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HomeMy WebLinkAbout2009/07/21 Item 11 /fiJDi1?o;t!/l-L INFO /T&1? 1//1- ~ \ ft... Mayor and City Council ~ City Of Chula Vista ~ 276 Fourth Avenue -------- Chula Vista, Ca 91910 CHOIA ~'STA 619.691.5044 - 619 476.5379 Fax M ~ M 0 ~~~W~*lf,.!li~~~qr~iV~~'i!rd\l:J'I!:~~;;~iJJl11iil~'~\;f,1flf~~~~~4FiR'.[@l~nJ.ijl Tuesday, ,July 21, 200g ~U~t'~~~~~ ~ The Honorable Mayor & City COlll1dl City Manager, City Clerl{\ counCilmember.JOhn~l1~dt/az C./. . . Status of Councll Alde ~/nng COl~cllmen~Jl1.c.Q~ployment to Jraq / "cc..,'ll!. i .!},..".~y; ,I '" ,,[;&?~l;;;;'1Ji~(5.f\~~' ; TO: CC: FROM: SUBJECT: Coul1cilmember ,John McCann has requested that, during his absence due to military deployment to Jraq, supervisory authority for his Council Aides, Brian Pepin Rnd Jess McDevitt, be transferred to the City Manager. For example, the City Manager shall have the authority to sign off on the Council Aide's hours worked for each pay period Rnd shall have the authority to sign off on orders for letterhead and other oHice supplies, as recommended by the Council Aide. /}-f)P 1T10AJ/l-L (NR>14J/f7?() tU I~ 11/1 OFFICE OF THE CITY ATTORNEY CITY OF CHULA VISTA MEMORANDUM DATE: July 21, 2009 SUBJECT: Legal Memorandum Concerning Issues Relating To A Councilmember's Military Service Questions Councilmember McCann officially reported to the Council and City Attorney that he has been ordered to deploy to Iraq. Council member McCann will start his military leave on July 21,2009 and although he has no return date as yet, it is beleived the military may have him serving in Iraq for as long as 350 days. Councilmember McCann has indicated that it is his intent to resume his Council position upon his return from Iraq. . The military leave of Council member McCann raises several legal issues. This memorandum will address three of the most pertinent issues as noted below. 1. During his leave from the City in order to enter active duty with the armed services of the United States, will Councilmember McCann's council seat be considered a "vacancy", an "excused absence", or something else such as a prolonged military absence? 2. Upon his discharge or release from active duty will Council member McCann be entitled to be reinstated and returned to office? 3. During Councilmember McCann's absence, may the City Council fill his seat, and, ifs~, what is the process for doing so? City Attornev's Summary The complicated analysis of issues surrounding Councilmember McCann's military leave involves federal, state and local law. In this matter, controlling state law provides that Councilmember McCann's seat may not be considered "vacant" during his leave and under the 1 City of Chula Vista Charter his leave is not classified as a temporary "excused absence" as in the case of a transitory illness. His prolonged military absence entitles Councilmember McCann to complete any remaining time left of his current elected Council seat upon his return from service. The City Charter is silent as to appointment of an interim replacement as a result of a military prolonged absence. The California Military and Veteran's Code addresses the issue and allows for a replacement for the remainder of the Councilmember'sterrn, or until the Councilmember returns, whichever occurs first. The City Council may choose to leave the seat unfilled during Councilmember McCann's military duty. Background In a March 2002 primary, the people of the City of Chula Vista elected John McCann to serve as one of five members of the Chula Vista City Council. His term began in December 2002, when he was officially sworn into office. Following his first term, Councilmember McCann ran for a second term in office. Successful in his bid for election, he began his second and current term, in December 2006. This current term extends until December 2010, at which time, he may not run for a third term in the City Council. Councilmember McCann is also a lieutenant in the Navy Reserves. During a time of war, members of reserve units are frequently called for duty. As has occurred with other reserve members, Councilmember McCann recently received orders to deploy to Iraq for active duty. He is expected to deploy beginning on July 21, 2009 and his tour of duty is anticipated to last approximately one year. Depending on the date of his release or discharge from active duty, it is anticipated there may be several months remaining in his current term. Analvsis I. "Vacancy" The City Charter of the City Of Chula Vista ("Charter") generally controls on questions related to the absence of a Councilmember from City Council meetings. Except in the case of absences that are expressly permitted by Council, a councilmember's office "shall become vacant" following four (4) or more consecutive absences from regularly scheduled meetings. (Charter Section 303, emphasis added.) As the word "shall" is a word that mandates an outcome rather than one that grants discretion (i.e. "may"), unless other federal or state law controls, the office would be per se "vacant" pursuant to the Charter upon the 4a` such absence. The Charter, however, does not control if the state has preempted local action. (Sherwin- Williams Co. v. City of Los Angeles, (1993), 4 Ca1.4th 893.) Preemption occurs when the local legislation conflicts with state law. (Id.) California Military and Veterans Code ("Military and Veterans Code") Section 395.8 specifically addresses the absence of city officers leaving employment to enter active service with the armed forces. The Military and Veteran's Code applies to "any officer, elective or otherwise, who leaves or shall have left the service of any city in order to enter upon active service with the armed forces of the United States." 2 Military and Veterans Code provides in pertinent part at section 395.8: "The office from which such officer absents himself to enter upon active service with the armed forces shall not be considered to be vacant..." (Id., emphasis added.) Here, local legislation conflicts with state law: the local law considers the seat "vacant", while state law prohibits the seat from being declared "vacant." As a conflict exist, state law will in this instance preempt local law. Thus, regardless of how long a councilmember is deployed, provided his/her current term does not expire during the absence, the seat shall not be declared "vacant". As a result, any language in the Charter describing the process for appointment or election related to vacant seats, or as a result of a "vacancy", simply do not apply in this limited situation. Additionally, City Council has the ability to excuse a councilmember's absence from meetings. (Charter Section 303.) An excused absence is not a vacancy. Where absences have been excused, four or more absences would not result in vacancy. In order to excuse absences, Council must express, either prior to or contemporaneously with the absence, its permission for the councilmember to be absent. (Id) The Charter speaks only to the Council being required to grant permission for any "temporary illness of the requesting councilmember disabling him or her from attendance at such meeting." (Id., at section 303.) Where absences are for illness that disable a councilmember from attending a hearing the Council "must" grant permission. (Id.) The Charter provides no language for filling a seat under an excused absence. In the current situation, councilmember McCann will absent himself to enter upon active service with the armed forces. Pursuant to the Military and Veterans Code, his office shall not be declared "vacant." Also, the Council may excuse his absences by expressing in the minutes their intent to do so. Either method would result in the same outcome: the seat will not be considered "vacant." It appears to simply be a prolonged military absence. II. Reinstatement to Office The issue of whether a deployed councilmember is entitled to be reinstated to office upon return is also explicitly addressed in the Military and Veterans Code. Section 395.8 in relevant part states: "Any officer, elective or otherwise, who leaves or shall have left the service of any city... shall be reinstated and restored to his office upon his discharge or release from such active service with the armed forces; provided, such discharge or release is prior to the expiration of the term for which he has been elected or appointed." (Emphasis added.) As earlier stated, councilmember McCann has indicated a deployment of approximately one year. When he returns from active duty, if the time estimate is correct, approximately five (5) months will remain in his term as a councilmember. Provided his release from service occurs prior to the end of his term, the Military and Veterans Code requires that, if he so desires, he be reinstated to office and allowed to serve the remainder of his term. III. Temporary Council Appointment A. Charter Control over Appointment. The issue remains whether the Council has authority, and a process, for the appointment of a temporary or interim replacement while Councilmember McCann is serving a prolonged military absence. The provisions of California Constitution article XI, section 5 establishes a charter city's sovereignty over its "municipal affairs". Therefore, the City Charter acts as a local constitution for the City of Chula Vista. Article XI, section 3, subdivision (a) of the State Constitution provides that, "upon the voters' ratification and the Legislature's approval of a city ... charter, the charter shall become effective and `supersede ... all laws inconsistent therewith. "' (Quoting Harman v. City and County of San Francisco (1972), 7 Cal.3d 150, 161.) Charter cities have plenary authority to deal with its municipal officers and to conduct elections. (Cal. Const. Art XI, section 5(b).) The Charter generally is the supreme law of the City. However, as noted above, there are situations where the Charter is subject to conflicting provisions in the United States and California Constitutions, and to preemptive state or federal law. (Id.) The Chula Vista City Charter has no provisions discussing temporary replacements for a Council seat not considered vacant. In certain states, charters are considered a grant of authority. (See City of Shreveport v. Chanse Gas Corp. (2001), 794 So. 2d 962.) There is an argument that where there is no grant of authority in an area, the city may not act in that regard. Chula Vista's Charter section 303, entitled "Vacancies" discusses anticipated vacancies as well as unanticipated vacancies. In this section, depending on the timing of a vacancy, possible methods of filling a vacated seat range from holding a special election to appointing a replacement or leaving the seat vacant for the remainder of the term. (Id.) However, as already indicated, the Charter of the City of Chula Vista has no provision related to an interim replacement for a seat not considered "vacant." (See Charter Section 303.) The absence of such a provision some could argue may indicate that the City would have no authority to appoint an interim councilmember. In other words, here, the argument would follow that since the Chula Vista Charter is silent on the issue of an interim replacement, the Council lacks any grant of authority to make such an appointment. However, in other states, courts have established that charters are not grants of authority, but are only limitations on authority. (City of Glendale a Trondsen (1957), 48 Ca1.2d 93; Lawrence v. Cleveland (1970), 13 Cal.App.3d 127.) Where a charter acts as only a limitation of authority, it permits a municipality to exercise any and all powers consistent with the governance of the city without a specific grant of authority from the state. 4 In California, there is supporting case law and other legal authority that charters in this state act as instruments of limitation on the broad powers of charter cities over municipal affairs, rather than grants of authority. (City of Glendale v. Trondsen (1957), 48 Ca1.2d 93; Lawrence v. Cleveland (1970) 13 Ca1.App.3d 127.) A municipality in the state of California can, therefore, employ any and all powers connected with the government of the municipality. The Charter of the City of Chula Vista under section 200 addresses City powers and appears to reinforce the legal doctrine that our Charter is one of restrictions and limitations to grants of authority, as follows: "The City shall have the power to make and enforce all laws and regulations in respect to municipal affairs, subject only to such restrictions and limitations as may be provided in this Charter..." (Charter Section 200, emphasis added.) As there are no restrictions or limitations related to the appointment of an interim councilmember for a seat not considered "vacant", the nature of the Charter, one of limitation, and the language therein, provides that the City has the authority to take such action. B. State Law. Military and Veterans Code section 395.8 also permits a legislative body, such as the City Council, to appoint an officer to temporarily replace the absent councilmember, as follows: [T]he legislative body or other appointing authority, as the case may be, may appoint an officer to temporarily replace any such officer so absenting himself to enter upon active service with the armed forces. Such temporary officers shall have all of the powers and duties of the office to which he may be temporarily appointed and shall hold said office until the expiration of the term thereof or until the officer returns from service with the armed forces, whichever event first occurs. Though the state code permits the appointment of a temporary councilmember, it does not dictate any particular process by which an appointment should occur. Under the Chula Vista Charter there is no Charter provision spelling out a specific process for appointing a temporary replacement for a seat that is not "vacant." Additionally, there are no local ordinances or policies creating such a process. In situations like this where no state law, Charter provision, local ordinance, or policy provides any guidance or restrictions relating to a process by which a temporary councilmember may be appointed, the issue becomes whether the City Council has any legal authority to create such a process. It appears that the City Charter does generally provide the Council with such authority. (See Charter Sections 200 and 201.) Council has the authority to exercise the power to perform all acts that a municipal corporation "might or could exercise." (Charter Sections 200 and 201.) Creating a process to appoint a councilmember is an act that a municipal corporation "might or could exercise." Thus, it is up to the Council to establish a procedure for the temporary appointment to the seat of a councilmember who has been called to active duty in the armed services. Furthermore, though Military and Veterans Code section 395.8 provides Council authority to appoint a temporary replacement, such an appointment is not mandatory. The language of the statute specifically uses the word "may." (Military and Veterans Code section 395.8.) "May" is permissive. It is not a word of mandate. Additionally, the City has no obligation to appoint a temporary replacement. No Charter section, ordinance, or policy, exists, which addresses temporary appointments of councilmembers. The absence of such a requirement is in direct contrast with the existence of the several mandates to fill a "vacant" seat. (Charter Sections 303(B) and (C).) Charter Section 303(B) requires the filling of a "vacant" seat by special election - "[i]t shall be filled." Charter Section 303(C) provides two methods for filing vacant seats depending on the number of days left in the term. Both are mandates.' Like vacancies, the Charter anticipates extended absences, situations in which Council can excuse a councilmember for an undetermined length of time. (Charter Section 303(A).) In such a situation, language mandating that Council fill the seat is noticeably absent. This contrast between the presence of language requiring that Council fill a seat in the case of vacancy and the absence of similar language when addressing extended, permitted absences is of import. When legislators use specific language to accomplish an act or require an action, the legislators demonstrate their knowledge of how to use such language and also give meaning to the absence of such language. Where such language is excluded from legislation, the presumption is that the legislature intended to exclude it. In the current case, as no mandate is present, the Council is not required to replace the councilmember away on extended leave. Conclusion State law mandates that councilmember McCann's seat shall not be declared "vacant" during his active duty with the armed forces. The law also entitles him to reinstatement to his position as a councilmember, provided he returns prior to the end of his current term. With respect to his absent seat, it is clear the Council may leave the seat empty during councilmember McCann's military leave. Indeed there are some that may argue this Council must leave McCann's seat unfilled because our Charter is silent on the issue of replacement in this situation. There is acounter-argument that state law specifically provides for discretionary replacement and our Charter authorizes a broad grant of power without limitation on the Council to make such an interim replacement. Without any guidance to follow outlined in state law, our Charter, and local laws or policies it would be incumbent on this Council to establish a policy or 6 procedure td adhere to in appointing such an interim replacement. The City Attorney's office is prepared to assist the Council in such a process. T MIESF D SQ. City Attorne City of Chula Vista ~(~ ~ .--. - - - -- """"'---.::.... ~ - - Mayor and City Council City Of Chula Vista 276 Fourth Avenue Chula Vista, Ca 91910 619.691.5044 - 619.476.5379 Fax MEMO CITY OF CHUlA VISTA ~~~,W>1~~~1'l1'1",,,~~,~_,~~_~_,-,jr.1~ July 16, 2009 TO: FROM: Donna Norris, City Clerk Lorraine Bennett, Deputy City Clerk Sheree Kansas, Records Specialist . Mayor Cheryl COX G..V Jennifer Quijano, Constituent Services Manage(f& Youth Action Council VIA: RE: ~l~~~~Jll.,"&mr~j~~,w~~~~~1l:~"~<fil~~ Mayor Cox would like to recommend Mauricio Lopez for appointment to the Youth Action Council for the 2009 / 2010 year. Please place this item on the July 21, 2009 Council agenda for ratification and schedule the oath of office for the August 4, 2009 Council agenda. Thank you. /lc--