shall neither advise, nor participate in the selection of special legal counsel to advise on conflict of interest issues involvin thg e City Attorney (2) Represent and appear for the City and any city officer or employee, or former City officer or employee, in any or all actions and proceedings in which the City or any such officer or employee in or by reasons of his or her official capacity, is concerned or is a party; (3) Attend all regular meetings of the City Council and give his or her opinion in writing whenever requested to do so by the City Council or by any of the boards or officers of the City; (4) Approve the form of all contracts made by and all bonds given to the City, endorsing approval thereon in writing; (5) Prepare any and all proposed ordinances or resolutions for the City, and amendments thereto; (6) Prosecute, if so directed by ordinance of the City Council, all offenses against the ordinances of the City and for such offenses against the laws of the State as may be required by law, and shall have concurrent jurisdiction with the District Attorney of the County of San Diego to prosecute persons charged with or guilty of the violation of the State laws occurring within the City limits of the City of Chula Vista for offenses constituting misdemeanors; (7) Whenever a cause of action exists in favor of the City, exercise discretion as to when to commence legal proceedings, subject to the approval or ratification by the City Council, when the basis for such action is within the knowledge of the City Attorney, or, he or she shall commence legal proceedings as directed by the City Council; and (8) Surrender to his or her successor all books, papers, files and documents pertaining to the City's affairs. The Council may empower the City Attorney, at his or her request, to employ special legal counsel on a particular matter, and he or she shall have the power to appoint appraisers, engineers and other technical and expert services necessary for the handling of any pending or proposed litigation, proceeding or other legal matter, all within the specific budgetary authority established by the City Council. Upon the approval of the Council, when the City a *°~~~°~ *'~^* *'~° ~'~*~~ Attorney has a conflict of interest in litigation involving another officer of the City in his or her official capacity, such other officer may retain special legal counsel at City expense, subject to the specific budgetary authority of the City Council. Nothing in this section 503 shall be construed to prevent the City Attorney from giving confidential eadvice to the City when otherwise allowed by law. OAK #4819-2106-9326 vl (c) Election; Compensation of City Attorney. The City Attorney shall be nominated and elected in the same manner and at the same election as a member of the City Council, except as otherwise provided in this section. The annual salary of the elected City Attorney shall be equivalent to 90% of the salary of a Judge of the Superior Court of the State of California. The City Attorney shall also receive reimbursement on the order of the Council for Council- authorized travel and other expenses when on official duty out of the City. The City Council may also provide, by resolution, for the payment of an allowance of a sum certain per month, as reimbursement for the additional demands and expenses made upon and incurred by the City Attorney-- The City Attorney's salary may not be reduced during the City Attorney's term of office, except as part of a general reduction of salaries of all City officers and employees in the same amount or proportion. In addition, the City Attorney shall be entitled to such benefits as are granted to other management employees of the City, as established by the City Council from time to time. The City Attorney shall be in the Unclassified Service. (d) Qualifications of City Attorney. No person shall be eligible for or continue to hold the Office of City Attorney, either by election or appointment, unless he or she is a citizen of the United States, a qualified elector, and a California resident, licensed to practice law in all courts of the State of California and so licensed for at least seven years preceding his or her assumption of office following election under this charter. (e). Term of Office of the City Attorney. The City Attorney shall be elected to a nominal term of four years and shall commence on the first Tuesday of December of the year of the election, and shall continue until a successor qualifies. The City Attorney shall be subject to the same limits on terms of service as are applicable to the Mayor and City Council under Section 300(d). (f) Vacancy, Filling of. Upon the declaration of vacancy in the Office of the City Attorney, the Office of the City Attorney shall be filled by appointment by the majority vote of the members of the Council; provided, that if the Council shall fail to fill a vacancy by appointment within sixty days after such office shall become vacant, or if the unexpired term of the City Attorney shall exceed 24 months at the time of the appointment, the City Council shall cause an election to be held to fill such vacancy pursuant to the manner and method as provided for in the Charter for filling vacancies on the City Council. An appointee or the person elected to the Office of City Attorney for the balance of an unexpired term shall hold office until the next general election for the Office of the City Attorney. (g) Vacancy, What Constitutes. The Office of City Attorney shall be declared vacant by the Council when the person elected or appointed thereto fails to qualify within ten days after his or her term is to begin, dies, resigns, ceases to be a resident of the City or absents himself or herself continuously from the City for a period of more than thirty days without permission from the Council, absents himself or herself from any seven consecutive regular meetings except on account of own illness or when absent from the City by permission of the Council, is convicted of a felony, is judicially determined to be an incompetent, is permanently so disabled as to be unable to perform the duties of his or her office, forfeits his or her office under any provision of this Charter, or is removed from office by judicial procedure. A finding of disability shall require ~Of1K #4819-2106-9326 vl the affirmative vote of at least two-thirds of the members of the Council after considering competent medical evidence bearing on the physical or mental capability of the City Attorney. B. Section 503A.1 is hereby added to the Charter to read as follows: Section 503A:.1. Office of Legislative Counsel; Duties. Notwithstanding any other provision of this Charter, the Council may establish by ordinance the office of Legislative Counsel, as described in this ~eEtiensection. (a) Legislative Counsel sl~ll-may be selected by the Council and serve a~-a r'°~~~~°a ~'~- ~' ~°M°~°° °mr'^~~°° at the pleasure of the Council, on terms and conditions prescribed by the Council. Appointment or dismissal of the Legislative Counsel s~l~may be approved by atwo-thirds majority vote of the Council +'~°~ ~~ ^~~^°. (b) Legislative Counsel '~°" ~° ~'°~-°' ° °' +^ °°^'' ~~°~„''°~' ^~ma~advise the Council rm~°~~~sregarding t~e~its legislative duties. "" m°+°~:^'~ ^ „+ ^~+~,;~ ,.°'°+;^„r>.~;~ p~~ Legislative Counsel shall , e ° T °^;~'°+;-,° ~^„~°°' ~>,°u~°+neither oppose nor urge enactment of any legislation. (c) Legislative Counsel sI}allmay also'~° °~~°~'°'~'° +° advise ,.,,°~~~~~~the Council regarding conflicts of interest betweel~involvin~ the City Attorney-, and ~ , °m''°~~ ^~'+'~° ~'°•~~^~' whether ^ °+k;,.°' „ r~,;^+ ° ~+~ °ra the hiring of special counsel is therefore warranted. If the Council approves the hiring of special counsel, fie-Legislative Counsel may assist the Council in the selection and appointment of special counsel. (d) Legislative Counsel may ~ °~a° °a.,;~°rj~ ° ° +^ ° ~'~°-' °~further advise the Council or the Cit~Board of Ethics concerning the City's Code of Ethics. T °^~~'°+~_~° ~"°~~^°°' °'~° r ~~a° ^~~~~°° *^ *'~°?~^°ra °~'~'+'~~^~ ~ g°..a:~g and alleged violations e€thereof, and rv~ i~. uiuua further may advise the City's r'°a° °~~+'~~^~. Charter Review Commission Legislative Counsel may also provide such other assistance to the Board of Ethics in investigating or assisting the Board in the conduct of hearings~iincluding the hiring of special counsel to the Board}-as~e ~ii1L6r~. (e) The Council may further provide by ordinance that the advice of the Legislative Counsel on the matters set forth in this section 503.1 shall be in lieu of that of the City Attorney. The Council may additionally or alternatively provide by ordinance for the prevention or resolution of conflicts and/or disputes between the City Attorney and Legislative Counsel. Section 3. Implementation z20AK #4819-2106-9326 vl Upon the effective date of this initiative, the provisions of this initiative shall be inserted into the Charter as amendments thereto. Any provisions of City Charter, state law or city ordinances inconsistent with these amendments shall be unenforceable to the extent of the inconsistency. Section 4. Severability. If any word, sentence, paragraph, subparagraph, section or portion of this initiative is declared to be invalid by a court, the remaining words, sentences, paragraphs, subparagraphs, sections and portions are to remain valid and enforceable. Section 5. Amendment or Repeal. This initiative may be amended or repealed only by the voters at a City election. Section 6. Effective Date. If a majority of the voters voting on the proposed charter amendment vote in its favor, the charter amendment shall become valid and binding upon filing by the California Secretary of State. z~OAK #4819-2106-9326 vl ~,~ ~ s RESOLUTION NO.2012- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING RESOLUTION 2012-018 CALLING A GENERAL MUNICIPAL ELECTION TO BE HELD JUNE 5, 2012, TO ORDER SUBMISSION TO THE QUALIFIED ELECTORS OF THE CITY A MEASURE TO AMEND CHULA VISTA CITY CHARTER SECTION 503 AND ADD SECTION 503.1 TO LIMIT THE AUTHORITY AND COMPENSATION OF THE ELECTED CITY ATTORNEY, TO ESTABLISH TERM LIMITS FOR THE CITY ATTORNEY, AND TO AUTHORIZE THE CITY COUNCIL TO ESTABLISH THE OFFICE OF LEGISLATIVE COUNSEL WHEREAS, Resolution No. 2012-018 calling a General Municipal Election to be held on Tuesday, June 5, 2012 was adopted on February 14, 2012; and WHEREAS, by adoption of Resolution No. 2012-018, the City requested that the County of San Diego Board of Supervisors permit the Registrar of Voters to perform and render all services and proceedings related to the conduct of the June 5, 2012 election; and WHEREAS, the Charter of the City of Chula Vista, Article V, Section 503 provides for the election, powers, duties, term of office and compensation of the City Attorney; and WHEREAS, the City Attorney is elected to act in the best interests of the public; and WHEREAS, the City Charter should allow the City Council to establish the office of Legislative Counsel to advise on the City Council's legislative duties and on conflict of interest issues; and WHEREAS, the City Charter should clarify the City Council's responsibility for controlling the budget of the City to increase accountability for legal expenditures; and NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA DOES HEREBY RESOLVE, DECLARE, DETERMINE, AND ORDER as follows: SECTION 1. That the City Council, pursuant to its right and authority, does hereby place a measure amending Chula Vista City Charter section 503 and adding section 503.1, a copy ofwhich is attached hereto as Exhibit A, on the ballot for the General Municipal Election, to beheld on June 5, 2012, and orders submitted to the voters the following question: OAK #4819-2106-9326 vl Shall the Charter of the City of Chula Vista be YES amended to limit the authority and compensation of NO the elected City Attorney, to establish term limits for the City Attorney, and to authorize the City Council to establish the office of Legislative Counsel to advise the City Council on its legislative duties and on conflict of interest issues? SECTION 2. Should the question be approved by the requisite vote, the measure attached hereto as Exhibit A, and incorporated by this reference shall be enacted. SECTION 3. Because the proposed measure affects the organization of the office of the City Attorney, the City Clerk shall cause the preparation of an impartial analysis of the measure, which shall be due March 19, 2012. SECTION 4. The City Clerk is directed to prepare and publish a notice of the measures to be voted on. Arguments shall be due by March 21, 2012, and the 10-day public review period for the arguments shall begin March 22, 2012. SECTION 5. The City Council hereby acknowledges its authority, pursuant to California Elections Code section 9282, to submit a written argument not to exceed 300 words in length. SECTION 6. Pursuant to a resolution previously adopted by the Council allowing rebuttal arguments, rebuttal arguments will be allowed in accordance with Elections Code section 9285. Rebuttal arguments may not exceed 250 words. The deadline for rebuttal arguments will be March 29, 2012, in the City Clerk's office. SECTION 7. That in all particulars not recited in this resolution, the election shall be held and conducted as provided by law for holding municipal elections. SECTION 8. The City Clerk is hereby directed to forthwith file a certified copy of this resolution with the Board of Supervisors and the Registrar of Voters of the County of San Diego and to issue instructions to the Registrar of Voters to take any and all steps necessary for the holding of the elections. SECTION 9. The City Clerk shall certify to the passage and adoption of this resolution and file it with the City's original resolutions. Presented by: Approved as to form by: Donna R. Norris Thomas B. Brown OAK #4819-2106-9326 vl City Clerk Special Legal Counsel OAK #4819-2106-9326 vl EXHIBIT A PROPOSITION AUTHORIZING THE ESTABLISHMENT OF THE OFFICE OF LEGISLATIVE COUNSEL AND LIMITING THE AUTHORITY AND COMPENSATION OF THE CITY ATTORNEY, AND ESTABLISHING TERM LIMITS FOR THE CITY ATTORNEY Section 1. Purpose. This charter amendment is intended to limit the authority and compensation of the City Attorney, as specified herein, to establish term limits for the City Attorney, and to authorize the City Council to establish the office of Legislative Counsel. These amendments to the City Charter are intended to achieve these goals. Section 2. Amendment of the Charter A. Section 503 of the Charter of the City of Chula Vista is hereby amended to read as follows: Section 503 City Attorney; Election, Powers and Duties (a) Designation as Officer. The City Attorney shall be an officer of the City, in addition to any other officers designated pursuant to this Charter. Except as otherwise provided by this Charter, it is the intent of the voters that the City Attorney shall be sufficiently independent of the City Council and other city officials to advise the City while also acting in the best interests of the public. (b) Powers of the City Attorney. Except as otherwise provided by this Charter, the City Attorney shall: (1) Represent and advise the City Council and all city officers in all matters of law pertaining to their offices and advise all boards, commissions, and other agencies of the City on legal matters referred to him or her and render written legal opinions when the same are requested in writing by the Mayor or a member of the Council or the City Manager or any other officer, board or commission of the City; provided, however, that the City Council may provide by ordinance that the City Attorney shall neither advise, nor participate in the selection of special legal counsel to advise, on conflict of interest issues involving the City Attorney. (2) Represent and appear for the City and any city officer or employee, or former City officer or employee, in any or all actions and proceedings in which the City or any such officer or employee in or by reasons of his or her official capacity, is concerned or is a party; (3) Attend all regular meetings of the City Council and give his or her opinion in writing whenever requested to do so by the City Council or by any of the boards or officers of the City; OAK #4819-2106-9326 vl (4) Approve the form of all contracts made by and all bonds given to the City, endorsing approval thereon in writing; (5) Prepare any and all proposed. ordinances or resolutions for the City, and amendments thereto; (6) Prosecute, if so directed by ordinance of the City Council, all offenses against the ordinances of the City and for such offenses against the laws of the State as may be required by law, and shall have concurrent jurisdiction with the District Attorney of the County of San Diego to prosecute persons charged with or guilty of the violation of the State laws occurring within the City limits of the City of Chula Vista for offenses constituting misdemeanors; (7) Whenever a cause of action exists in favor of the City, exercise discretion as to when to commence legal proceedings, subject to the approval or ratification by the City Council, when the basis for such action is within the knowledge of the City Attorney, or, he or she shall commence legal proceedings as directed by the City Council; and (8) Surrender to his or her successor all books, papers, files and documents pertaining to the City's affairs. The Council may empower the City Attorney, at his or her request, to employ special legal counsel on a particular matter, and he or she shall have the power to appoint appraisers, engineers and other technical and expert services necessary for the handling of any pending or proposed litigation, proceeding or other legal matter, all within the specific budgetary authority established by the City Council. Upon the approval of the Council, when the City Attorney has a conflict of interest in litigation involving another officer of the City in his or her official capacity, such other officer may retain special legal counsel at City expense, subject to the specific budgetary authority of the City Council. Nothing in this section 503 shall be construed to prevent the City Attorney from giving confidential advice to the City when otherwise allowed by law. (c) Election; Compensation of City Attorney. The City Attorney shall be nominated and elected in the same manner and at the same election as a member of the City Council, except as otherwise provided in this section. The annual salary of the elected City Attorney shall be equivalent to 90% of the salary of a Judge of the Superior Court of the State of California. The City Attorney shall also receive reimbursement on the order of the Council for Council- authorized travel and other expenses when on official duty out of the City. The City Council may also provide, by resolution, for the payment of an allowance of a sum certain per month, as reimbursement for the additional demands and expenses made upon and incurred by the City Attorney. The City Attorney's salary may not be reduced during the City Attorney's term of office, except as part of a general reduction of salaries of all City officers and employees in the same amount or proportion. In addition, the City Attorney shall be entitled to such benefits as are granted to other management employees of the City, as established by the City Council from time to time. The City Attorney shall be in the Unclassified Service. OAK #4819-2106-9326 vl (d) Qualifications of City Attorney. No person shall be eligible for or continue to hold the Office of City Attorney, either by election or appointment, unless he or she is a citizen of the United States, a qualified elector, and a California resident, licensed to practice law in all courts of the State of California and so licensed for at least seven years preceding his or her assumption of office following election under this charter. (e). Term of Office of the City Attorney. The City Attorney shall be elected to a nominal term of four years and shall commence on the first Tuesday of December of the year of the election, and shall continue until a successor qualifies. The City Attorney shall be subject to the same limits on terms of service as are applicable to the Mayor and City Council under Section 300(d). (f) Vacancy, Filling of. Upon the declaration of vacancy in the Office of the City Attorney, the Office of the City Attorney shall be filled by appointment by the majority vote of the members of the Council; provided, that if the Council shall fail to fill a vacancy by appointment within sixty days after such office shall become vacant, or if the unexpired term of the City Attorney shall exceed 24 months at the time of the appointment, the City Council shall cause an election to be held to fill such vacancy pursuant to the manner and method as provided for in the Charter for filling vacancies on the City Council. An appointee or the person elected to the Office of City Attorney for the balance of an unexpired term shall hold office until the next general election for the Office of the City Attorney. (g) Vacancy, What Constitutes. The Office of City Attorney shall be declared vacant by the Council when the person elected or appointed thereto fails to qualify within ten days after his or her term is to begin, dies, resigns, ceases to be a resident of the City or absents himself or herself continuously from the City for a period of more than thirty days without permission from the Council, absents himself or herself from any seven consecutive regular meetings except on account of own illness or when absent from the City by permission of the Council, is convicted of a felony, is judicially determined to be an incompetent, is permanently so disabled as to be unable to perform the duties of his or her office, forfeits his or her office under any provision of this Charter, or is removed from office by judicial procedure. A finding of disability shall require the affirmative vote of at least two-thirds of the members of the Council after considering competent medical evidence bearing on the physical or mental capability of the City Attorney. B. Section 503.1 is hereby added to the Charter to read as follows: Section 503.1. Office of Legislative Counsel; Duties. Notwithstanding any other provision of this Charter, the Council may establish by ordinance the office of Legislative Counsel, as described in this section. (a) Legislative Counsel may be selected by the Council and serve at the pleasure of the Council, on terms and conditions prescribed by the Council. Appointment or dismissal of the Legislative Counsel may be approved by atwo-thirds majority vote of the Council. OAK #4819-2106-9326 vl (b) Legislative Counsel may advise the Council regarding its legislative duties. Legislative Counsel shall neither oppose nor urge enactment of any legislation. (c) Legislative Counsel may also advise the Council regarding conflicts of interest involving the City Attorney, and whether the hiring of special counsel is therefore warranted. If the Council approves the hiring of special counsel, Legislative Counsel may assist the Council in the selection and appointment of special counsel. (d) Legislative Counsel may further advise the Council or the City's Board of Ethics concerning the City's Code of Ethics and alleged violations thereof, and further may advise the City's Charter Review Commission. Legislative Counsel may also provide such other assistance to the Board of Ethics in investigating or assisting the Board in the conduct of hearings, including the hiring of special counsel to the Board. (e) The Council may further provide by ordinance that the advice of the Legislative Counsel on the matters set forth in this section 503.1 shall be in lieu of that of the City Attorney. The Council may additionally or alternatively provide by ordinance for the prevention or resolution of conflicts and/or disputes between the City Attorney and Legislative Counsel. Section 3. Implementation Upon the effective date of this initiative, the provisions of this initiative shall be inserted into the Charter as amendments thereto. Any provisions of City Charter, state law or city ordinances inconsistent with these amendments shall be unenforceable to the extent of the inconsistency. Section 4. Severability. If any word, sentence, paragraph, subparagraph, section or portion of this initiative is declared to be invalid by a court, the remaining words, sentences, paragraphs, subparagraphs, sections and portions are to remain valid and enforceable. Section 5. Amendment or Repeal. This initiative may be amended or repealed only by the voters at a City election. Section 6. Effective Date. If a majority of the voters voting on the proposed charter amendment vote in its favor, the charter amendment shall become valid and binding upon filing by the California Secretary of State. OAK #4819-2106-9326 vl