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HomeMy WebLinkAbout2009/11/17 Item 17CITY COUNCIL AGENDA STATEMENT `v~~ cm of 'CHUTAVISTA NOVEMBER 17, 2009, Item~~ ITEM TITLE: ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADDING CHAPTER 2.11 TO THE CHULA VISTA MUNICIPAL CODE RELATING TO THE OFFICE OF THE ELECTED CITY ATTORNEY SUBMITTED BY: CITY MANAGER S D VAL/SPECIAL COUNSEL HAGERTY SN REVIEWED BY: CITY MANAGER 4/STHS VOTE: YES ^ NO ^X SUMMARY In November of 2008, the residents of the City of Chula Vista voted to amend the City Charter to make the Chula Vista City Attomey an elected officer of the City. In general, the Charter Amendment makes the following two major changes to the City Charter as it relates to the City Attorney: (1) it makes the City Attorney 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 require further implementation by the City Council. The proposed ordinance addresses the provisions of the measure that require City Council action. Adoption of the ordinance implements the measure and ensures a seamless transition to an elected City Attorney. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines because it does not involve physical changes to the environment; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines, the activity is not subject to CEQA. Thus, no environmental review is necessary. RECOMMENDATION Council place the ordinance on first reading. BOARDS/COMMISSION RECOMMENDATION Not Applicable (7-/ NOVEMBER 17, 2009, Item ~7 Page 2 of 4 DISCUSSION The Elected City Attorney Charter Amendment specifically provides that it "may be amended or repealed only by the voters at a City election."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, attached) 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. Seven (7) provisions in the measure require City Council action. Each of these provisions is discussed below. Fixin¢ Compensation The measure provides that the "compensation of the elected City Attomey 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 aze closest to that of the City of Chula Vista, provided that three are higher and three aze lower in population ...." This provision requires implementatiop 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 determine the six cities to be used, 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 proposed ordinance seeks to address these issues. Declaration of Vacancy or Findine of Disability 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 atwo-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. It is recommended that the City Council establish such procedures, and the proposed ordinance seeks to do so. Fillin¢ Vacancies The measure authorizes the City Council to fill City Attomey 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 proposed ordinance seeks to establish such a process. ?_2' NOVEMBER 17, 2009, Item Page 3 of 4 Boards, Commissions and Aeencies of the City The measure provides that the City Attorney shall advise all boazds, 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 Council or 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 vazious boards, commissions or agencies may request a written legal opinion from the City Attomey. It is recommended that the City Council establish a procedure for such requests for written legal opinions and the proposed ordinance seeks to do so. Approval or Ratification of Leal Proceedin¢s 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. It is recommended that the City Council establish a procedure for approving or ratifying legal proceedings and the proposed 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 procedures making and approving such requests. The proposed ordinance seeks to establish these procedures. Conflicts of Interest The measure provides that City officers may retain special legal counsel at City expense when the elected City Attomey has a conflict of interest, subject to the recommendation of the City Attomey and the approval of the City Council. It is recommended that the City Council consider establishing a process for approval of such recommendations. The proposed ordinance seeks to do so. CONCLUSION The Elected City Attorney Charter Amendment establishes new roles and procedures for the Chula Vista City Attomey. Most of the Charter Amendment is self-executing. However, portions of the measure require implementation by the City Council. The proposed ordinance is intended to establish the framework necessary to implement the Charter Amendment. 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. CURRENT YEAR FISCAL IMPACT Adoption of the ordinance establishes procedures to implement certain provisions of the Charter amendment. No General Fund impact is anticipated in the current fiscal year. 7 -" NOVEMBER 17, 2009, Item Page 4 of 4 ONGOING FISCAL IMPACT Adoption of the ordinance establishes procedures to implement certain provisions of the Charter amendment. No ongoing impact to the General Fund is anticipated. ATTACHMENTS Charter Amendment Proposed Ordinance Prepared hy: Shawn Hagerty, Speeia[ Counsel ~7-~ ATTACHMENT I The followine is the test of the amendmenu to the Charter of the City of Chula Vista, submitted to and ratified by the voters of the City of Chula Vista on November 4, 2008: ELECTED CITY ATTORNEY ACT Section 1. Puroose and Findines -Elected City Attorney. 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 city attorney responsible only to the Mayor and Ciry Council. It is in the best interests of the City of Chula Vista that the City Attorney be sufficiently independent of the Ciry Council and other city officials to able to both advise the city and act in the best interests of the public. Section 2. Amendment of the Char[er. A. Section 503 of the Charter of the City of Chula Vista is hereby amended to read as follows: Section 503 City Attorney: 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. It is the intent of the voters thaz the Ciry Attorney shall be sufficiently independent of 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. The City Attorney shall: (]) Represent and advise the City Council and all city officers in all marters of law pertaining to their offices and 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 wTitina by the Mayor or a member of the Council or the City Manager or any other officer, boazd or commission of the City; (2) Represent and appeaz for the City and any city officer or employee, or former City officer or employee, in any or all actions and proceedinss in which the Ciry or any such officer or employee in or by reasons of his or her official capacity, is concerned or is a party; (3) Attend all regulaz meetings of the City Council and give his or her opinion in writing whenever requested to do so by the City Council or by an_v of the boards or officers of the City; (4) Approve the form of all contracts made by and all bonds given to the City, endorsing approval thereon in writing; l 7-6 (~) Prepaze 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 the State as may be required by law, and shall have concurrent jurisdiction with the District Attomey 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 Chula Vista for offenses constitutine misdemeanors: (7) Whenever a cause of action exists iri favor of the City, exercise discretion as to when to commence or maintain legal proceedings, subject to the approval or ratification by the City Council, when the basis for such action is within the knowledge of the City Attomey; oc he or she shall commence or maintain legal proceedings as directed by the City Council; (8) Surrender to his or her successor all books, papers, files and documents pertaining to the City's affairs. The Council may empower the Ciry Attomey, 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 Ciry in his official capacity, such other officer may retain special legal counsel at City expense. Nothing in this Section X03 shall be construed to prevent the City Attomey from giving confidential advice to the City when otherwise allowed by law. (c) Election; Compensation of City Attomey. The City Attorney shall be nominated and elected in the same manner and at the same election as a member of the City Council; except as otherwise provided in this section. The compensation of the elected City Attomey 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 Attomey'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 Artorney shall be in the Unclassified Service. (d) Qualifications 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 charter. 1 ~'- b (e) Term of Office of the City Attorney. The City Attomey shall be elected to a nominal term of four yeazs and shall commence on the first Tuesday of December of the yeaz of the election, and shall continue until a successor qualifies. (f) Vacancy, Filling of. Upon the declazation of vacancy in the Office of the Ciry Attorney, the Office of the City Attomey shall be filled by appointment by the majority vote of the members of the Council; provided, that if the Council shall fail to fill a vacancy by appointment within sixty days after such office shall become vacant, or if the unexpired term of the City Attomey shall exceed 24 months at the time of the appointment; the City Council shall cause a special election to be held to fill such vacancy. An appointee or the person elected to the Office of City Attomey' for the balance of an unexpired term shall hold office until the next general election for the Office of the City Attomey. (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 City 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 Charter, 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 after considering competent medical evidence bearing on the physical or mental capability of the City Attomey. B. Section 500 of the Charter of the City of Chula Vista is hereby amended as follows: X00 Election. Apoointment and Removal of Officers and Denarment Heads (a) Election; Appointment. The City Attorney shall be elected by the voters of the City. The City Manager and City Clerk shall be appointed by and serve at the pleasure of the City Council and shall be in the Unclassified Service. In addition, there shall be in the Unclassified Service a private secretary for the City Manager, City Attorney and the Mayor and Council who shall be appointed by the respective officers for whom they serve. All other officers and department heads of the City and the Assistant City Manager shall be appointed by the Ciry Manager subject to the approval of the City Council. The City Attorney shall also appoint Assistant or Deputy City Attorneys as may be authorized by the Council, who shall be in the Unclassified Service. The City Clerk may also appoint Assistant or Deputy City Clerks as may be authorized by the Council subject to the approval of the Council who shall be in the Unclassified Service. It is further provided the City Council may; by ordinance; place Assistant and Deputy Department Heads; Assistants to the City Manager and new management level positions in the Unclassified Service by a four-fiRhs vote of the Council. (b) Removal_ Officers and employees in the Unclassified Sen~ice appointed by the City Council may be removed by them 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 her at any time and, in the case of appointees in the Unclassified Service, the order of the City Council, the City Attorney, or the City Manager affectins said removal shall be final and conclusive. The position of said officers and employees shall be declared vacant 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 City Manager, the City Artomey or City Clerk may, however, within five (5) days after receipt of a notice of dismissal, demand a written statement of the reason for such dismissal, a copy of which shall be forthwith filed with the City Council. Upon receipt of such written statement so furnished by the City Manager, the City Attorney or City Clerk to the City Council, the Council shall fix a time and place for a public hearing, at which hearine the Council shall have authority to investigate the facts set forth in said written communication from the City Manager, the City Attorney or City Clerk containing the reason for said dismissal, and detertnine the truth or falsity of said facts. Council shall report its findings and recommendations made as a result of such hearing, and cause a copy of said findings to be delivered to the Ciry Manager, the City Attorney or City Clerk and file the original with the City Glerk. The dismissed appointee or employee in such cases shall have the right to file with the Council a written reply or answer to any chazges filed by' the City Manager, the City Artomey or the Ciry Clerk. All written documenu, including the Ciry Manasers, the Ciry Attorney's or the City Clerk's written reasons for such dismissal, and the reply of the dismissed appointee or employee, the findings and decisions of the Council, and any documentary evidence used at the hearing shall be filed with the proper office of the City as public records, open for inspection at any time. Nothing herein contained, however, shall be construed as in any way limiting the authority and power of the City Manager, the City Attorney or the City Clerk to remove any appointee or employee in the Unclassified Service of the City; 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 Limit the budgetary authority of the City Council as respects the officers and employees under the supervision of the City Attorney. Section 3. Implementation. A. Upon the effective date of this initiative, the provisions of this initiative shall be inserted into [he Charter as amendments thereto. Any provisions of Ciry Charter, state law or city ordinances inconsistent with these amendments shall be unenforceable to the extent of the inconsistency. B. The City Attorney serving at the time of the adoption of this initiative, or his or her successor(s) shall continue to be qualified to hold such office; and shall carry out the duties and be authorized to continue to exercise any and all powers of that office under the terms and conditions of this Charter and general law existing prior to the adoption of this initiative; until his or her successor is qualified and assumes office by election or appointment as a result of the next general election. ~- Section 4. Severability. If any word, sentence, paza~raph, subpazagraph, section or portion of this initiative is declared to be invalid by a court; the remaining words, sentences, pazagraphs, subparagraphs, sectioas and portions aze to remain valid and enforceable. Section 5. Amendment or Repeal. This initiative maybe amended or repealed only by the voters at a City election. Section 6. Effective Date. if a majority of the voters voting on the proposed charter amendment vote in its favor, the charter amendment shall become valid and binding upon filing by the California Secretary of State. Certified and Authenticated by: V Cheryl ox, M or O D a Norris, Ciry Clerk Attested bv° ` © , Donna Norris, C ty C c i 7-- ORDINANCE NO. ORDINANCE OF THE CITY OF CHULA VISTA ADDING CHAPTER 2.11 TO THE CHULA VISTA MUNICIPAL CODE RELATING TO THE OFFICE OF THE ELECTED CITY ATTORNEY WHEREAS, in November of 2008, the residents of the City of Chula Vista approved Proposition Q, which amended the Chula Vista City Charter to make the office of City Attorney an elected 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 Propositon Q require City Council action to ensure the measure's full implementation; and WHEREAS, the City Council intends to fully implement Proposition Q by adding Chapter 2.11 to the Chula Vista Municipal Code. NOW, THEREFORE, the City Council of the City of Chula Vista does ordain as follows: SECTION 1: That Chapter 2.11 of the Municipal Code is hereby added to read as follows: Chapter 2.11 ELECTED CITY ATTORNEY SECTIONS: 2.11.010 Findings 2.11.020 Purposes 2.11.030 Compensation of City Attorney 2.11.040 Declazation of Vacancy 2.11.050 Filling a Vacancy 2.11.060 Boazds, Commissions and Agencies of the City 2. ] 1.070 Council Approval or Ratification of Legal Proceedings 2.11.080 Appointment of Special Counsel 2.11.090 Conflicts of Interest 2.11.010 Findings. A. In November of 2008, the residents of the City of Chula Vista approved Proposition Q, which amended the Chula Vista City Char[er to make the office of City Attorney an elected office of the City ("the Measure"). 1 /7-~0 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 Attorney 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 Attorney. In addition, the Measure specifies a formula to determine the minimum compensation that may be paid to the City Attorney. To implement this formula, the City Council shall, as of February of each yeaz, use the most current annual population estimates published by the California Department of Finance, to determine the six California cities whose populations are 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 attorney 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 compazison. As of March of each year, the City, through the City Manager or designee of the City Manager, shall, for each comparable city as identified above, obtain a copy of the employment contract for the city attorney and/or other documentation necessary to demonstrate the city attorney's compensation. This data shall be used to calculate the minimum compensation of the City Attorney. The minimum compensation as calculated by the City Manager or designee of the City Manager shall be made available to the public within a reasonable time after the calculation is approved by the City Manager but not later than May of each year. For purposes of this Section, the "compensation" of the city attorneys of the comparable cities shall mean the base salaries of the city attorneys as set forth in their respective employment contracts. 2 /~-j/ ORDINANCE NO. 2.11.040 Declaration of Vacancy. The Measwe sets forth circumstances in which the City Council may declare the office of City Attorney vacant.. A declazation of vacancy shall be made dwirig a duly noticed regular or special City Council meeting, which may include a closed session as authorized by the Ralph M. Brown Act. Prior to declaring the office of City Attorney vacant, the City Council shall make and adopt findings, by a resolution approved by a 2/3rds vote, setting forth the basis for such declazation. 2.11.050 Filling a Vacancy. The Measwe provides that a vacancy in the office of City Attorney be filled 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, each member of the City Council, including the Mayor, may submit to the City Clerk, no later than ten business days after said declazation, the name of one nominee to fill the vacancy, together with any information in support of such nomination. The City Clerk shall prepaze and submit to the City Council a full list of nominees and shall cause to be placed on the agenda of the next duly noticed regulaz or special 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. The replacement shall be appointed to office within 60 days of the declazation of vacancy. 2.11.060 Boards, Commissions and Agencies of the City. The Measwe provides that the City Attorney shall advise all boards, commissions and agencies of the City on legal matters refereed to him or her. The City Council may waive the referral requirement and authorize, by resolution, any boazd, 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 boazd, 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 boazd, 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 heaz and act upon such request during a duly noticed regulaz or special City Council meeting, which may include a closed session as authorized by the Ralph M. Brown Act. If approved, the City Council shall forwazd the request to the City Attorney for action. The City Council may also, by resolution, delegate to the City Manager the authority to approve referrals from any boazd, commission or agency to the City Attorney. 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 local law. /7~~2 ORDINANCE NO. 2.11.070 Council Approval or Ratification of Legal Proceedings. The Measure provides that the City Attomey may exercise discretion as to when to commence or maintain legal proceedings when a cause of action exists in favor of the City. The 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 Attomey 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 item for ratification of the claim at the next available duly noticed regulaz or special City Council meeting. In the event that the City Council declines to approve or ratify the legal proceedings, the City Attomey shall complete all activities necessary to conclude or terminate the legal proceedings in the most timely and cost-effective manner. 2.11.080 Appointment of Special Counsel. The Measure authorizes the City Council to empower the City Attomey, 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 heazd during a duly noticed regular or special City Council meeting, and may include a closed session as authorized by the Ralph M. Brown Act. 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 Interest. The Measure provides that an officer of the City may, upon recommendation of the City Attorney and approval of the City Council, retain special legal counsel when a conflict of interest exists between the City Attorney and such officer of the City. Under such circumstances, the City Attorney shall make a written recommendation to the City Council that the City retain special legal counsel. The written 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 consider and act upon the written recommendation of the City Attorney at a duly noticed regulaz or special City Council meeting, including a closed session as authorized by the Ralph M. Brown Act. SECTION II. SEVERABILITY. If any section, subsection, sentence, clause, phrase or portion of this Chapter is for any reason held invalid or unconstitutional, such portion shall be deemed a sepazate and independent provision and such decision shall not affect the validity of the remainder. ~~-/3 ORDINANCE NO. SECTION III. This Ordinance will take effect and be in full force thirty (30) days from final passage. 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 James D. Sandoval City Manager Approved as to form by f , ~~ Shawn Hagerty Special Counsel 'r ~' /~