INITIATIVE PETITION TO ESTABLISH LIMITS
ON THE NUMBER OF CONSECUTIVE TERMS WHICH MAY BE SERVED
BY CITY COUNCIL MEMBERS
Recommendation
:
It is recommended that the City Council:
- Receive and file the attached report that Council ordered
pursuant to Elections Code Section 9212 which includes an
analysis of when the proposed ordinance, if passed, would
take effect;
and
- Select one of the following alternatives:
(a) Introduce the ordinance without alteration (and adopt
it within 10 days);
or
(b) Direct the City Clerk to prepare and bring back, at
the appropriate time, the documents required to submit the
ordinance, without alteration, to the voters at the regular
municipal election in November of 2001.
Background
:
At the meeting of October 12, 1999, the City Clerk presented
to Council a Certificate of Sufficiency for the subject
initiative ordinance, noting that the petition contained valid
signatures from more than 10 percent but less than 15 percent
of the registered voters and had, therefore, qualified for the
November 2001 ballot. The Council was presented with the
alternatives mandated by State law to either: (a) introduce the
ordinance and adopt it within 10 days; (b) direct that the
measure be submitted to the voters at the next municipal
election; or (c) order a report pursuant to Elections Code
Section 9212, to be presented to the Council within 30
days.
At that meeting, the Council opted to order a report, to be
presented at the November 9 meeting, thereby deferring action
on the petition until that date. Staff was directed to prepare
a report that included a legal interpretation of the measure to
determine when it would take effect, if passed. That report is
attached.
Pursuant to the California Elections Code, if the ordinance
petitioned for is not required to be submitted to the voters at
a special election or is not adopted by the City Council, then
the ordinance, without alteration, shall be submitted to the
voters at the next regular municipal election occurring not
less than 88 days after the report is presented.
REVIEW OF ALTERNATIVES
:
Option 2(a) – Introduce the Ordinance
If the City Council opts for Alternative 2(a)
¾
to introduce the ordinance without alteration at
tonight’s meeting
¾
there would be no election. Because State law requires the
subsequent adoption of the ordinance to take place within 10
days, it would be necessary to adjourn tonight’s meeting
to a date no later than Thursday, November 18, 1999, in order
to adopt the ordinance within the State-mandated time
limit.
Option 2(b) – Direct the Measure be Placed on the
November 2001 Ballot
If the City Council opts for Alternative 2(b)
¾
to direct the City Clerk to bring back, at the appropriate
time, the required documents to submit the ordinance without
alteration to a vote of the people at the regular municipal
election in November of 2001
¾
all appropriate resolutions and associated documents would be
prepared for Council adoption in June or July 2001, prior to
the deadline for placing items on that November ballot.
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City Attorney Michael Jenkin's Report
This memorandum is prepared at the City Council's October
12, 1999 request for a report pursuant to Election Code Section
9212 regarding the initiative entitled "The City of Hermosa
Beach Term Limits Act."
The initiative proposes to impose term limits on individuals
serving as city councilmembers. Local term limits are
permissible under State law (Government Code Section 36502(b)),
and have been upheld in the courts as constitutional (
Legislature of the State of California v. Eu
, 54 Cal.3d 492(1991)). Accordingly, the subject of the
initiative is lawful. The language of the initiative, when read
as a whole, is ambiguous in two respects and presents
uncertainty in its initial application to incumbents and
successful write-in candidates. This report will focus on those
issues.
The ambiguities: 1) May successful write-in candidates
take office? and 2) How long must a former councilmember wait
before being eligibile to run again?
Under the proposed ordinance, no councilmember can serve
more than two consecutive terms of office. A councilmember who
serves two terms is thereafter ineligible to serve again until
the expiration of "four consecutive intervening terms" (Sec.
2.08.040(b)). There are, however, two difficult issues of
interpretation raised by the language of the initiative.
The first question of interpretation arises from an internal
inconsistency between Section 2.08.040(a) and Section
2.08.050(b). The former section states the general rule recited
above (i.e. "no person may serve . . . more than two terms).
The latter expressly exempts write-in candidacies, apparently
allowing an otherwise ineligible incumbent to mount a write-in
campaign for a third term. But, while the section allows such a
candidate to stand for office, it neglects to state whether he
or she may be allowed to "serve" once elected.
A court attempting to harmonize this inconsistency would
likely take the view that it would be nonsensical to allow a
candidate to run, but if elected, not serve. Nonethetheless,
the imprecise language creates uncertainty.
The second question of interpretation is a more serious one.
It is unclear from the proposed initiative whether the "waiting
period" before a councilmember who has served two terms may
again hold office is 16 years (four, complete 4-year terms) or
8 years (four consecutive municipal elections). A "term of
office" for a Hermosa Beach councilmember is four years.
Therefore, one could argue that "four consecutive intervening
terms" means the product of four years multiplied by four full
terms, or 16 years.
On the other hand, since a term of office ends every two
years based on the City's staggered election schedule, it is
equally plausible to argue that four new terms are "expired"
after only eight years, and that a former councilmember would
be eligible to again run for the Council in the fifth election
following ineligibility.
Initial Application of Initiative to Incumbents
.
Several sections of the initiative address the eligibility
of sitting councilmembers, as follows:
Sec. 2.08.040(a): "Except as provided in Subsection
2.08.040.b, no person may serve in the office of City Council
of the City of Hermosa Beach more than two terms, but upon
passage of this measure no person who has held the office or
who then holds the office may serve more than one additional
term. This Subsection shall apply to any term that a member of
the City Council has served or is serving in that office on the
date this measure is adopted."
Sec. 2.08.050(a): "Notwithstanding any other provision of
law, the elections official . . . shall not accept or verify
the signatures of any nomination paper. . .or print or cause to
be printed on any ballot . . . the name of any person who seeks
to become a candidate for the City Council . . . who, by the
end of the then current term of office will have served . . .
for eight or more of the previous fifteen years.
Additionally, Section 4 states that while Section
2.08.040(a) is to be strictly construed, no person shall be
denied a candidacy
unless
specifically prohibited from doing so by 2.08.040(a). Section
2.08.040(a) is, however, written as a limitation, not an
entitlement. It is also written to apply prospectively.
This measure is scheduled to be placed on the ballot for the
November, 2001 ballot. If this measure receives a majority of
favorable votes, it is considered adopted on the date the vote
is declared by the legislative body and goes into effect 10
days thereafter (Election Code Sec. 9217). Thus, it would go
into effect
after
the candidates in that same election are sworn into
office.
Thus, applying these provisions to the following categories
of candidates yields the following results:
1.
Incumbent who has served two or more terms and is re-elected
to office in 2001
: Under Section 2.08.040(a), the term commencing in 2001 is the
"first term," given that section's prospective application;
hence, under that section, the incumbent is entitled to one
additional term. However, under Section 2.08.050(a), the member
will have served for "eight or more of the previous fifteen
years" and, hence, is ineligible under that Section. However,
Section 4 states that Section 2.08.040(a) trumps all other
provisions, leaving the possibility of one additional term,
commencing in 2005.
2.
Incumbent who has served two or more terms and is re-elected
to office in 1999
: Is eligible for one additional term under Section 2.08.040(a)
commencing in 2003, but is ineligible under Section
2.08.050(a), for the same reasons as described above. Again,
the outcome depends on whether Section 2.08.040(a) trumps
Section 2.08.050(a).
3.
Incumbent first elected in 1999 and up for re-election in
2003
: May run for one additional term in 2003.
Should the initiative measure be enacted, and one of the
circumstances described in paragraphs 1 or 2 above occur, it
would be necessary to adopt one or the other interpretation, at
which point only a court could definitely resolve the
inconsistency should someone seek to contest that
interpretation.
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