June 13, 2006
[Continued from 5-30-06]
SUBJECT: DISCUSSION OF CHARTER REVIEW COMMITTEE
REPORT IN BRIEF
The City Attorney presented on April 4, 2006, a study session on City Charter Review Committee Options. The study session included review of the Charter’s legal basis, procedures for Charter amendments, and options for Charter review committees. No action was taken on April 4, 2006, because the review was for study purposes only. At the conclusion of the April 6TH study session the Council requested the City Attorney to prepare a follow-up Report to Council on options for a Charter Review Committee with discussion of specific questions raised by Councilmenbers at the April 6, 2006, study session. This Report to Council expands on the April 6, 2006, study session and provides discussion of the City’s Charter, procedures for making changes to the charter, possible Charter revisions, and options for the selection and operation of a Charter Review Committee. The Council is asked to decide whether it wants to appoint a Charter Review Committee and, if so, to establish procedures for the selection of Committee members, Charter review topics, and Committee operations.
The Council requested at the Study Session that the Report to Council be available two weeks prior to the Council hearing date. This Report was on the agenda for May 30th and due to the press of other business it was not possible to complete this Report two weeks in advance of the May 30th agenda date. Rather than move the agenda date, the Mayor directed that the Report to Council remain on the May 30th agenda and indicated that the Council may defer action on whether to appoint an Ad Hoc Charter Review Committee until a subsequent meeting to provide time for additional public review and comment.
BACKGROUND
Cities in California are either “general law” or “charter” cities. General law cities have only those powers granted by state statute to cities. Article XI of the California Constitution authorizes the adoption of a city charter by the majority vote of a city’s electorate. If adopted, the charter serves as the city’s constitution and a blueprint for city government and ordinances. A city charter includes guidelines for the city’s form of government, city council terms and districts, election and campaign procedures, and city departments.
The City of Sunnyvale adopted its City Charter in 1949, and it has been amended fourteen times since its adoption. The voters last amended the Sunnyvale City Charter in 2005, and modified the terms for Board and Commission members and clarified the authority of the Heritage Preservation Commission. Charter amendments are usually to make changes to the structure of city government or to make “housekeeping” changes to update the charter to conform to changes in state law or experience in administering the charter provisions.
Methods Of Amending A City Charter
The California Constitution establishes the requirements for both adoption and amendment of a city charter. Sunnyvale’s City Charter can be amended in three different ways:
1. Initiative. A Charter amendment can be initiated through the initiative process. At least 15% of the City’s registered voters would have to sign a petition requesting that a Charter amendment be placed on the ballot. The Charter amendment would then be placed on the ballot and would require a majority vote to become effective.
2. Charter Commission. A formal Charter Review Commission can be formed by putting on a ballot measure asking the voters to approve the formation of a Charter Review Commission with a list of candidates from which the voters would choose fifteen to serve on the Charter Review Commission. After the formal Charter Review Commission is approved by the voters, it has one year to prepare proposed Charter amendments for placement on the ballot; the City Council is not required to approve the Charter amendments. These amendments would need a majority vote of the electorate to become effective.
3. City Council. The Sunnyvale City Council can, by a majority vote, put proposed Sunnyvale City Charter changes on the ballot for voter approval. This was the method used for the 2005 Charter amendments. The City Council may appoint an Ad Hoc Charter Review Committee to assist the Council in reviewing the Charter and to make recommendations to the Council on what Charter amendments to place on the ballot. This Ad Hoc Charter Review Committee would not have the legal status or authority of a Charter Review Commission elected by the voters and would serve as an advisory body to the City Council.
History of Charter Review Committees in Sunnyvale
In 1967, the City Council appointed a citizen Charter Study Committee comprised on 35 registered Sunnyvale voters. Each councilmember submitted the names of 5 registered voters to the City Clerk. This Committee met over a five-month time period. In 1975, the City Council again appointed a Charter Study Committee similar to the 1967 group, but each Councilmember submitted the names of 3 voters and the Committee was comprised of 21 members instead of 35. The Committee submitted its recommendations to the City Council, which held a public hearing on the recommendations before deciding which Charter amendments to place on the ballot. Similarly, the City Council appointed a 15-member Charter Review Committee in 1982, with each Councilmember nominating 2 members and the 15th member selected by the entire Council. Again, the Committee’s recommendations for Charter amendments were submitted to the Council for public hearing and Council determination of which amendments would be placed on the ballot.
The last Ad Hoc Charter Review Committee was appointed by the City Council in April, 1991. The Committee was comprised of 15 members, with each Councilmember nominating 2 members and the Council selecting the 15th member. The 1991 Charter Review Committee was not given discretion on which Charter provisions it looked at, but instead was tasked by the Council with looking at specific Charter questions only and making recommendations to the Council on whether these charter changes should be put on the ballot. Some of the specific Charter questions looked at by the 1991 Charter Review Committee were whether the Mayor should be directly elected by the voters, should the Mayor serve a term of one or two years, what would be the effect of a directly-elected Mayor on the Council-Manager relationship and City operations, if there is a directly-elected Mayor, should Councilmembers be required to vacate their Council seats to run for Mayor, and what should the maximum term be for a Councilmember and elected Mayor. On July 23, 1991, the Ad Hoc Charter Review Committee submitted its report and recommendations to the City Council. (A copy of this Report is a public record and available from the City Clerk).
2006 Council Decision On Charter Review Committee
The City Council needs to decide if it wants to appoint a 2006-07 Ad Hoc Charter Review Committee. If so, there are a number of issues the Council needs to include in its decision:
- Time frames for the appointment of the Committee and the completion of its work and recommendation to the Council.
- The number of Committee members, and the recruitment and appointment process for members.
- Committee staffing and budget issues (i.e., will the Committee be staffed with current City staff, will a consultant be hired, and how will the costs of the Committee be budgeted).
- Whether the Committee should be provided with a list of issues established by the Council for review and recommendations and its work limited to those issues or given discretion to identify and select issues the Committee wishes to review without Council approval.
The purpose of this Report To Council is to provide options and recommendations in each of these areas, so that the Council can determine if it wishes to proceed to appoint an Ad Hoc Charter Review Committee and, if so, the membership and guidelines for the Committee’s operation.
DISCUSSION
Timetable For Charter Amendments On The 2007 Ballot
The City of Sunnyvale is required to transmit a request for a ballot measure with the proposed language for the Charter amendment to the County Registrar of voters at least 88 days before the election date. For November elections this is approximately July 9. Clearly, with this report first before the Council on May 30, 2006, the Ad Hoc Charter Review Committee, if appointed, will not be able to provide any recommendations for Council review and action prior to July 9, 2006. The proposed timetable would focus on the November 2007 election, which would provide the Committee adequate time to complete its recommendations by March, 2007. The Council would then review and decide what Charter amendments it wants to place on the November 2007 ballot. At the time of the appointment of the Ad Hoc Charter Review Committee the Council may want to set a due date for all Committee recommendations to be received by the Council to allow time to adopt a resolution and ballot measure before July 9, 2007.
Membership of the Ad Hoc Charter Review Committee
An important issue is the membership of the Ad Hoc Charter Review Committee. The Council has discretion in determining how to select members for the Committee. In looking at potential members, Council can consider things such as knowledge of Sunnyvale government, representation of different groups in the community, experience on similar citizen committees, ability to communicate well and work with others, and whether members have to be registered voters or not. Possible sources of Committee members include individual Sunnyvale residents, representatives from community organizations or neighborhood groups, members of Sunnyvale boards and commissions, one or more Council members, or any combination from the above groups. Considerations in the selection of each group are discussed below.
Registered voters residing in Sunnyvale provide the greatest diversity of viewpoints and perspectives, and represents the largest pool of potential Committee members. However, because some voters interested in being on the Committee may have no prior background in Sunnyvale city government, this group may require the most staff support, orientation and training to be successful on the Committee.
Representatives from City boards and commissions have prior experience in Sunnyvale city government and working with City staff and the Committee would benefit from their experience and background. Current Board and Commission members already commit substantial amounts of time to volunteering for the City, and service on a Charter Review Committee would require substantial meetings over a relatively short time period to discuss and develop recommendations. It may be very difficult for current board and commission members to make this additional time commitment; this conflict would be somewhat less if applicants are former board and commission members.
Sunnyvale has a number of community civic organizations such as the Lion’s Club, Rotary, League of Women Voters, Kiwanis, and others. Organization members are usually active in the community and have an interest in city government, and can represent a broad spectrum of community interests. A consideration is that Sunnyvale has a large number of civic organizations and it may be awkward to appoint a member from one group if there is not room on the Committee for representatives from other similar groups, and certain organizations may be perceived as having a special interest or agenda in participating on the Charter Review Committee.
Of course, the Council can also decide that the Committee membership should be a combination of some or all of the potential individuals and groups and designate a certain number of positions on the Committee for each group.
The recruitment process for the Ad Hoc Charter Review Committee will depend on what the Council decides should be the membership. If the members are to be selected from individual voters then print and electronic ads in local papers and on the City Website will be most effective. Recruitment of board and commission members and/or civic organizations could be accomplished by either individual letters sent to them or in-person appearances for recruitment by staff or Council at scheduled meetings. If the Council decides that each Councilmember should have a certain number of appointments to the Ad Hoc Charter Review Committee that are not subject to full Council approval, then individual Councilmember recruitment of interested citizens may be most effective.
Ad Hoc Committee Size
Before proceeding to the selection and appointment of Committee members the Council will need to designate the number of Committee members. Recommended options include 7, 15, or 21 Committee members, although the Council can, of course, choose any number. Staff would not recommend the 1967 number of 35 committee members because of the difficulty in organizing and arranging meetings with that many members. In general, smaller committees are more efficient in meeting and conducting business than a larger committee. But a Committee of 7 members may limit the Council’s ability to achieve broader community and civic group representation and perspectives on the Committee. In considering the appropriate size for the Ad Hoc Charter Review Committee, the Council will need to balance the ability of a smaller group to organize and conduct business quickly with the desire for adequate community diversity and perspectives. In any event, there should be an odd number of Committee members to avoid a tie vote on recommendations.
Selection and Appointment of Committee Members
Past Sunnyvale charter review committees have all allowed individual Councilmembers to nominate and appoint a specific number of committee members from the applicant pool. The number of appointments given to each Councilmember depends on the total Committee membership: if 15 members, then each Councilmember has 2 appointments; and if 21 members, each Councilmember would have 3 appointments. If the Council elects to have a 15-member Committee, then past practice has been to have the entire Council nominate and vote on the 15th Committee member.
Another option (suggested by a Councilmember, but not used in 1991) would be to allow each Councilmember to recruit and nominate a selected number of candidates above the maximum number on the committee. For example, if the Committee membership is 15 then each Councilmember could nominate up to 4 candidates. The names of all candidates would be put in a hat and each Councilmember would draw randomly until all seats on the Committee are filled. Disadvantages to this method would be that a Councilmember not able to recruit the maximum number of candidates would be at a disadvantage in having his or her candidates selected, and excellent candidates could be eliminated through the random selection process. Furthermore, it may be difficult to recruit the minimum number of Committee members and so recruiting double the number for the random selection process would be even more difficult.
At the time of selection and appointment, the Council can choose to elect one of the members as chair, allow the Mayor to appoint the chair, or not appoint a chair and allow the Committee members to nominate and select their own chair.
Staffing of Ad Hoc Charter Review Committee
If the Council appoints an Ad Hoc Charter Review Committee, it will require staff assistance to do its work. Anticipated staff support will include legal, administrative, city clerk and secretarial. These staffing needs may be met either through the assignment of current City staff to the Committee or the utilization of outside support staff, including legal consulting and clerical. The exact number of hours required to support the Committee would depend on the membership size of the Committee and its scope of work on the Charter.
It is instructive that for the 1990/91 fiscal year, internal staffing costs for the 1991 Ad Hoc Charter Review Committee were $16,004. This included 290 hours of administrative time, 35 hours of city clerk recording time, and 47 hours of legal staff time. As these are 1991 dollars, the same time would be substantially more expensive in 2006. Council should also note that the 1991 Committee had a prescribed scope of work from the Council and were not permitted to look at or review issues other than those specifically asked by the Council. If the Ad Hoc Charter Review Committee is given broad discretion as to what Charter issues it can discuss and make recommendations on, the costs may escalate based on the number and complexity of issues the Committee looks at.
Although the City Attorney’s Office will make every effort to support the Ad Hoc Charter Review Committee if directed to do so by the Council, it should be noted that the City Attorney’s Office currently has 4 full-time attorneys, down from 5.5 attorneys in May, 2005. The City Attorney’s Office has also acquired the Claims and Risk Management Program from Human Resources starting in January, 2006, and is currently managing that program in addition to its pre-existing work without adding legal staff. Consequently, the Office of the City Attorney unfortunately has minimal capacity at this time to undertake the additional work and support required by an Ad Hoc Charter Review Committee and has not budgeted this work for 2006-07. Council options would include providing supplemental funding to allow the Office of the City Attorney to hire outside legal staff on an as-needed basis to support the Committee, or adding a part-time legal position to the City Attorney’s Office to provide assistance with this and other special projects.
Direction On Issues to Be Studied
The 1991 Ad Hoc Charter Review Committee was given a limited scope of issues to review, with the direct election of the Mayor the primary issue. Consequently, the work and recommendations of the Committee were limited to responding to the specific Charter questions asked by the Council. If the Council decides to appoint a 2006-07 Ad Hoc Charter Review Committee, it needs to decide if it wants to provide the Committee with a pre-determined agenda of Charter issues and questions with direction to look only at those issues, or to allow the Committee broad discretion to identify both substantive and clean-up Charter issues on its own and to independently determine what Charter issues it will make recommendations on. If the Council decides to give the Committee broad discretion, it should also consider procedures for the Committee to receive suggested areas for Charter review from the Council, individual Councilmembers, City staff and members of the public.
Guidelines For Ad Hoc Charter Review Committee
The Council is not required to adopt by-laws or guidelines for the Ad Hoc Charter Review Committee and the Committee can be given the authority to determine how it wants to organize itself and conduct business. Alternatively, the Council can provide some structure and direction to the Committee through the adoption of one or more of the following guidelines:
- The Committee should give highest priority to any Charter issue selected by a majority of the Councilmembers.
- The Committee should give second-highest priority to any Charter issue selected by an individual Councilmember.
- The Committee must provide for public notice and opportunity for comment by the public, Councilmembers and Board and Commission members before making any recommendation.
- The Committee should look at only those Charter issues identified by the Council and City staff; or the Committee may look at any Charter issue it determines needs review and a recommendation.
- The Committee should attempt to review relevant research and expert testimony on any Charter issue where such research is reasonably available from the League of California Cities, or other similar organization.
- Other guidelines developed and determined appropriate by the Council
Application of Brown Act To Ad Hoc Charter Review Committee
A temporary advisory committee such as the Ad Hoc Charter Review Committee is not subject to the Brown Act noticing, agenda and open meeting requirements (unless a quorum of City Councilmembers is appointed to the Charter Review Committee).
FISCAL IMPACT
The fiscal impact will depend on the Council’s decision on the number of members on the Ad Hoc Charter Review Committee and the scope of its Charter review authority. The costs from the 1991 Charter Review Committee were $16,004, and this is approximately $24,000 after adjustment for inflation. Additional costs for outside consultants and counsel could add another $20,000 to the cost of the Committee, so an estimated cost range for the Ad Hoc Charter Review Committee is from $25,000 to $45,000.
Conclusion
The Sunnyvale City Charter is the City’s “constitution” and provides legal guidelines for the City’s form of government and operations. First adopted in 1949, the Charter has been amended by the voters on 14 separate occasions, most recently in November, 2005. The Council can, by resolution, put on ballot measures to amend the City Charter, and the Council from time to time appoints a citizen Ad Hoc Charter Review Committee to review and make recommendations on either specific Charter provisions or the entire Charter. The last such ad hoc committee was appointed in 1991, to look at the Charter issue of an elected mayor.
This Report to Council outlines the options the Council has for the selection and appointment of an Ad Hoc Charter Review Committee and for the scope of the Committee’s authority and Charter review. The Committee’s recommendations would be presented to the Council in approximately March, 2007 for Council consideration for the November 2007 election. There are costs associated with the appointment and support of an Ad Hoc Charter Review Committee.
The Council needs to consider the options for the Charter Review Committee and provide direction to staff on whether it wants to establish a 2006-07 Ad Hoc Charter Review Committee and, if so, the size and selection process for Committee members. The Council also needs to provide direction on what funding should be used for the Committee.
PUBLIC CONTACT
Public contact was made through posting of the Council agenda on the City’s official notice bulletin board, posting of the agenda and report on the City’s web page, and the availability of the report in the Library and City Clerk’s Office.
ALTERNATIVES
1. Council directs that a 2006-07 Ad Hoc Charter Review Committee be created, and that the Committee should have the following characteristics:
a. The Committee should be comprised of _________ members.
b. The Committee should include __________ registered voters and __________ members of the Community whether or not a registered voter.
c. The Committee should include ______ members of Sunnyvale civic organizations.
d. The Committee should have ______ current Sunnyvale Board and Commission members.
e. The Committee should (should not) include a City Councilmember.
f. The Council (will)(will not) select the chair of the Committee after its members have been appointed.
g. The Committee’s Charter review authority is (limited to review and recommendations on only those charter provisions selected by the Council) (is not limited and the Committee has discretion to identify, review and make recommendations on any Charter provisions).
h. The Council (does)(does not) establish guidelines for the Committee’s operations. The guidelines for the Committee’s operations are:
i. The Committee should give highest priority to any Charter issue selected by a majority of the Councilmembers.
ii. The Committee should give second-highest priority to any Charter issue selected by an individual Councilmember.
iii. The Committee must provide for public notice and opportunity for comment by the public, Councilmembers and Board and Commission members before making any recommendation.
iv. The Committee should look at only those Charter issues identified by the Council and City staff; or the Committee may look at any Charter issue it determines needs review and a recommendation.
v. The Committee should attempt to review relevant research and expert testimony on any Charter issue where such research is reasonably available from the League of Cities, or other similar organization.
vi. Other guidelines developed and determined appropriate by the Council __________________________________________.
b. Additional funds in the amount of __________ are allocated by the Council to fund the Ad Hoc Charter Review Committee.
2. Council directs that a 2006-07 Ad Hoc Charter Review Committee not be established.
RECOMMENDATION
Staff requests that the City Council provide direction regarding the establishment of a 2006-07 Ad Hoc Charter Review Committee. If the Council establishes this committee, staff requests that the Council provide direction from the options presented in this Report to Council on the composition, selection and authority of the Ad Hoc Charter Review Committee.
Prepared by:
David E. Kahn, City Attorney
City Attorney’s Office