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Home My WebLink About2012/07/10 Item 15 ~tittr ~~ ~~ CHULA VlSfA Office of the City Attorney Memorandum TO: Honorable Mayor and City Council FROM: Glen R. Googins, City Attorne~`r"" DATE: July 9, 2012 RE: Proposition C: City Attorney's Report on Requirements for Implementation and Next Steps The purpose of this memorandum is to outline the requirements for implementation of Proposition C and to identify the appropriate next steps towards completion of this process. A. Leal Status The San Diego County Registrar has now certified that Chula Vista voters approved Proposition C at the City's June 5th 2012 General Election. The City Council is scheduled to confirm this election result at its July 10th City Council meeting. Thereafter, the City Clerk will submit this result to the California Secretary of State. Upon "filing" by the Secretary of State, the Charter revisions contained in Proposition C will become "valid and binding."1 The City Attorney will then work with the City Clerk to assure that all Prop C changes have been formally incorporated into the City's official Charter document. B. Timing for Application and Effectiveness of Various Prop C Changes Proposition C contains three primary changes to the City Charter: (1) it changes the amount and form of the City Attorney's salary and compensation;2 (2) it subjects the City Attorney to term limits;3and (3) it authorizes the City Council to establish the office t Government Code Section 34459 and Proposition C Section 6 z Revised Charter Section 503(c} s Revised Charter Section 503(e) of Legislative Counsel.4 A copy of the full text of Proposition C is attached hereto as Exhibit A. Per attorney Tom Brown there is different timing for the application and effectiveness of these three changes.5 1. Adjustments to Compensation. According to Mr. Brown, the changes in Proposition C regarding City Attorney compensation would not apply during the current City Attorney's four year term. Instead, this change would apply to the City Attorney's four year term beginning December 2014.6 2. Term Limits. Mr. Brown did not formally advise on the application of the term limits provision. He has since advised that further research on this question would be appropriate. 3. Legislative Counsel. Mr. Brown advised (and I concur) that changes contained in Proposition C giving authority to the City Council to create the office of Legislative Counsel would apply immediately. C. Legislative Counsel: Requirements for Implementation Proposition C's new Charter Section 503.1 provides that its provisions be implemented by the City Council through an ordinance.g As you will recall, this was done on purpose. The idea was to create a Charter amendment that was "enabling"- giving the City Council the basic authority to have their own Legislative Counsel-with any unresolved legal and policy issues, including implementation and drafting details, deferred until after the election. 1. Primary Issues to be Addressed. Mr. Brown identified a number of basic issues that would need to be addressed in any implementing ordinance or Council policy. We have added a few others. Collectively, these include the following: " New Charter Section 503.1 s As you will recall, Tom Brown, from the law firm of Burke, Williams and Sorenson, was the lawyer that advised the City Council on the preparation, submittal and related issues involving Proposition C. 6 This advice was given verbally by Mr. Brown at the City Council meeting of February 28`t` and is also contained in the "City Attorney Impartial Analysis" for Proposition C that was subsequently prepared by Mr. Brown. ~ Analysis provided by San Diego's County Counsel in 2010 regarding the application of new term limits rules to sitting County Supervisors suggests that-at least in that case-term limits would apply prospectively only, and would not include an existing Supervisor's term in the "two term limit" calculation. [See County Council's impartial analysis for San Diego County's Proposition B (approved by the voters on June 8, 2010.] s The first paragraph of this Section reads as follows: "Notwithstanding any other provision of this Charter, the Council may establish by ordinance the office of Legislative Counsel, as described in this Section." [emphasis added]; See also the first sentence of the last paragraph of the City Attorney's Impartial Analysis 2 a. Nature and Terms of Employment. Will Legislative Counsel be a City employee or will the role be served by one or more contract attorneys? Who will oversee the hiring process? What will be the terms and conditions of employment? b. Definition of "Legislative Duties". Section 503.1(b) indicates that Legislative Counsel "may advise the Council regarding its legislative duties." Does the City Council desire to implement this provision? If so, what are the City Council's "legislative duties"? Would Legislative Counsel only advise in this area where the City Attorney's office has a "conflict of interest"? (See discussion in Subsection c., below.) Reference to common definitions for the term "legislative duties" (if any), and the record of City Council proceedings on Proposition C would be appropriate. Since the proposal was based upon the model of "Legislative Counsel" to the California State Legislature, reference to the scope and focus of that office's duties would also be informative. c. Definition of "Conflict of Interest". Section 503.1(c) indicates that 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." Does the City Council desire to implement this provision? If so, how will "conflicts of interest" be determined, and by whom? An examination of the California Rules of Professional Conduct would be informative, among other sources. d. Advice to the Board of Ethics and/or Charter Review Commission. Section 503.1(d) indicates that Legislative Counsel "may 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." Does the City Council desire to implement this provision, for either or both these groups? Would Legislative Counsel only advise in these areas where the City Attorney's office has a "conflict of interest"? (See discussion in Subsection c., above.) To what extent can Legislative Counsel advise individual Council members on ethics issues? e. Resolution of Conflicts and/or Disputes. Section 503.1(e} provides that the City Council may also provide by ordinance for the Legislative Counsel's advice to be "in lieu of that of the City Attorney" in the matters described above, and/or for "resolution of conflicts and/or disputes" between the two. This is a complex area that raises many issues, with many possible responses and options. The basic question is: how should the relationship between the City Attorney and Legislative Counsel (and their respective roles and functions), be structured in order to minimize potential conflicts, risks and uncertainty? 2. Options for Drafting the Implementing Ordinance. City Attorney staff could draft the implementing ordinance for the Legislative Counsel position, either on its own or working with special outside counsel. Good options for special outside counsel include: Tom Brown, from Burke Williams in Sacramento (who is obviously familiar with the measure and the relevant issues), Shawn Hagerty, from BB&K in San Diego (who drafted the original Elected City Attorney 3 CITY ATT®RNEY IMPARTIAL ANALYSIS (CONTlN4Dl~®~ Specificagy, this proposition would enable the Councii to provide by ordinance that i.egislative Counsel would; be selected by and serve at the pleasure of the Council; advise the Councii regarding its legislative duties, while neither opposing nor urging legislation; advise the Councii regarding conflicts of interest involving the City Attorney, and whether hiring special counsel is therefore warranted; assist the Councii in the selection and appointment of such special counsel; advise the Council or the City's Board of Ethics concerning the City's Code of Ethics and alleged violations thereof; assist the Board of Ethics in investigations or in conducting hearings; and advise the City's, Charter Review Commission. Such ordinance may also provide for the prevention or resolution of conflicts between the City Attorney and Legislative Counsel. ARGIJINI_NT IN 1='AVOR OF PROPOSITI®N C By all accounts, an elected city attorney should 6e a position of public service sacrificing personal• gain for the public good. Yet this office with a staff of 8 pays more than the California Attorney General and the Attorney General of the United States. And if another city wants to pay #heir attorney more, our City Attorney receives an automatic raise, whether you agree ar not. Proposition C reduces and stabilizes the salary of the city attorney to that of a superior court judge. It saves taxpayers over $30,000 each year. When Chula Vista voters opted to elect their city attorney they believed that an elected attomey would be more responsive to the people. While it remains to be seen whether an elected attorney is more or less independent, the initiative did create a lifetime political post with no limit or accountability on compensation and government funded benefits. And when the city attorney has a conflict of interest, it lacks provisions to select a truly independent outside attorney. Chula Vista voters have passed term limits for the Mayor and City Council. Why should the City Attorney be different? The City Attorney should be subject to those same rules. This proposition will limit the city attorney #o two four-year terms, the same as every other elected official in Chula -Vista Then #here's the question of what to da when the city attorney has a conflict of interest. Under current law, the city attorney selects and hires an attorney when they have a conflict of interest or are the subject of an inves#igaYion. Thls proposition permits the City Council to Independently hire an attomey when the city ai#orney has a conflict of interest. Proposition C insures that your City Attorney is responsive to you at a price we can afford. YES on Prap C! GERAI.Q SCOTT GABRIEt. ARCS VeteranlRet. Business Owner Retired (HMO CEO) LUIS A. AAONGE PETER J. WATRY. JR. • Retired Professor SUSAN WATRY Retired Realtor PR-6980-2 N so 2~rt-03fl Term limits are appealing to many. slut oecause ~~ ~~ a r~.,,~°°~~~•~• r----_._.. -_- . one-only 2 of the 12 elected c[ty attorneys in California have tenn limits.. - Finally, Prop C's claims about canfiicts of interest are false. The City Attorney has already advised That in any case involving a claim against him, another party could hire outside counsel. But don't be footed. ultimately, Prop C is not about salary savings, term limits, ar confkicts of Interest It's a blatant attempt to undermine the independence and authority of your elected City Attorney, with no regard for the added costs and dysfunction this will create at City Hall, and for citizens trying to gel City services. ~ • Please jo'sn community leaders from bo#h parties, the. Chula Vista Chamber of Commerce-and many others-and Vote NO on Proposition C. ~ :.- KEVIN O'NE1LL ~ - BILL HALL Former Chula Vista Planning Commissioner Former President Chula Vista Chamber of and Local Businessman CommercelLocal Resident N SD 210-03t PR-0960-3 ARG~]iVIEN'I' AGAI6~tST PR®PGSt'0•lGf~ C Proposition G is an assautt on the independence of your elected City'Attorney. It creates a new "legal advisor" beholden to city politicians-not the public interest. I# will cause confusion and uncertainty, and could cost taxpayers hundreds of thousands annually. Vo#e NO on Proposition C. Chula Vista citizens voted for an elected City Attamey to assure fhe Citv received index unbiased legal advice immune from City Gouncil oot~t~es. _ Without the threat of being fired or penalized, your elected City Attorney advises the Council about their obligations to make decisions in public, limits on their authority, risks to taxpayers, and the need to respect individual rights. This is the independence you voted far, and is what you are currently receiving. Proposition C would change all that by allowing Councilmembers to use taxpayer money to buy advice that supports their political agendas, while disregarding your elected City Attorney's advice. tNith Proposition C, the City will be plagued with competing legal opinions. City Council w'sll have one legal opinion, City staff, or a City Commission, another. Residents and taxpayers trying to get City services or pem~its will be caught in the middle, and left footing the bill. Proposition C eras railroaded onto the ballot, with no input from the Charter Review Commission or Board of Ethics, and little opportunity for public scrutiny. lYs a transparent power grab by certain City Councilmembers .and their political supporter, Earl Jentz. Jentz has spent over $1,000,000 seeking control over City government while costing taxpayers $500,000 defending against his failed lawsuits against the City. bemand the integrity, professionalism, and independence. provided by your elected City Attorney. Reject this cynical attempt to place politics above the law. Join Mayor Cheryl Gox, former Mayor Shirley Horton, and many others, in voting NO on Proposition C. JOHN M. KAHENY PATTY DAMS Retired Chula Vista City Attorney Former Chula Vista City Councilmember JOHN MOOT RICK EMERSON Former Chula Vista City Councilmember Retired Chula Vista Police Chief GREG COX Vice Chair, San Oiego County Board of Supervisors and Former Mayor of Chula Vista i PROPOSE® CHARTER AMENDMENT • ; , PROPOSITION C - ~ ' ~ LItVIITING THE AUTHORITY AND COI4IPENSATION OF 7HE CITY ATTORNEY, - - -.. ~ EST ~HLESESITABI.ISHMENT OF~HE OFFICE OF LEG SE ATiVE COUNSELZING ~I -_ - - : { - - - ~ Section 1. Purpose. "_ - J` ~'• This charter-amendment is intended #o Itmlt the authority and compensation of the City _ _ ~, Attorney, as specified herein, to establish term limits for the City Attorney, and to authorize the City Counci! to establish the office of Legislative Counsel. These amendments to the Clfy Charter -- - -- ~ ~ are intended to achieve these.goals. _ i _ • ~ ; . ~ Section 2. Amendment of the Charter ~~ .:• ii A. Section 503 of the Charter of the City of Chula Vista is hereby amended to - .., ~ ; read as follows: . :'.i _ ' " : _ _ Section 503 Gt Attome '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 shat) be sufficiently independent ofi 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 Charier, 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 ail boards, commissions, and other agencies of the City an " • . •I 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; _ - - ~ (z) Represent and appear for the City and any city officer or employee, or former . ~ .: ~ officerr olr employee!m orby reaso s oflh s o~her officlac apac'~Sis concern deorCis a party such - .. - {3) Attend all regular meetings of the City Council and glue his or her opinion in .. writing whenever requested to da so by the City Council or by any of the boards or officers of the . City; _ . - ~ ~ (4} Approve fhe form of alt contracts made by and all bands given to the City, - endorsing approval thereon in writing; .. ._. - . ~ (5) Prepare any and all proposed ordinances or resolutions for the City, and • - • ~ • . amendments thereto; - • - _ i - . 1 - N SD 210.034 " ~ PR-assa-s . .. I• • .. - • (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 rgquired by ~ - - law, acid shat! have concurrent jurisdiction with the District Attorney of the County bf San Diego to - - - prosecute persons charged with or guilty of the violation of the State taws occurring within the City - limits of the City of Gfiuta Vista for offenses constituting misdemeanors; (7) ~ Whenever a cause of action exists in favor of the City, exercise discretion as to when to commence or maintain legal proceedings, subject to the approval or ratification by the City Gouncil, when the basis for such action is within the knowledge of the City Attorney, or, he or she shall commence or maintain legal proceedings as directed by the Cify Council; and (S) Surrender to his or her successor all books, papers, .files and documents pertaining to the Gity'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 export 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 Cit~t Attorney has a conflict of interest 'tn litgation involving another officer of the City in his or her official capacity, such other officer may retain special legal counsel at City expense, sutijecf to the specific budgetary authority of the City Council. Nothing in this section S03 shad be construed to prevent the Gity Attorney from g"suing confidential advice'to the City when otherwise allowed by law. (c) Electioh; Compensation of City Attomey. The City Attorney shall 6e nominated and elected in the same manner and at the same election as a member of the City Gouncil, except as otherwise provided in this section, The annual salary of the elected .City Attomey shall be equivalent to the salary of a Judge of ttte Superior Court of fhe State of California. The City Attomey shall also receive reimbursement on. the order of tfie Gouncil for Council-authorized travel and other expenses when .on official duty out of the City.. The City Council may also provide, by resolution, for th'e 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 Attomey. The City Attomey'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 ar proportion. In addition, the City Attorney sha[I be entitled to sudh benefits as are granted to other management employees of the City, as, established by the City Council from fame to time. The City Attomey shall be in the t.lnclassified Service. . {d) Qualifications of City Attorney. No person shall be eligible far ar 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, kicensed to practice law in atl.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 shalE commence on the first Tuesday of December of the year of the election, and shall continue unti€ a successor qualifies. The City Attorney shall be subject to the same limits on terms of service as are applicable to the Mayor and C'sty Council under Section 300(d). , N SD 2i0-D35 PR-0960-7 PROPOSED CHARTER AMENDMENT (CONYINUE®) (f} Vacancy, Filling of. tJpon 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 fil! 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 Councit shat! cause a special election to be held to fill such vacancy. 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 far 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 State or absents himself or herself continuously from the State 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 Clty by permission of the Council, is convicted of a felony, is judicially determined to be an incompetent, is permanently so disabled as to be unat3le to perform the duties of his or her office, forfeits his or her offioe under any provision of this Charter, or is remaved from office by judicial procedure. A finding of disability shalt require the affirmative vote of at least two-thirds of the members of the Councit after considering competent medical evidence bearing an 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. i - 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 (tie Legislative Counsel shall be approved by a majority vote of the Councit. ~ • { (b) Legislative Counse! may advise the Council regarding its legislative duties. Legislative Counsel shat( neither oppose nor urge enactment of any legislation. ;~ ~ (c} Legislative Counsel may atsa advise the Council regarding conflicts of interest involving the City Attorney, and whether the hiring of special counsel is therefore warranted. If _ I,' the Counci[ approves the hiring of special counsel, Legislative Counsel may assist the Counci3 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 Cade of Ethics and alleged violations thereof, and further may advise the City's Charter Review Commission. Legislative Counsel may also provide such other assistance 'i 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 Gity Attorney. The Council may additionally or alternatively provide by ordinance for the prevention or resolution of conflicts andlor disputes between the City Attorney and Legislative Counsel. fs sa s1o-ose N S~ 210-Q37 pFZ-096fl-9