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City Attorney David Kahn presented the staff report. City Attorney Kahn noted that this matter was continued from the May 22, 2007 Council agenda to today’s date of May 24, 2007.
Councilmember Swegles inquired about specific points within the resolution, such as the date of certification of the election and whether or not Council could make any changes currently or in the future. City Attorney Kahn stated if the resolution was approved, it would not come before Council prior to being placed on the ballot in November. There would be an opportunity to provide ballot arguments for and against, but those would be based on the ballot measures currently before Council.
Councilmember Moylan inquired why Council has to provide a resolution to put Council seats up for election as it appears that the Charter mandates that those seats come up for election. City Attorney Kahn stated the reason Council is passing a resolution is to request the Santa Clara Registrar of Voters assist with the General Election in November. The City does have the option to conduct its own election in which case this resolution would not be required.
Councilmember Chu inquired that if Council wishes to group a number of these items into a single measure (which, he said, made logical sense), how should Council proceed. City Attorney Kahn stated the grouping as listed in the staff report to Council (resolution and measures) is based on discussions with the Charter Review Committee. Prior to bringing this item to Council, City Attorney Kahn stated he provided a draft of the ballot measures and the groupings to the Charter Review Committee with a request for comments. City Attorney Kahn explained further that the way the amendments are grouped in this document is the way they would be going forward. City Attorney Kahn stated the Chair of the Charter Review Committee had a few comments she wished to make but she is out of the country for several weeks. Therefore, City Attorney Kahn suggested Council approve this item as it is currently and include flexibility in their approval for the ability to provide any additional comments from the Charter Review Committee for revision to the groupings as currently listed.
Councilmember Howe stated he would like to handle this resolution in the same manner as a consent item allowing Councilmembers the ability to pull items, then vote on the remainder (as a whole), and then discuss and vote on the pulled items individually.
Councilmember Howe stated he is aware the city attorney will be submitting an impartial analysis, but inquired as to the process that a community group would go through to formally submit their support or disagreement with any of the measures. City Attorney Kahn stated the arguments for the ballot measures are generally put together by the Council or by a sub-group of the Council. When the Charter Amendments were reviewed on April 10, 2007, Council moved that the Ad Hoc Charter Review Committee Members and Mayor Lee (with assistance from City Attorney Kahn) assist Council in writing the ballot arguments in favor. Once written, the arguments in favor would return to Council and then be sent to the City Clerk for transmission to the Registrar of Voters. Any group in opposition would also have the ability to provide any arguments against the measures to the Registrar of Voters. Councilmember Howe confirmed that Council has established that the Mayor and the Charter Review Committee will write the arguments in favor and the impartial analysis will be written independently from that by the city attorney.
Councilmember Howe requested to pull measure 3.F. from the resolution and section 605 (Presiding Officer. Mayor) and section 601 (Terms and Election) of Exhibit A to the resolution in order that Council may discuss and vote separately on when to certify the election results.
Councilmember Hamilton inquired if someone were to resign from the mayoral office before the two-year mayoral term ended, and another Councilmember filled in as Mayor, would that be considered filling an unexpired term or starting a new two-year term. City Attorney Kahn stated his initial reaction would be that with a resignation of the mayor prior to the expiration of the two-year term, there would be an appointment to fill that unexpired term and an election for the next two-year term at the conclusion of that unexpired term. Councilmember Hamilton requested that process be explicitly mentioned because in the past the Charter has been silent on different items and they then become open to interpretation. Councilmember Hamilton stated she agrees with City Attorney’s assessment and wants that interpretation to be clearly laid out in the Charter.
Councilmember Hamilton requested to pull section 605 (Presiding Officer. Mayor) be for separate consideration.
City Attorney Kahn stated this item is already addressed in the Charter with no proposed amendment to the language. Section 605 in the current Charter states, “In the event of a vacancy in the office of Mayor, the City Council shall select one of its members to serve as Mayor for the remainder of the unexpired term.”
Councilmember Swegles inquired if the mayor automatically continues on for a second year at the end of their first year or does Council vote on a second term. City Attorney Kahn stated if the measure passes, it would be an automatic two-year term for the mayor. Councilmember Swegles inquired if someone only wanted to serve one-year of their two-year term, can they resign. City Attorney Kahn stated if the mayor wanted to serve only one term, they would have to resign and Council would select another member of the Council to serve the remainder of that term.
Councilmember Hamilton stated as the measure stands now, the two-year mayoral term is not in line with City elections as it would occur in non-election years. Councilmember Hamilton stated she prefers the selection of the mayor be aligned with the election years and inquired if Council should vote on how they want this to be implemented. City Attorney Kahn stated he did not see a problem changing the language under section 605 to state “in odd-numbered years” instead of even-numbered years; however, staff would need to reconcile any changes that are made to be sure the Charter is consistent.
Councilmember Hamilton requested to pull section 605 (Presiding Officer. Mayor) and 606 (Vice Mayor) of Exhibit A to the resolution in order that Council may discuss and vote separately on whether the Mayor and Vice Mayor should be selected during even-numbered or odd-numbered years.
Public hearing opened 11:05 a.m.
No speakers.
Public hearing closed 11:06 a.m.
MOTION: Councilmember Howe moved and Councilmember Swegles seconded to approve Alternative 1: (with exception of Sections 601 and 605) the Resolution calling a General Municipal Election for the election of councilmembers, and calling a Special Municipal Election for the purpose of submitting to the voters measures concerning amendments to the City Charter, to be placed on the ballot at the consolidated election to be held in the City of Sunnyvale on November 6, 2007, and requesting election consolidation and the services of the Santa Clara County Registrar of Voters.
VOTE: 7-0
MOTION: Councilmember Howe moved and Councilmember Swegles seconded to revise language in City Charter Measure 3.F. of the resolution and sections 601, and 606 of Exhibit A to read “first regular meeting in January” instead of “first regular meeting in December”.
Councilmember Hamilton inquired why Councilmember Howe is requesting to have the certification of the election and selection of mayor moved to January. Her concern is leaving councilmembers in place for two months after the election. Councilmember Swegles stated his reason for agreeing with a later date is due to the fact that absentee ballots take longer to count and that means the certification continues to be pushed back; therefore, to be on the safe side, January appears to allow enough time. This practice is consistent with the City of Mountain View and City of Palo Alto.
Councilmember Hamilton stated she understands that the Registrar of Voters (ROV) generally certifies the election within 30 days of the election and asked City Attorney Kahn if that was due to change anytime soon. City Attorney Kahn stated currently California state law states that the election must be certified within twenty-eight days of an election. Councilmember Hamilton verified there is not any leeway under the state election law and the County must certify the election results within 28 days.
Councilmember Hamilton stated she will not support the motion because the new councilmembers should have an opportunity to weigh in on the study issues and she does not believe it is feasible to move the study issues workshop to January.
Councilmember Moylan requested that if this motion passes, that a policy issue decision be agendized to discuss the option of allowing new councilmembers (not yet seated) the opportunity to attend the National League of Cities Conference in December and that outgoing Councilmembers do not attend unless necessary due to their position on a board (but exception must be approved by Council).
City Attorney Kahn stated if the new council was seated in January then they would not be elected members of the council until such time and legally the City would not be able to reimburse for any meeting expenses that are attended prior to being seated as councilmembers. Therefore, since the National League of Cities is scheduled for December, the expense of attending this conference would not be covered.
Councilmember Howe asked City Attorney Kahn to explain further about the 28 day period and how the time period affects the election results. City Attorney Kahn stated that state election law provides the official canvas of the election (official certification by the ROV) is required to be certified 28 days from the election date. City Attorney Kahn stated that generally the results are certified by the first meeting in December. There are certain circumstances where the ROV will certify results earlier than the 28 days; however, they are not legally required to certify until the 28 days has passed.
Councilmember Howe confirmed with City Attorney Kahn that if the motion were to pass, Council would not be violating any state election code laws. City Attorney Kahn stated that any date after the 28 day period (from the date of election) would be acceptable whether it was in December or January.
Councilmember Howe stated the City of Sunnyvale has received criticism by a government agency about certifying election results too soon. Although, Councilmember Howe disagrees with this assertion, moving the election certification to January will alleviate any opportunity for criticism.
Councilmember Howe stated if this motion passes, and the measure also passes, he would like the city attorney to return to Council with information on Council’s ability to have options of who would be able to (or not) attend Council meetings and the National League of Cities.
City Attorney Kahn stated the options are that if an elected Councilmember (who was not seated) wanted to attend a conference such as the National League of Cities, then that would have to be at their own expense prior to being seated.
Councilmember Howe inquired if Council has the option to reimburse (retroactively) for expenses incurred by an elected Councilmember who is not yet seated. City Attorney Kahn stated Council would not have an option to reimburse in the situation where the new councilmembers are not officially seated at the time they attend a conference. The concern would be that since they are not seated, the travel and conference could not be construed as official City business.
Councilmember Chu inquired if Council or the mayor were to create an ad-hoc committee that consisted of Council-elect’s, would expenses incurred from the ad-hoc committee (such as travel to the National League of Cities Conference) be reimbursable. City Attorney Kahn stated he would need to look at the FPPC regulations and conduct more research, prior to giving Council a definite opinion.
Councilmember Hamilton stated if the motion passes, it will allow the incumbent councilmembers the ability to set priorities for the Cities finances and study issues and then those same councilmembers would be leaving the Council approximately a month after they set these priorities. Councilmember Hamilton does not agree that elected councilmembers (who had not been sworn-in) could or should be allowed to weigh in on study issues, even if there was a way around this by forming an ad-hoc committee. Councilmember Hamilton stated that setting priorities for where money is spent is a very important aspect of the Council and elected councilmembers need to be sworn-in as soon as possible after the election. Councilmember Hamilton stated she will not be supporting the motion.
Vice Mayor Spitaleri stated he understands Councilmember Hamilton’s concerns and inquired if it would be possible for City Manager Chan to move the study issue date. City Manager Chan stated the study issue workshop could be moved to January without a problem. Vice Mayor Spitaleri stated he believed that would take care of Councilmember Hamilton’s concerns.
Councilmember Moylan confirmed that the election is held on the second Tuesday after the first Monday in November, and November 8 is the latest date the election could be held in any given year. Councilmember Moylan stated December 6 is the latest day that any election results could be certified by state law.
Councilmember Moylan stated after working through the last possible date the election results could be certified (which would be December 6); he believes that the study issue and the National League of Cities Conference are too important to not have the newly-elected councilmembers participate. Councilmember Moylan stated that it would be desirable to move the swearing-in to January, but he agrees with Councilmember Hamilton that it would be more trouble than it would be worth.
Councilmember Chu stated the swearing-in of the elected councilmembers in January allows for a smoother period of transition. Councilmember Chu stated there are many situations where people are sworn-in and actually take office at a later time such as the state assembly who performs a January swearing-in official ceremony. Councilmember Chu stated he will support the motion and would include moving the study issues to January as well.
Councilmember Swegles stated he understands Councilmember Moylan’s concerns but the National League of Cities conference will be at the end of October or first week of November this year. Councilmember Swegles continued that due to this date change, attendance at this year’s conference will already be an issue for new councilmembers.
VOTE: 5-2 (Councilmembers Moylan and Hamilton dissented)
MOTION: Councilmember Moylan moved and Councilmember Howe seconded to direct staff to attempt to find a mechanism by which (whenever possible) councilmember-elects are able to attend the National League of Cities Conference prior to being sworn-in.
Councilmember Hamilton stated she opposes the motion as allowing elected councilmembers to attend events prior to being sworn-in is something that is not politically explainable. Councilmember Hamilton stated that until a Councilmember is sworn-in, they should not be involved in Councilmember benefits or activities.
Vice Mayor Spitaleri stated it is important that new councilmembers receive the excellent training received at National League of Cities. Vice Mayor Spitaleri stated he believes staff will figure out a way to make this work.
Councilmember Howe stated that Council is asking for options, but is not setting policy regarding this issue.
Councilmember Howe offered a friendly amendment to direct staff to develop a policy related to outgoing councilmembers attending the National League of Cities Conference.
Friendly amendment accepted.
Councilmember Moylan stated the intent of his motion was to include options for outgoing councilmembers. Councilmember Moylan stated he made this motion because he does not view attendance at the National League of Cities as a perk, but as critical training for the job of serving as a councilmember. Councilmember Moylan stated it is very common in many occupations to receive training prior to officially starting in a new position.
VOTE: 6-1 (Councilmember Hamilton dissented)
City Attorney Kahn stated he understands that the direction of the motion is to look at all legal alternatives for the allowance of councilmember-elects to attend trainings, but at this point he is not able to provide Council any definite assurance that he will be able to make this happen. City Attorney Kahn continued to state that the City is constrained by state law and the Fair Political Practices Commission (FPPC) laws.
Councilmember Howe stated the intent of the motion was not meant to mandate that the city attorney find a way to do this, rather it was to find options for Council to consider.
MOTION: Councilmember Hamilton moved and Councilmember Moylan seconded to revise Section 605 to read “first regular meeting in January at which the City Council certifies the election results” instead of “first regular meeting in December at which the City Council certifies the election results” and also revise “first regular meeting in January in odd-numbered years” instead of “first regular meeting in December in even-numbered years”.
Councilmember Chu offered a friendly amendment to also revise Section 606 to read as “first regular meeting in January at which the City Council certifies the election results” instead of “first regular meeting in December at which the City Council certifies the election results” and also revise “first regular meeting in January in odd-numbered years” instead of “first regular meeting in December in even-numbered years”.
Mayor Lee inquired that since this is going to go back to the Charter Review committee for a last review, should these two amendments also go back to the committee as the changes are very mechanical. Mayor Lee confirmed that the city attorney understands what Council is trying to accomplish. City Attorney Kahn stated Council’s motion and intent is clear and that Council could direct the city attorney to work with the Charter Review Committee to amend the language in the resolution to reflect the intention of the Council.
Councilmember Hamilton inquired as to why Council could not proceed to vote on the changes. Councilmember Hamilton stated there are two references to December in Section 606. The first reference deals with the election years when there is a general election for councilmembers and the second reference is for the non-election years. The way the current Charter is written does need to be changed from even to odd years because the first regular meeting following certification of election results will now be in an even year (January – per previous motion) and in order to change every year in non-election years, the change would need to be in January of odd years in order to capture every year.
City Attorney Kahn stated that the manner in which the amendment to Section 606 of the Charter as suggested by Councilmember Hamilton is correct and Council may vote on that amendment.
Councilmember Moylan offered a friendly amendment to revise Section 605 from “in the event of a vacancy in the Office of Mayor, City Council shall select one of its members to serve as mayor for the remainder of the unexpired term” to “in the event of a vacancy in the Office of Mayor, the sitting vice mayor shall serve as mayor for the remainder of the year.” Councilmember Moylan stated the end of the year would cover the year as vice mayor and then at that time a mayor shall be selected by Council.
Councilmember Hamilton stated she prefers to leave the Charter as it currently is written on this subject since the Charter Review Commission did not make that recommendation. Councilmember Hamilton stated there is nothing stopping the City Council from selecting the vice mayor if they so choose.
Friendly amendment not accepted.
VOTE: 7-0
Mayor Lee asked City Attorney Kahn to look at Section 606 as the original Charter has an “or” and the revised Charter has “and” after the text “…following each General Municipal Election…”. Mayor Lee asked that inconsistency be looked at within the context of clarifying the changes made by Councilmember Hamilton and her intent.
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