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HomeMy WebLinkAbout2013/03/05 Item 12CITY COUNCIL AGENDA STATEMENT _ _ ~ ~,,,,~;~ clTV of CHULA VISTA March 5, 2013 Item No. ~2 ITEM TITLE: CONSIDERATION OF ORDINANCE AMENDING MUNICIPAL CODE CHAPTER 1.20 TO CLARIFY CITY ATTORNEY AUTHORITY AS PRIMARY CRIMINAL PROSECUTOR OF THE MUNICIPAL CODE AS STATED IN THE CITY CHARTER SUBMITTED BY: CITY ATTORNEY'S OFFICE ~~ REVIEWED BY: CITY ATTORNEY'S OFFICE 4/STHS VOTE: YES ^ NO SUMMARY This item is a cleanup action to make the Chula Vista Municipal Code consistent with the City Charter. Specifically, the Municipal Code needs to be updated to reflect the City Charter's language on the role of the City Attorney as the chief prosecutor for Municipal Code violations. The authority to prosecute misdemeanor Municipal Code infractions is granted to the City Attorney by the City Charter Section 503(b). The Code is unnecessarily vague on this matter by referring only to a "prosecutor" without designating who this official is and yet the City Charter states that it is the City Attorney. This ambiguity leaves the City vulnerable to technical challenges to the City's authority to prosecute violations of its Municipal Code potentially allowing defendants to avoid prosecution. DISCUSSION Section 503(b) of the City Charter lists the powers of the City Attorney. Section 503(b)(6) states that the City Attorney shall "[p]rosecute, if so directed by ordinance of the City Council, all offenses against the ordinances of the City..." The misdemeanor violation provisions of the Code are contained in Chapter 1.20 "General Penalty." Changes have been made to Chapter 1.20 to solidify the City Attorney's authority with regard to criminal prosecutions based on the enabling language in the Charter. These changes have been redlined for the Council's review and are attached to this staff report. Amending the Municipal Code to make it consistent with the City Charter will also solidify the City's authority to file unfair business practices civil litigation. Recently, a Superior Court judge opined that without this explicit language in the Municipal Code there were questions about whether or not the City possessed the necessazy legal standing to bring such an action. 12-1 3/5/13, Item No. ~2 Page 2 of 3 To possess standing to bring an unfair business practices case a city of Chula Vista's population must have a city prosecutor. The city prosecutor position has always been staffed by a deputy in the City Attorney's Office. However, the Court ruled that there was no explicit enforcement authority language in the Chula Vista Municipal Code for the City Attorney's Office to act as a prosecutor with regard to Municipal Code violations and therefore it did not have standing. While the City Attorney's Office respectfully disagrees with this judicial opinion and azgued that the authority was clearly implied in the Code it is requesting the Council's consideration of this action to clear up what the Court perceived as a flaw in the Code. Moreover, without this language the criminal process involving Code violations will ring hollow and Chula Vista police officers would not have the ability to request criminal prosecutions based on Code citations. This is an important tool the Police Department wields to obtain compliance with Chula Vista municipal law. The additions to the Code also minor and include the specific California Government Code Section 72193 discussing a city attorney's prosecutorial authority. This Section states: "Whenever the charter of any city creates the office of city prosecutor, or provides that a deputy city attorney shall act as city prosecutor, and charges such prosecutor with the duty, when authorized by law, of prosecuting misdemeanor offenses arising out of violations of state laws, the city prosecutor may exercise the following powers: (a) The city prosecutor shall prosecute all such misdemeanors committed within the city, and handle all appeals arising from it. The city prosecutor shall draw complaints for. such misdemeanors, and shall prosecute all recognizances or bail bond forfeitures aiising from or resulting from the commission of such offenses. (b) Whenever any person applying for a writ of habeas corpus is held in custody by any peace officer of such city, charged with having committed within the .city any misdemeanor, a copy of the application for such writ shall be served upon such city prosecutor at the time and in the manner provided by law for the service of writs of habeas corpus upon district attorneys. On behalf of the people, the prosecutor shall conduct all proceedings relating to such application. If the constitutionality of any law is questioned in any such habeas corpus proceeding, the city prosecutor shall immediately notify the city attorney who may take charge of the proceedings on behalf of the people, or become associated with the city prosecutor in the proceedings." In sum, this action will eliminate technical defenses to City prosecutions of its Code as a result of existing Code ambiguities, it will implement prosecutorial authority as stated in the City Charter and it will support the Police Department's efforts in the field. The City Attorney's Office, in conjunction with the Police Department, is cunently exploring the legal requirements, staffing and monetazy resources necessary to institute criminal Municipal Code prosecutions. If at all feasible, Municipal Code criminal prosecutions could be a helpful compliance tool with regard any violation of the Code that negatively affects citizens, city parks, public services and neighborhoods. 12-2 3/5/13, Item No. ~2 Page 3 of 3 ENVIRONMENTAL REVIEW This proposed activity has been reviewed for compliance with the California Environmental Quality Act (CEQA) and it has been determined that the activity is not a "Project" as defined under Section 15378 of the state CEQA Guidelines because it will not result in a physical change in the environrnent; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to the CEQA. Thus, no environmental review is necessary. RECOMMENDATIONS Council adopt the ordinance revisions. BOARDS/COMMISSION RECOMMENDATION N/A. DECISION MAKER CONFLICT Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently, the 500-foot rule found in California Code of Regulations section 18704.2(a)(1) is not applicable to this decision. Staff is not independently aware, nor has staff been informed by any City Councilmember, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter. FISCAL IMPACT No fiscal impact is anficipated with regard to this item. ATTACHMENTS 1. Proposed Ordinance Revisions. Prepared by: Chance Hawkins, Deputy City Attorney, City Attorney's Offzce 1:\Attorney\Chance Hawkins\Staff Reps & Ords\Stf.Reprt.City.Prosecutor.doc 12-3 ORDINANCE NO. ORDINANCE OF THE CITY OF CHULA VISTA AMENDING MUNICIPAL CODE CHAPTER 1.20 TO CLARIFY CITY ATTORNEY AUTHORITY AS PRIMARY CRIMINAL PROSECUTOR OF THE MUNICIPAL CODE AS STATED IN THE CITY CHARTER WHEREAS, the Chula Vista City Charter states that the City Attorney shall "[p]rosecute, if so directed by ordinance of the City Council, all offenses against the ordinances of the City. . ." [Section 503(b)(6)]; and WHEREAS, the current Chapter 1.20 is unclear because it does not explicitly state that the City Attorney is the official responsible for prosecuting Municipal Code violations nor is the Chapter consistent with the City Charter; and WHEREAS, the City Council so directs and authorizes the City Attorney to act as a prosecutor with regard to Municipal Code misdemeanor violations as stated in the City Charter subject to his or her prosecutorial discretion and as office resources and staffing permit; and WHEREAS, this action is necessary to preserve the public peace, health, safety and general welfare in that this action will promote the public's compliance with municipal law, it will solidify the authority to prosecute code violations as misdemeanors and it will support the Police Department's efforts in the field. NOW, THEREFORE, with the above recitations incorporated herein, the City Council of the City Of Chula Vista does, hereby, ordain as follows: SECTION I. That Chula Vista Municipal Code Chapter 1.20 be amended to read as follows Chapter 1.20 GENERAL PENALTY* Sections: 1 20 005 City Attomey authority to prosecute violations of the Chula Vista Municipal Code. 1.20.010 Designated -Applicability. 1.20.020 Infractions -Prosecutor's discretion defendant's election to have infraction treated as misdemeanor. 1.20.030 Applicability of misdemeanor provisions. 1.20.040 Precedence over other sections. 12-4 Ordinance No. Page 2 For statutory provisions authorizing cities to impose penalties for violations of ordinances, not exceeding $500.00 in fines and/or six months imprisonment, see Gov. Code § 36901; for provisions of the city Charter regarding penalties for violation of ordinances, see Charter §§ 316 and 1501; for statutory authority for cities to compel prisoners to labor, see Gov. Code § 30904. 1.20.005 City Attorney authority to prosecute violations of the Chula Vista Municipal Code. A. Pursuant to Section 503(b)(6) of the City Charter, the City Council hereby authorizes and directs the city attomey to prosecute all offenses against the ordinances of the City. The city attorney will prosecute all offenses against the ordinance of the City subiect to his or her prosecutorial discretion and as office resources and staffing permit. The city attorney is hereafter referred to as the "city prosecutor" in this Chapter and the city attorney can also authorize deputy city attomeys to act as city prosecutors as he or she deems appropriate based on the professional qualifications of the deputy city attorney. B. This ordinance establishes afull-time city prosecutor subiect to the resources and staffing of the city attorney's office. C. A city prosecutor may exercise the following powers: 1 The city prosecutor may prosecute all such misdemeanors committed within the city. and handle all appeals arising from it. The citesprosecutor may draw complaints for such. misdemeanors. and may prosecute all recognizances or bail bond forfeitures arising from or resulting from the commission of such offenses. 2. Whenever any person appl~g for a writ of habeas corpus is held in custod~y any peace officer of such city, charged with having committed within the city misdemeanor, a copy of the application for such writ shall be served upon such city prosecutor at the time and in the manner provided by law for the service of writs of habeas corpus upon district attorneys. On behalf of the people. the prosecutor shall conduct all proceedings relating to such application. If the constitutionality of any law is Questioned in any such habeas corpus proceeding, the city prosecutor shall immediately notify the city attorney who may take charge of the proceedings on behalf of the people or become associated with the citesprosecutor in the proceedings. 1.20.010 Designated -Applicability. A. Any person violating any of the provisions or failing to comply with any of the mandatory requirements of the ordinances of the city shall be guilty of a misdemeanor, unless, at the sole option of the city prosecutor, the violation is cited and prosecuted as an infraction. B. An infraction is punishable by: 1. A fine not exceeding $100.00 for a first violation. C. An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury. A person charged with an infraction shall not be entitled to have the public defender or other counsel appointed at public expense to 12-5 Ordinance No. Page 3 represent him unless -he is arrested and not released on his written promise to appear, on his own recognizance, or upon a deposit of bail. D. A misdemeanor is punishable by: 1. Imprisonment in the county jail not exceeding six months, or by fine not exceeding $1,000, or by both. E. Each such person described in subsection (A) of this section shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of the ordinances of the city is committed, continued or permitted by any such person, and he shall be punished accordingly. F. Payment of a fine shall not excuse payment of any fee required by the municipal code. G. In addition to the foregoing; any violation of the provisions of the ordinances of the city is deemed to be a public nuisance. Such violations may be abated by civil action or pursuant to applicable administrative abatement procedures. 1.20.020 Infractions -Prosecutor's discretion/defendant's election to have infraction treated as misdemeanor. A. A violation of any Chula Vista Municipal Code section may, at the discretion of the ci prosecutor if the violation is initially charged as a misdemeanor rather than an infraction, be prosecuted as an infraction, subject to the procedures described in CVMC 1.20.010(C) and 1.20.030 when: 1. The ci ~ rosecutor files a complaint charging the offense as an infraction, unless the defendant, at the time he is arraigned, after being informed of his rights, elects to have the case proceed as a misdemeanor; or 2. The court, with the consent of the defendant, determines that the offense is an infraction, in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint. .1.20.030 Applicability of misdemeanor provisions. Except as otherwise provided by law, all provisions of law related to misdemeanors shall apply to infractions, including but not limited to powers of peace officers, jurisdiction of courts, period for commencing action and for bringing a case to trial, and burden of proof. 1.20.040 Precedence over other sections. CVMC 1.20.005, 1.20.010, 1.20.020 and 1.20.030 supersede all other criminal penalty provisions of the Chula Vista Municipal Code and any other city ordinances. Section IL Severability If any portion of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid, unenforceable or unconstitutional, by a court of competent jurisdiction, that portion shall be deemed severable, and such invalidity, unenforceability or unconstitutionality shall not affect the validity or enforceability of the remaining portions of the Ordinance, or its application to any other person or circumstance. The City Council of the City of Chula Vista hereby declares that it would have adopted each section, sentence, clause or phrase of this Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses or phrases of the Ordinance be declared invalid, unenforceable or unconstitutional. 12-6 Ordinance No. Page 4 Section III. Construction The City Council of the City of Chula Vista intends this Ordinance to supplement, not to duplicate or contradict, applicable state and federal law and this Ordinance shall be construed in light of that intent. Section IV. Effective Date This Ordinance shall take effect and be in force on the thirtieth day after its final passage. Section V. Publication The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published or posted according to law. Presented by Glen R. Googins City Attorney Approved as to form by Glen R. Googins City Attorney 12-7 ORDINANCE NO. ORDINANCE OF THE CITY OF CHULA VISTA AMENDING MUNICIPAL CODE CHAPTER 1.20 TO CLARIFY CITY ATTORNEY AUTHORITY AS PRIMARY CRIMINAL PROSECUTOR OF THE MUNICIPAL CODE AS STATED IN THE CITY CHARTER WHEREAS, the Chula Vista City Charter states that the City Attorney shall "[p]rosecute, if so directed by ordinance of the City Council, all offenses against the ordinances of the City. . ." [Section 503(b)(6)]; and WHEREAS, the current Chapter 1.20 is unclear because it does not explicitly state that the City Attorney is the official responsible for prosecuting Municipal Code violations nor is the Chapter consistent with the City Charter; and WHEREAS, the City Council so directs and authorizes the City Attorney to act as a prosecutor with regard to Municipal Code misdemeanor violations as stated in the City Charter subject to his or her prosecutorial discretion and as office resources and staffing permit; and WHEREAS, this action is necessary to preserve the public peace, health, safety and general welfare in that this action will promote the public's compliance with municipal law, it will solidify the authority to prosecute code violations as misdemeanors and it will support the Police Department's efforts in the field. NOW, THEREFORE, with the above recitations incorporated herein, the City Council of the City Of Chula Vista does, hereby, ordain as follows: SECTION L That Chula Vista Municipal Code Chapter 1.20 be amended to read as follows Chapter 1.20 GENERALPENALTY* Sections: 1.20.005 City Attorney authority to prosecute violations of the Chula Vista Municipal Code. 1.20.010 Designated -Applicability. 1.20.020 Infractions -Prosecutor's discretion/defendant's election to have infraction treated as misdemeanor. 1.20.030 Applicability of misdemeanor provisions. 1.20.040 Precedence over other sections. 12-8 Ordinance No. Page 2 For statutory provisions authorizing cities to impose penalties for violations of ordinances, not exceeding $500.00 in fines and/or six months imprisonment, see Gov. Code § 36901; for provisions of the city Charter regarding penalties for violation of ordinances, see Charter §§ 316 and 1501; for statutory authority for cities to compel prisoners to labor, see Gov. Code § 30904. 1.20.005 City Attorney authority to prosecute violations of the Chula Vista Municipal Code. A. Pursuant to Section 503(b)(6) of the City Charter, the City Council hereby authorizes and directs the city attorney to prosecute all offenses against the ordinances of the City. The city attorney will prosecute all offenses against the ordinance of the City subject to his or her prosecutorial discretion and as office resources and staffing permit. The city attorney is hereafter referred to as the "city prosecutor" in this -Chapter and the city attorney can also authorize deputy city attorneys to act as city prosecutors as he or she deems appropriate based on the professional qualifications of the deputy city attorney. B. This ordinance establishes afull-time city prosecutor subject to the resources and staffing of the city attorney's office. C. A city prosecutor may exercise the following powers: 1. The city prosecutor may prosecute all such misdemeanors committed within the city, and handle all appeals arising from it. The city prosecutor may draw complaints for such misdemeanors, and may prosecute all recognizances or bail bond forfeitures arising from or resulting from the commission of such offenses. 2. Whenever any person applying for a writ of habeas corpus is held in custody by any peace officer of such city, charged with having committed within the city any misdemeanor, a copy of the application for such writ shall be served-upon such city prosecutor at the time and in the manner provided by law for the service of writs of habeas corpus upon district attorneys. On behalf of the people, the prosecutor shall conduct all proceedings relating to such application. If the constitutionality of any law is questioned in any such habeas corpus proceeding, the city prosecutor shall immediately notify the city attorney who may take charge of the proceedings on behalf of the people, or become associated with the city prosecutor in the proceedings. 1.20.010 Designated -Applicability. A. Any person violating any of the provisions or failing to comply with any of the mandatory requirements of the ordinances of the city shall be guilty of a misdemeanor, unless, at the sole option of the city prosecutor, the violation is cited and prosecuted as an infraction. 12-9 Ordinance No. Page 3 B. An infraction is punishable by: 1. A fine not exceeding $100.00 for a first violation. C. An infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a trial by jury. A person charged with an infraction shall not be entitled to have the public defender or other counsel appointed at public expense to represent him unless he is arrested and not released on his written promise to appear, on his own recognizance, or upon a deposit of bail. D. A misdemeanor is punishable by: 1. Imprisonment in the county jail not exceeding six months, or by fine not exceeding $1,000, or by both. E. Each such person described in subsection (A) of this section shall be guilty of a separate offense for each and every day during any portion of which any violation of any provision of the ordinances of the city is committed, continued or permitted by any such person, and he shall be punished accordingly. F. Payment of a fine shall not excuse payment of any fee required by the municipal code. G. In addition to the foregoing, any violation of the provisions of the ordinances of the city is deemed to be a public nuisance. Such violations may be abated by civil action or pursuant to applicable administrative abatement procedures. 1.20.020 Infractions -Prosecutor's discretion/defendant's election to have infraction treated as misdemeanor. A. A violation of any Chula Vista Municipal Code section may, at the discretion of the city prosecutor if the violation is initially charged as a misdemeanor rather than an infraction, be prosecuted as an infraction, subject to the procedures described in CVMC 1.20.010(C) and 1.20.030 when: 1. The city prosecutor files a complaint charging the offense as an infraction, unless the defendant, at the time he is arraigned, after being informed of his rights, elects to have the case proceed as a misdemeanor; or 2. The court, with the consent of the defendant, determines that the offense is an infraction, in which event the case shall proceed as if the defendant had been arraigned on an infraction complaint. 1.20.030 Applicability of misdemeanor provisions. Except as otherwise provided bylaw, all provisions of law related to misdemeanors shall apply to infractions, including but not limited to powers of peace officers, 12-10 Ordinance No. Page 4 jurisdiction of courts, period for commencing action and for bringing a case to trial, and burden of proof. 1.20.040 Precedence over other sections. CVMC 1.20.005, 1.20.010, 1.20.020 and 1.20.030 supersede all other criminal penalty provisions of the Chula Vista Municipal Code and any other city ordinances. Section II. Severability If any portion of this Ordinance, or its application to any person or circumstance, is for any reason held to be invalid, unenforceable or unconstitutional, by a court of competent jurisdiction, that portion shall be deemed severable, and such invalidity, unenforceability or unconstitutionality shall not affect the validity or enforceability of the remaining portions of the Ordinance, or its application to any other person or circumstance. The City Council of the City of Chula Vista hereby declares that it would have adopted each section, sentence, clause or phrase of this Ordinance, irrespective of the fact that any one or more other sections, sentences, clauses or phrases of the Ordinance be declared invalid, unenforceable or unconstitutional. Section III. Construction The City Council of the City of Chula Vista intends this Ordinance to supplement, not to duplicate or contradict, applicable state and federal law and this Ordinance shall be construed in light of that intent. Section IV. Effective Date This Ordinance shall take effect and be in force on the thirtieth day after its final passage. Section V. Publication The City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same to be published or posted according to law. Presented by Approved as to form by Glen R. Googins City Attorney Glen R. Googins d ~ -~-~ City Attorney 12-11