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HomeMy WebLinkAbout1992-06-04 CRC MINS . . . MINUTES OF A REGULAR MEETING OF THE CHARTER REVIEW COMMITTEE JUNE 4, 1992 June 4, 1992 Council Conference Room 6:00 p.m. ----------------------------------------------------------------- MEMBERS PRESENT: Bob Campbell, Jack Blakely, Susan Fuller, Vickie Turner and John Dorso MEMBERS ABSENT: Sharon Reid (excused) and Ted Hillock (unexcused) STAFF PRESENT: Bruce Boogaard, City Attorney Assistant City Attorney Rudolf and The meeting was called to order by Chairperson Campbell at 6:05 p.m. The roll was called and all members were present except Member Reid who was excused for illness and Member Hillock who was unexcused. MSUC (Blakely/Fuller-abstained by the Chair for absence) to approve the minutes of the February 18, 1992 regular meeting. MSUC (Fuller/Dorso) to approve the minutes of the special meeting of February 24, 1992. There were no comments from members of the public. Agenda Item 4A: City Attorney Bruce Boogaard reported to the Committee regarding the. Council action and his forwarding a report to the Council recommending action different from that recommended by the Committee with regard to the runoff ballot issue. The Committee's report recommended a November election with a January mail ballot runoff, whereas, the City Attorney's recommendation to the Council (Council approved and approved by the voters at the June primary election) was to move the general election from November to June, beginning in 1994, and having a special runoff election conducted in November by normal polling place procedures in the event no candidate receives 50% plus 1 in the June election. The City Attorney asked the members of the Committee if they had any questions as to why he made a recommendation different from theirs. No members of the Committee had questions. Member Fuller pointed out that the Committee had been previously provided with the City Attorney's Supplemental Report to the Council for the meeting of February 25, 1992, which contained the reasons for his recommendation. The City Attorney stated that there was still one part of the runoff election process which had not been addressed by the Council . . . Charter Review June 4, 1992 Minutes Page 2 in the action approved by the voters in June: death or withdrawal of a candidate between the June and November elections by one of the runoff candidates. Member Campbell stated that the spirit of the runoff is that if the candidate voluntarily withdraws or dies, that the candidate finishing third in the June election be permitted to run against the remaining candidate. However, there were time constraints on allowing that to occur, and once those time limits had been exhausted, the Charter provision should provide for the remaining candidate to win regardless of the vote. Member Fuller said that she likes the replacement provision (referring to Paragraph K in the City Attorney's Supplemental Memo of February 25, 1992 at page 5), because it assists the person in resisting pressure to withdraw from the election process. Member Blakely suggested the possible addition of a provision to say that if the death or withdrawal of the runoff candidate was after the ballots had been prepared (approximately 45 days prior to the election in November), then the election would go by default to the remaining candidate, and not add the candidate finishing third in the June election; but if the death or withdrawal occurred prior to that cutoff time to add candidate no. 3 in the June election to the ballot and follow through with the runoff election. The City Attorney commented that this would allow candidate no. 3 only 45 days or less to campaign. Member Fuller stated that these issues were raised because of the substantial delay between the June and November election, which is why she voted for the Commi ttee recommendation for the November/January mail ballot runoff option. Member Fuller inquired whether the City could force a person's name to remain on the ballot if the purpose of the provision was just to preserve the idea of a runoff, regardless of the candidate's personal decision. Member Blakely suggested a provision giving 10 days after the June election for the runoff candidates to decide whether to withdraw or go on to the runoff. If one of the candidates decides to voluntarily withdraw, the person finishing third in the June ballot will be placed on the ballot for the November runoff, without an opportunity to refuse. He stated that the options for withdrawal after that 10 day period were too complex. MSUC (Blakely/Fuller) to add a provision to Charter Section 300 that would not gi ve candidates an opportunity to voluntarily withdraw; in the event one of the runoff candidates died after the June election, but before the ballot printing cutoff date (approximately 90 days preceding the November election), then candidate no. 3 in the June election would be offered an opportunity to be on the ballot with 5 days to accept or reject. - . . Charter Review June 4, 1992 Minutes Page 3 If accepted, there would be a runoff election on the November ballot; if rej ected, the remaining candidate would be deemed elected by operation of law with no election required. The provision would further provide that if the death occurred after the ballot printing cutoff date preceding the November election, the names would remain on the ballot and the general law would apply. The Committee requested the final language be brought back at the next meeting for review and final approval (Agenda Item 4A for the June 16, 1992 meeting). Agenda Item 4B: The City Attorney requested the Committee reconsider the changes it proposed to Charter section 303 in its report to the Council of February 25, 1992. He pointed out that under the current Charter if a Councilmember has one meeting from which his or her absence is unexcused and there are two "dark" meetings, then at the fourth meeting that member is at the political whim of the other members of Council to request and obtain permission of the Council expressed in its minutes in order to obtain an "excused" absence, and not have a vacancy occur by operation of law. The Committee's previous action to amend the second paragraph of section 303 to require absence from 3 consecutive regular meetings scheduled and held unless by permission of the Council expressed in its minutes contemporaneously with the absences does not address the concern that permission for the excused absence needs to be obtained from the remaining members of Council, and does not address Councilman Rindone's concern that the issue of non-attendance overall be the focus of the provision. He explained that under the Committee's current proposal to amend Section 303, a Councilmember could miss two out of every three meetings, if they were properly timed, and in a year miss approximately 32 meetings, attend only approximately 16, and yet not have a vacancy declared by operation of law. He instead suggests that a vacancy occur when a Councilmember misses a certain percentage or number of meetings during the course of any twelve month period, whether or not consecutive, and whether or not excused. Member Blakely stated that he didn't like the idea of Councilpersons being allowed to miss 10 meetings, which could perhaps be consecutive, and then not allowed to miss any other meetings for the rest of the year without having a vacancy occur. Chairperson Campbell didn't like the idea of a Councilmember being absent more than 3 consecutive meetings without an excuse. Member Turner felt that there should be some focus on some objective criteria or standard for the Council to use in granting or denying an excused absence. Member Blakely felt that it was appropriate to . . . Charter Review June 4, 1992 Minutes Page 4 have a provision in the Charter that a person would have their seat on the Council vacated by operation of law if they didn't call in and request an excuse from the other members of Council. Chairperson Campbell said his experience had been that the person always knows in advance that they are going to be absent and ask for permission at the meeting preceding the meeting at which they will be absent, and the requested absence is invariably approved by the other members of Council provision. The City Attorney indicated that there were 48 meetings a year, approximately, or 191 meetings in a Councilperson's term of office. He felt that it was a severe sanction for a member of Council to have his or her seat vacated by operation of law if they missed 3 consecutive meetings without excuse, when 2 of those were for an ordinary vacation like anyone else would take. The City Attorney suggested putting the number of absences on a term basis, or a provision providing for 4 absences in a row or 10 in a year, with the deletion of the excuse by the other members of Council. Member Dorso stated that he felt uncomfortable changing the Charter solely on the basis of near misses under the current language of the Charter. Member Blakely stated that the Charter provision had been in effect for approximately 70 years and there had never been a vacancy declared under the current provision. Chairperson Campbell suggested that the Committee approve the City Attorney's recommended 4/10 provision and see what Council says. MSUC (Campbell/Turner) that Charter section 303 be amended to provide for 3 consecuti ve unexcused absences, add 10 unexcused absences in a 12 month period, and keep the provision requiring Council approval of the excuse in its minutes, along with a provision that Council must grant an excuse for an illness which disables the Councilperson from attendance (see Agenda Item 4B for the June 16, 1992 meeting). Agenda Item SA: The City Attorney discussed his memorandum to Assistant City Attorney Rudolf dated April 2, 1992 regarding the proposed Charter amendment to Section 1009 to deal with non-responsive bids. He stated that under the general law, the City Council is authorized to waive immaterial defects, but not material defects. He advised that the city had been threatened with a lawsuit that a particular defect in a contract bid was not immaterial, and was therefore beyond the ability of the Council to waive, because it was not clear whether or not the City had incorporated that provision of the general law by a failure to provide otherwise in the Charter. . . . Charter Review June 4, 1992 Minutes Page 5 Therefore, he suggested the Charter be amended as set forth in his memorandum and its attachment, with the addition of a public hearing requirement held for the purpose of considering the potential waiver. The new proposed addition to the next to the last paragraph of Charter Section 1009 would be: "The City Council may waive any defects in any bid to the extent it finds at a public hearing held for that purpose that it is necessary to do so for the benefit of the pUblic." MSUC (Blakely/Campbell) to recommend to the Council the City Attorney recommended change, as amended by the City Attorney. (See Agenda Item 4C for the June 16, 1992 meeting). Agenda Item 6: The Assistant City Attorney requested the City Attorney review with the Commi ttee any of the Charter amendments proposed by the Committee to the Council in its February 25, 1992 report, which the City Attorney felt needed further work before re-presenting to Council for recommended placement on the November ballot. The City Attorney indicated that the change in Charter Section 303 approved by the Committee tonight was complete; Section 304, the technical cleanup relating to the Mayor's salary did not need further review; and he had some concerns that the proposed addition of the prohibition of gift of public funds to section 305 was giving up a Charter city advantage. Mr. Rudolf pointed out that the proposed provision related only to a gift of public funds and not to retroactive pay, and that there were two separate prohibitions in the State Constitution applying to general law cities. Neither of those prohibitions would apply to Chula Vista as a Charter city, but this prohibition of gift of public funds would not prevent retroactive pay to employees. Mr. Rudolf pointed out that the provision had been recommended to the Committee by both the Assistant City Attorneys, stating it was based on the State Constitutional prohibition and a similar provision in the San Diego City Charter. Member Fuller stated that the Committee felt the proposed addition to the Charter was useful in light of an incident dealing with attorneys' fees being given to a private party which raised the concern about a potential gift of public funds in the absence of any Charter prohibition against it. The City Attorney explained that the attorneys' fees were not actually given to the private party but only provision made as part of a settlement that the private party had the opportunity to obtain them if they could, and in fact it turned out that no attorneys' fees were obtained. . . . Charter Review' June 4, 1992 Minutes Page 6 Mr. Rudolf pointed out that Section 307 relating to special meetings was no longer needed to be repealed because it was discovered after the report to the Council on February 25, 1992 that the provision had been repealed by a previous amendment even though it was still being printed in the Charter booklet. The City Attorney had no further recommendations to the Committee with regard to the proposed amendments to section 602 regarding appointments for members of boards and commissions. Tonight's action with regard to Charter Section 1009, in addition to the previous recommendation of the Committee that the Council put on the ballot an amendment increasing the dollar amounts relating to public works contracts, completed consideration of that item. Agenda Item SB-Final Decisionmaking Authority for Advisory Boards, Commissions or Committee: Mr. Rudolf reported on the proposal to amend Charter Section 600 to allow the City Council to delegate to Charter or ordinance-created boards, commissions or committees final decisionmaking authority with regard to some matters. As pointed out in the May 19, 1992 memorandum to the Charter Review Committee, the current provision in Section 600 prohibiting boards and commissions from having authority to direct the conduct of a department would be inconsistent with delegated final decisionmaking authority with regard to the Safety Commission, the Board of Appeals and Advisors, and the new Mobilehome Rent Review Commission. The proposal also adds "committees" to the Charter provision, but excepts therefrom "short term, ad hoc, single-purpose advisory committees" from the requirements of Article VI. The City Attorney expressed concern that the Council would not be happy with the striking of the language prohibiting boards or commissions from having authority to direct conduct of a department, because the Council already thinks that there are too many resources being currently expended on staffing boards, committees and commissions. He thought the striking of the language would appear to give more authority, potentially resulting in even more staff resources, rather than the reverse. Mr. Rudolf commented that he discovered from staff yesterday the existence of a Human Services Council which was an advisory group to the former Mayor, created approximately five years ago. That Council was not created by ordinance nor by resolution of the full Council, but had done extensive work with extensive staff support, prepared a Social Services Plan which was presented to and adopted by the full Council, and the Council continued in existence and appeared before the Council from time to time on issues of concern. Two City staff members were either members of the Councilor staff to it. . . . Charter Review June 4, 1992 Minutes Page 7 Member Fuller stated that as long as the Council asks volunteers to spend time assisting the City with important issues, the City needs to provide resources to enable them to properly do their work. For example, she heard the Mayor at the last Council meeting encourage the development of addi tional community planning groups. Such encouragement could result in additional staff needed to support those community planning groups, resul ting in more cost to the ci ty. Therefore, Member Fuller concluded that the Council ought to have a workshop on the creation and use of boards, commissions and committees and its fiscal impact on the City. MSUC (Fuller/Dorso) to forward the provision to the City Council with the request that they hold a workshop on the proposed language. However, later in the meeting, the proposed amendment to Section 600 was readdressed. The City Attorney suggested the term "short term" be defined because it is ambiguous, and he felt that the exemption from the requirements of Article VI needed further explication. Mr. Rudolf responded that the Committee essentially had two choices. One option was to leave the ambiguity of the term "short term" so that the Council could have the flexibility on a case by case basis to determine whether a particular board, committee or commission was in fact "short term", rather than tying their hands. The second option was to make clear in the Charter what the Council considered "short term" in all cases. In addition, the exemption was to allow such boards, committees or commissions to be free of the Charter requirement that the Council annually consider appropriations for it; that they not be compensated but could receive travel and other expenses if authorized by the Council; not require terms of office drawn by lots or vacancy upon absence; allow persons to be nonresidents or under 18; not require annual election of a chair; not require action by a majority of the entire membership; not require the City Manager to designate a secretary to record the minutes; and not require them to maintain minutes at all. Member Blakely asked if the proposed Charter provision could include a requirement that the Council make a determination as to whether or not the board, committee or commission was "short term" at the time Council creates it. Mr. Rudolf responded that it could and, alternatively, the Council could define short term by ordinance. The City Attorney was concerned that any ambiguity as to "short term" would place pressure on the office of the City Attorney to clarify its meaning by rendering an opinion, resulting in pressures on the office and the consumption of staff time interpreting what the people enacted. He suggested that the provision include the addition of a 6 month limitation in the Charter language. Mr. Rudolf suggested the members of the Committee review the issues discussed, specifically including the items from which the excepted boards, committees or commissions would be exempt and the ... ~ ... . Charter Review June 4, 1992 Minutes Page 8 resolution of definition of the term "short term" before the next meeting. This was satisfactory to the maker and seconder of the motion so the matter will be placed on the agenda for the Committee's next meeting. Member Fuller requested that staff also provide the Committee with the names of any other committees not currently included in the Charter, Municipal Code, and/or Conflict of Interest Code, and include them in the mailing for the next meeting. (See staff report and Agenda Item 4D for June 16, 1992 meeting) . Agenda Item 7 - Member's Comments: Member Dorso requested that staff take appropriate action to change the Committee's name to "Commission" at its earliest opportunity. Mr. Rudolf responded that he would do so, and finally resolve the initial misnomer when the Committee was finally recognized as a standing committee in the Municipal Code. There being no further business before the Committee, the meeting . was adjourned at 8:15 p.m. Respectfully submitted, D~J!~!~ C:\crc\6-4 minutes .