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HomeMy WebLinkAbout2009/10/27 Additional Information /lddA. '-Hon a2 I f-.J6r Yn~+t.t:rvJ - No.-,/or'5 dmm eV1.+.s OFFICE OF THE MA YOR ~ Item: Meeting Date: 9/01/09 ITEM TITLE: Discussion of Draft Ordinance Regarding Implementation of Proposition Q Mayofi)/ SUBMITTED BY: BACKGROUND: In November 01'2008, the residents of the City of Chula Vista voted to amend the City Charter to make the Chula Vista City Attorney an elected officer of the City. In general, the Charter Amendment makes the following two major changes to the City Chaner as it relates to the City Attorney: (1) it makes the City Anorney an elected officer of the City; and (2) it recasts and expands the. City Attorney's role, powers and relationship with the City Council. Much of the Charter Amendment is self-executing. However, portions of the measure either authorize or rcquirc funher implementation by the City Council. This draft Ordinance was prepared for the City Council's consideration, to address the provisions of the measure that necessitate City Council action. . The intent of the draft Ordinance is to implement the measure and ensure a seamless transition to an elected City Attorney. RIi:COMMIi:NDATJON: That the City Council discuss and provide direction on the draft Ordinance. DISCUSSION: The Elected City Attorney Charter Amendment specifically provides that it "may be amended or repealed only by the voters at a City election." (Charter Amendment, Section 5.) Although the City cannot, without a vote of the people, seek to expand or restrict the measure's scope or seek to address issues already specifically addressed in the measure, the City may create a framework to implement the purposes of the measure or adopt laws or rules that work in tandem with the measure. As discussed more fully below, seven (7) provisions in the measure require City Council action. Each of these provisions is discussed below. Fixing Comncnsation The measure provides that the "compensation of the eJected City Attorney shall be set by the Council. . . ." The measure also establishes a floor for this compensation that is fixed by "the median compensation paid to the City Attorneys of the six California cities whose populations are closest to that of the City of Chula Vista, provided that three are higher and three are lower in population. . .." This provision requires implementation by the City Council to establish the minimum compensation based upon the formula in the measure. The measure does not specify what population data should be used by the City Council to dctermine the six cities to be used, how the compensation of the six city attorneys should be measured or what data should 'be used, [Ordinance No. 1 Page No.2 how the compensation of the six city attorneys should be measured or what data should be used, or how to handle the potential that one or more of the six cities may use a contract city attorney. It is recommended that the Council adopt rules or policies to implement these provisions. The draft Ordinance seeks to address these issues. Declaration of Vacancy or finding of Disabilitv The measure provides that the City Council shall declare the office of City Attorney vacant under certain conditions, including unexcused absences, or when a finding of disability is made by at least a two-thirds vote of the members of the Council after considering competent medical evidence. However, the measure does not specify the procedures for making those determinations. lt is recommended that the City Council establish such procedures and the draft Ordinance seeks to do so. Filling Vacancies The measure authorizes the City Council to fill City Attorney vacancies by appointment by majority vote of the members of the Council, as long as less than 24 months remains in the unexpired term. Any such appointee must meet the qualifications of the measure and the appointment must occur within 60 days of the vacancy. However, the measure does not specify the manner in which the Council must nominate and appoint such a replacement (i.e., by an open application, public process or solely by Council nomination and approval). It is recommended that the Council establish a process for such appointments. The draft Ordinance seeks to establish such a process. Boards, Commissions and Agencies uf tbe City The measure provides that the City Attorney shall 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 Councilor the City Manager or any other officer, board or commission of the City. However, the measure does not address how and when the City's various boards, commissions Or agencies may request a written legal opinion rrom the City Attorney. Jt is recommended that the City Couneil establish a procedure for such requests for a written legal opinions and the draft Ordinance seeks to do so. Approval or Ratification of Legal Proceedings The measure provides that the City Attorney may commence legal proceedings subject to approval or ratification by the City Council. The measure does not specify how Or when ratification must be obtained. Jt is reeommended that the City Council establish a procedure for approving or ratifying legal proceedings and the draft Ordinance seeks to do so. Appointment of Special Counsel The measure provides that the Council "may" empower the City Attorney, at his or her request, to employ special legal counsel. It is recommended that the City Council establish a procedures making and approving such requests. The draft Ordinance seeks to establish these procedures. [Ordinance No. 1 Page No.3 Conflicts of Interest The measure provides that City officers may retain special legal counsel at City expense when the elected City Attorney has a conflict of interest, subject to the recommendation of the City Arromey and the approval of\he City Council. It is recommended that the City Council consider establishing a process for approval of such recommendations. The draft Ordinance seeks 10 do so. CONCLUSION: The Elected City Arromey Charter Amendment establishes new roles and procedures for the Chula Vista City Arromey. Most of the Charter Amendment is self-executing. However, portions of the measure require implementation by the City Council. This draft Ordinance is intended to foster discussion regarding these marrers. FISCAL IMPACT: None. A TT ACHMENTS: l. Draf10rdinance 2. Charter Amendment DRAfT ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADDING CHAPTER 2. I I TO THE CHULA VISTA MUNICIPAL CODE RELATING TO THE OFFiCE OF THE ELECTED CITY A TTOIU-JEY WHEREAS, in November of 2008, the residents of the City of Chula Visra approved Proposition Q, which amended the Chula Vista City Charter to make the office of City Attorney an eJected office of the City; and WHEREAS, Proposition Q made changes to the City Charter related to the City Attorney's role, powers and relationship with the City Council; and WHEREAS, portions of Proposition Q require Ciry Council action to ensure the measure's full implementation; and WHEREAS, the City Council intends to fully implement Proposition Q by adding Chapter 2.1 I to the Chula Vista Municipal Code. NOW, THEREFORE, the City Council of the City ofChula Vista does ordain as [ollows: SECTION] : That Chapter 2.] I of the Municipal Code is hereby added to read as follows: Chapter 2.11 ELECTED Cln' ATTORJ'IEY SECTIONS: 2.11.010 Findings 2. I 1.020 Purposes 2.1 I .030 Compensation of City Anomey 2. I I .040 Declaration of Vacancy 2. I I .050 Filling a Vacancy 2.11.060 'Boards, Commissions and Agencies of the City 2. I 1.070 Council Approval or Ratification of Legal Proceedings. 2.1 I .080 Appointment of Special Counsel 2.1] .090 Conflicts of Interest 2.11.010 Findings. A. In November of 2008, the residents of the City of Chula Vista approved Proposition Q, whieh amended the Chub Vista City Chaner to make the office of City Attorney an elected office of the City ("the Measure"). ORDINANCE NO. B. The City Council finds that implementation of portions of the Measure requires action by the City Council. C. The City Council further finds that the Chula Vista Municipal Code should be amended to implement the Measure where City Council action is required. D. The City Council further finds that this Ordinance is not intended to, and does not in any way, amend or alter the provisions of the Measure. In the event of conflict between this Ordinance and the Measure, the Measure shall govern. 2.11.020 Purposes A. The City Council intends by adding this Chapter to implement the Measure, to ensure the complete and seamless transition of the office of City Anorney from an appointed to an elected position, and to ensure compliance with state and local laws. B. The City Council does not intend by this Chapter to expand or restrict the Measure's scope or seek to address issues already specifically addressed in the Measure. 2.11.030 Compensation of City Attorney. The Measure authorizes the City Council to set the compensation of the City Anorney. In addition, the Measure specifies a formula to determine the minimwn compensation that may be paid to the City Anomey. To implement this formula, the City Council shall, as of February of each year, use the most current annual population estimates published by the California Department of Finance, Demographic Research Unit, to determine the six California cities whose population is closest to the City, as specified in the Measure. In the event that the city attorney of any comparable city is not an employee of that city, the compensation for such city attomey shall not be used as a comparison and the city with the next higher and/or next lower population, as applicable, shall be used in the comparison. As of March of each year, the City shall, for each comparable city as identified above, obtain a copy of the employment contract for the city attorney and/or other docwnentation necessary to demonstrate the city at1orney's salary. The City shall also obtain a ccrtified report from each city's city manager, or his/her designee, regarding the city attorney's compensation as of March of the then current year. This data shall be used to calculate the minimum salary of the City Anorney and shall be made available to the public no later than May of each year. For purposes of this Section, "compensation" means any and all payments made by a city to the: city attorney, or accrued to the benefit of the city anorney, as consideration for the public official's services to the city. Such payments include wages, pension benefits, health and other insurance coverage, rights to compensated vacation and leave time, free or discounted transportation, payment or indemnification oflegal defense costs, and similar bcnefits. 2 ORDfN.A..i"\JCE NO. 2.11.040 Dcclaration of Vacancy. The Measure sets forth circumstances in which the City Council may declare the oftice of Citv Attornev vacant. A declaration of vacancv shall be made during a regularlv scheduled Cit\' p r . ~ ..... r . Council meeting following a public hearing. Prior to declaring the office of City Attorney vacant, the City Council shall make findings, by resolution, setting forth the basis for such declaration. 2.11.050 Filling a Vacancy. The Measure provides that a vacancy in the office of City Attorney be tilled by the City Council when fewer than 24 months remain in the term of the office. At such time as a vacancy in the office of City Attorney is declared by the City Council with less than 24 months remaining in the unexpired term, members of the City Council may submit to the City Clerk, no later than ten business days after said declaration, the name of one nominee to fill the vacancy, together with any information in support of such nomination. The City Clerk shall prepare and submit to the City Council a full list of nominees and shall cause to be placed on the agenda of the next regularly scheduled City Council meeting an item for the discussion and action by the Council on the nominees. The City Council shall consider all such nominees and shall vote to select a nominee to fill the vacancy after a public hearing. The replacement shall be appointed 10 office within 60 days of the declaration of vacancy. 2.11.060 Boards, Commissions and Agencics of thc City. The Measure provides that the City Attorney shall advise all boards, commissions and agencies of the City on legal matters referred to him or her. The City Council may waive the referral requirement and authorize, by resolution, any board, commission or agency to directly request services of the City Attorney. Otherwise, all boards, commissions and agencies of the City shall be required to request City Council authorization prior to requesting any City Attorney services. In such -cases, in order to request legal services, the board, commission or agency requesting such services shall present a written request to the City Council, which shall specify the particular matter or matters for which the board, commission or agency seeks services, a description of the requested scope of services, and any time constraints associated with said services. The City Council shall hear and act upon such request during a regularly scheduled. City Council hearing or closed session, as appropriate. If approved, the City Council shall forward the request to the City Attorney for action. The City Attorney may recommend to the City Council, at any time, that a board, commission or agency be represented by special legal counsel, when, in the sole discretion of the City Attorney, it is necessary in order to avoid a conflict of interest under state or 10cClllaw. 2.11.070 Council Approval or Ratification of Legal Proccedings. The Mcasure provides that the City Attorney may exercise discretion as to when to commence or maintain legal proceedings when a cause of action exists in favor of the City. The ~ ORDINA-NCE NO. City Attorney shall seek approval before commencing or maintaining a claim on behalf of the City whenever possible. Whenever the City Attorney requests prior approval of such a claim, the City Council shall act on the request by the City Attorney to commence or maintain legal proceedings within a reasonable time and shall make any necessary adjustments to the City' budget. In the event that the City Attorney is unable to request approval prior to commencing or maintaining a claim, the City Attorney shall request that the City Council schedule a closed session hearing for ratification of the claim at the next regularly scheduled City Council meeting. In the event that the City Council declines to approve or ratify the legal proceedings, the City Attorney shall complete all activities necessary to conclude or terminate the legal proceedings in a timely manner. 2.11.080 Appointment of Special Counsel. The Measure authorizes the City Council to empower the City Attorney, at his or her request to employ special legal counsel. In requesting the appointment of special legal counsel, the City Attorney shall present a written request to the City Council specifying the basis for the request for special legal counsel and the timeframe, scope and matter for which the special legal counsel is recommended. The request shall be heard during a regularly scheduled City Council meeting. Upon approval of the use of special legal counsel, the City Council shall make any necessary adjustments to the City budget. The City Council may, by resolution, delegate this approval authority to the City Manager. 2.11.090 Conflicts of) nterest. The Measure provides that an officer of the City may retain special legal counsel when a conflict of interest exists between the City Attorney and such office of the City. At such time as the City Attorney finds, in his or her sole discretion, that a conflict of interest exists, the City Attorney shall make a written recommendation to the City Council that the City retain special legal counsel. The \vritten recommendation shall. include the basis for the conflict of interest and the timeframe, scope and legal matter for which the outside legal counsel is recommended. The City Council shall'approve such request unless extenuating circumstances apply. SECTION II. SEVER.A.BILITY. If ~my section, subsection, sentence, clause, phrase or portion of this Chapter is for any reason held invalid or unconstitutional, such portion shall be deemed a separate and independent provision and such decision shall not affect the validity of the remainder. SECTION III. This Ordinance will take effect and be in full force thirty (30) days from final passage. 4 ORDINANCE NO. SECTION IV. CERTIFICATION. The City Clerk shall certify to the adoption of this Ordinance and cause it, or a summary of it, to be published once in a newspaper of general circulation printed and published within the City of Chula Vista. Presented by Approved as to form by 5 The followim, is the te,\! of the amendments to the Charter of the Citv of Chula Vista. submitted [Q and ratified by the voters of the City ofChu]a Vis:a on November 4, 200S: . ELECTED CITY A TTOR!"'EY ACT Section 1. Puroose and Findings - Elected Cit" Attornev. This charter amendment is intended to provide for the election of the City Attorney by the residents of the City of Chula Vista. The City of Chula Vista should have an elected City . Attorney who is responsible to Chula Vista residents instead of an appointed citv attorne;- responsible only to the Mayor and City CounCIL It is in the best interests of the City of Chula Vista that the Cit')' Attorney be sufficiently independent of the City Council and other city . officials to able to both advise the city and act in the best interests of the public. Section 2. i\rnendment of the Charter. A. Section 503 of the Charter of the City of Chula Vista IS hereby amended to read as follows: Section 503 Ci;" Attorney: Election. Powers and Duties (a) Designation as Officer. The City Arromey shall be an officer of the City, in addition to any other officers designated pursuant to this Charter. It is the intent of the voters that the Cirv Attorney shall be sufficiently independent of the City Council and orher city officials to advis~ u1e City while also acting in the best interests of the public. (b) Powers of the City Attorney. The City Arromey shall: (1) Represent and advise the City Council and all city officers in all matters of law pertaining to their offices 'L'1d advise all boards, commissions, and orher agencies of the City on legal matters referred to him Ot her, and render ""Tirren legal opinions when the same are requested in wri;i.llg by the Ma;;or Ot a member of the Councilor the City Manager or a'1)' OL'oer officer, bo~d or cornmission of the City; (2) Represent and appear for the City and any ci;y officer or employee, or former City officer or employee, in any or all c.cllons c.nd proceedings in which the Ci", or any such officer or employee in or by reasons of his or her official cap.acity, is concerned or is a pany; (3) Attend all regular meetings of the City Council and give his or her opinion in \\.Tiling \\'henever requested to do so by the City Councilor by aT"!)' or the bo~ds or officers of the City; (4) Approve the form of ali contracts made by and all bonds given to the City, endorsing approval [hereon IT! \YTIting; (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 t.'1e 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 Cbula Vista for offenses conStitutlDg misdemeanors; (7) Whenever a cause of action exists in favor of thc City, exercise discretion as to when to commence or maintain legal proceedings, subject to the. approv:!l 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 Or maintain legal proceedings as directed by the City Council; (&) Surrender to his or her successor ail books, papers, files and documents pertaining to the City's affairs. The Council may empower the City Arrorney, at his or her request, to employ special legal counsel, 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. Upon the City Attorney's recommendation and the approval of the Council, when be or she has a conflict of interest in litigation involving another office of the City in his official capacity, such other officer may retain speciallegaJ counsel at City expense. Nothing in this Section 503 shall be construed to prevent the City Attorney from givmg confidential advice to the City when otherwise allowed by law. (c) Election; Compensation of City Attorney. The City Attorney shall be nominated a.~d elected in the same manner and at the same election as a member of L'1e City Council, except as other.vise provided in this section. The compensation of the elected City Attorney shall be set by the Council, but shall be not less than the median compensation paid to the City Attorneys of the six California cities whose populations are closest to that of the City of Chula Vista., provided that three are higher and three are lower in population, and that compensation may not be reduced during the City Attorney's term of office, except as part of a general reduction of salaries of all officers and employees in the same amount or proportion. The City Artomey shall be in the Unclassified Service. (d) Qualiflcations 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 chaner. . (e) Term of Office of the City Arromey. r,.,e City Arromey shaU be e]ecced to a nomina] term of four years and shall commence on the first Tuesday of Decem ber of the year of the election, and shall continue unt'J a successor qualifies. (I) VaC2.ncy, Filling of Upon the declaration of vacancy in the Office of Lf)e City Attorney, the Office of the City Arromey shall be filled by appointInent by tbe majonly vote of the members of the Council; provided, that if tb.e Council shaU fau to fill a vacancy by appointment within sixty days after such office shall become vacant, or if the unexpired term of the City Anomey shall exceed 24 months at the tL,:ne of the appointment, the City Council sha!1 cause a special election to be held to fill such vccancy. An appointee or the person elected to rhe Office of City Arromey for the ba]a,'1ce of a..'1 unexpired term shall hold office until the next genera] election for the Office of the City Arromey. (g) Vacancy, What Constitutes. The Office of City Arromey shall be declared vacant by the Council when the person elected or appointed thereto fads to qualify within len days aner 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 hiillself or herself frOill any seven consecutive regular meetings except on. account of OViIJ i]lness or when absent from the Ciry 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 Chaner, 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 aner considering competent medica] evidence bearing on the physic a] or mental capabillly of the City Anomey. B. Section 500 of the Charter of the CllY ofChu]a Vista is hereby ainended as follows: 500. Election. ADPointment and Removal of Officers and DeDartment Heads (a) Election; Appoin,ment. The City Attorney shall be elected by the voters of ,he Citv. Tne City Manager and City Clerk shall be appointed by and serve at the pleasure of the City Council and shall ae in the Unciassified Service. In addition, there shall be in the Unclassified Service a private secrera.; fDr the City Manager, Citv ArrDmey and the Mayor and Council who shall be appDinted by the respecti ve Dfficers for ",'horn they serve. All oLoer officers and department heads Df the Cit;, a.'1d the Assistant City Manager shall be appointed by the City Manager subject to the approval of the City Council. The City Arromev shall also appoint Assistant or Deputy City AITomeys as may be authorized by the Council, who shall be in me Unclassified Se:vice. The City Clerk may also appoint Assistant or Deputy City C!erks as may be authorized by the Council subject tD the approval of the Council who shall be in the Unclassified Service. It is fJnher provided the City Council may, by ordinance, place Assistant and Deputy Department Heads, Assistants to Loe City i\1anager and new management ]evel positions in me Unclassified Service b;' a four-fifths vote of the Council. (b) Removal Ofiicers and employees in the Unclassified Service appointed bv the City Council may be removed by tbem at any time by a majority vote of the members of the Council, and such officers and department heads in the Unclassified Service appointed by the City Manager or City Attorney, respectively, may be removed by him or ber at any time and, in the case of appoimees in the Unclassified Service, the order of the City Council, the City Arrorney, or the City Manager affecting said removal shall be final and conclusive. The positio:1 of said officers and employees shall be declared vaca.-ll if said officer or employee is convicted of a felony or crime involving moral turpitude. Any appointee or employee in the Unclassified Service so removed by the Ciry Manager, the Ciry Attorney or CiTy Clerk may, however, within five (5) days after receipt of a notice of dismissal, demand a ,,'finen statement of the reason for such dismissal, a copy of which shall be forthwith filed with the Ciry Council. Upon receipt of such written statement so furnishcd by the Ciry Manager, lhe Ciry Attorney or City Clerk to the City Council, the Council shall fix a time and place for a pubiic hearing, at which hearing the Council shall have authority to invesligate the facts set forch in said wrinen cOrtlrnunication from the Cit)' Manager, the City Arrorney or Ciry Clerk containing the reason for said dismissal, and determi:1e the truth or falsiry of said facts. Council shall report its fU'ldings and recommendalions made as a result of such hearing, and cause a copy of said fU'ldings ro be delivered to the Ciry jvfanager. the Citv Attornev or Cirv Clerk and file the ori!linal with the City Clerk. The ~ . -' . '" ~ . '" dismissed appointee or emplDyee in such cases shall have the right to file with the CDuncil a \vritten reply or answer to any charges filed by the Ciry Manager, the CiTy Attorney or the Ciry Clerk. All "Tirren documents, including the CiTy Manager's, lhe CiTy Arrorney's or the Ciry Clerk's written reasons for such dismissal, and the reply of tbe dismissed appointee or employee, lhe findings and decisions of the Council, and any documentary evidence used at the hearing shall be filed with the proper office of the Ciry as public records, open fDr inspection at any time. Nothmg her6n contained, however, shall be construed as in any way limiting the authority and power of the City !\,ranager, the City Attorney or the City Clerk to remove any appointee or employee in the Unclassified Service of the Ciry, so appointed or employed, and all such removals shall be final and conclusive. (c) No fiscal impacts. Except as expressly provided in Section 503, nothing in this Section 500 shall be construed to lin1it the budgetary authorit)' of lhe City Council as respects the officers and employees under the supervision of the City Attorney. Section 3. Implement3.tion. A. Upon the effective date of this initiative, the provisions of this initiative shall be inserted into the Charter as amendments thereto. .'v1y provisions of City Charrer, Slate law or cily ordinances inconsistent with these amendmems shall be unenforceable to the extent of the inconsistency. B. The City Arromey serving at the time of the adoption of this iillliative, or his or her successor(s) shall continue to be qualified to hold such office, and shall carry Dut lhe duties and be authorized to continue to exercisc any and all powers or that office under the terms and conditions of this Charter and general law existing prior to the adoption oftbis initiative, until his or her successor is qualified and assumes office by election or appointment as a result ofrhe next general eleclion. Section 4. Sever2.biJitv. If any word, sentence, paragT2.ph, subparagraph, section or portion or this initiative is declared to be invalid by a court, the remaining words, sentences, paragraphs, subpalagraphs, sections and ponions are to remain valid and enIorceable. Secti on 5. Amendment or Repeal. This L'1itiative may be amended or repealed only by t.'1e voters at a City election. Section 6. Effective Dare. If a majority of the voters voting on the proposed chaner amendment vote in its favoL the chaLer amendment shali become valid and binding upon filing by the California Secretary of State. Cenified and Authenticated by: Choryl Q~.J! ~ J~Aft j} ~,{,,~ Oohr;a Norris, City Clerk Attested by': /~ua Ie. N;~ Donna Norris, C ty ctefk