HomeMy WebLinkAbout2010/03/02 Item 11
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Councilmember Pamela Bensoussan
City Of Chula Vista
276 Fourth Avenue
Chula Vista, Ca 91910
619.691.5044 - 619.4765379 Fax
MEMO
CllY OF
CHULA VISfA
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DATE:Mondav, rVlarch 01, 2010
FR01\{:
Cuunciln1crn!)l'f Patnda Bcnsuussan
@
TO:
Mayor and City Council
CC:
Jim Sandoval, City J\hnager
RE:
Amendment to Resolution No, 2009-214 to clarity language
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Agenda] tem II
Direction to City Attorney to amend Resolution No, 2009-214, passed by
Council on September 1, 2009, Section 3, page 2 to accurately state the
ballot question.
i\ tJaCh1l11'11l"S:
l\gencla Sept I, 20(J9 Item 15 p.15-1O ] nitiative T\.leasure to be Submitted Directly to
thl.; V utcrs
Resolution Nu. 2009-214
..--. ~.
Initiative Measure to be Submitted Directly to the Voters
The city attorney has prepared the following title and summary of the chief purpose and points of the proposed
measure:
Title: An initiative to amend the Chula Vista Municipal Code adding Chapter 2.59, entitled
"Fair and Open Competition in Contracting," mandating that the City or Redevelopment
Agency not fund or contract for public works projects where there is a requirement to use
only union employees.
Summary: This measure proposes to amend by ordinance the Chula Vista Municipal Code to add a chapter re-
garding contracting on public works projects. The stated purpose and intent of the measure is to establish crite-
ria that will ensure that there is fair and open competition for public works projects funded in whole or in part
with public funds; to aid in lowering the cost of public works pro,iects; and to ensure that all workers, both union
and non-union, have a fair and equal opportunity to work on public works projects.
The measure involves contracts for construction, maintenance, repair, improvement or replacement of public
works projects, defined as all construction projects paid for, in whole or in part, by funds of the City or Redevel-
opment Agency, including, but not limited to, any building, road, street, park, playground, water system, irriga-
tion system, sewer, storm water conveyance system, reclamation project, redevelopment project, or other public
facility. "Contracting party" is defined as an owner, developer, contractor, subcontractor, or material supplier,
involved in a public works project.
iThe measure would prohibit the City or Redevelopment Agency from mandating that a contracting party enter
into an agreement with a labor organization as a condition of award of the contract, or from funding such a con-
tract.The proposal would add language to the Municipal Code, stating that the City shall not fund, in whole or in
part, or enter into, any contract, or impose a bid specification, contract prerequisite, or contract term, that
would reqQire a contracting party involved in a public works project to (I) execute, comply with or become a
party to an agreement with a labor organization, (2) become a signatory to a collective bargaining agreement, (3)
be required to make payments on behalf of employees to union benefit plans or other trust funds, (4) require its
employees to be represented by a labor organization, or (5) encourage or discourage employees of a contracting
party to have representation by a labor organization. .x
The measure would not prohibit private parties from entering into individual collective bargaining relationships
or engaging in lawful union activities. Violations of the ordinance could be remedied through an application for
injunctive relief in Superior Court liIed by a citizen resident or taxpaying corporation. The measure provides
that if approved by voters, it may be amended or repealed only by a majority vote of the voters of the City.
The City Attorney has prepared the above pursuant to Elections Code section 9203; the summary does not re-
Bect any legal analysis or opinion of the City Attorney concerning the proposed measure.
VOTER:
Please sign
petition 1 time
ONLY.
NOTICE TO THE PUBLIC: THIS PETITION MAY BE CIRCULATED BY A PAID
SIGNATURE GATHERER OR A VOLUNTEER. YOU HAVE THE RIGHT TO ASK.
All signers of this petition must be registered to vote in the City ofChula Vista.
This column for
Clerk's Use Only
New [[] SIGNATURE
Registration - As Registl:fl:d To Vote:
RESIDENCE
Address ONLY:
PRNT
YourN:tmc:
Ciry/Zip:
RESOLUTION NO. 2009-214
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA CALLING AND GIVING NOTICE OF A
GENERAL MUNICIPAL ELECTION TO BE HELD ON
TlJESDA Y, JUNE 8, 2010, FOR THE PURPOSE or ELECTING
A MAYOR, TWO MEMBERS OF THE CITY COUNCIL; AND
A CITY ATTOR1"\JEY, AND PLACING AN INITIATIVE
MEASURE ENTITLED, "I' AIR AND OPEN COMPETITION IN
CONTRACTING ORDINANCE" ON TIlE BALLOT TO BE
CONSIUERED BY THE ELECTORATE AT THAT ELECTION;
CONSOLIDATING THE ELECTION WITH THE STATEWIDE
ELECTION; AND REQUESTING THE BOARD OF
SUPERVISORS OF THE COUNTY OF SAN DIEGO TO
PERMIT TIlE REGISTRAR OF VOTERS TO CONDUCT THE
ELECTION
.'
WHEREAS, in accordance with the provisions of the Chula Vista Charter and State law,
a General Municipal Election shall be held on June 8, 2010 for the purpose of electing a Mayor,
two Members of the City Council to fill Scats I and 2, and a City Attorney, for thc full tenn of
four years, eommcncing in December 2010: and
WHEREAS, a petition entitled, "Fair and Open Competition 111 Contracting" was
accepted for filing by the City Clerk on July 13,2009; and
WHEREAS, pursuant to California Elections Code Section 92 I 5, the required number
of signatures to submit this measure to the voters was 10,399, which was tcn perccnt of the
101,985 .voters in the City of Chula Vista as ot11cially reported by the County Registrar of
Voters to the Secretary of State on March 23, 2009; and
WHEREAS, the County of San Diego Registrar of Voters has examined the petition and
certified that it contains a sufficient number of qualified signatures to cause the measure to be
placed on the ballot of the June 8, 2010 General Municipal Election; and
WH EREAS, pursuant to California Elections Code sections 92 15 and 1405(b), thc' City
Council must cither adopt the ordinance without alteration or submit the ordinance, without
alteration, to the voters at thc next regular municipal election occurring not less than 88 days
after the order of election; and
WHEREAS, Chula Vista's next regular mLUlicipal election is set by Chula Vista Charter
section 900, which provides that General Municipal Elections shall be held in the City of Chula
Vista on the same date in each election year as the California State primary elections. which is
June 8, 2010; and
WHEREAS, Section 439.1 of the Administrative Code of the County of San Diego
authorizes the Rcgistrar of Voters of the County of San Diego to render specified services
relating to thc conduct of an election to any city or district which has by resolntion requested the
Board of Supervisors to pennit the Registrar to render the services, subject to requirements set
forth in that scction; and
Resolution No. 2009-214
Page 2
WHEREAS, Elections Code Section 10403 requires the Cily Council to adopt a
resolution requesting the Board of Supervisors 10 consolidate Chula Vista's election with the
statewide general election and to permit the Registrar of Voters to perform certain services in
conjunction with the City's election; and
WHEREAS, sufficient funding is anticipated to be allocated as separate actions for the
payment of costs relating to the certification of the signatures on the petition and the placement
ofthe measure on the ballot; and
WHEREAS, the Environmental Review Coordinator has reviewed the proposed activity
for compliance with the California Environmental Quality Act (CEQA) and has determined that
the activity of calling and giving notice of a General Municipal Election for electing a Mayor,
two (2) members of the City Council, and a City Attorney is not a "Project" as defined under
Section 15378 of the State CEQA Guidelines because it will not result in a physical change to
the environment; further, that the activity of placing a measure for an amendment to the ChuIa
Vista Municipal Code on the ballot to be considered by the electorate at that election is not a
"Project" as defined under Section I 5378(b )(3) of the State CEQA Guidelines because it is the
'.
submittal of a proposal to a vote of the people that is not City sponsored; therefore, pursuant to
Section 15060(c)(3) of the State CEQA Guidelines, the actions proposed are not subject to
CEQA.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA
DOES HEREBY RESOLVE, DECLARE, DETERMINE, AND ORDER as follows:
SECTION I. All of the foregoing recitals are true and correct.
SECTION 2. Pursuant to the requirements of the Chula Vista Charter and the laws of
the Stale of California, there shall be and there is hereby called and ordered held in the City of
Chula Vista, California, on Tuesday, June 8, 2010, a General Municipal Election of the
qualified electors of the City for the purpose of electing a Mayor, two Members of the City
Council to fill Seats I and 2, and a City Attorney, for the full term of four years, commencing
December 2010.
SECTION 3. The City Council, pursuant (0 its right and authority as established in
California Elections Code sections 9215(b) and 1405(b), does hereby order submitted to the
voters at the election specified above the following question:
PROPOSITION
YES
Shall the ChuIa Vista Municipal Code be amended to mandate that
the City or Redevelopment Agency not fund or contract for public
works projects where there is a requirement to use only union NO
emnlovees?
SECTION 4, Should the question be approved by the requisite vote, the measure
attached hereto as Exhibit "A" and incorporated by this reference shall be enacted.
Resolution No. 2009-214
Page 3
SECTJON 5. The City Council hereby acknowledges its authority pursuant to
California Elections Code section 9282 to submit a written argument not to exceed 300 words
against the proposed measure, and that of the proponents of the measure to file a written
argument not to exceed 300 words in favor of the proposed measure. Pursuant to a resolution
previously adoptcd by the Council allowing rcbuttal arguments, rebuttal arguments will be
allowed in accordance with Elections Code section 9285. Rebuttal arguments may not exceed
250 words. Each argument must be submitted to the City Clerk. and may bc changed until and
ineluding thc date fixed by the City Clerk for submission of the arguments, after which no
arguments for or against the proposed measure may be submitted to the City Clerk. Printed
copies of each properly authorized and filed argument shall be enclosed with each sample ballot
in accordance with California Elections Code section 9282.
SECTION 6. The City Attorney is hereby directed to prepare an impartial analysis of
the measure, which shall be tiled by the date set by the City Clerk for the filing of arguments.
SECTION 7. The General Municipal Election for the purposes of electing a Mayor, two
(2) Members of' the City Council, and a City Attorney, and submitting the proposed measure on
thc amcndmcnt of the Chula Vista Municipal Code shall be consolidated with the Statewide
Dircct Primary Election held on the same day in accordance with Calit()rnia Elections Code
section 10401.
SECTION 8. Pursuant to Elections Code section 10403, the Board of Supervisors of the
County of San Diego is hereby rcquested to pennit the Registrar of Voters to perfonn and
render all services and proceedings, and to procure and furnish any and all official ballots,
notices, printed matter and all supplies and equipment and paraphernalia incidental to and
connected with the conduct of the subject elcction of' the City of Chula Vista, with the
cooperation and assistance of thc City Clerk of' Chula Vista, in ordcr to properly and lawfully
conduct such election.
SECTION 9. The Board of Supervisors of the County of San Diego is hereby requested
to consolidate this election with the statewide election to be held on the same day, in the same
territory. Pursuant to Section 10411 and Section 10418 of the Elections Code, (a) the election
shall be held in all respects as if there were only one elcction; (b) only one form of ballot shall
be used; and (c) the Registrar of Voters of the County of San Diego shall canvass the returns of
the subjcct elcction as part of the canvass of the rcturns of the election consolidated hereby.
SECTION ] O. Pursuant to Section 10410 and Section 10418 of the Elections Code
within the tcrritories affected by this consolidation, the election precincts, polling places, voting
booths and polling hours shall, in every case, be the same, and there shall be only one set of
election o11iccrs in each of the precincts.
SECTION J 1. The County of San Diego shall be reimbursed in full for the services
performed by the Registrar of Voters ror the City of Chula Vista upon presentation or a bill
therefor, and this City agrees to indemnify and save tree and harmless the County, its officers,
agents and employees from expense or liability, including reasonable attorneys' fees, as a result
of an election contest arising after conduct of this election.
Resolution No. 2009-214
Pagc 4
SECTION 12. The City Clerk is hereby directed to forthwith file a certified copy of this
rcsolution with thc Board of Supervisors and the Registrar of Voters of the County of San Diego
and to issue instructions to the Registrar of Voters to take any and all steps necessary for the
holding of the election.
SECTION 13. The polls of said election shall be open at seven o'clock a.m. of the day
of said election and shall rcmain open continuously from that time until eight 0 'clock p.m. of
the same day when said polls shall be closed, except as providcd in Section 1440 I of the
Elections Code of the State of California.
SECTION 14. Thc ballots to be us cd at said election shall be, both as to form and
matter contained therein, such as may be required by law to be used thereat.
SECTION 15. In all particulars not recited in this resolution, said clcction shall bc held
and conducted as provided by law for holding municipal clections in this City.
SECTION )6. Notice of the time and place of holding this election is hereby given and
the City Clerk is hereby authorized, instructcd and directed to give such further Or additional
notice of said election in time, fonn and manner as required by law.
SECTION 17. The City Clerk shall certify to the passage and adoption of this resolution
and file it with the City's original resolutions.
Presented by
Approved as to form by
J~~/4~
Donna R. Norris I ~
City Clerk
Resolution No. 2009-2] 4
Page 5
PASSED, APPROVED, and ADOPTED by the City Council of the City ofChuJa Vista,
California, this 1 sl day of September 2009 by the following vote:
AYES:
Councilmembers:
Bensoussan, Castaneda, Ramirez, and Cox
NAYS:
Councilmcmbers:
None
ABSENT:
Couneilmembers:
McCann
fI t? [1 ()
IJ 'k.4 . ~~.
Cheryl Cox, ~yor
ATTEST:
-rL~-eJ~
Donna R. Norris, CMC, City Clerk
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO )
CITY OF (,HULA VISTA )
I, Donna R. Norris, City Clerk of Chula Vista, California, do hereby certify that the foregoing
Resolution No. 2009-214 was duly passed, approved, and adopted by the City Council at a
regular meeting of the Chula Vista City Council held on the I st day of September 2009.
Executed this] st day of September 2009.
AI tn'UtA l v;tlo';'/ufi.;
Donna R. Norris, CMC, City Clerk
Resolution No. 2009-214
EXHIBrt:lfe 6
FAIR At'1D OPEN COMPETITION ORDINANCE
The people of the City of Chula Vista hereby declare and ordain as follows:
SECTION 1. Statement urthe Peuple's Intent
(a)The People of the City of Chula Vista ("the People") desire fair and open competition for
public works projects that are paid for, in whole Or in plli"t, with the funds of the City of Chula
Vista or its Redevelopment Agency.
(b) The People helieve fair and open competition enables government to expand the pool of
qualified candidates to perform work and, in turn, to save public funds hy lowering the cost of
public works projects. The people like"~se seek to remove limits or impediments to the
consideration of qualified parties to work on public projects.
(c) The People believe fair and open competition creates more local jobs and improves Chula
Vista's ecol1omy, 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 anow
fair and open competition.
(e) The People intend the following Proposition to amend the Municipal Code of the City of
Chula Vista, as follows:
SECTION 2. Chula Vista Municipal Cude. Title 2. ~Administration and Personnel" is
amended hv addinl! Chapter 2.59. to read as fullows:
Chapter 2.59
Fair and Open Competition in Contracting
2.59.010 Purpose and Intent The purpose and intent of this chapter is to establish criteria that
will ensure fair and open competition for public works projects Funded in whole or in part with
puhlic funds; to aid in lowering the cost of public works projects; and to ensure that all workers,
both union and non-union, have a fair and equal 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 SS 151 - 169.
"City" shall mean and include both the City of Chula Vista and the Redevelopment Agency of
the City of Chula Vista.
"Contracting party" shall mean and include an owner, developer, contractor, subcontractor or
material supplier, involved in a public works project.
"Labor organization" shall have the same meaning ascribed to it in Section 2 of the Act (29 use
1j152)
"Public works project" shall me'ill and include all construction projects paid for, in whole or in
part, by the funds of the City or the Redevelopment Agency, including hut not limited to any
building, road, street, park, playground, water system, irrigation system, sewer, stonn water
conveyance system, reclamation project, redevelopment proj.ect, or other public facility.
Rcsolution No. 2009-214
Page 7
2.59.030 Requirements for Fair and 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 between a Labor
organization, on the one hand, and the City, the Contracting Party, or any third party on the
other;
(2) become a signatory to a collective bargaining agreement;
(3) be required to make payments on behalf of employees to union benefit plans or other
trust funds;
(4) require its employees to be represented by a Labor organization; or
(5) encourage or discourage employees of a contracting party to have representation by a
Labor organization.
(b) The City shall not impose, as a bid specification, cuntract prerequisite, contract term or
otherwise, any requirement prohibited by subsection (a) of this Section.
(c) Nothing in this Section shall be construed as prohibiting private parties covered by this
provision from entering into individual collective bargaining relationships, or otherwise as
regulating or interfering v.~th activity protected by applicable law, including bu[t] not limited to
theAe!.
Cd) 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
by way of an action filed pursuant to California Code of Civil Procedure section 526a.
SECTION 3. Effective Date
To the extent permitted by law, the provisions of this Chapter 2.59 shall become effective 10
days after the vote is declared by the Chula Vista City Council, as provided by California
Elections Code S 9217. Contracts awarded before this effective date and subcontracts awarded
pursuant to such contracts, wbene:,er awarded, shall not be governed by this ordinance.
SECTION 4. Amendment; Repeal
This ordinance may be amended or repealed only by a majority vote of the voters of the City of
Chula Vista.
SECTION 5. Severability
If any Section of this Proposition, or any provision contained in this Proposition, is hcld 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 of this Proposition 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 !\leasures
If any other measure, appearing on the same ballot as this measure, addresses the san1e subject
matter in a way that conflicts with the treatment of the subject matter in this Proposition, and if
each measure is approved by a majority vote of those voting on each measure, then as to the
conflicting subject matter the measure with the highest affrrmativc vote shall prevail, and the
measure with the lowest affirmative vote shall be deemed disapproved as to the conflicting
subject matter.
'03/02/2010 14 54 FAX
5103488201
RENCHO,JOHANSEN&PURCELL
@001/004
IT~~II
A/)/) /11 ONItt.. IN/?
.1 ...
REMCHO, JOHk'lSEN & PUHCEJ.,L. I.I.P
ATIURNJ::YS AI' LAW
201 DOLORES AVENUE
SAN LEANDRO, CA 94577
PHONE: (510) 346-6200
FAX: (510) 346-6201
EMAIL: tWlllis@rjp.com
WEBSITE: www.l:ip.com
S^CR^M~NT(J 1'1l0Nlo.: (9\(,) 264.1818
1o,cph Remeho (1944.2003)
Robin B. Johansen
K.thleen 1. Purccll (ReL)
James C, llan-ison
Thomas A. Willis
Karen Getman
Margaret R. Prinzing
Kari Krogseng
FAX COVER SHEET
! TO:
I FROM:
i Donna Norris, CMC, City Clerk
i Thomas A. Willis
(619) 585-5774
I
Date: : March 2, 2010
Pages~ I 4 (with cover page)
I
: RE:
I ......_.......
: Ballot Label for the Public Wurks Contract Initiative (Our File No.: 2501.1)
Dear Ms. Norris:
Attached pleasc tind" Jetter to the Mayor.and Council members I would like to be distributed !<Jr
tonight's meeting. Please call mC iryou have any questions. Thank you.
Tom Willis
~3/02/2010 14.54 FA. 5103488201
REMCHO,JOHANSEN&PURCELL
Ii1J 002/004
"
REMCHO, JOHANSEN & PURCELL,1.I."
ATTORNEYS AT LAW
SACRAMENTO PHONE: (91(,) 26d-1818
Joseph Remeho (19dd.2003)
Robin B, Johansen
Kathleen I. Purcell (Ret.)
James C. Harrison
Thomas ^_ Willis
Karen German
M<'lrgaret J{. Prim~ing
Kari Krugscng
201 DOLORES AVENUE
SAN LEANDRO, CA 94577
PHONE: (510) 346-6200
FAX: (510)346-6201
EMAIL Iwillis@rjp.cOlll
WEBSlTE; www,ljp,eolll
March 2, 2009
VIA F'ACSIMILE
Mayor Cheryl Cox and Councilmembers Rudy Ramirez,
Mitch Thompson, Pamela Bensoussan and Steve Castaneda
City Council
City of Chula Vista
276 Fourth A venue
Chula Vista, California 91910
Re; Ballot Label/ur {he Public Works Conlrae/Initia/ive
Dear Mayor Cox and Councilmembers Ramirez,
Thompson, Bensoussan, and Castaneda:
We represent several City voters who oppose the initiative concerning public
works contracts that will appear on the June 2010, citywide election ballot. We understand the
City Council is reviewing the current ballot title tonight and we respectfully urge the Council to
amend the ballottille 10 comply with the Elections Code. The current title violates the Elections
Codc bccause it is not an accurate statement of what the initiative does and would mislead
voters. It also is not in the proper rormat required by law. The Elections Code explicitly
authorizes the City Council to change the ballot title prior to March 12, 20 I 0, and given its
current invalidity, wc urge the City Council to revise the title so it accurately and impartially
describes the initiative to the voters of Chula VisLa_
As an initial matter, the City Council, not the City Attorney, has Ihe authority and
duty to ensure that the ballot title is accurate and impartiaL That duty to get the title right is so
imporlant that the Elections Code permits the City Council to change the title from any previous
title the measure may have received, such as the title draned by the City Allomey when the
measure wa< circulating for qualification or the tille approved in September, Elections Code
section 10403 requires the City Council, at least 88 days before tile election, to pass a resolution
that, among other things, sets forth the exact rorm of the initiative question as it is to appear on
'03/02/2010 14 54 FAX 5103488201
REMCHO,JOHANSEN&PURCELL
~ 003/004
Mayor Cheryl Cox and Councilmcmbers Rudy Ramirez,
Mitch Thompson, Pamela Bensoussan and Steve Castaneda
March 2, 2009
Page 2
the ballot. Section 10403 also stales that the wording of the ballot title must conform to the
requirements for statewide ballot initiatives.
Those requirements can he found in Elections Code section 9051, which ha" two
re1ev,mt provi"ion". First, the ballot titlc "shall give a true and impartial statement ofthc purpose
of the measurc in such language that the balloltitle and summary shall neither be an argument,
nor be likely to create prejudice, for or against the proposed measure." (Elee. Codc, S 9051(c).)1
Second, the ballot titk may ditIer from the "legislative, circulating, Or other title" the measure
may have previously been given. (ld,9 9051(a)(1).) In SlIm, the City Council has lln
independent duty to enSure that the ballot title is accurate and impartial, and it can change the
lille at any time prior to 88 days before the election (March 12,2010) to ensure that is the case.
The fairness of an initiative election hinges on the proper execution ofthis duty
because the ballot litle is onen the only, and always the last swnmary, ofthe measure voters
review before voting. "The main purpose of [the title and summary] requirements is to avoid
misleading the public wilh inaccurate information." (Amador Valley Union High Sch Di.,t. v.
State Bd ofE'luah:cm/on ([978) 22 Ca1.3d 208, 243.)
The cUITenllitlc violates Elections Code sections 10403 and 905 I fot two
independent reasons, First, it is inaccurate because it states the initiative docs something that it
docs not. The current ballot states:
Shall the Chula Vista Municipal Code be amcnded to mandate that the
City or Redevelopment Agency not fund or contract Jbr public works
projects where there is a requirement to use only union employees?
Although the title states that the City will he prohibited from entering into a project "where there
is a requirement to '''''' only union employees," the initiative does not and cannot do that.
Federal law already prohibits the City or any other entity from requiring that a project be built
with only union labor. Federal labor law makes il illegallo require union membership as a
condition of employment, an <UTangement traditionally known as a "closed shop." (29 U.S.c.
S 158(a)(3) [it shaIl be: an unfair labor practice for an employer by discrimination in regard 10
hire or tenure of employment or any term or condition of employment to encourage. . .
membership in any labor organi:Lation."J; .\'ee also Pal/ern Makers v. N.L.R,B. (1985) 473 U.S.
95,106 ["In 1947 ... Congress enacted the Taft-HartJey Act. Section 8(a)(3) oClhe Act
effectively eliminated compulsory union membership by outlawing the closed shop."].)
1. Failure to provide ~ ';~e ;~d impartial title is an abuse of discretion actionable through a writ
proceeding under Elections Code section 13314. However, we believe it is in the best interest of
the City and its voters to resolve this matter without resort to the courts.
'03/02/2010 14 55 FAX 5103488201
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IitJ 004/004
"
Mayor Cheryl Cox ~nd Councilmcmbers Rudy Ramirez,
Mitch Thompson, Pamela 13ensoussan and Steve Castaneda
March 2, 2009
Page 3
Moreover, what the initiative does is prohibit the Ci ty from entering into or
participating in any public works contract that requires the inclusion of a lahor agreement. But
that is very different f)'om a prohibition against a requirement "to use only union employees."
Just hecause a contractor has a labor agrcement in place with its employees does not mean that
all of its cmployee$ are union memhers. Fcdcrallaw prohibits that. Thus, the current ballot title
is inaccuratc because it falsely tclls voters the measure outlaws a closed shop on City public
works when in fac1 (I) it does not do that, and (2) such a prohibition already exists in fedcral
law. At a minimul11, the title must make that change.
Second, the b~lIot title l'ails to inform voters that the prohibition applies not just to
contracts paid for by City funds but also to any project5 the City partieipate$ in that are funded
by the state or federal governments. The initiative could prohibit the City from participating in
state- or federally-funded programs that either require a vendor to have a labor agreement or
require the payment of other trust funds. (See Prop. Ordinance, 92.59.030(a).) Some state-
funded programs, for example, require the payment of funds to trusts, such as the apprenticeship
pmgram (see Labor Code, !l1777.5(m)). Yet under the initiative, the City would be prohibited
irom participating in such 11fobrrams. [t is imperative that the voters understand that the initiative
could prohihit the City from participating in state- or federally-funded programs.
Finally, even if the ballot title were accurate (and it is not), it would still necdto
be amended prior to March 12, because it is in the incorrect form. Elections Code section 13119
requircs that any Cit.y ordinance submitted to the voters mlL~l he in the following form: ." Shall
the ordinance (stating the nature thereof) be adopted?''' The current ti1le does not meet that
requirement and therefore must he revised.
For all the foregoing reasons, the ballot title for the pl1blie works initiative
violates the Elections Code and must be amended prior to being submitted to the electorate.
Sincerely,
Thomas A. Willis
TAW:NL
(00104992-2)
l-lern If
Chula Vistans for Jobs and Fair Competition
P.O. Box 8937
Chula Vista, CA 91912
March 2, 2010
Bart Miesfeld
Chula Vista City Attorney
276 Fourth Avenue
Chula Vista, CA 91910
Re: Item lIon The City Council Docket of Tuesdav March 2. 2010
We would like you to consider the following information regarding Item lIon the City Council Docket
tonight regarding the Fair and Open Competition Ordinance (FOCO). Your office prepared the petition
"title and summaries" for Prop C (2006), Prop E (2008), Prop Q (2008), FOCO! (2008) FOC02 (2008)
and FOC03 currently at issue here. Your office also prepared the "ballot questions" (aka the "ballot
labels" or "ballot titles") for Prop C, Prop E, Prop Q, and FOC03. I have attached a copy of each of
these documents to this letter.
When your office prepared all six of these petition "title and summaries", you presumably complied with
California Elections Code 9203(a) and wrote them as a "true and impartial statements of the purpose of
the proposed measure in such language that the ballot title shall neither be an argument, nor be likely to
create prejudice, for or against the proposed measure." You will notice that the "titles and summaries" of
FOCOI, FOC02, and FOC03 are very similar. Although the petitions for FOCOI and 2 were
extensively litigated, no one on either side ever raised a question regarding the reasonableness of your
"titles and summaries." If any elector felt that your "title and summary" for FOC03 was inappropriate,
the elector could have challenged it under Elections Code Sec. 9204. No one challenged it.
When your office prepared the "ballot questions" for Props C, E, Q and FOC03, you presumably wrote
them to be fair and impartial and to state the chief purposes of the measure as succinctly as possible,
pursuant to Homeffv. City and County of San Francisco, 110 Cal.App.4th 814, 820-821 & fit. 5 (2003);
Brennan v. Board of Supervisors, 125 Cal. App.3d 122 (1981); and Huntington Beach City Council v.
Superior Court, 94 Cal.App.4th 417 (2002).
You will notice that your office took the "titles" of Prop C, Prop E, Prop Q, and FOC03 and converted
them to the corresponding "ballot questions." No one before Ms. Bensoussan has ever questioned your
practice. On September 1,2009, the Council voted unanimously to approve the current "ballot question"
for FOCm.
With this in mind, and considering your record of fairness and impartiality, please explain why the
current "ballot question" must be changed. Did you make a "mistake" when you wrote the FOC03 "title
and summary" or when you wrote the current ballot question? Please explain.
We ask vou to resist Ms. Bensoussan's imorooer effort to usurp vour legal authority and to continue to
conduct your office with honor and impartiality. Thank you.
t8~~
Bill Baber
Treasurer, Chula Vista Citizens for Jobs and Fair Competition
cc: Mayor Cox and Councilmembers Bensoussan. Castaned~ Ramirez. and Thompson
This is what the City Attorney put on the
petition pursuant to Elections Code ~9203(a)
FOCO June 2010
'___n >
This is what the City put on the ballot .______0000_____>
pamphlet on Sept. I, 2009
Initiative 1'.lcasllr(' to be SUhlllitll'd Dircctly TO tht Villers
The city alrume)' has prepared the follo)\"ing title and sUllIm:'lrY urlhe l'hidpurpose :lIld poillb uflhe proposed
1II1':lSUrc:
Title: An initiative to amend the Chula Vista l\1unkipal Code atlding Chapter 2.59, t'ltfilled
"Fair and Open Competition in Contrilcling;' mnndating thnt the City or Redevelopment
Agency not fund or contract for public works projects where there is a requirement to use
only union employees.
SumIllnfY: This lIIeasure proposes to :lIl1cnd by onlin:llIce the Chula Visla Municipal Code 10 :ll.Jd a chapter re-
garding contracting; 011 puhlic \\orks projects. The stated purpose and intent of the measure is to establish crite-
ria that will ensure thnt there is f:lir and open compctition for puhlic \\'orks proje('ts funtled in whole 01- in pn!'1:
with puhlic funds; to nid in lowering the cost ofpuhlie works 1)I'ojccts; nnd to ensure th:n <III workel's, both union
nnd nOll-ullion, h:we:l fair and equal upportunity to \\ork 011 public \\orks project~.
The mcasure involves contracts fOI- cOllstructioll, maintcnallce, repair, imprllvcmelll ur replacement of Jluhlic
works projccts, defined :IS all construction projects p:litl for, ill whole or in parI, by funds of tbe City or Rcdcnl-
opment Agency, including, but 1I0t limited to, :IIlY bllilding~ road, street, park, pl:lyground. water SystCIll, irriga-
tion system, sewer, storm water connY:lIlce system, rcclamation projcct, redevclopmcllt project, 01' other public
facility, "Contracting party" is definer] as an OWller, t1e\'Clopl'r, contractor, suhcontractor, !lr lll:Heri:lI supplier,
involved in <I public works projel.:t.
The measure \vou]d prohibit the City or Redevelopment Agellcy from m:lrHJating that :1 contr:lcting party cntl'f
into <Ill agreement with a labor organization as:1 condition of aw.lnl of till' rOlltraer, or from funding such n con-
tract,The proposal would add language to the Municipal Code, statillg tlwt the City shall not fund, ill whole or in
part, or enter into, any contr:lct, or impose a hid specification, contract jlt'erefJuisite, or contr:ll'f term, that
would require a contracting party iilvolved in a puhlic works project to (I) c~ecLltc. comply with 01- becollle :l
p:lrty to an <lgrcernent with a lahlll' organizatioll, (2) !Jecome a signatol')' to a (ollcctivc hnrgaining agreement, (3)
be required to make p:lymellts 011 behalf of employeE'S to union benefit plans or other trust fUIlCls, (.t) require its
clllployet's to be represented by :I bbor organization, 01' (5) cllcourage or discourage employces uf a contracting
pal-t)' to h.1\'c rcpresentation by a labor urganization.
The rlIeaSUI'C would not prohilJit private parties from cntering illto iudividual collecli\'c lJarg:Jifling rd:ltiollships
or engaging in lawfulullioll :Il'tivilies. Violfltion-s of the onlinanl'c eould he remedied throllgh an llpplir:ltion for
injunctive relief in Superior COllrt filed by a citizen n.'sidenl or taxpaying t'orpor:ltioll, The measure provides
that ifnpproved by voters, it Illay he :tlllendcd or repcaled only by a majority vote of the votl'I'S of tile City,
The City Attorney has prepared rhe :lbuvc pursuant to Elections Code sectioll 91U3; the sLlIl1Il1,lry does not re-
Ilect any h:~gal analysi~ or opinion ofthc City Attunlcy cOJlcerlling the proposcclllleasllre,
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PROPOSITION
'i'IS
Shall the Chub Vista Municipal Code be amended to mandate that
the City or Redevelopment Agency not fund or contract for public
works projects where there is a requireme:it to use only union NO
employees?
IJ"'lll.li\..lJVL l'nc.i\,:)Ur..L LV DL ~UU.:.tU 1 LIJ.J..J' L/.L.nJC..'--.t.lLI 1.'\J .i.lJ.e. . \...ILC-H....)
<:: Cii.y Anorney b;J5 p:-ep:.~cd ~hc t'ollow;r:g title ::.."d ::U",::lary orth~ I.'"hic:puQosc ,:r:-.d points 07-:':'lt; pmp:x;cd mC3SU;
Title: A Petition to Amend the CllUla Vista City Ch;lrter to l\-bke the Cit)-. Attorney an
Elected City Officer, Suf1iciently Independent of the Council and Ocher City Officials
. .
Summa!)': This me<:.sure would amend Se~0n5 500 and 503 of ,he: Chuia Vi5ta City Charter LU IT'.ak.~ the City
AHorne)" :ill elected City offic~" sufficiem!y i::lcrqJt:r:cem of tbe Council and oITter City officials.
This measure p:-oposes that the City A~o:uey be nOillLc3Ied 3f'.d elee~ to a four year t:::rm in the sa.:ne: IllaImer
and at the same ele::non 3S a memcer o~ [he COllociL To quill!)' fo, either e1e~t:on Or J.ppoimmen! :0 fill a
vacancy, the City Anomey would nave to tx .:~ United State.; (i;izefl, a qu..alificd d~to" and .a Califor:lia
resident, lic~osed LO practicCo law III California for Jt 1::J.st se.....en ).C3r" prc\:cding asslL'11ptiQO of offlee. Tbe City
Anorney's compensetion .....'ould be S:=I by Council, but weld nGt be ks.s r:.'1.:m a speciiicd amount and could not
be H:duc~ during L~e City At!.Qme)"s :errn, cxcc:pt as par. of a gen~ra! reduction of City sal2..rics. This :nc~sUJ''':
establishes. when the Cour:cil may de:lart:: the Ci~y Attorney's Offi.ce vacant, .l.:,d specifies wh\:n tne Cou!Jcil
may appDin~ a successor;:o fill a V';!.c.ancy or '"".hen an electJO:1 is requi~d.
This me2.:;ure provides that thl:: City' Attorney shd} be sufficiently independent of the Coul1cil ::L,U Q\her City
officials to advis.:; the City wbili.: also ~ctiog i..n the be:;t inrCrCS!5 of the p'Jolic. It states L'1st, in .:ddition to the
CO\.lncil a!ld other City officers, the City Atwmey sh311 :J.dvise dl Cit:: bo2J'd..<;, comrmssions, and other agencies
ond render written legal opinions wben rquested in writing. This ml;;:~lE'~ also provides the City Attorne.y ,"villi
discretion to commence or maintain leg:tJ proceedings, subject to approval ':If ratification by the Council. The
Citv Attornev wOLl:d be autborizoo 10 emf/Joy exp<::rts and, when err.powereJ by Council, $f'Ccial legal couns-;:L
l.:~o the C.t). Anop.:H..'Y's .-e'::omroend3tio~ and with CO'..lOl..-iJ ap::,fOval, blli .....ithouI preventing the City Attomey
from pro\-idif1g confidenti~l Jdvice when allowed by law, when the City Auomey has ~ connie! 0: interest in
litigation involving anomer office of the City, s~lch Jtbt.'T officer may retain spe::ial legal counsel a~ City
expen.<;e TI1is rr.:ea5tlfC wthonz:::s the City Anoncy to remov::: any City Atto:-ney appointt:u officers or
employeC'-S, but does not liD~t the Council's bud!;:::l.:lJJ <l'Jmority ~gariling such Ci:y :\ttome)' <.lppointed officers
and ~mployecs.
This Tne&.llre bt:comeS efI~;:ti\'e upon a m~jority vott: in :ts favor at a City election a::.d UpO:l filing ofthc Cha...-te:
amendment witb the CaJibml3 Secretary 0:- State. If tho;'; m-::a.3ure ixcome.s d'fectivc::, the then currCDt City
Attorney ',;.ould continue LO be quail fled 1.0 hold ofTi:t': until the. oext gCDeral c:lccrion This Deasure could only
be arnenced or repealed 'by the voter:> at J. City e!ec:ion.
Tnt: abo,;e is a SlliIUUary of the k:n:ns of lhe p:-uposcd mt:asure. as r1:'luued by Ekctions COOl.': sc;:ction 9203, it
docs r..o~ reflect a.'lY kgal .lllaJysis or opinion concermng the proposed meascre.
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This is what the Cit\' put on the ballot ,-------------->
pamphlet
This is what the City Attorney put on the
petition pursuant to Elections Code ~f)203(a)
Prop Q Noy 2008
1",,11 T ur ......nuLA VI\:>lfJI.
Proposition Q
(This proposition wjJI appear on the ballot in the fallowing form.)
PROP Q
Shall the Charter of the City of Chula Vista be amended to make the City Attomey an
elected City Officer, sufficiently independent of the Council and other City officials?
This proposition requires approval by a simple majority (over 50%)
of the voters voting on the proposition.
The proposed charter amendment follows the arguments and rebuttals,
CITY ATTORNEY IMPARTIAL ANALYSIS
This proposition would amend Sections 500 and 503 of the City Charter to make the City
Attorney an elected City officer. This proposition would also change the City Attorney's .minimum
qualifications, powers and compensation. I
The Charter currently authorizes the City Council to appoint the City Attorney, establish the
salary for the City Attorney and remove the City Attorney by majority vote. The Charter currently
requires the City Attorney to be licensed to practice law in California and establishes the powers
and duties of the City Attorney.
This proposition would make the City Attorney an elected rather than an appointed City officer.
The City Attorney would be nominated and elected to a four-year term in the same manner and at
the same election as members of the Council. The Council would establish the City Attorney's
compensation, but such compensation could not be less than the median compensation of the city
attorneys of the six California cities whose populations are closest to the Citis population, provided
that three are higher and three are lower. The City Attorney's compensation during a term could
only be reduced in proportion 10 and as part of a general reduction of City salaries. The Council
could only declare the City Attorney's Office vacant for specified reasons. and would be required to
appoint or call an election to fill such a vacancy, as specified.
To qualify as City Attorney under this proposition, a person must be a United States citizen.
a qualified elector, and a California resident, licensed to practice law in California for at least
seven years prior 10 assuming office.
This proposition would also authorize the City Attorney to exercise discretion to commence
or maintain legal proceedings, subject to Council's approval or ratification. It would delete.a
prO\.~_i_si9n of the current Charter that authorizes the Council to control all City legal business and
legal proceedings. The proposition provides that, in addition to the Council and other City
officers the City Attorney shall advise all City boards, commissions, and other City agencies,and
render written legal opinions when requested in writing. The City Attorney would be authorized to
employ e.werts and; when empowered by Council, special legal counsel. When the City Attorney
has a conflict of interest in litigation involving another City office, such other officer could relain
special legal counsel at the City's expense, upon the City Attomey's recommendation and with
Council approval. This proposition clarifies that the City Attomey may remove unclassified City
Attorney appointed officers or employees. This proposition does not limit the Council's budgetary
author!ty regarding ~ity Attorney supervise::! officers and employees.
If this proposition is approved by a majority vote, the current City Attorney or successor
would continue to be qualified to hold office under the current Charter and general laws until the
next general election in June of 201 0 and the fir-sl elected City Attorney would assume office for a
. four-year term commencing on the first Tuesday of December of 2010.
mll lA'11 \' II, l\U,ASUjU: '1U HE SUR\IlTTED DIRECTLY TO THE VOTERS
The Cit: i\~~orl1~Y hit.s pa:pr-cd lhc fo:lo'.\'ing ,i,'I:: c.:1U ~;ur::01<l:-f 0~^~t.C d;i.:[purpos::;- .1nd _,,;.;in:..:o (0: ,hI." ;~l":::,:;o:,;'~d :1:c.::sun
i;Title: An initiative pC'rrtion to amend, by ordinance, tbe City of Chub ViSt3'S
General PIao to requifc vote. :.lpp.o\'al for any Gencr:ll Pl:.HI ch:Jllge th~t \youlcJ
increase :.lIlowable building heights abo,,'c 84 feel in most areas of the Cir):l except
west or Interstate 5, :1l1d [0 set:] building height limit of 45 feet on Third Avenue
between E and G StreeL<i.
Summa.ry: Thi~ petition ?:-::;p0s~s t) amend lh:: Lmd Use .E:lcH1C::E uf .:te Chui;:. Vista Gene:;}1 Plun,,,~ 3dop~ec
on Dc-ccmkr [3.2005,0)' add["ng two provisior:s.
The f),S( ;JTQvision fcb:cs to nllowack building heights. It p:-ovid~s tha: ::to char:gt: tL' tn.:: Ger!cr:tl Pbn th<.Jt has
tbe ?urpose u, d1\:;cl of ill;:::reasillg the ~llowabk jJi!dinl; height wi:hLn uny Dr~n ,{":love S:. re::t snillluHc dIce1
ur:kss J:ld until it ES approv::j by n s:n:plc ;naj~rity vo:.c of ::105<:: vCcir.g :r: j,e City :ll :ir. cJo~tio::1. VOler
a?proVCII will not be requ:rcc for any Genend Pliln ch":Jgc:s affecting the 13ayfr::Jnt Pbnning AL~2., ,1.<:' identilied in
Iht' Land Use Elcme,ll of Ihc General Pia., am~ndcd ~nd tjrh"pled il; I ~S9, Of 3Dy ?rea ~;,'CS\ of Jr.t:::-S\(j[';': S,
Tbe second provjsio;~ re!:Jtcs to the Thin..! A\-c:nuc: Village. It ~t:1kS no buildin;; th:E is par: of any ce':.::lopmenl
i" It-.I.: Third A\enu.:: ViJl:Jgc, which :rOflIS:J:i Third Avenue between E Stree, aod G S",ecL shall exc~cd 15 t:'::~1
i:l hcig~:. notwitr.standing allY other pro';is:on orlh: G:r;cml Pb.;},
fOt' pu,?oscs ofbolh prO\iSIODS, buiil:i:lg hcight ::.1-1;)]] be.; cll:::u!3tl'd fro:ll11C ]Y~;,l.~e C(.I1I<.:.:l G\O\JIlJ ~cve: ::::th:;
'ci.li:ding:o ~~c hiohcs, ?0in: :)r:~c blt~:GlOg, iccluding ~ny :::K1r:cp appurtCI1~;;ccs.
In the event th:: Cit:1 Council npp::ovl.:S t. ci::mgc, a:ncrdlllC:l: or oth;:r l:nd t:s~ dt:.Ci::;ioll, w~,ich m1J~:, "Jj-' th~
tern:; o~ this initiat,yc. b..: apptclvcC by v0ters to become ~ffc.cti\c, the pe,;lion requires that the City Cou:lcil
:::;hail set the n~at:er for;:: vote ::II the next avaibbk gcr.tr::JJ :,Hmiclp3.J eleelion, O~ IDo.}', in i:s disl;rl;tie.n, .,:;]11 a
"r-,:c:0I1 ClcCli'Jo. Th<.: rr(wislon:s of th,,:: petition wi!! 'lot ~pp-Iy :(\ <lmendm:::r.'.$ :\.1 the c.;t::lcr:1.l Plan lIcces$ary to
comply wiO) :cdcrul or sl2t~ J~w
Th: pctitl0:l P,clpOSCS thm u[:on j.,s effective Q21e, thc pro\'~sions sh,dl be inscn,:::i into tllC CC:IH'rdf Pbn ;:3 <'.t1
amcndmcOlt thereto, ex:cpt mJ( i~- ::1(' four ~:-:lelldmcnts pc.-mrltl:d by ,,1.:1[(: law {"r 1!1~ ::d cndJr ye:1, ir: ,....hiel.. :he
p~ti:.i.::1t1 l~ a;:provcd ha'le already tcc:n e::1lzed fo:- th~t yc::., pr:or to the clTc:::ive c<lte or th;.: illiti~;.iv,;:, :his
&m:::1dment shc.11 be the ;irs: inserted Imo ,he GenerJ,1 Pb" on J3Jluar::l' I ~,f (he follolN:ng y<::>.r, Fur':-:l:r. thl:
initiative provides. that it can only be amel.ldc-d or ;-cpe'lled J:J voters at 3 C:t) election.
The City Atmmcy has pref=::mxf thl: :lOCVC 5urnn,~ry pursuan'. to E!cctions Code seetlO::] 9203. the S!.lr:1r:l~.' r.ic~~
not re:lc<.::t 3n', Icu:d :::m~J':SIS or O::Jinion of tb~ Cl\l Att0TTlCV ;:;onccrnir.e the. nroo\)::<::G TTl(':.1SlIr~
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This is whallhc City Atlumc)' put on the
petItion pursuant to Elections Code ~9203(a)
This is what the Cil)' put on the ballot ..._m______m>
pamphlet
CITY OF CHULA VISTA
Proposition E
(This proposit on will appea~ on the ballot in the following form.)
PROP E
Shall the' ordinance amending Chula Vista's Genera! Plan to require voter approval for
General Plan changes increasing allowable building heights.abov~ 84 feet in most areas
of the City, and setting a buiJ.ding height. limit of 45 feel in a design'ated area on Third
\ Avenue be adopted?
This proposition requires approval by a simple majority (over 50%)
of the voters voting on the proposition.
Full text of this proposition follows the arguments an~ rebuttals,
CITY ATTORNEY IMPARTIAL ANALYSIS
Proposition E is a measure being presented by a citizens' initiative and proposes to amend the
Land Use Element of the Chula Vista Genet'al Plan, as adopted on December 13. 2005, by
adding tvvo provisions. The first prov'sion would require voter approval for any proposed change
10 the General Plan that would increase allowable building heights above 84 feet in most areas of
the City. The second provision would set a building height limit of 45 feet on Third Avenue
between E and G Streets.
Presently. under the General Plan, high-rise development in the City of Chula Vista is defined as
eight or more stories. and is limited to specific areas, namely the Transit Focus Areas and the
Otay Ranch Eastern Urban Center. Also, any specific project must be approved through the
City's de'lelopment review process. which generally includes planning, design. and environmental
reviews at public hearings.
If Proposition E is approved, proponents of development or redevelopment projects, proposed to
exceed 84- feet in height in most areas of the City. must not only comply with the City's existing
development review processes. but also must obtain authorization from voters of the City An
election would be required for each individual project. Proposition E specifically does not require
voter approval for any proposed projectlci exceed 84 feet in the City's Bayfront Planning Area. as
defined by the General Plan, or any area west of Interstate 5. .
Proposition E does not designate who would bear the cost of the mandated election. This
proposition may have a financial effect on the City of Chula Vista if-the City were 10 pay for the
_cost of an election. Proposition E may also increase uncertainty for proponents of future projects.
A project proponent affected by this proposition wou d be required to comply with all existing
planning, design, and envirorimental review processes, but could not obtain final approval unless
and until voters approved the project
Proposition E would also limit the height of buildings in the Third Avenue Village, defined as Third
Avenue betWeen E and G Streets. to 45 feet. Building height would be measured from the
average contact ground level of the building to the highest point of the building, including rOSlftop
appurtenances.
Proposition E is intended to have retroactive effect to apply to every project. which has not
commenced substantial physical construction or constructed substantial improvements and
incurred substantial liabilities in good faith reliance upon a valid City permit to complete
construction jss~ed by July 13. 2007.
If approved, the City Council w II be required to make changes to the City's zoning ordinance to
ensure consistency with this measure. If Proposition E is approved by a simple majority (over
50%) of the voters voting on the proposition"its provisions could be changed or repealed only by
a subsequent vote of the people of Chula Vista,
Prop E June 2008
INITIATIVE MEASURE TO DE SUDi\HTTED DIRECTLY .II.' I H r~ YVLt..t\;-'
The City Attorney has prepared the following title and summary oftbe chicfpllrpose and points of the proposed measure:
Title: An Initiative of the People of the City of Chula Vista Limiting the Vsc of
Eminent Domain Powers by tbe City of Chula Vista
This initiative proposes to limit the ability of the Chllla Vista City Council to utiJize the tool of eminent domain to take
private property to address economic blighting conditions. It will amend the Charter of the City to add Section 305.5
and 305.6 regarding prohibited acts. This measure would prohibit the City Council from taking any action or support-
ing any action of any other agency seeking to condemn private property for private redevelopment purposes. This will
prohibit the City from utilizing eminent domain process to make property available for private development. This
meaSll-re will require the City to submit to the voters at a general municipal ejection any matter where the City desires
to utilize eminent domain on private property except for public improvements projects. The City wilJ be able to use
the eminent domain process for public improvement projects provided the City holds or uses the property taken for
public purposes for a period of ten years prior to sale, lease, transfer or other disposition of the property.
This initiative will require that any amendments to its provisions may only be made by a vote of the people at a City
election.
The above is a summary ofthe terms of the proposed initiative by the City Attorney as required by Elections Code
Section 9203; it does not reflect ~ny legal analysis or opinion of the City Attorney concerning the proposed measure.
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This is what the City Attorney PLlt on the
petition pursuant to Elections Code ~9203(a)
Prop C June 2006
This is what the City put on the ballot
pamphlet
,........-..----...... > "
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..,. PROP C Shall the Charter of Chula Vista be amended
. to limit the ability of the City Council 'to utilize
the tool of eminent domain to take property to
addre~s economic blighting conditions?
rhis proposition requires approval' by a simpie majority (over 50%) of the voters.
. Full text of this proposition
follows the argument.
CITY ATTORNEY IMPARTIAL ANALYSIS
The City Council of the City of Chuta Vista was requested by Chula Vis tans for Private
I Property Protection to place this citizen-dra~ed measure on the ballot. State law
currently imposes restrictions upon the use of eminent domain by the City.. Eminent
domain may only be used if just compensation is awarded and the property is taken for
a .public. use and necessity. Property thai. 'is taken must be necessa!)' for that use.
Public necessity h~s th~ee elements: 1) Public interest and necessity require the
proJect; 2) the project IS planned and located in the manner that will be most
compatible with the greatest public good and the least private inju!)'; and' 3) the
property sought to be acquired is necessa!)' for the project. Califomia iaw only permits
the use ot eminent domain for economic development only if it Is tor the removal of
blight. .
This measure will amend the Charter of the City to add Sections 305.5 and 305.6
regarc.Hfl9 pr9hibited acts. This meas.ure would 'provide restrictions beyond those
currenlly provided in California law. It will prohibit the City Council from taking any
action t;lr supporting any action of any other ~gency se~king to condemn private
property for private redevelopment purposes. This will prohibit the City from utilizing
the eminenl domain process to make property available for private development. This
measure will require the City to submit to the voters at a general municipal election any
matter whl.3re the City desir~s to utilize eminent domain on private property except for
public improvement projects. The City will be able to use the eminent domain process
for public improvement projects provided the City holds or uses the property laken for
public purposes for a period of ten years pri.or to. sale, lease: transfer or other
disposition of the property. This measure will require that ~ny amendments to its
provisions may only be made by a vote of the oeoole at R r.itv Plpr.tinn
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OTY Of
mUlA VISTA
Office of the City Clerk
JS
Marc~ 2009
Lori Kneebone
806 Halecrest Drive
Chula Vista, CA 91910
Larry Breitfelder
1595-57 Mendocino Dr.
Chula Vista, CA 91911
Dear Ms. Kneebone and Mr. Breitfclder:
Per your request received in this office on March 13, 2009, enclosed please find the ballot title for and
summary of an initiative petition [0 amend the City of Chula Vista Municipal Code by adding Chapter
2.59, entitled "Fair and Open Competition in Contracting."
If I maybe of assistance, please feel tree to call me at (61'1) 6'11-5U41.
Sincerely,
J~ JV;~
Donna Norris, CMC, City Clerk
cc: William Baber
Associated Builders & Contractors, lnc. - San Diego
13825 Kirkham Way
Poway, CA 92064
!\!tachlllcllt 2
Third Pl'(itioll
Tille & Summar\'
276 Fourth Avenue, Chula Vista, CA 9t91O
www.chulavistaca.gov
(619) 691.5041
fax (619) 585-5774
Initiative Measure TO be Suol11111ecl Ulrectly to the Voters
Tbe city allornev has prcp'lred Ihe lolh)wing title and summary oC tbe chief purpose and
points 01" Ihe proposed measure:
Title: An m;tiative 10 amend the Chub Vista Municipal Code adding Chapter 2.59.
entitled ''Fair and Open Competition in Contracting," mandating that the eltv or
Redevelopml'nt Agenc\' nul I"und or contract Cor public works proJccts where there is a
requirement 10 LIse on!~' union en1plo.vees.
Summary: 'I his meaSure proposes To amend b\' ordinance the Chula Vista ~'lunicipal
ende to :,dd ~l chapter reg<lrding contr;,~cting (\11 public w(\rks pro.leets. The stated rurpose
and intent ol"the measure is to establish criteria th'lI will ensure that there is l~aiT and open
competition fur puhJic works projects I"unded in whole or in part with public I"unds; 10 aid
in lowering the Gost of publIC works projects; and to en::;ure that all \'\'orkcrs, both union
and nOIHIJ1JOn, hav.c a rem and cqual opportunity to work on public works projects,
The meaSlIre invoh l:S C\lntracts I~~I[. construe,lioJ'J, ]WjiJlh":Jl<:111Ct..:", repair, ilIq..nuvernent or
replacement of public works projects, ddil1cd as all construction projects paid lar, ill
whole or in pan, Iw I"unds uflhe CiTy or Rede\clopmcI1I Agenc\, ilKluding, but 110t
limiled l(l: an~' building, road: Stfeet: p3rk. playground: water systc-Jl1; irrigation system;
st'wer: stl)rm \\'(ller GOllvcY~\!1CC system; reChlfl13tion project; rcckve!opment project; or
other public bc:.lIit:,. ;;Contracling parry" IS defined <.15 an O\\'11CI"; developer; COlllractOf:
subCOnlraCl()f; or ll1(jlcnal supplier; involved in a publIC works project.
The measure would prohibit the Cir)' ur Redcvelopment ~\gl'I1Cy from mandating that a
cOlllrauing rart~1 ~ntE.T into an agreement with i:1 lahor nrt:aniz.atlon as 3 condition of
3\van.i Oflhc contract. or from funding :>L1c-h n ('ontr~lCl The proposal would add language
10 the \'funicipal Codc, staljn~ that the ell\' shall not fund, 1n whole OT in part. 0f enter
inH\ allY contract; Or illlpOSl.' (j bid spLociJicatic.ID, contract pfl'rcquisjte~ Or contract 1enl\
Ihat would require a cOIltr8c.tlng paJ1v involved in a public works projec.t 10 (I) execute,
comply \\:Jth Of bccornc 3. pnrt)" to ~m agreement with a lan(lr nrg:-lll i7.:Jl 1011, (2) hCCl\1l1C (j
si8m'l1or:v to a colJecti\'e barg31nlng agreemenl; (3) be required to f1131\c pn)'lllents on
heh8!f 01" cmplnvces to union benellt plans or othcr trust funds, (4) rcqLllrc its cmplu)'ces
tel be represented bY::l bbnr organiz3.lion, or (:1) enC()Ur~lge or dJSC(lLlra~E:' c:mpj(l~'ees .-d'a
COJ1tr'act!n~ }Xlrl,\" to h:\\'t' repreSeI1lalll1J11.1}' <:] I;Joor (Jrgalliz21ri01l
The measure would liCit i)t'ohlbJt pn',"Q1C rnrlics ('n,)1ll cnt\.:rJn~ in\'> indivi(llli11 col\cL,ti\'C
barg3ining relatlonships or en!;!'Jging In lo\\,-ful ur.i('on ~lCtivilics, VlOI8TiollS orthe
(lrdinallct: could he remedied lhruLJ~h ~111 ~!Pp]iCltj\ln fnr injullctive I"eliefin Superior
CL)url11lcd b)' i:1 C)lIZell JCSJdCIJl (1] Ll.\!ICt,\IJI;: U![!.ll.llalJ{)JJ. Tlll- JlJc:d",lJlL-. P1ll\'llk::-; lkll iI'
approved by \'O(t1's, i1 ma:' be 3tllcnc1cd or fE'pealed only by :l 1ll3jorir) VOle of the V01ers
of the CII\'.
The ell;-.: AttornL'Y h3::; prqxtrcd the 8bo'.:(' pursLJ:Jnl td Electluns Cuck Stctlul.l L)2U3; the
summ~tr)' does n()t reflect ClIlY k~gal anal;'sis Of npmlOIl nr [he ell:' /\!Inflley cnnceming
lhe' proposed mC:3SI.1J"l',
Attachlllent 2
Third Petition
I ille & SUllllllar)'
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CITY or
(HUlA VISTA
Office of the City Clerk
September 12,2008
Lori Kneebone
806 Haleeres! Drive
Chula Vista, CA 9\910
Larry Breitfelder
j 595-) 7 l'vlendocino Dr.
Chula Vista CA 91911
Dear Ms. Kneebone and Mr. Breitfelder:
The City Attorney has agreed to amend the ballot title per your request. Enclosed p!easf' finn rnf': r~vi.,ed hallm
title and summary for an initiative petition to amend the Cit) of Chula Vista I\'lunicipal Code regarding fair and
open competition in contracting.
If! may be of assistance, please feel free to call me at (6\9) 691,5041.
<::'incerely_
/Ji11k4'l-- pvl.vL-
Donna Norris, CMC Interim Citv Clerk
cc. George Ha\-vkins
President & CEO, ABC of San Diego
13825 Kirkham Wa,
Poway, CA 92064
Al\Clehmel11 2
See-ont! Pelitinn
lit Ie 8: Summarv
276 Fou:-th :"-seo'Je, Cr,1..l1a Vista, C.4. ;:]910
\,,-w\v.chu la vi staca.gov
(619) 69i.504J
101 X l6191 5<5,5-5774
K-.::-V i38) COlli z/(;0
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initiative Measure to be Submitted Directly to the Voters
The city attorney has prepared the following title and summary of the chief purpose and
points of the proposed measure:
Title: ,A.n imtiative roamend the Chula VisTa Municipal Code adding Chapter 2.j9,
entitled "fair and Open Competition L'1 Contracth'1g," mandating that the City or
Redevelopment Agency not fund or contract for public works projects where there is a
requirement to use only union employees.
:,
Summary: This measure proposes to amend by ordinance the Chula Vista lviupjcipal
Code [Q add a chapLeT rtg3.1di.ng contracting on public works projects. Tnc stated purpose
and intent of the measure is to establish critena that ,eill ensure thiU there is fair and open
competition for public works projects funded m whol" or in part with public funds; to aid
LTl lowering the cost or public works projects; and to ensure that aU workers, both UDjon
and non-union, have a fair and equal opportunity to work on pubhc works projects.
The measure involves contracts for construction, mamtenance, repair, unprovement or
replacement of public works projects, defined as all construction projects paid for, in
whole or in Dm, by funds of the City or Redevelopment Agency, including, but not
limited to, any building, road, ,,,eet, park, plavground, Water system, irrigation system,
sewer, storm water conveyance system, reclamatlon project. redevelopment proJect. or
other public facility. "Contracting party" is detined as an o"'11er, developer, contractor,
subcontractor, or material supplier, involved in a public works project.
The measur,,= v.;c.uld prohibit th~ City or Rede\,elopment Agency from mandating that a
comrac(ing parry en~er mto an agre-::mem wIth a labor organization as a condition of
award of the contmcL or from fundrng such a contract. The proposal would add language
to the ~'-[unicipa.! Code, ::;t::ning that the City sh2.U not fund, in \-,,:hole or ill part, or enter
tnto, any contract: or irnpose a bid specdication, COntract prereqUlSlte, Of contract tem1,
that would requIre a contracting party involved in a public works project to (1) execute.
CUIIll-'ly wilh ur beCOLllC a parry to an agreement \vnh a lab,)[ organlzation, I)) become 0.
sign2.tory to a collec[ive hargaining 2.gIeefficnt, (3) be required to make payments on
behalf of employees to union benefit al:ms or other trust fuJeds, ,4', requlfe Its employees
to be represented by a iabor org2.:.'LizacioD, or (5) encourage or discuur:ige CI!lpltJyttS of a
contracting pany to ha\'~ representation b:~ a bbor organization.
The measure would not prohibit partles from entering intO mdividual collecti\e
bargaining relationships or engaging in IavvTul union ccti vines. Violations of the
ordinance could be remr;::dled through 3J1 applic2.tton for injuncti\,t rellefin Superior
Coun filed by c citizen resident or t2..xpa;:ing corporatlon. The measure provldes that if
9_ppro\t:d by \\Jter5::t ma:, be :Lmended or repealed only b:' a majorir: vote ofche voters
of the City.
The Cit\, Anomev has prepared the abo....e pursuam to Elections Code section 9203: the
SUITill12..r)' does not ret1<:",c.t 8ny lc-:Z:l.l :-m.lIY"lC, or lJf\lni'ltll)frhe Cit:- Attorney concerning
the proposed measure.
'\llachlllellt :2
St:l'Olld Pt'lilitlll
Title & Summar\'
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em' OF
CHUlA VISTA
OFFICE OF THE CITY CLERK
February 8, 2008
Lori Kneebone
806 Halecrest Drive
Chula Vista, CA 91910
Dear Ms Kneebone:
Enclosed please find the ballot title and summary for an initiative petition to amend the CityofChula
VistaMunicipal Code regarding open competition and anti discrimination in contracting.
If! may be of assistance, please feel free to call me at 619/691-5041.
Sincerely,
,li. ,.. ,;)f.
)J.U!'~"-,, v/fl()),,0J in-
Donna Noms, CMC, Interim City Clerk
;\Il<lehmenI2
Fi",t Petit'ion
Tille & SlIllln",rv
276 FOURTH AVENUE. CHULA VISTA. CALIFORNIA 91910' (619) 691-5041 . FAX (619) 585-5774
fl.
Initiative Measure to be Submitted Directly to the Voters
The city attorney has prepared the following title and summary of the chief purpose and points of the
proposed measure:
.1,-\
Title: An initiative to amend the City ofChula Vista Municipal Code to add Chapter 2.59, entitled
"open Competition and Anti-Discrimination in Contracting," mandating that the City or
Redevelopment Agency not fund or contract for public works project::! where there is a. prerequisite
or requirement for union or non-union employees.
Summary: TIlls initiative measure proposes to amend by ordinance the Chula Vista Municipal Code
to add a chapter regarding bidding and contracting on public works projects. The stated purpose and
intent of the proposed measure is to establish criteria that will ensure that there is free and open
competition for public works projects funded in whole or in part with public funds; to aid in
lowering the cost of public works projects; and to ensure that all workers, both union and non-union,
have a fair and equal opportunity to work on public works projects.
The measure involves contracts for construction, maintenance, repair, improvement or replacement
of public works projects, which are defined as all construction projects paid for by funds of the City
or the Redevelopment Agency, and including, but not limited to, any building, road, street, park,
playground, water system, irrigation system, sewer, storm water conveYaIlce system, reclamation
project, redevelopment project, or other public facility. The measure defines "contracting party" as
all owner, developer, contractor, subcontractor, or material supplier, involved in a public works
project.
The measure would prohibit the Cit)' or the Redevelopment Agency from mandating that a
vOUlHtdwg party t:utC;:f lulu illl agretl11cut with a Llbor organization as a condition ofilward of the
contract, or from f1ll1ding such a contract. The proposal would add langwlge to the Municipal Code,
stating that the City shall not f1ll1d, en whole or in part, any contract, or inlpose any bid specification,
contract prerequisite, or contract tenn, tha.t wvuld require :1 contracting party involved in a public
works project to (1) execute or become a party to an agreement with a labor organization, (2)
become a signatory to a collective bargaining agreement, (3) be required to make payments on
henrrlf of employees to llninn henc-Fit pLms or otner trust fimds, or (4) require its employees to be
represented by a labor organization,
The measure would not prohibit parties from entering into individual collective bargaining
relationships or engaging in lawful union activities, Violations ofthc proposed ordinance could be
remedied through an application for injunctive relief in Superior Court filed by a citizen resident or
taxpaying corporation. The measure provides that if approved by voters, it may be amended or
repealed only by a majority vote of all voters of the Cit)'.
The City Attorney has prepared the above summary pursuant to Elections Code section 9203; the
swnmary does not reilect any legal analystS or opinion 01 tile CIty Attorney concerning the proposed
measure.
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INITIATIVE MEASURE TO BE SUBMiTTED DIRECTLY TO THE VOTERS
The city attorney has prepared the following title and summary of the chief purpose and points of the proposed measure:
Title: An initiative to amend the Chula Vista Municipal Code adding Chapter 2.59, entitled
"Fair and Open Competition fn Contracting," mandating that the City or Redevelopment Agency
not fund or contract for public works projects where there is a requirement to use only union employees.
Upon their third try to qualify their publiC works ban in the City of Chula Vista, proponents
from the Associated Builders and Contractors submitted signatures for their petition under
the guise of "Fair and Open Competition."
The City Clerk presented the notice that signatures had been collected to the City Council
(Resolution 2009-212) on Sept. 1, 2009. The Council also approved resolutions to spend
the $21,000 needed to certify the signatures (Resolution 2009-213), to place the
Associated Builders and Contractors-sponsored measure on the ballot (Resolution 2009-
214), and to spend the $93,000 necessary to place the measure on,the ballot (Resolution
2009-215) at the same Sept. 1, 2009 meeting.
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ItROM;PETlTION
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INITIATIVE :MEASURE TO BE SUBMITTED DIRECTLY TO THE VOTERS
. .
The city attorney has prepared the following title and summary of the chief purpose and points of !he proposed measure:
Title: An initiative to amend the Chula Vista Municipal Code adding Chapter 2.59, entitled
"Fair and'Open Competition in Contracting," mandating that the City or Redevelopment Agency
not fund or contract for public works projects where there is a requirement to use only union employees.
RESpLUTI6N2009~21~ '
SECTION 3. The City Council, pursuant to its right and authority as established in
California Elections Code sections 9215(b) and 1405{b), docs hereby order submitted to the
voters at the election specified above the following question:
PROPOSITION
Shall the Chula Vista Municipal Code be amended to mandate that
I the City or Redevelopment Agency not fund or contract for public
I works projects where there is a requirement to use only union
em 10 .ees?
I YES
NO
Somewhere between the City's receipt of the petition and the City Council's adoption
of Resolution 2009-214, the ballot question proposed by the City and affirmed by
passage of resolution was altered - Specifically, the new language was posed as a
question and the clause containing "entitled Fair and Open Competition in
Contracting." was removed.
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Members of the public asked that the City pay attention to the California Elections
Code. Specifically, that there not be false or misleading information in the measure's
title and that the City Attorney shall ensure that the title be written-in an impartial
language that does not create prejudice for or against the me~s~re. .
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E/~ctions ,Code See. 9203
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The City Attorney's Office stated that its policy is to "consistently use the title given
to us" by an initiative's proponents.
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REMCHO, JOHANSEN & PURCELL, LLP
A TIORNEYS AT LAW
November 13, 2009
Re: The Title and Summaryfor the Public Works Contract initiative
Dear Mr. Miesfeld:
We represent several City voters who oppose an initiative concerning public
works contracts that has been placed on the June 2010, citywide election ballot. The title and
summary of that initiative violates the Elections Code because it is not fair and impartial and
would create prejudice in favor of the measure. We therefore request that the title and summary
and ballot label for the initiative be substantially revised before they are submitted to the County
for publication on ballot~ and in ballot materials.
The fundan1ental problem with the current title and summary is that it was drafted
by proponents, not the City Attorney, as required by law. Under Elections Code section 9203, a
City Attorney has an independent duty to draft a title and summary that is a "true and impartial
statement of the purpose of the proposed measure in such language that the ballot title shall
neither be an argument, nor be likely to create prejudic;e, for or against the proposed measure."
"
After the City Council proceeded with approval of Resolution 2009-214, Chula Vista voters
informed the City Attorney that its office's handling of the title was jeopardizing their rights to
a fair election.
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r....."~'.'''''.....,'' OFFICE OF THE CITY ATTORNEY
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we do mdeed make it a practice to provide a true and impartial statement of the
purpose of a proposed measure within the title and in the summary following the title. In this
instance the title states~ " ...Fair and Open Competition in Contracting." Directly after this
statement is the following language: ". . . mandating that the City or Redevelopment" Agency not
fund for public works projects where there is , to only
or contract a requrrement use umon
employees." Should a voter be in a auandary over the "Fair a'lld Open" language the
aforementioned qualifying language within the title clearly states what this measure will
accomplish if passed by the electorate. The 5ummary also goes on to clearly explain what this
measure win accomptlsh ifpassed.
; Underline added
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City Attorney responds on November 19, 2009 with a reiteration that the office's policy is
not to review initiative's title and that there is a clear explanation about what the measure
will accomplish if passed.
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SECTION 3. The City Council, pursuant to its right and authority as established in
California Elections Code sections 9215(b) and 1405(b), docs hereby order submitted to the
voters at the election specified above the following question:
PROPOSITION
YES
Shall the ChuIa Vista Municipal Code be amended to mandate that
I the City or Redevelopment Agency not fund or contract for public
works projects where there is a requirement to use only union NO
em )0 ees?
The title exhibited in Resolution 2009-214 is now the status quo
for the title of the initiative.
However. the title is still inaccurate.
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, RESOLlJTIG>N2009':214
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SECTION 3. The City Council, pursuant to its right and authority as established in
California Elections Code sections 9215(b) and 1405(b), docs hereby order submitted to the
voters at the election specified above the following question:
PROPOSITION I
YES
Shall the ChuJa Vista Municipal Code be amended to mandate that
! the City or Redevelopment Agency not fund or contract for public . I
I works projects where there is a requirement to use only union NO
pmnl ?
Underline added.
Federal labor law prohibits requirements to use only union
employees.
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SAN DIEGO, CALIFO&'\'IA 92103
March 2, 2010
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II. THE BALLOT QUESTION IN RESOLUTION 2009-214 IS SUBSTANTIVELY
MISLEADING.
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From reading the ballot question, one would reasonably believe that all FOCO prohibited
is the City requiring workers to be union members in order to work on public works
projects. However, it is already against federal labor law to require union membership as a
condition of employment, an arrangement traditionally known as a "closed shop." 29
U.S.C. S 158(a)(3) ("It shall be an unfair labor practice for an employer [to] discriminat[e] in
regard to hire or tenure of employment or any term or condition of employment to
encourage ... membership in any labor organization"). See Pattern Makers v. N.L.RB.,
473 U.S. 95 (1985) ("In 1947 ... Congress enacted the Taft-Hartley Act. Section 8(a)(3) of
that Act effectively eliminated compulsory union membership by outlawing the closed
shop")(emphasis supplied). By creating the misimpression that FOCO outlaws the closed
shop on City public works projects - something already outlawed by federal labor law -
the ballot question IS substantlvelv mlsleadlnq.
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The objective laid out in the question set forth in Resolution 2009-214 is already in effect
because of the Taft-Hartley Act, which amended the National Labor Relations Act to eliminate
the "closed shop" - prohibiting the requirement to use onlv union eQlQlovees.
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2.59.0"\0 Requirements roo,: FBJr aDd"Open Competltion In Coniractt.ag
In cofltr<iCting for,the cOJlSlI\ICtion. mainlenlmcc. repair. improvement orrepiacemenl Cff public works projects: (J (] (
(1.l)The CilY shall 001 fund. in whole orin pan,orcnlerimo.anYCOl'ItracL wl1ich conlainsa requirement thlllllcontr.!C~ paJ"ty: '
. ,(1) CX~UIC. comply with. or become a p~y to an"agreement between a Labor organization. on the one C} ~
hondo and the ell)'. the C;:onll'll(;ling Pun)', or any Ul/I'd party on the c>ttler; ,-n
(2) become a signatory 10 a collective blIrgaining agreement; gj ()
/3) be required LO make payments On behalf of employees to union benefit plans or other trust funds; ~ 2
(4) require its employees 10 be repreSented by a Labor organization; or (/);:
(5) t'noour'dge or discourage employees of a t:ontracting pany lohltve representlltion"by a Labororgllniza(jon.~ <:
(h) The City shllll not i mposc. as a bid specificmion. Contract prcrequi .ilc. contract tcnn or otherwise. any n:quiremen~ V;
prohibited b~ subsection (a) ofthis Scctlon. " ~.,... :
(c) Noching in this Se...'tion shall beconbU'Ued as prohibiting'priv:lte panies covered by this prOvition from entering into indi~du:a.I
col 1<<1 i ve bargaining rel:l(i(ln~hLps. or o....herwise as reBUlating or in!t:rfrnng \\.ilh activiry protected by applicable law, including bu
nOllimile<.! lOlheAcl.
(d) Any person agsl;eved or mjun~d in any WilY by a viollll.ion of this ~ectjon shall be entitled to injLlllctive relief in the
Superior Court of the State of C.a1ifomia. County of San Diego. ind:u<iing or way of iUJ oction filed pursuant to California Code
of Civil Pmccdure section 526a
Instead, we know that the Associated Builders and Contractorsnsponsored initiative does
much more. A title for this measure should accurately capture all of the impacts this
measure could have on the City of Chula Vista.
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A ITORNEYS AT LAW
March 2, 2009
Those requirements can be found in Elections Code section 9051, which has two
relevant provisions. First, the ballot title "shall give a true and impartial statement of the purpose
of the measure in such language that the ballot title and summary shall neither be an argument,
nor be likely to create prejudice, for or against the proposed measure." (Elec. Code, 99051(c)./
Second, the ballot title may differ from the "legislative, circulating, or other title" the measure
may have previously been given. (Id, 99Q51(a)(I).) In sum, the City Council has an
independent duty to ensure that the ballot title is accurate and impartial, and it can change the
title at any time prior to 88 days before the election (March 12, 2010) to ensure that is the case.
In fact, the City is obligated to "give a true and impartial statementof the purpose of the
measure in such language that the ballot title and summary shall neither be an argument,
nor be likely to create prejudice, for or against the proposed measure."
This is the case even if the title is different than the "legislative, circulating, or other title."
Elections Code See. 9051
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March 2, 2009
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Moreover, what the initiative does is prohibit the City from entering into or
participating in any public works contract that requires the inclusion of a labor agreement. But
that is very different from a prohibition against a requirement "to use only union employees."
Just because a contractor has a labor agreement in place with its employees does not mean that
all of its employees are union members. Federal law prohibits that. Thus, the current ballot title
is inaccurate because it falsely tells voters the measure outlaws a closed shop on City public
works when in fact (1) it does not do that, and (2) such a prohibition already exists in federal
law. At a minimum, the title must make that change.
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Second, the ballot title fails to inform voters that the prohibition applies not just to
contracts paid for by City funds but also to any projects the City participates in that are funded
by the state or federal governments. The initiative could prohibit the City from participating in
state- or federally-funded programs that either require a vendor to have a labor agreement or
~guire the payment of other trust funds. (See Prop. Ordinance, S 2.59.030(a).) Some state-
funded programs, for example, require the payment of funds to trusts, such as the apprenticeship
program (see Labor Code, S 1777.5(m)). Yet under the initiative, the City would be prohibited
from participating in such programs. It is imperative that the voters understand that the initiative
could rohibit the Cit from artici atin in state- or federall -funded ro rams.
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The City should craft a title that accurately reflects all of the impacts that this initiative has
on Chula Vista, not just what the proponents say it does.
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ATTORNEYS AT LAW
March 2, 2009
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Finally, even if the ballot title were accurate (and it is not), it would still need to
be amended prior to March 12, because it is in the incorrect form. Elections Code section 13119
requires that any City ordinance submitted to the voters must be in the following form: "'Shall
the ordinance (stating the nature thereof) be adopted?'" The current title does not meet that
requirement and therefore must be revised.
On a lesser note, the ordinance isn't formatted correctly. The question should look like:
"Shall the ordinance .... be adopted?"
Elections Code See. 13119
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. RE,SpLUTIO.N2009-214
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SECTION 3. The City Council, pursuant (0 its right and authority as established in
California Elections Code sections 9215(b) and 1405(b), does hereby order submitted to the
voters at the election specified above the following question:
PROPOSITION
YES
I Shall the Chula Vista Municipal Code be amended to mandate that
! the City or Redevelopment Agency not fund or contract for public
, works projects where there is a requirement to use only union NO
em 10 ees?
The City must submit a title for the initiative to the County's Registrar for Voters 88 days
before a consolidated statewide election (March 12, 2010).
Elections Code See. 10403
The City has time to modify Resolution 2009-214 so that it accurately reflects
the effect of the proposed initiative.
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March 2010
SUNDAY MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY SATURDAY
1 , , . . ,
Tonight
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Last Council 88 days
meeting before
before 3/12 June 8
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SI. Plllric~:. Oily Vern:al E~jnox
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The City has two more regularly scheduled City Council meetings to modify
Resolution 2009-214 so that it accurately reflects the effect of the proposed
initiative before the March 12 deadline.
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RESOLUTION NO. 2009-214
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VrSTA CALLING AND GIVING NOTICE OF A
GENERAL MUNICIPAL ELECTION TO BE HELD ON
TUESOA Y, JUNE 8, 2010, FOR THE PURPOSE OF ELECTING
A MAYOR, TWO MEMBERS OF THE CITY COUNCIL; AND
A CITY ATTORNEY, AND PLACING AN INITIATIVE
MEASURE ENTITLED, "FAIR AND OPEN COMPETITION IN
CONTRACTING ORDINANCE" ON THE BALLOT TO BE
CONSIDERED BY THE ELECTORATE AT THAT ELECTION;
CONSOLIDATING THE ELECTION WITH THE STATEWIDE
ELECTION; AND REQUESTING THE BOARD OF
SUPERVISORS OF THE COUNTY OF SAN DIEGO TO
PERMIT THE REGISTRAR OF VOTERS TO CONDUCT THE
ELECTION
WHEREAS, in accordance with the provisions of the Chula Vista Charter and State law,
a General Municipal Election shall be held on June 8, 20] 0 for the purpose of electing a Mayor,
two Members of the City Council to fill Seats I and 2, and a City Attorney, for the full term of
four years, commencing in December 2010; and
WHEREAS, a petition entitled, "Fair and Open Competition in Contracting" was
accepted for filing by the City Clerk on July 13, 2009; and
WHEREAS, pursuant to California Elections Code Section 92]5, the required number
of signatures to submit this measure to the voters was 10,399, which was ten percent of the
103,985 voters in the City of Chula Vista as officially reported by the County Registrar of
V oters to the Secretary of State on March 23, 2009; and
WHEREAS, the County of San Diego Registrar of Voters has examined the petition and
certified that it contains a sufficient number of qualified signatures to cause the measure to be
placed on the ballot of the June 8, 2010 General Municipal Election; and
WHEREAS, pursuant to California Elections Code sections 9215 and 1405(bl, the City
Council must either adopt the ordinance without alteration or submit the ordinance, without
alteration, to the voters at the next regular municipal election occurring not less than 88 days
after the order of election; and
WHEREAS, Chula Vista's next rcgular municipal e1cction is set by Chula Vista Chartcr
section 900, which provides that General Municipal Elections shall be held in the City of Chula
Vista on the same date in each election year as the California State primary elections, which is
June 8,2010; and
WHEREAS, Section 439.1 of the Administrative Code of the County of San Diego
authorizes the Registrar of Voters of the County of San Diego to render specified services
relating to the conduct of an election to any city or district which has by resolution requested the
Board of Supervisors to permit the Registrar to render the services, subject to requirements set
forth in that section; and
Resolution No. 2009-2]4
Page 2
.
WHEREAS, Elections Code Section 10403 rcquires the City Council to adopt a
resolution requesting the Board of Supervisors to consolidate Chula Vista's election with the
statewide general election and to permit the Registrar of Voters to perform certain services in
conjunction with the City's election; and
WHEREAS, sufficient funding is anticipatcd to be allocated as scparate actions for the
payment of costs relating to the certification of the signatures on the petition and the placement
of the measure on the ballot; and
WHEREAS, the Environmental Review Coordinator has reviewed the proposed activity
for compliance with the California Environmental Quality Act (CEQA) and has determined that
the activity of calling and giving notice of a General Municipal Election for electing a Mayor,
two (2) members of the City Council, and a City Attorney is not a "Project" as defined under
Section 15378 of the State CEQA Guidelines because it will not result in a physical change to
the environment; further, that the activity of placing a measure for an amendment to the ChuJa
Vista Municipal Code on the ballot to be considered by the electorate at that election is not a
"Project" as defined under Section 153 78(b )(3) of the State CEQA Guidelines because it is the
submittal of a proposal to a vote of the people that is not City sponsored; therefore, pursuant to
Section 15060(c)(3) of thc State CEQA Guidelines, the actions proposed are not subject to
CEQA.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA
. DOES HEREBY RESOLVE, DECLARE, DETERMINE, AND ORDER as follows:
SECTION 1. All of the foregoing recitals are true and correct.
SECTION 2. Pursuant to the requirements of the Chula Vista Charter and the laws of
the State of California, there shall be and therc is hereby called and ordered held in the City of
Chula Vista, California, on Tuesday, June 8, 2010, a General Municipal Election of the
qualified electors of the City for the purpose of ejecting a Mayor, two Members of the City
Council to fill Seats I and 2, and a City Attorney, for the full term of four years, commencing
December 20] O.
SECTION 3. The City Council, pursuant to its right and authority as established in
California Elections Code sections 9215(b) and 1405(b), does hereby order submitted to the
voters at the ejection spccified above the following question:
PROPOSITION
YES
Shall the Chula Vista Municipal Code be amended to mandate that
the City or Redevelopment Agency not fund or contract for public
works projects where there is a requirement to use only union NO
employees?
.
SECTION 4. Should the question be approved by the reqUIsIte vote, the measure
attached hereto as Exhibit "A" and incorporated by this reference shall be enacted.
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Resolution No. 2009-214
Page 3
SECTION 5. The City Council hereby acknowledges its authority pursuant to
California Ejections Code section 9282 to submit a written argument not to exceed 300 words
against the proposed measure, and that of the proponents of the measure to file a writtcn
argument not to exceed 300 words in favor of the proposed measure. Pursuant to a resolution
previously adopted by the Council allowing rebuttal arguments, rebuttal arguments will be
allowed in accordance with Elections Code section 9285. Rebuttal arguments may not exceed
250 words. Each argument must be submitted to the City Clerk, and may be changed until and
including the date fixed by the City Clerk for submission of the arguments, after which no
arguments for or against the proposed measure may be submitted to the City Clerk. Printed
copies of each properly authorized and filed argument shall be enclosed with each sample ballot
in accordance with California Elections Code section 9282.
SECTION 6. The City Attorney is hereby directed to prepare an impartial analysis of
the measure, which shall be filed by the date set by the City Clerk for the filing of arguments.
SECTION 7. Thc General Municipal Election for the purposes of electing a Mayor, two
(2) Members of the City Council, and a City Attorney, and submitting the proposed measure on
the amendment of the Chula Vista Municipal Code shall be consolidated with the Statewide
Direct Primary Election held on the same day in accordance with California Elections Code
section 10401.
SECTION 8. Pursuant to Elections Code section 10403, the Board of Supervisors of the
County of San Diego is hereby requested to permit the Registrar of Voters to perform and
render all services and proceedings, and to procure and furnish any and all official ballots,
notices, printed matter and all supplies and equipment and paraphernalia incidental to and
connected with the conduct of the subject election of the City of Chula Vista, with the
cooperation and assistance of the City Clerk of Chula Vista, in order to properly and lawfully
conduct such election.
SECTION 9. The Board of Supervisors of the County of San Diego is hereby requested
to consolidate this ejection with the statewide election to be hcld on the same day, in the same
territory. Pursuant to Section 1041] and Section 104]8 of the Elections Code, (a) the election
shall be held in all respects as if there were only one election; (b) only one form of ballot shall
be used; and (c) the Registrar of Voters of the County of San Diego shall canvass the returns of
the subject election as part of the canvass of the returns of the election consolidated hereby.
SECTION ]0. Pursuant to Section 104]0 and Section 10418 of the Elections Code
within the territories affected by this consolidation, the election precincts, polling places, voting
booths and polling hours shall, in every case, be the same, and there shall be only one set of
election officers in each of the precincts.
SECTION] 1. The County of San Diego shall be reimbursed in full for the services
performed by the Registrar of Voters for the City of ChuJa Vista upon presentation of a bill
therefor, and this City agrees to indemnify and save free and hannless the County, its officers,
agents and employees from expense or liability, including reasonable attorneys' fees, as a result
of an clection contest arising after conduct of this election.
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Resolution No. 2009-214
Page 4
SECTION 12. The City Clerk is hereby directed to forthwith file a certified copy of this
resolution with the Board of Supervisors and the Registrar of Voters of the County of San Diego
and to issue instructions to the Registrar of Voters to take any and all steps necessary for the
holding of the election.
SECTION 13. The polls of said election shall be open at seven o'clock a.m. of the day
of said election and shall remain open continuously from that time until eight o'clock p.m. of
the same day when said polls shall be closed, except as provided in Section 14401 of the
Elections Code of the State of California.
SECTION 14. The ballots to be used at said election shall be, both as to form and
matter contained therein, such as may be required by law to be used thereat.
SECTION 15. In all particulars not recited in this resolution, said election shall be held
and conducted as provided by law for holding municipal elections in this City.
SECTION 16. Notice of the time and place of holding this election is hereby given and
the City Clerk is hereby authorized, instructed and directed to give such further or additional
notice of said election in time, form and manner as required by law.
SECTION 17. The City Clerk shall certifY to the passage and adoption of this resolution
and file it with the City's original resolutions.
Presented by
Approved as to form by
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Donna R. NOrrIS
City Clerk
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Resolution No. 2009-214
Page 5
PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista,
California, this 1 st day of September 2009 by the following vote:
AYES:
Councilmembers:
Bensoussan, Castaneda, Ramirez, and Cox
NAYS:
Councilmembers:
None
ABSENT:
Councilmembers:
McCann
ATTEST:
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Cheryl Cox, ~ yor
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Donna R. Norris, CMC, City Clerk
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO
CITY OF CHULA VISTA
)
)
)
I, Donna R. Norris, City Clerk of ChuJa Vista, California, do hereby certify that the foregoing
Resolution No. 2009-214 was duly passed, approved. and adopted by the City Council at a
regular meeting of the Chula Vista City Council held on the 1st day of September 2009.
Executed this 1 st day of September 2009.
Ai f1Yu<.g., l j~tVufi;
Donna R. Norris, CMC, City Clerk
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Resolution No. 2009-214
EXHIBrt::Jfe 6
FAIR AND OPEN COMPETITION ORDINANCE
The people of the City of Chula Vista hereby declare and ordain as follows:
SECTION 1. Statement of the Peon Ie's Intent
(a)The People of the City of Chula Vista ("the People") desire fair and open competition for
public works projects that are paid for, in whole or in part, with the funds of the City of Chula
Vista or its Redevelopment Agency.
(b) The People believe fair and open competition enables government to expand the pool of
qualified candidates to perform work and, in turn, to save public funds by lowering the cost of
public works projects. The people likewise seek to remove limits or impediments to the
consideration of qualified parties to work on public projects. '.
(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
Chula Vista, as follows:
SECTION 2. Cbula Vista Municioal Code. Title 2. ~Administration and Personnel" is
amended bv addinl! Cbanter 2.59. to read as follows:
(J)
Chapter 2.59
Fair and Open Competition in Contracting
2.59.010 Purpose and Intent The purpose and intent of this chapter is to establish criteria that
will ensure fair and open competition for public works projects funded in whole or in part with
public funds; to aid in lowering the cost of public works projects; and to ensure that all workers,
both union and non-union, have a fair and equal 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 Vista and the Redevelopment Agency of
the City of Chula Vista.
"Contracting party" shall mean and include an owner, developer, contractor, subcontractor or
material supplier, involved in a public works project.
"Labor organization" shall have the same meaning ascribed to it in Section 2 of the Act (29 use
~152)
"Public works project" shall mean and include all construction projects paid for, in whole or in
part, by the funds of the City or the Redevelopment Agency, including but not limited to any
building, road. street. park, playground, water system, irrigation system, sewer, storm water
conveyance system, reclamation project, redevelopment project, or other public facility.
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Resolution No. 2009-214
Page 7
2.59.030 Requirements for Fair and 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 between a Labor
organization, on the one hand, and the City, the Contracting Party, or any third party on the
other; .
(2) become a signatory to a collective bargaining agreement;
(3) be required to make payments on behalf of employees to union benefit plans or other
trust funds;
(4) require its employees to be represented by a Labor organization; or
(5) encoUrage or discourage employees of a contracting party to have reJire,entation by a
Labor organization. .
(b) The City shall not impose, as a bid specification., contract prerequisite, contract. term or
otherwise, any requirement prohibited by subsection (a) of this Section.
(c) Nothing in this Section shall be construed as prohibiting private parties covered by this
provision from entering into individual collective bargaining relationships, or otherwise as
regulating or interfering with actiVity protccted by applicable law, including bu[t] not limited to
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
by way of an action filed pursuant to California Code of Civil Procedure section 526a.
SECTION 3. Effective Date
To the extent permitted by law, the provisions of this Chapter 2.59 shall become effective 10
days after the 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
pursuant 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 vote of the voters of the City of
Chula Vista.
SECTION 5. Severability
If any Section of this Proposition, or any provision coutained 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 of this Proposition 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 treatment of the subject matter in this Proposition, and if
each measure is approved by a majority vote of those voting on each measure, then as to the
conflicting subject matter the measure with the highest affirmative vote shall prevail, and the
measure with the lowest affirmative vote shall be deemed disapproved as to the conflicting
subj ect matter.
.
.
.
REMCHO, JOHANSEN & PURCELL, LLP
A TIORNEYS AT LA W
201 DOLORES AVENUE
SAN LEANDRO, CA 94577
PHONE: (510) 346-6200
FAX: (510) 346-620 I
EMAIL: twillis@rjp.com
WEB SITE: www.rjp.com
Joseph Remcho (1944.2003)
Robin B. Johansen
Kathleen J. Purcell (Ret.)
James C. Harrison
Thomas A. Willis
Karen Getman
Margaret R. Prinzing
Kari Krogseng
SACRAMENTO PHONE: (916) 264-1818
November 13,2009
VIA FACSIMILE AND MAIL
Bart Miesfeld
City Attorney
City ofChula Vista
276 Fourth Avenue
Chula Vista, California 91910
Rc: The Title and Summary for the Public Works Contract Initiative
Dear Mr. Miesfeld:
We represent several City voters who oppose an initiative concerning public
works contracts that has been placed on the June 20 I 0, citywide election ballot. The title and
summary of that initiative violates the Elections Code because it is not fair and impartial and
would create prejudice in favor of the measure. We therefore request that the title and summary
and ballot label for the initiative be substantially revised before they are submitted to the County
for publication on ballot~ and in ballot materials.
.'
The fundamental problem with the current title and summary is that it was drafted
by proponents, not the City Attorney, as required by law. Under Elections Code section 9203, a
City Attorney has an independent duty to draft a title and summary that is a "true and impartial
statement of the purpose of the proposed measure in such language that the ballot title shall
neither be an argument, nor be likely to create prejudice, for or against the proposed measure."
The fairness of an initiative election hinges on the proper execution of this duty because the
ballot title and summary are often the only and always the last materials voters review before
voting. "The main purpose of [the title and summary] requirements is to avoid misleading the
public with inaccurate information." (Amador Valley Union High Sch. Dist. v. State Ed. of
Equalization (1978) 22 Ca1.3d 208, 243.) It is therefore an abuse of discretion for a City
Attorney to accept without question the proponents' characterization of the purpose and effect of
their proposed measure, particularly when that characterization creates prejudice in favor of the
measure.
Bart Miesfeld
~.: Nove~ber 13, 2009
\'tJI Page
That is exactly what happened here. As your office acknowledged during the City
Council meeting on September 1, 2009, your office simply copied verbatim the proposed title
and summary drafted by proponents and reissued it as the "fair and impartial" title and summary
of the City Attorney. A review of correspondence between the City and the proponents confirms
this fact. The City Attorney's office simply abdicated its duty under the law to draft an
independent and impartial title and summary.
Given its genesis, it is not surprising that the title and summary is highly
prejudicial in favor of the measure. Both the title and summary use subjective adjectives like
"fair" and "open" to describe the measure. Who doesn't like something that is fair and open?
But these are not operable terms of the law and were used by proponents solely to gain support
for the measure. It is the duty of the City Attorney to strip away such subjective, argumentative,
or prejudicial terms when presenting the measure to the voters. That was not done here.
Moreover, it is no answer to say that the use ofthose words is permissible because they appear in
the proponents' title ofthe measure. Section 9203 requires the City Attorney to draft an
independent and impartial title and explicitly states that in doing so he or she is not bound by
proponents' title.
~
'i..t#
At the City Council meeting on September 1, a proponent of the measure argued
that the title and summary could not be amended before it is submitted to the County for printing.
That is not true, and in fact, the Attorney General and city attorneys routinely modify the title
and summary of measures before submitting them for printing. Proponents argued that under
Elections Code section 9215, the City Council had to adopt the same title and summary that was
uscd on the initiative petitions. But section 9215 requires only that the substantive law, "the
ordinance", and not the accompanying ballot materials, be placed on the ballot without
modification. (Elec. Code, ~ 9215(b).) The point of that provision is obvious; having qualified
an ordinance for the ballot, the voters have a right to vote on that law as drafted and the City
Council cannot effectively deny that right to the voters by changing the substance of the law to
be submitted by the voters. But uulike the initiative ordinance, the content of the title and
summary is the exclusive domain of the city attorney, who can and should change an improper
title and summary befor"'it is submitted to the County for printing.
Based on the foregoing, we request that the City substantially revise the title and
summary. Failure to do so will result in an unfair election. It is our hope that the City will
modifY the title and summary voluntarily and we would like to meet with you to discuss how that
can best be accomplished. If the City fails to act, however, we are prepared to bring a writ
proceeding under Elections Code section 13314 to protect the rights ofChula Vista voters to a
fair election and ensure that voters receive a fair and impartial explanation of the measure. In
such an action, we would also seek attorney's fees under Code of Civil Procedure section 1021.5.
As a result, we believe it is in the best interests ofthe City and its voters to resolve this matter
without resort to the courts.
()
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Bart Miesfeld
November 13, 2009
Page 3
I look forward to hearing from you.
TAW:NL
(00095243.5)
Sincerely,
~
Thomas A. Willis
.
.
.
11/19/2009 15:26
6194095823
CV CITY ATTY-LIT DIU
PAGE 02
~v~
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if5~
CllY OF
CHUlA VISTA
OFFICE OFTHE CITY ATTORNEY
Via Facsimile and First Class U.S. Mail
November 19, 2009
Thomas A. Willis, Esq.
REMCHO, JOHANSEN & PURCELL, LLP
201 Delores Avenue
San Leandro, CA 94577
Facsimile No. (510) 346-6201
Re: The Title and Summary for the Public Works Contract Initiative
Dear Mr. Willis:
This office is in receipt of your November 13,2009 letter (received November 16,
2009) concerning the above-referenced matter.
Your letter states that section 9203 of the California Elections Code requires the
City Atiorney to draft an independent and impartial title and that section 9203 explicitly states
that in doing so the City Attorney is not bound by the proponents' title. Section 9203 goes
beyond just the title of a measure; it also discusses the purpose and a summary of the meaSU1:e.
Section 9203 actually states in pertinent part that, "... The ballot title may differ fTOm any other
title of the proposed measure and shall express...the purpose of the proposed measure. In
providing the ballot title, the city attorney shall give a true and impartial statement of the purpose
of the proposed measure in such language that the ballot title shall neither be an argument, nor be
likely to create prejudice, for or against the proposed measure." Emphasis added.
If:' the subject measure is adopted by the electorate then "C)lapter 2.59, Fait and
Open Competition in Contracting" would be added to the City's Municipal Code. As you maybe
aware, the City Council has been advised that it is this office's practice to not change the name
of a proponents' measure. We do this because 1) most measures do amend the City's Municipal
Code, and if passed, the name chosen by a proponent would be the name for the ordinance when
codified; and 2) we do indeed make it a practice to provide a true and impartial statement of the
purpose of a proposed measure within the title and in the summary following the title. In this
instance the title states: "... Fair and Open Competition in Contracting." Directly after this
statement is the following language: .... .mandating that the City or Redevelopment Agency not
fund or contract for public works projects where there is a requirement to use only union
employees." Should a voter be in a quandary over the "Fair and Open" .language the
aforementioned qualifying language within the title clearly states what this measure will
accomplish if passed by the electorate. The summary also goes on to clearly explain what this
measure will accomplish if passed.
276 FOURTH AVENUE' CHULA VISTA' CALIFORNIA 91910' (619) 691-5037' FAX (619) 409-5823
@ I'Iltl..eo- ~ ~Wlr
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~
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ViJiI
11/19/2889 15:26
6194895823
CV CITY ATTY-LIT DIU
PAGE 83
Thomas A. Willis, Esq.
November 19, 2009
Page 2
In regards to your request to have our office now amend the title and summary, it
appears, at this time we are unable to. Elections Code section 9210 states in pertinent part that,
.. .. . Once flIed, no petition section shall be amended except by order of a court of competent
jurisdiction." The title and summary was apart of the petitions that were circulated for signature
and which were subsequently filed with the City Clerk. Once filed, pursuant to section 9210 the
City cannot amend the title and summary.
Finally, are you aware that the title and summary are no longer utilized as part of
the measure? The title and summary were only used for the petitions and will not' appear on the
ballot.
Please feel free to contact me should you have any additional questions or
concerns regarding this matter.
Sincerely,
~ ~ Ciq Atio=y
BCM:mjs
cc: . City Clerk
CITY OF CHUi.A VISTA
.
.
..
DENNIS J. HAYES
JAMES J. CUNNINGHAM
RICARDO OCHOA
ADAM E. CHAIKIN
LAUREN M. ARENS
DONNA M. BUTLER
Hayes & Cunningham
ATTORNEYS AT LAW
3258 FOURTH AVENUE
SAt'\' DIEGO, CALIFORNIA 92103
TELEPHONE: (619) 297-6900
FACSIMILE: (6]9)297-6901
WEBSITE: hltD:llw\\'w.sdlaborlaw.com
ADMINISTRATOR:
VIRGINIA WOOD
March 1, 2010
Evan McLaughlin, Campaign Manager
We Won't Pay To Give Chula Vista Jobs Away
330 Roosevelt Street, # 24
Chula Vista, CA 91910
Re: Chula Vista City Council Resolution No. 2009-214
Dear Mr. McLaughlin:
Our firm has been asked to review Resolution No. 2009-214 of the Chula Vista City
Council, relating to the misnamed "Fair and Open Competition Ordinance" ("FOCO") which
will appear on the June 8, 2010 General Municipal Election ballot. Specifically, we have
been asked to review the accuracy of the ballot question which this Resolution submits to
the voters, namely:
Shall the Chula Vista Municipal Code be amended to mandate that the City
or Redevelopment Agency not fund or contract for public works projects
where there is a requirement to use only union employees?
Upon reviewing this ballot question, as well as relevant precedent, it is our position that
this ballot question is substantively misleading in two distinct but related ways. Below we
survey the legal standard governing such ballot question, explain why the ballot question
is misleading, and suggest an alternative ballot question that we believe more accurately
describes what this proposed measure would do.
I. LEGAL STANDARD FOR BALLOT QUESTIONS.
Constitution guarantees of equal protection and freedom of speech require that the
wording of a ballot be neutral and not misleading. Huntington Beach City Council v.
Superior Court (2002) 94 Cal. App.4th 1147, 1433-1434 (striking a ballot question from the
ballot as "substantively misleading"). Therefore, if the Chula Vista City Council approves a
ballot question that is "substantively misleading," a petition for writ of mandate may be
brought to strike that question from the ballot.
II. THE BALLOT QUESTION IN RESOLUTION 2009-214 IS SUBSTANTIVELY
MISLEADING.
As previously mentioned, the ballot question contained in Resolution 2009-214 is
substantively misleading, in two separate ways. First, it misleads the electorate into
.
.
.
March 1, 2010
Evan McLaughlin
Page 2
believing that FOCO outlaws something which it does not - because it is already outlawed
by federal labor law, Second, it misleads the electorate by failing to inform it what FOCO
actually outlaws,
From reading the ballot question, one would reasonably believe that all FOCO prohibited
is the City requiring workers to be union members in order to work on public works
projects, However, it is already against federal labor law to require union membership as a
condition of employment, an arrangement traditionally known as a "closed shop," 29
U,S,C, S 158(a)(3) ("It shall be an unfair labor practice for an employer [to] discriminat[e] in
regard to hire or tenure of employment or any term or condition of employment to '
encourage,,, membership in any labor organization"), See Pattern Makers v, NLRB.,
473 U,S, 95 (1985) ("In 1947 '" Congress enacted the Taft-Hartley Act Section 8(a)(3) of
that Act effectively eliminated compulsory union membership by outlawing the closed
shop")(emphasis supplied), By creating the misimpression that FOCO outlaws the closed
shop on City public works projects - something already outlawed by federal labor law -
the ballot question is substantively misleading,
In addition, the ballot question misleads voters by failing to inform them what FOCO would
actually do - prohibit all public works projects in the City which use state funds, Section
2,590,030(a)(3) of FOCO prohibits the City from funding any construction contract which
requires that a contractor "make payments on behalf of employees to union benefit plans
or other trust funds" (emphasis supplied), Significantly, this last clause does not apply
solely to union trust funds, Rather, as written, it applies to all trust funds, whether union or
not. Section 1777,5(m) of the Labor Code, however, requires that for any project covered
by the State's Prevailing Wage Law, the contractor is required to make payments to
apprenticeship trust funds, either directly or via the Califomia Apprenticeship Council.
Because FOCO prohibits the City from funding projects which require contractors to make
payments to trust funds, and because Section 1777,5(m) of the Labor Code requires
contractors to make apprenticeship trust fund payments on state prevailing wage projects,
FOCO effectively prohibits the City from funding or entering into construction contracts
governed by the State Prevailing Wage Law, By failing to mention this in the ballot
question, the City is misleading the electorate,
III. AN ALTERNATIVE BALLOT QUESTION
As detailed above, the ballot question contained in Section 3 of Resolution 2009-214 is
substantively misleading, Because the City is obligated to provide an accurate ballot
question to the electorate, it is required to change the ballot question, An alternative ballot
question that would accurately describe what FOCO does is:
Shall the ordinance mandating that the City or Redevelopment Agency not
fund or contract for public works projects which use state funds be adopted?
.
.
.'
, .
March 1, 2010
Evan McLaughlin
Page 3
This alternative language is neutral and does not advocate for or against FOGO.1However,
unlike the current ballot language, this alternative language accurately describes what
FOGO does and does not rnislead the electorate into believing FOGO does sornething
already provided for in federal labor law.
Per your request, this letter is not covered by the attorney-client privilege and rnay be
shared with other interested parties.
Please let us know if we rnay be of further assistance in this rnatter.
Very truly yours,
~~.
Ricardo Ochoa
Attorney at Law
RO:srnh
1 It also, unlike the current ballot question. conforms to the requirements of California Elections Code
913119,
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v;:;:I
.
.
REMCHO, JOHANSEN & PURCELL, LLP
ATTORNEYS AT LAW
201 DOLORES AVENUE
SAN LEANDRO, CA 94577
PHONE: (510) 346-6200
FAX: (510) 346-6201
EMAIL: twillis@rjp.com
WEBSITE: www.rjp.com
Joseph Remcho (1944-2003)
Robin B. Johansen
Kathleen J. PurceU (ReI.)
James C. Harrison
Thomas A. Willis
Karen Getman
Margaret R. Prinzing
Kari Krogseng
SACRAMENTO PHONE. (916)264-1818
March 2, 2009
VIA FACSIMILE
Mayor Cheryl Cox and Councilmembers Rudy Ramirez,
Mitch Thompson, Pamela Bensoussan and Steve Castaneda
City Council
City ofChula Vista
276 Fourth Avenue
Chula Vista, California 91910
Re:
Ballot Labelfor the Public Works Contract Initiative
Dear Mayor Cox and Councilmembers Ramirez,
Thompson, Bensoussan, and Castaneda:
We represent several City voters who oppose the initiative concerning public
works contracts that will appear on the June 2010, citywide election ballot. We understand the
City Council is reviewing the current ballot title tonight and we respectfully urge the Council to
amend the ballot title to comply with the Elections Code. The current title violates the Elections
Code because it is not an accurate statement of what the initiative does and would mislead
voters. It also is not in the proper format required by law. The Elections Code explicitly
authorizes the City Council to change the ballot title prior to March 12,2010, and given its
current invalidity, we urge the City Council to revise the title so it accurately and impartially
describes the initiative to the voters of Chula Vista.
As an initial matter, the City Council, not the City Attorney, has the authority and
duty to ensure that the ballot title is accurate and impartial. That duty to get the title right is so
important that the Elections Code permits the City Council to change the title from any previous
title the measure may have received, such as the title drafted by the City Attorney when the
measure was circulating for qualification or the title approved in September. Elections Code
section 10403 requires the City Council, at least 88 days before the election, to pass a resolution
that, among other things, sets forth the exact form of the initiative question as it is to appear on
~
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Mayor Cheryl Cox and Councilmembers Rudy Ramirez,
Mitch Thompson, Pamela Bensoussan and Steve Castaneda
March 2, 2009
Page 2
the ballot. Section 10403 also states that the wording of the ballot title must conform to the
requirements for statewide ballot initiatives.
Those requirements can be found in Elections Code section 90SI, which has two
relevant provisions. First, the ballot title "shall give a true and impartial statement of the purpose
of the measure in such language that the ballot title and summary shall neither be an argument,
nor be likely to create prejudice, for or against the proposed measure." (Elec. Code, ~ 90SI(c).)1
Second, the ballot title may differ from the "legislative, circulating, or other title" the measure
may have previously been given. (Id, ~ 9Q.SI(a)(1).) In sum, tlle City Council has an
independent duty to ensure that the ballot title is accurate arid impartial; and it can change the
title at any time prior to 88 days before the election (March 12, 2010) to ensure that is the case.
The fairness of an initiative election hinges on the proper execution of this duty
because the ballot title is often the only, and always the last summary, of the measure voters
review before voting. "The main purpose of [the title and sununary] requirements is to avoid
misleading the public with inaccurate information." (Amador Valley Union High Sch. Dist. v.
State Bd of Equalization (1978) 22 Ca1.3d 208, 243.)
The current title violates Elections Code sections 10403 and 90S1 for two
independent reasons. First, it is inaccurate because it states the initiative does something that it
does not. The current ballot states:
Shall the Chula Vista Municipal Code be amended to mandate that the
City or Redevelopment Agency not fund or contract for public works
projects where there is a requirement to use only union employees?
Although the title states that the City will be prohibited from entering into a project "where there
is a requirement to use only union employees," the initiative does not and cannot do that.
Federal law already prohibits the City or any other entity from requiring that a project be built
with only union labor. Federal labor law makes it illegal to require union membership as a
condition of employment, an arrangement traditionally known as a "closed shop." (29 U.S.C.
~ IS8(a)(3) [it shall be an unfair labor practice for an employer by discrimination in regard to
hire or tenure of employment or any term or condition of employment to encourage. . .
membership in any labor organization."]; see also Pattern Makers v. NL.R.B. (198S) 473 U.S.
9S, 106 ["In 1947 . . . Congress enacted the Taft-Hartley Act. Section 8(a)(3) of the Act
effectively eliminated compulsory union membership by outlawing the closed shop."].)
1 Failure to provide a true and impartial title is an abuse of discretion actionable through a writ
proceeding under Elections Code section 13314. However, we believe it is in the best interest of
the City and its voters to resolve this matter without resort to the courts.
'03/02/2010 14:54 FAX 5103488201
REMCHO, JOHANSEN&PURCELL "IJ&m 1./
~001/004
" ,"J
..
REMCHO, JOHANSEN & PURCELl" I.I.P
AITORNI:YS AI' LAW
SACRAMENTO I'JlON~: (91(.) 264.1818
Joseph Rcmcho (1944.2003)
Robin B. Johansen
Kathleen 1. Purcell (ReL)
James C. llanison
Thomas. A. Willis
Karen Get.man
Margaret R. Prinzing
Kal'i Krogseng
201 DOLORES ^ VENUE
SAN LEANDRO, CA 94577
PHONE: (510) 346-6200
FAX: (510) 346-6201
EMAIL: !willis@rjp.com
WEBSITE: WWW.ljp.COm
l!"AX COVER SHEET
! TO:
I FROM:
i Donna Norris, CMC, City Clerk
i Thomas A, Willis
(619) 585-5774
1
, March 2,2010
i 4 (with cover page)
Dllte:
Pages:
I
, RE:
I
i Ballot Label for the Public Works Contract Initiative (Our File No.: 2501.1)
Dear Ms. Norris:
Attached please tlnd s letter to the Mayor and Councilmembers I would like to be distributed DJr
tonight's meeting. Please call mC if you have any questions. Thank you.
Tom Willis
'03/02/2010 14.54 FAX 5103488201
REMCHO,JOHANSEN&PURCELL
~ 002/004
REMCHO, JOHANSEN & PURCELL,1.I.p
ATTORNEYS AT LAW
201 DOLORES AVENUE
SAN LEANDRO, CA 94577
PHONE: (510) 346-6200
F^X: (510)346-6201
EMAIL: Iwillis@rjp.cOIl\
WEBSITE: www..jp.eolll
S^CMMENTOPHONE: (91('1 264.1818
Ju>cph Remeha (I 944.200J)
Robin B. Johansen
Kathleen L Purcell (Re1.)
James C. Harrison
Thoma... ^. Willis
Karen German
M~rgaret R. Prinzing
Kari Krugscng
March 2, 2009
VIA F'ACSIMTLF:
Mayor Cheryl Cox and Councilmembers Rudy Ramirez,
Milch Thumpsun, Pamela Bensoussan and Steve Castaneda
City Council
City ofChula Vista
276 Fourth Avcnue
Chula Vista, California 91910
Re: Ballot Label jur the Public Works Contractlnitiative
Dear Mayor Cox and Councilmembers Ramirez,
Thompson, Bensoussan, and Castaneda:
We represenl several City voters who oppose the initiative concerning public
works contracts that wiII appear on thc June 2010, citywide election ballot, We understand th"
City Council is reviewing the current ballot title tonight and we respectfully urgc thc Council to
amend the ballot tille to comply with the Elections Code, The current title violates the Elections
Codc bccause it is not an accurate statement of what the initiative does and would mislead
voters, It also is not in the proper rorrnat required by law. The Elections Codc explicitly
authorizes the City Ce.uncil to change the ballot title prior to March 12, 20 I 0, and given its
current invalidity, we urge thc City Council to revise the title so it accurately and impartially
describes the initiative to the voters of Chula Vista.
As an initial matter, the City Council, not the City Attorney, has the authority and
duty to ensure that the hallot title is accurate and impartial. That duty to get the title right is so
important that the Elections Codc permits the City Council to change the title from any previou~
title the measure may have received, such as the title drarLed by the City Attorney when the
measure was circulating for qualification or the title approved in September, Elections Code
sectiun 10403 req uires Ihe City Council, at lcast 88 days before tltC election, to pa,s a resolution
that, among other things, sets forth the exact rorrn of the initiative question as it is to appear on
'03/02/2010 14:54 FAX 5103488201
REMCHO,JOHAN3EN&PURCELL
IllJ 003/004
Mayor Cheryl Cox and Councilmembers Rudy Ramirez,
Mitch Thompson, Pamela Bensoussan and Steve Ca~taneda
March 2, 2009
Page 2
the ballot. Section 10403 also states that the wording of the ballot title must conform to the
requirements [or statewide ballut initiatives.
Those requirements can be found in Elections Code section 9051, which has t wu
relev,mt provisions. First, the ballot title "shall give a true and impartial statement of the purpose
of the measure in such language that the ballot title and summary shall neither be an argument,
nOr be likely to create prejudice, for or against the proposed measure." (Elee. Code, S 905 I (c)-) 1
Second, the ballot title may ditIer from the "legislative, circulating, Or other tirle" the measure
may have previously been given. (Jd, 9 9051(a)(1 ).) In sum, the City Council has an
independent duty to en~ure that the balIot title is accurate and impartial, and it can change the
tille at any time prior tu 88 days before the election (March 12,2010) to ensure that is the case.
The fairness of an initiative election hinges on the proper execution of this duty
because the ballot title is ollen the only, and always the last sutumary, of the measure voters
review before voting. "The main purpose of [the title and summary] requirements is to avoid
misleading the public with inaccurate information." (Amador Valley Union High Sch l)i.~t. v.
Stale Bd. ofEqualicotion (1978) 22 Cal.3d 208, 243.)
The currenl titlc violates Elections Code sections 10403 and 9051 for two
independent reasons. First, it is inaccurate because it states the initiative does something that it
docs not. The current ballot states:
Shalllhe Chula Vista Municipal Code be amended to mandate that the
City or Redevelopment Agency not fund or contract for public works
projects where there is a requirement to use only union employees?
Although the title states that the City will be prohibited Ii-om entering into a project "where there
is a requirement J() lIse only union employees," the initiative does not and cannot do that.
Fcderallaw already prohibits the City or any other entity from requiring that a project be built
with only union labor. Federal labor law makes it illegal to require union membership as a
condition of employment, an arrangement traditionally known as a "closed shop." (29 U.s.C.
S 158(a)(3) lit shall be an unfair labor practice for an employer by discrimination in regard to
hire or tenure of employment or any term or condition of employment to encourage. . .
membership in any labor organizatiun."]; .\'ee also Pal/ern Makers v. N.L.R.B. (1985) 473 U.S.
95.106 ["In 1947... Congress enacted the Taft-Hartley Act. Section 8(a)(3) oflhe Act
effectively eliminated compulsory union membership by outlawing the closcd shop."].)
I Failure to provide ~ .t~e ~~d impartial title is an abuse of discretion actionable through a writ
proceeding under Elections Code section 13314. However, we believe it is in the best interest of
the City and its vol'ers to resolve this matter without resort to the courts.
'03/02/2010 14 55 FAX 5103488201
REMCHO,JOHAHSEH&PURCELL
1;1] 004/004
Mayor Cheryl Cox and Councilmembers Rudy Ramirez,
Mitch Thompson, Pamela Densoussan and Steve Castancda
March 2, 2009
Page 3
Morco""r, what the initiative does is prohibit the City from entcring into Or
participating in any public works contract that requires the inclusion of a lahor agreemcnt. But
that is very different f.'om a prohibition against a requirement "to use only union employees."
Just heclluse a contractor has a labor agrcement in place with its cmployees does not mcan ,hat
all of its employees ar'~ union memhers. Fcdcrallaw prohibits that. Thus, the CUlTent ballot title
is inaccurate because it falsely tclls vot(,TS the measure outlaws a closed shop on City public
works when in faCI (I) it does not do that, and (2) such a prohibition already exists in fedcral
law. At a minimum, the title must make that change.
Second, the ballot title tails 10 inform voters that the prohibition applics not jusl to
contracts paid for by City funds but also to any pTOject~ the City participates in that are funded
by the state or federal govemment~. The initiativc could prohibit the City from participating in
state- or fedcrally-funded programs that "ither require a vendor to have a labor agrecmcnt Or
require the paymenl of olher trust funds. (See Prop. Ordinance, 92.59.030(a).) Some state-
funded programs, for example, require the payment of fUnds to tlusts, such as the apprenticeship
program (see Labor Code, ii I 777.5(m)). Yet under the initiative, the City would be prohibited
from participating in such programs. [t is imperative that the voters under~tand that the initiative
could prohihit the City from participating in state- or federally-funded programs.
Finally, even if the bailot Iille were accurate (and it is not), it would stillneec1 to
be amended prior to March 12, because it is in the incorrect form. Elections Code section 131 I 9
requires that any Cit.y ordinance submitted to the voters mu~t he in the following form: "'Shall
the ordinance (stating Ihe nature thereof) be adopted?'" Thc current tille does not meet that
rcquirement and therefore must be revised.
For all the I'oregoing reasons, the ballol title for the public works initiative
violates Lhe Elections Code and must be amended prior 10 being submitted to the e1ectorale.
Sincerely,
Thomas A. Willis
TAW:NL
(001049')1-2)
.
.
.
Mayor Cheryl Cox and Council members Rudy Ramirez,
Mitch Thompson, Pamela Bensoussan and Steve Castaneda
March 2, 2009
Page 3
Moreover, what the initiative does is prohibit the City from entering into or
participating in any public works contract that requires the inclusion of a labor agreement. But
that is very different from a prohibition against a requirement "to use only union employees."
Just because a contractor has a labor agreement in place with its employees does not mean that
all of its employees are union members. Federal law prohibits that. Thus, the current ballot title
is inaccurate because it falsely tells voters the measure outlaws a closed shop on City public
works when in fact (1) it does not do that, and (2) such a prohibition already exists in federal
law. At a minimum, the title must make that change.
Second, the ballot title fails to inform voters that the prohibition applies not just to .
contracts paid for by City funds but also to any projects the City participates in that are funded
by the state or federal governments. The initiative could prohibit the City from participating in
state- .or federally-funded programs that either require a vendor to have a labor agreement or
require the payment of other trust funds. (See Prop. Ordinance, 92.59.030(a).) Some state-
funded programs, for example, require the payment of funds to trusts, such as the apprenticeship
program (see Labor Code, 9 I 777.5(m)). Yet under the initiative, the City would be prohibited
from participating in such programs. It is imperative that the voters understand that the initiative
could prohibit the City from participating in state- or federally-funded programs.
Finally, even if the ballot title were accurate (and it is not), it would still need to
be amended prior to March 12, because it is in the incorrect form. Elections Code section 13119
requires that any City ordinance submitted to the voters must be in the following form: "'Shall
the ordinance (stating the nature thereof) be adopted?'" The current title does not meet that
requirement and therefore must be revised.
For all the foregoing reasons, the ballot title for the public works initiative
violates the Elections Code and must be amended prior to being submitted to the electorate.
S incerel y,
Thomas A. Willis
TAW:NL
(00104992-2)