HomeMy WebLinkAbout2009/05/12 Item 16
PROPOSITION FOR
FAIR AND OPEN COMPETITION ORDINANCE
The people of the City of Chula Vista hereby declare and ordain as follows:
SECTION L Statement of the People's Intent
(a) The People ufthe City of Chula Vista ("the People") desire fair and open competition for public works projeces that are paid
for. in whole or in part. with the funds of the City ofChula Vista ones Redevelopment Agency.
(b) The People believe fair and open competition enables government to expand the pool of qualified candidates to perfonn
work and. in [urn, to save public funds by loweiing the cost of public works projects. The people likewise seek to remove limits
or impediments to the consider.lion of qualified parties to workon public projccts.
(c) The People believe fair and open competition creates more local jobs and improves Chula Vista's economy, and provides equal
opportunity for all workers. bOth union and non-union.
(d) The People believe public money should be spent only on public works projects that allow fair and open competition.
! e) The People intend the following Proposition to amend the Municipal Code of the City of Chuln Vista. as follows: .
SECTION 2. Chula Vista Municipal Code, Title 2. "Administration and Personnel" is amended by addln2'Chl\pter
2.59, to read liS follows: .
Chapler 2.59
Fair and Open Competition in Contracting
2.59.010 Purpose and,lnteri.t- T~e porpose and intent of this chapter is to esta1?lish crit~ria that will ensure fair and open
competition for public w,orks projects funded in whole orinpa,rt with publicfllndS;.to aid in lowering the cost of public works
projects: and to ensurc lliat all workers, both union and non-uriiori;'tiaveHitir and'eqWil opportunity to work on public works
projects.
2.59.020 Definitions For purposes of this Chapter, the following definitions shall apply:
"Act" shall mean the National Labor Relations Act, Title 29 USC ~~ 151 -169.
"City" shall mean and include both the City of Chula Vistll and the Redevelopment Agency of thc City of Chula Vista.
"Contracting party" shall mean and include an owner. developer. contractor, subcontractor.or.matcriaI supplier. involved in a
public works project.
"Labcrorganization" shall have the same meaning ascribed to it in Section 2 of the Act (29lJSC~ 152)
"Public works project" shall mean and include all consnuction projects paid for. in whole oriD pan, by the funds of the
City or the Redevelopment Agency. including but not limited to any building, road, street, park, piayground, water system.
irrigation system, sewer, storm water conveyance system. reclamation project. redevelopment project. or other public facility.
2.59.030 Requirements fo'r' FaIr' ;lDd Open Competition In Contracting
In contracting for the construction. maintenance, repair. improvement or replacement of public works projects;
(a) The City shall not fund, in whole or in part. or enter into, any contract which contains a requirement that a contracting party:
( I) execute, comply with. or become a party to an agreement hetwcen a Labor organization. on the one nO
hand. and the City. the Contracting Party. Or!lOY third party on the other: ~ ~
(2) become a signatory 10 a collective bargaining agreement; 00
(3) be required to make payments on behalf of employees to union benefit plans or other trust funds: r- <1
, ~n
(4) require its employees to be represented by a Labor organization; or Xl::c
(5) encourage or discourage employees of a contracting party to have representation'by a Labororganization~;;;'
(b) The City shall nOlI mpose. as a bid specification, contract prerequi site. contracttcnn or otherwise, any requiremerb :r>
prohibited by subsection (a) of this Section. ~ <:
(e) Nothing in this Section shall be construed as prohibiting private parties covered by this provision from entering into;Uu:lividual
collective bargaining relationships. or otherwise as regulating or interfering .,.ith activity protected by applicahle law, incllidi-,j'g bu
not limited!o the Act.
(d) Any person aggrieved or injured in any way by a violation of this Section shall be entitled to injunctive relief in the
Superior Court of the State of California. County of San Diego. including hy way of an action filed pursuant to California Code
of Civil Procedure section 5200,
SECTION 3. Effective Date
To the e~tent permitted by law. the provi,ions of this Chapte.r 2.59 shall bt:colUe effective 10 days afterthc vote is declared by
the Chula Vista City Council. as provided by California Elections Code ~ 9217. Contracts awarded before this effective date
and subcontracts awarded porsuant to such contracts, whenever awarded. shall not be governed by this ordinance.
SECTION 4. Amendment; Repeal
This ordinance may be amended or repealed only by a majority Vale ofthc voters of the City ofChula Vista.
SECTION 5. Severability
If any Section of this Proposition. or any provision contained in this Proposition, is held by a court of law to be invalid, or is
superseded by a numerically superior vote as provided in Section 6 of this measure. the remaining Sections and provisions oflhis
Proposi tion shall not be affected but shall remain in full force and effect. and to that end the provisions of this Proposition are severable.
SECTION 6. Conflicting Measures
If any other measure, appearing on the same ballot as this measure, addresses the same subject matter in a way that conflicts with
the treatmevt of the subject matterin this Proposition, and if each measure is approved by a majority vote of those voting on each
measure. then as to the conflicting subject malterthe measure with the highest affirmative vote shall prevail. and the measure with
the lowest affirmative vote shall be deemed disapproved as to the conflicting subject m"tter.
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A.~I.tod Builder.
and Contractors, Inc.
13825 Kirkham Way
Poway, CA 92064
858/513.4700 voice
858/513.2372 fax
www.abcsd.org
San Diego Chapter
Council f\lcmbcrs,
~Ia)' 12. 20()<)
As presiJel1l of the AssocinteJ l\uilJers nnJ Contrnc!ors of Snn Diego, Inc., n! 1.,H25 Kirkhnm Way
in Poway 1'111 representing our mClnbcrs who live and work in Chub Vista.
I am here to request that you act in the interest of Chub Vista taxpayt'l's. contT:lctnrs anu :11110cal
construction workers by placing the Fair ~ltld l)pcn Cotnpcririnl1 in Contracting ()rdinancc on rhe
bnllo! for June 201 O.
This initiative will make certain that fairness, lower c(]sts to taxpayers and more jobs for Chub Vista
arc part of the public contracting process. This measure will ensure that both union and non-union
workers and contractors arc equally eligible to cOInpctc and work on Chula Vista's public1y-funlk'u
construction projects-nobody is locked out.
f\.loI'C than .'\8,000 \'olers have signeu petitions tn place this item on till" ballot. Unforlunfltc!y. till'
City Clerk has twice, for narrow technical reasons. n::fusl'd to accept the petitions, thereby
prcycllting the people from voting on this measurc. In this she SlTms to bl' accepting the ad\'icl' of
San Francisco based attorneys representing construction labor unions.
Currently, City Clerk Donnn Norris is holJing more Ihall 23,()()() signatures of Chub Vistn voters
who asked for a special dection this year. These peopk' want to \'ote on this matter. \'\Il' havl' fileu
our lawsuit in federal court to rCtluire het' to rclcasl' the signatures 10 the registrar of \"oters for
\'erificati(Hl.
1\$ to our case, for most of the 20th Cl'lltllry, California applicu a "local circulator" law to municipal
petitiolls. Under this law. only a Chula Vista citizen can circulate a petition in Chula Visl:l. Howc\'er.
in 1999. the U.S. Suprcme Court stnlck down a siluilar "local circulator" law in Culnrauo and since
then "lncal circulator" laws han: been struck down across thl' COUtHf\' anu in California. The Court
found that since only local voters can sign the petitinn, it is irrekTant who circulates. Since petition
circulation is a fOrIn of free speech, the state cannot restrict who makes this speech without
c()mpclling l'eas<)t1S
The clerk relics on :l related law that was couified in the 1920s that we call t11l~ "name the citizen"
rule. This law fl'<-luires a local citizen 10 sib'11 a statement that he "inlenus to circulate" a petition
before he starts circulating. This citizen's name anu statement arc puhlisht'd in a newspaper and
pnnted on cach petition and fik'u with the Clerk. This ga\'C people the chance to dctt'nnine if the
circulator was a true "locaL" ()nce the "local circulator" rule was uccl:ued unconstitutional, lilt..
"name the citizen" rule should have fallen.
In 1987.lwfol'e the local circulatol' nIle was knocked out, a Nurthern California Coun lookeu al a
sin1ibr issue. That Court held that the public has a right to know who the "tfUC a<.kocates" of a
pcririon arc so the~' can liSt.' that information to tnakc their choices. They cite (he need for the "paid
for by" language on political aun:rtising. To cOlnply with this case, we prinreu on l'\'er~' pctition
"pniJ for by the Chub Vistn Citizens for .lobs nnJ Fnir Competition major funJing bl' ABC"
because we lInderSI()()U the "true a<.h'ocat'es" to be the people who paid for the circulation. Your
ABC Merit Shop Contractors - Building America, Building Better Lives!
ck-rk argues that" th~ "true ath-ncale" is the original citizen. not the group who pays for the
circulation. \"/r think this is Inisreading this case. \,\/e think the case says "follow the money" to find
the true nth-ocate of a petition.
\\/e did not print the nnml' of the original citizens on every petition because they did not want thcir
namcs published in that way :lnd \\'e knew this "name the citizen" stntement was a remnant left over
from the discreditl'l.llocal circulator rule, It is not l'Yen required for statewide petitions,
()b\'iously, we WlTl' surprise when the Clerk rejected our 23,000 signatures because we did not
"nan1C the citizen" on nul' petition. This rnakes Chub Visl:l the FIRST City 10 try to enforce the
Hnan1C the Citizen" rule since the "Local Circulator rule" was declared unconstitutional.
To resoh'c this, Wl: have turned to a federal ci,'ilrights law firm thm showed us that the "name the
citizen" rule cannot stand lip under federal constitutional law because pcople have a right t'O
anonyt11oUs political speech. 1\ City cannot force its citizens 10 put their nameS on documents that
criticize the City go\'ernment. 11 is free speech. If you could il11,prJse this rule, Y(IU wcmld have tl) try
to punish everyone in the blogosphere who uses a false name. You would hnvt~ to make reporters
di~close their ~()UrCl'S. \\le all know you (:1I1't do that - likewisl~ you cnn't force a citizen who wants
to circulate a petition to disclo~e his or her identity. This is e"en clearer in our caSe. \,\/e disclosed
the political committee circulating the petition and the l11ajor fundt..'r of the petition,
()ur ci,"il rights finn loves thc C:lse anu bclie"l's it has legal merit, If it wins, we will b~ :lble to
reco,'cl' our attorney's fees frol11 you. In fcueral Coun the plaintiffs get their nttol'ney's fees when
they win ciyil rights suits. \' ou will pay your own allornc)' fees plus you will pay the cost of the
special election.
\,/e arl' corntnitted to a public \'cHe on this ml'asurc and \\.ill achil','e this objective through the
courts or through petition process. Just in case the Court process takes too long, Wl' arc currently un
the street with mon' signatures to foro: aJune 2010 election. So either way. we will get this on ('I'll'
ballnt.
It docs not, to us, scem like reasonable beha,'ior on your pan to incur upwards of S900,OOO in coSts
for legal fees and a sPl'cial e1cction when you (<In :lvoid all of that by placing this on the b:lllot
)'oursdvcs. As I said, one way or another, the peopk'. arc going to havl' the opportunity to dt..'Clde
for themsd\'es about t"his proposal.
"'e understand why 1.o[(:na Gonzalez and Ton1 1..el11111on and their Labor Union Attorneys behave
this way. The)' oppose f:lir and open cotnpetition and know the~' can't win at the Plllls. Research
shows that over 70'Yc, of yout' conSUI"uents \\,ant both union and non-union workers to be abk to
competc fredy for public works projl'Cl:-.
Howcver, we arc concerned about ,he cost of to taxpa~'ers, For I"h:II' rcason we urge you to avoid
thl' cost of expen:-ivc litigation, anti the potential cost of a spccial election, by acting today to plnce
this measure before the voters.
'IlK' choice before you is clent'. Act today to protect the rights of peti60n sibrt1Crs anti Chula Vista
taxpayers by pbcing this t11t.':lSU1"l' on the ballot, or waste hundreds of thousands of taxpayer dollars
in a misguided attempt to block vOlers' rights to h:we a say on a measut"t' which willl:vl'ntually con1e
bL'forl~ them anYW:1\',
If \'ell! m:lkc rhe decision tonight to put the item on the June 2010 ballot, you can guarantee that
YO~lr litigation costs will be %et'o. HOWe\Tf', if you decide to 11)o,'e forward to defend YOUI' "l1a111l' rhl'
citizen" rule in federnl cnurt, it will gel \Try expcnsi\T \.L'f}' tluickly. Plus. when Wl' win you
will be ordered to pay our attorney fees, and you will have the Cost of a sPl'cialekction. '{Otl
fire gmnbling with a lot of the public's Ill()nc~' here.
\V/e havc 38,000 people who W:llll to vote on this m~Htcr. Tonight is your last chance to h:l\'C
any cnntro} over when that election takes place
!t-'s time to move fnnvarc.l. Let the people decide.
ge
President and CI:.:O
l\ssocialed Builders find COl1traCfol"S of San Diego,
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