OFFICE OF 1200 THIRD AVENUE, SUITE I620 FAULECOOPER - THE CITY ATTORNEY EXECUTIVE ASSISTANT CITY ATTORNEY SAN DIEGO, CALIFORNIA 921014178 CITY OF SAN DIEGO TELEPHONE (619) 236-6220 FAX (619) 236-7215 an I. Goldsmith CITY ATTORNEY February 5, 2014 REPORT TO THE CITY COUNCIL 2014 SAN DIEGO CHARTER LEGAL REVIEW INTRODUCTION On October 22, 2013, our Of?ce provided the Council with a draft plan for a complete review of the San Diego Charter. A copy of the draft plan is attached. The review is necessary because our Charter contains provisions that are ambiguous, outdated and incomplete. This Report represents the completion of the ?rst stage of the review outlined in my draft plan. It identi?es sections of the Charter needing legal review and discusses possible options. The legal issues we identi?ed were provided by attorneys throughout the Civil Division to ensure we had a comprehensive list based upon impacts in all practice areas. Some Charter sections, especially those adopted with the original Charter in 1931, are outdated or superseded by State laws and can be repealed. Other provisions may be more appropriate as an ordinance codi?ed in the San Diego Municipal Code. Many provisions may bene?t from more public discussion and debate, especially if the proposal has both legal and policy considerations. The Charter sections are listed in chronological order and include options prioritized for upcoming elections: Level 1 (November 2014), Level 2 (June 2016), or Level 3 (November 2016). In evaluating the timing, keep in mind that some proposals may require compliance with the Meyers?Milias?Brown Act (MMBA) before placing an amendment on the ballot. Also, amendments that alter any procedural or substantive protection, right, bene?t, or employment status of any City employee, retiree, or employee organization must be submitted to the voters at a statewide general election. We look forward to working with the Council and/ or a Charter Review Commission to provide ongoing legal advice to improve the Charter. It is up to the Council to determine the process for considering these options. REPORT TO THE CITY COUNCIL -2- February 5, 2014 DISCUSSION Charter 5.1 Redistricting Commission Issues: During the redistricting process in 2010 and 2011, Charter section 5.1 required constant legal interpretation. After the redistricting process ended, a grand jury suggested the City clarify ambiguities and eliminate archaic provisions. The section needs greater clarity regarding how Commissioners are to be appointed, how many Appointing Authority members must be present to make the appointments, when the map takes effect, when the district boundaries change, what is the role of the City Council in the process, and how the Commission?s budget is set. The section also needs to be amended to delete archaic references to the non?existent. ?Municipal Court.? A detailed list of suggested changes can be provided in a report to City Council. Options: Amend Charter section 5.1 to clarify ambiguous language, eliminate archaic provisions, and provide greater clarity for the issues identi?ed above. Level: 3 Charter 14 Council Rules, 94 Contracts, 108 Forfeiture of Office for Fraud, 217 No Payment for Office, 218 No Contributions for Employment ISSJ: Various sections of the Charter provide for the removal of of?cers under certain circumstances, but do not provide a uniform or consistent way for handling the removal of of?cers. Instead, in a patchwork quilt of provisions, the Council is sometimes tasked with adjudicating grounds for removal from of?ce, and other times the Charter is silent, meaning. the City must look to the courts to adjudicate the basis for removal. See City Att?y MOL No. 2013-13 (Aug. 14, 2013). Charter section 14, for example, empowers the Council to decide disputes related to Council elections and the qualifications of Council members, and makes that decision subject to the review of the courts. This provision no longer applies to the Mayor as the Mayor is not a member of the Council. Other Charter sections provide the option of either an internal or a court process. Sections 217 (N 0 Payment for Of?ce) and 218 (No Contributions forEmployment) both state that any of?cer or employee found guilty of the provision ?by the Council or a court of competent jurisdiction shall thereby forfeit his of?ce or position.? Section 94 (Contracts), contains forfeiture language very similar to that contained in Section 108 (Forfeiture of Of?ce for Fraud), but unlike Section 108, it states that violation of the section is a misdemeanor, thereby referencing a court process. Options: Amend the Charter to clarify the means for adjudication of the grounds for forfeiture of elected of?ce, whether exclusively by the Council, or by application to the courts, or both. A list of options for Council consideration would be provided as part of the ongoing review. Level: 2 REPORT TO THE CITY COUNCIL February 5, 2014 Charter 18 Authentication and Publication of Ordinances and Resolutions Iss_ue: Charter section 18 requires that ordinances and resolutions ?of a general nature? be published within 15 days after ?nal passage in ?such manner as may be provided by this Charter or by ordinance.? San Diego Municipal Code section 22.0102 restates the Charter language and provides that ?the City Clerk shall cause . . . to be published? in the of?cial city newspaper all ordinances or resolutions of a general nature within ?fteen days of their ?nal passage. The publication requirement for ordinances not subject to referendum has been held to be directory, rather than mandatory. (See 2009 City Att?y MS-753 (09?4; Mar. 16, 2009). Most resolutions are not subject to referendum and publication in the of?cial city newspaper seems unnecessary as resolutions are made available online both before and after ?nal passage. Options: Amend section 18 to remove the requirement to publish resolutions in the of?cial city newspaper. Level: 3 Charter 23 Initiative, Referendum, and Recall (Removal of Elected Of?cials) Iss_ue: Charter section 23 reserves the right of recall to the people of the City. However, the recall process can be and take several months. There are some occasions when an elected of?cial should be removed from of?ce more quickly, for example, when the of?cial has engaged in misconduct or is incapacitated. Options: Amend section 23 to provide a removal process for elected of?cials for misconduct or incapacity. The removal process could be combined with a recall initiated by the Council after due process to the elected of?cial. Another option would be to have the decision to remove the elected of?cial subject to review by the courts. (See section 14 above for discussion on forfeiture of of?ce.) Attached is a preliminary review of what some other cities have on this issue. Level: 1 Charter 26 Administrative Code lssi: Charter section 26 requires the Council adopt an ?administrative code providing for the detailed powers and duties of the administrative of?ces and departments of the City.? Thereafter, any change in the ordinance requires a two-thirds vote of the Council. In 1997, this Of?ce issued a Report indicating that the Manager (Mayor) has the power to reorganize departments under Charter section 27 and 28, however, such power is subject to any contrary or additional action by the Council if it chooses to act under Charter section 26. Options: Amend to clarify whether reorganization of departments, including detailed duties is authority Council can delegate to Mayor or City Manager and review whether to keep the two thirds vote requirement. Level: 3 REPORT TO THE CITY COUNCIL February 5, 2014 Charter 32.1 Responsibility of Manager and Non-Managerial Officers to Report to Council I_ssge_: Charter section 32.1 requires the Manager (Mayor) and ?non-managerial of?cers? to inform the Council of all material facts or signi?cant developments relating to all matters within the jurisdiction of the Council. It appears that this duty is self-executing and the Council does not have to make a request for information. However, the Charter is not explicit on this point. It also is not clear when the information must be provided to Council. Finally, there is no mechanism for enforcing the requirement to provide material facts. Options: Amend section 32.1 to clarify that the duty to provide information is self-executing and information must be provided to the Council prior to its decisions to help ensure that they are fully informed. Consider whether to provide a mechanism for enforcement and if this mechanism could be placed in the Municipal Code instead of the Charter. Level: 3 Charter 35 Purchasing Agent and 94 Contracts Issues: These sections are outdated in a number of areas, speci?cally not in keeping with the current prevalent use of the Internet and with procurement practices, such as cooperative procurement. For example, the references to advertising in newspapers and ?sealed proposals? does not take into account the direction in which the City is moving with electronic bidding. Opti'onsz' Amend to allow ?exibility to comply with current technology and procurement practices. Level: 3 Charter 39.1 Audit Committee Issues: This section provides that the three public members shall be appointed by the Council from a pool of at least two candidates for each vacant position, to be recommended by a majority vote of a screening committee. Except for the initial appointments, it has been dif?cult to ?nd public members that are quali?ed and willing to serve, especially when a public member is seeking reappointment. Options: Amend the section to eliminate the requirement that at least two candidates be recommended by the screening committee. Level: 3 REPORT TO THE CITY COUNCIL February 5, 2014 Charter 39.2 Office of the City Auditor m: Charter section 39.2 provides that the City Auditor reports to and is accountable to the Audit Committee. Upon recommendation of the Audit Committee, the City Auditor may be removed for cause by two-thirds vote of the Council. The Charter does not speci?cally provide that the Audit Committee may take lesser forms of discipline against the City Auditor for conduct that does not amount to cause for termination. Options: Clarify that the Audit Committee may take lesser forms of discipline (warning, suspension, etc) against the City Auditor if necessary. Level: 3 Charter 40 City Attorney Issues: (1) Contracts: Section 40 requires the City Attorney to prepare in writing all contracts and ?endorse on each approval of the form or correctness thereof.? The City enters into hundreds of contracts each year, including purchase orders and credit card purchases. It is not practical or reasonable to require the City Attorney to review and approve each separate contract if every purchase order is considered a ?contract.? (2) Other Instruments: Section 40 also requires the City Attorney to prepare and approve all ?other instruments in which the City is concerned.? The term ?other instruments? is not defined in the Charter. As a legal term of art, it is subject to multiple variations in meaning. (3) Inconsistency on Review: There is an inconsistency between the City Attorney?s duties in section 40 and section 280(b). Section 40 says the City Attorney signs for ?form or correctness? and section 280 says ?form and legality.? The sections should be consistent. (4) Non?City Entities: This section states that the City Attorney is the chief legal adviser to the City and its departments and cannot engage in private legal practice. The issue has arisen 011 occasion whether the City Attorney can represent the interests of a non-City entity if that entity?s interests are closely aligned with the City?s interests. (5) Outside Counsel: Section 40 states that the Council is authorized to employ ?additional competent technical legal attorneys? when such assistance or advice is necessary. The practice of requesting Council approval to hire outside counsel is inconsistent with the hiring of other City consultants. For example, the Council has delegated this authority to the City Manager for consultant contracts under $250,000. (6) Counsel for SDCERS: Section 40 states that the City Attorney is the chief legal adviser and attorney for the City and all its departments and offices, ?except in the case of the Ethics Commission, which shall have its own legal counsel independent of the City Attorney.? It does not address independent legal counsel for SDCERS which was recognized as necessary to ful?ll its ?duciary obligations under the State constitution. REPORT TO THE CITY COUNCIL February 5, 2014 (7) Quali?cations: Charter section 40 does not include any qualifications for the City Attorney or require that the City Attorney be a member of the California State Bar. This issue was raised by the prior Charter Review Committee. Options: (1) Review the contract approval process and provide recommendation for amendment to section 40 to- clarify intended scope. (2) Amend to either delete reference to ?other instruments? or provide clari?cation to establish intended scope, for example ??nancial instruments.? (3) Correct inconsistency with section 280(b) regarding approval as to form or legality. (4) Amend the section to clarify whether, and under what circumstances, the City Attorney may represent the interests of a non-City entity. For instance, assuming there is no con?ict of interest in the representation, the City may be able to realize substantial cost savings if the City Attorney represents a non-City entity in a matter of public interest where that entity?s interests are closely aligned with the City?s interests or where the City has contractually agreed to defend and indemnify the entity. (5) Amend section 40 to provide that SDCERS may have its own legal counsel independent of the City Attorney, in recognition of its fiduciary duties under article XVI, section 17 of the California Constitution, and the potential for con?icts of interest between SDCERS and the City. (6) Amend section 40 to require that the City Attorney be a member of the California State Bar in good standing. Consider adding a requirement that the candidate have a minimum number of years as an attorney. Level: 3 Charter 41(c) Planning Commission Issues: With respect to the Planning Commission: (1) the list of duties is outdated and inconsistent with current ordinances and practice; and (2) since Planning and DSD sit with the Planning Commission consider whether they should be designated as ex officio members. Options: Review duties and ex officio membership and detennine appropriate amendments to the Charter or Municipal Code. Level: 3 REPORT TO THE CITY COUNCIL February 5, 2014 Charter 41(d) Ethics Commission Issues: With respect to the Ethics Commission, Charter section 41 provides that the Mayor appoints the members, subject to Council con?rmation. Over the last few years, Council-members have suggested that these appointments should be done by someone other than the elected of?cials who are subject to the jurisdiction of the Ethics Commission. This has been especially problematic when a Councilmember is the subject of a con?dential investigation and must con?rm the appointment of members. Options: Amend the Charter to allow appointments be made by a panel of retired judges or some other independent individuals or group. (See, 2009 City Att?y MOL 282 (09?14; Sep. 10, 2009). Level: 3 Charter 41.1 Salary Setting Commission The Civil Service Commission appoints members of the Salary Setting Commission. When making the appointments, section 41.1 requires that the Civil Service Commission ?take into consideration sex, race and geographical area so that the membership of such Commission shall re?ect the entire community.? Using sex and race as a factor may be prohibited by state and federal discrimination laws. Options: Amend section 41.1 to delete the requirement to consider sex and race in making appointments and provide more appropriate language regarding appointments. Level: 3 Charter 42 Membership Selection M: When making appointments to commissions, boards, committees or panels, the appointing authority is required to ?take into consideration sex, race and geographical area so the membership of such commissions, boards, committees or panels shall re?ect the entire community.? Using sex and race as a factor may be prohibited by state and federal discrimination laws. Options: Amend section 42 to delete the requirement to consider sex and race in making appointments and provide more appropriate language regarding appointments. Level: 3 REPORT TO THE CITY COUNCIL -8- February 5, 2014 Charter 69 Fiscal Year and Manager?s Estimate lss_ue: This provision is dated with respect to the Mayor-Council form of government and requiring the printing of the proposed budget. The City?s budget process and relationship between the Mayor and Council should be codi?ed in Article XV. This would obviate certain annual actions such as the adoption of the Statement of Budgetary Principles and locate all relevant budget provisions in one place. Options: Repeal Charter section 69 and add a modernized budget section or sections in Article XV. The Los Angeles City Charter may be a useful model. Level: 2 Charter 70 Power to Fix Salaries Issue: This section relates to preparation of the annual Salary Ordinance. It states that all increases and decreases of salary or wages of of?cers and employees must be determined at the time of preparation and adoption of the Salary Ordinance and modi?cations during a ?scal year may only occur based upon required speci?c determinations by the Council. However, this limitation does not recognize that the meet and confer obligations of the City under the MMBA may not have been met by the time of adoption of the Salary Ordinance. Section 290(a) recognizes that the Salary Ordinance must be proposed by the Mayor in a fonn consistent with any existing memoranda of understanding or otherwise in conformance with the MMBA. Options: Delete limiting language and conform to Charter section 290 and the MMBA. Level: 2 or 3 Charter 71 Preparation and Passage of Annual Appropriation Ordinance Iss_ue: The Appropriation Ordinance enacts the adopted budget and delegates certain authorities to the Chief Financial Of?cer to administer the budget during the ?scal year. There is no particular reason. why this action is separate ??om the adoption of the budget. Moreover, any necessary authorities could be speci?ed in the Charter or the Municipal Code. Adoption of the Appropriation Ordinance adds at least two weeks to the City?s budget process. Options: Repeal Charter section 71 and incorporate appropriation language into Chaiter section 290 or nearby. Level: 2 REPORT TO THE CITY COUNCIL -9- February 5, 2014 Charter 71A Reappropriations at Beginning of Fiscal Year for Salaries and Maintenance and Support Expenses Issue: This section allows for the continuing appropriation of funds from the prior year?s budget if the Council fails to adopt the Appropriation Ordinance on time. This does not need to be a stand-alone section and should be incorporated with the other appropriation provisions. Options: Repeal Charter section 71A. Level: 2 Charter 75 Annual Tax Levy Issue: This provision has generally been superseded by Proposition 13. The only tax levy imposed citywide by the City is the Zoo tax. Options: Provision could be simpli?ed to state any legally authorized taxes shall be levied not later than July of each ?scal year and transmitted to the tax collector. Mel: 3 Charter 76 Limit of Tax Levy This provision has been superseded by Proposition 13 and can be removed. thio_ns: Repeal provision. Le_vel: 3 Charter 76.1 Special Taxes Issue: This provision restates the requirements of the California Constitution and can be removed. Options: Repeal provision. Level: 3 Charter 77B Public Transportation Issue: This provision allows for an ad valorem property tax to be imposed to fund public transportation. Because the City did not levy this tax in Fiscal Year 1982, the City is now prohibited from doing so. Options: Repeal provision. Level: 3 REPORT TO THE CITY COUNCIL -10- February 5, 2014 Charter 77 Capital Outlay Fund Isiie: This provision requires funds from the ?sale of city owned real property? to be deposited in the Capital Outlay Fund. It does not de?ne what is City owned property and there is no legislative history to provide further guidance. Under general real property law principles, it could be interpreted to apply only to property owned in fee or to other lesser interests in real property, such as easements. The interpretation has potentially signi?cant impacts on departmental budgeting. Therefore clari?cation is recommended. gm; Revise to clarify the intended scope of real property interests intended to be affected". Le_vel: 1 Charter 84 Money to be Drawn from Treasury in Accordance with Appropriation lssgeg This provision refers to other Charter sections that have since been repealed or amended. Options: Provision could be simplified to re?ect City?s current practice, which also conforms with existing requirements. Level: 3 Charter 86 Disposition of Public Moneys Iss_ue: There is a con?ict between Charter section 86 and Government Code section 5 0050 with regard to the time period that the City must hold unclaimed money before it escheats to the City?s General Fund. Charter section 86 requires that such funds be held for only one year and does not require that notice be provided. Government Code section 50050 requires that such funds be held for at least three years and requires published notice. It is unclear whether the amount of time that unclaimed public funds must beheld constitutes a municipal affair or is a matter of statewide concern. Apparently, in the abundance of caution, the City is currently following the process under state law. Options: (1) Amend Charter section 86 to eliminate the one year period for unclaimed City funds to escheat to the City?s General Fund; or (2) Maintain the existing language regardingthe one year holding period, but amend Charter section 86 to include an appropriate notice provision before such funds escheat to the City?s General Fund. If the latter option is implemented and challenged, a court would determine whether the matter of unclaimed public money held by a City is a municipal affair or a statewide concern. Level: 3 REPORT TO THE CITY COUNCIL -11? February 5, 2014 Charter 90.1 Waterworks and 90.2 Sewer Iss_ue: These provisions deal, respectively, with the issuance of water bonds and sewer bonds. Each is approximately six pages long. Neither is actually used by the City to issue water or sewer bonds. These bonds are generally revenue bonds issued by a Joint Powers Authority or other applicable law. Options: Both of these sections could be repealed. Level: 3 Charter 91 General Reserve Fund Issue: This section is internally contradictory as it speaks of a ?revolving fund? that can be expended only in case of emergency. Changes made to the section in 1962 made it less clear. Options: This section should revert to the pre-l962 language or be revised to more clearly state that the purpose is to require the City maintain suf?cient cash on hand to meet all demands against the treasury until receipt of property taxes. The name could also be changed to avoid confusion with other reserve funds. Level: 3 Charter 99 Continuing Contracts Issue: The following language in this provision has presented multiple issues of legal interpretation and confusion over the years: No contract, agreement or obligation extending for a period of more than ?ve years'may be authorized except by ordinance adopted by a two?thirds? majority vote of the members elected to the Council after holding a public hearing which has been duly noticed in the of?cial City newspaper at least ten days in advance. It has been generally settled that the provision applies only to contracts creating a ?nancial obligation on the part of the City although clari?cation of this interpretationwould be helpful. Options: Deputies have recommended clari?cation in a number of areas: (1) Provide an exception for license and software maintenance agreements and for music/motion picture license agreements. This suggestion was based upon unique issues associated with software and music licenses and with software maintenance contracts (hundreds of which were inherited from San Diego Data Processing Corp upon its dissolution). (2) To read consistent with City Attorney memos, revise ?no contract, agreement, or obligation extending for a period of more than ?ve years may be authorized except by . . to state only those contracts, agreements, or obligations creating REPORT TO THE CITY COUNCIL -12? February 5, 2014 ?nancial expenditure obligations (versus, for example, standard City leases where City is lessor and there is no public expenditure). (3) Consider further clari?cation to provide that the limitation only applies to those contracts, agreements, or obligations with ?nancial obligations that will arise/become due in more than ?ve years. Level: 3 Charter 110 Claims Against the City M: Charter section 110 provides a lOO?day time limit in which to ?le claims for damages for injuries to person or property due to City or City of?cer negligence, and claims for money the City may be obligated to pay a person by contract or operation of law. By contrast, Government Code section 911.2(a) of the Claims Act provides that claims ?shall be presented . . . not later than six months after the accrual of the cause of action. A claim relating to any other cause of action shall be presented . . . not later than one year after the accrual of the cause of action.? The City?s lOO?day limit raises a possible state preemption issue. See, Helbach v. City of Long Beach, 50 Cal. App. 2d 242, 246?247 (1942) (charter provision specifying longer time limit than provided in Claims Act was preempted). Options: Amend section 110 to provide that claims shall be submitted in accordance with state law. Level: 3 Charter 113 Official Advertising Issue: Charter section 113 deals with of?cial advertising for bids. The section should be reviewed to see if print advertising should be replaced with internet advertising on the City?s website. See section 114 below regarding using the ?City Bulletin? for of?cial advertising and possible changes to internet communications. Options: Amend section 113 to update advertising for bids. Also consider issues related to sections 35 (Purchasing Agent) and 94 (Contracts) discussed above. Level: 3 Charter 114 Bureau of Information and Publicity This section provides that the Council may establish a Bureau of Information and Publicity to be given a number of duties many of them similar to- a public information of?cer and overlapping with functions currently carried out by the City Clerk. This section also allows for the ?City Bulletin? as a means of providing information relating to the affairs of the City and of?cial advertising. Because the establishment of the Bureau and its duties is permissive, it is not a direct legal issue. Nonetheless, the section should be reviewed in light of open data and other open government policies. REPORT TO THE CITY COUNCIL -l3? February 5, 2014 Options: Consider elimination or clari?cation with respect to other transparency laws. Level: 3 Charter 117 Unclassified and Classified Services 135i: This section was added by Charter amendment in 2006 to provide authority for the City to hire an independent contractor as an alternative to employees in the classi?ed service when the Mayor determines, and the Council agrees, that the City services can be provided more economically and ef?ciently by an independent contractor than by persons in the classi?ed service while maintaining service quality and protecting the public interest. However, the Charter-mandated process is ambiguous. The section should be clari?ed to address issues, including whether there are circumstances in which the Mayor may make the required determination by using other means to compare City forces to the cost and efficiency of a contractor (such as budget ?gures), and whether the Mayor has to use the Managed Competition Independent Review Board. Options: Resolve ambiguities and propose amendments through meet and confer process with the City?s impacted employee organizations. Level: 3 Charter 118 Rules Iss_ue: There is no discussion or recognition in this section as to how the Civil Service Commission, in recommending new Civil Service Rules (Rules) or modi?cations to Rules, interacts with the meet and confer process required under the MMBA. Language in Charter section 118 that explains that any rule change that relates to a mandatory subject of bargaining under the MMBA is subject to the MMBA would be appropriate. However, this is not necessarily a legal problem because under clear California authority, the City?s Charter must be read in conjunction with the MMBA. Therefore, section 118 and the Civil Service Commission process for recommending Civil Service Rule changes must recognize the MMBA, whether it says so in the Charter or not. Options: Add the following language: ?The City Council must ensure compliance with the Meyers-Milias-Brown Act or other state or local law related to collective bargaining before it adopts any new rule or amendment to an existing rule that involves a mandatory subject of bargaining.? Level: 2 or 3 REPORT TO THE CITY COUNCIL ~l4? February 5, 2014 Charter 129.1 Removal of Striking Employees Lssie: Charter section 129.1 provides limitations on the ability of City employees to engage in ?strike? activities. This provision, which was adopted in 1976, is not consistent with current California law. Given the current state of California case law, Charter section 129.1 is overly broad and likely subject to challenge. See, City of San Jose v. Operating Engineers Local Union No. 3, 49 Cal. 4th 597, 601 (2010), stating that common law ?allows public employees to go on strike to enforce their collective bargaining demands unless the striking employees perform jobs that are essential to public welfare.? The Court further explained that a threatened strike may be unlawful if it creates ?a substantial and imminent threat to public health and safety.? Id. at 606. Closer review of this provision should be done to conform to controlling state law. Options: Recommend engaging in meet and confer to develop revisions narrowing the language to conform to state law. Level: 2 or 3 Charter 140 Establishment of Separate Retirement Pension Systems; Definitions ESE): This section was added by Proposition B. It provides that all of?cers and employees who are initially hired or assume of?ce after the effective date of this section (July 20, 2012) may participate only in de?ned contribution plans and not in SDCERS (the de?ned bene?t plan), with the exception of sworn police of?cers. As a result, police recruits participating in the City?s police academy must participate in an alternate defined contribution plan for the six months they are in the academy, and must move to the de?ned bene?t plan when they become sworn of?cers. It is inef?cient to have them contribute for such a short period of time in a de?ned contribution plan. Options: Amend section 140 to allow police recruits participating in the City?s police academy to participate in the de?ned bene?t plan. Level: 3 Charter 142 Employment of Actuary Issues: Section 142 references ?subdivision of Section 118 of Article of this Charter.? Due to amendments to section 118 in the 1940?s, subdivision was removed from the Charter. Options: Amend to delete the reference to section 118(k). Level: 3 REPORT TO THE CITY COUNCIL -15- February 5, 2014 Charter 144 Board of Administration Issues: Section 144 provides that seven of the 13 members of the SDCERS Board be appointed by the Mayor and con?rmed by the Council, and that these Board members have the following quali?cations: ?a college degree in ?nance, economics, law, business, or other relevant ?eld of study or a relevant professional certi?cation. In addition, such appointees shall have a minimum of ?fteen (15) years experience in pension administration, pension actuarial practice, investment management, real estate, banking, or accounting.? Currently, all seven Board members in the category have a ?nancial background, and none have an investment background. Options: Amend section 144 to require more diversity of backgrounds of the appointed trustees, possibly requiring that some number of appointed trustees have a background in institutional investing. Level: 3 Charter 145 Retirement Fund Issue: The ?rst sentence of section 145 states that all employee and employer contributions under this Article ?shall be placed in a special fund in the City Treasury to be known as the City Employees" Retirement Fund, which said fund is hereby created.? However, California Constitution, article XVI, section 17, subsection gives the board of a public retirement system ?the sole and exclusive ?duciary responsibility over the assets of the public pension or retirement system.? Options: Delete the ?rst sentence of section 145 and add a statement, consistent with the California Constitution, recognizing the Board?s sole and exclusive authority over the assets of the retirement system. Level: 3 Charter Article Transfer of Police and Fire Department Employees into the Retirement System Issue: This Article consists of one section, which in 1946 transferred the members of the City?s Police and Fire Departments from their independent retirement system into the CERS retirement system described in Article IX. This language is no longer needed. Options: Repeal Article X. Level: 3 REPORT TO THE CITY COUNCIL ?16? February 5, 2014 Charter 215 Publicity of Records and 216 Copies of Records lss_ue: These sections were adopted with the original Charter. Since then, the California Public Records Act was enacted and requires that the City allow the public to inspect and copy documents unless an exception applies. Sections 215 and 216 are no longer necessary and may con?ict with state law. Options: Consider repeal as the sections are no longer required. Level: 3 Charter 219 Pueblo Lands ISSJZ Currently, the language in section 219 is unclear and reads too broadly. Recommend revising the last sentence (?No lease shall be valid for a period of time exceeding 15 years?) to state the section only applies to leases of those Pueblo Lands covered by the section. Also, the section should be revised to limit applicability of the section to only those Pueblo Lands north of the San Diego River actually City?owned when the predecessor of Section 219 was adopted in 1909,. and which have remained in continuous City ownership since that time. See, 1999 Op. City Att?y 40 (99-2; Jul. 15, 1999). Options: Clarify language to read consistent with City Attorney memos. Level: 3 Charter 225 Mandatory Disclosure of Business Interests _I_s_sp_e: Charter section 225 requires that the person applying or bargaining for any right, title or interest in the City?s real or personal property, or any right, title or interest arising out of a contract, or lease, or any franchise, right or privilege may be granted pursuant to section 103 or 103.1, must make a full and complete disclosure of the name and identity of any and all persons directly or indirectly involved in the application or proposed transaction and the precise nature of all interests of all persons therein. The term ?person? means any natural person, joint venture, joint stock company, partnership, association, ?rm, club, company, ceiporation, business trust, organization or entity. The City has had dif?culty complying with this provision given the large number of contracts and leases the City enters into each year. Also, the requirement to disclose ?any and all persons directly or indirectly involved? is extremely broad. Options: Review section 225- to clarify intent and scope of the terms to help ensure compliance with the provision. Consider amending to include only persons with a direct and substantial interest in the application. Level: 3 REPORT TO THE CITY COUNCIL ?l7- February 5, 2014 Charter 226 Super Majority Vote Requirements Issue: Charter section 226 was ordered reformed by the court in Howard Jarvis Taxpayers Assn. v. City ofSan Diego, 120 Cal. App. 4th 374 (2004). The court ordered section 226 to read as follows: Notwithstanding any other provision of this Charter, any ballot proposal, initiative, statute, law or regulation of any type, except amendments of this Charter whether proposed to be adopted by the electorate, the City Council, or any other body acting pursuant to this Charter or the Municipal Code, that requires a vote of the electorate in excess of a simple majority for any matter, must itself be approved by a vote of the electorate in the same proportion as proposed, in order to be adopted, valid or otherwise effective. This section may be adopted by a simple majority vote. thi?s: Amend section per court order. 3 Charter 265(b)(8) The Mayor (Role of the City Manager) Iss_ue: Charter section 260 states that ?all executive authority, power, and responsibilities conferred upon the City Manager . . . shall be transferred to, assumed, and carried out by the Mayor.? However, the Charter contemplates a role for the City Manager who is appointed by the Mayor, subject to Council confirmation. The Charter section 260 reference to the City Manager?s ?executive? authority rather than ?administrative? authority causes some ambiguity about Mayor?s role in the day?to?day administration of the City. Charter section 265(b)(8) states that the Mayor has sole authority to ?direct and exercise control over the City Manager in managing those affairs of the City under the purview of the Mayor.? This implies that the City Manager manages the day-to-day affairs of the City with oversight and directionfrom the Mayor. The requirement that the Council con?rm the Manager?s appointment suggests that the Manager plays an important role in the day?to-day administration of the City. Options: Amend section 265 to clarify the City Manager?s role. Level: 3 REPORT TO THE CITY COUNCIL ~18- February 5, 2014 Charter 265(i) The Mayor (Council President?s Duties and Authority During Mayoral Vacancy) Issie: This section is unclear as to the authority of the Council President in exercising discretion during a Mayoral vacancy. Although couched in terms suggesting a ?caretaker? role, authority to direct and control the City Manager is arguably inconsistent with such a role. The Council President?s authority to make Mayoral appointments also should be clari?ed. Options: Clarify scope of authority to be given to Council President in the event of Mayoral vacancy. Level: 3 Charter 275 Introduction and. Passage of Ordinances and Resolutions Charter section 275 states: ?Each ordinance shall be read in full prior to passage unless such reading is dispensed with by a vote of ?ve members of the Council, and a written copy of the ordinance was made available to each member of the Council and the public prior to the day of its passage.? The requirement of a written copy for each Council member is outdated as the City moves to electronic Council agendas. Also the reading requirement is routinely waived as the reading of an ordinance during a Council meeting is impractical in most cases. Options: Amend section 275(d) to eliminate the requirement that the ordinance be read in full. Add the words ?or electronic? to allow written or electronic copies of ordinances be provided to the Council and public. Level: 3 Charter 280 Approval or Veto of Council Actions by Mayor 188?1162 Charter section 275(0) provides that certain ordinances may be. passed by the Council 011 the day of their introduction: (1) ordinances making the annual tax levy; (2) the annual appropriation ordinance; (3) ordinances calling or relating to elections; (4) ordinances recommended by the Mayor or independent department heads transferring or appropriating moneys already appropriated by the annual appropriation ordinance; (5) ordinances establishing or changing the grade of a public highway; and (6) emergency ordinances as de?ned by section 295 of this Charter. These ordinances are not subject to the 30-day referendum period. Chaiter section 280 makes all of these ordinances subject to veto, except for the annual appropriation ordinance and emergency ordinances. The veto process cani?extend the timeline for ?nal passage of these ordinances by 14 to 44 days if Council reconsideration is required. This is especially problematic for ordinances calling or relating to elections. These election items are subject to other election deadlines, are within the Council?s purview, and often are ministerial calling elections and certifying the results of an election). Also, state law prohibits the Mayor?s veto of a proposed Charter amendment. REPORT TO THE CITY COUNCIL -19- February 5, 2014 The ordinance making the annual tax levy is a matter within the legislative power to tax. The annual levy is tied to the annual appropriation ordinance and the Mayor will have already had an opportunity to present the budget and veto the budget resolution. Giving the Mayor an additional chance to veto the annual tax levy would send the Council back to the beginning of the budget process. This could cause uncertainty within the City. Options: Amend the Charter to provide that ordinances that take effect on the day of introduction are not subject to Mayoral veto. Level: 2 Charter 290 Council Consideration of Salary Ordinance and Budget; Special Veto Power Issue: Changes discussed above in sections 69 and 71 regarding budget and appropriations would require additional changes here. Options: See above. Level: 2 CONCLUSION The Charter sections identi?ed above would require a fuller legal analysis to determine appropriate language for any amendments. As the Charter review process continues, it is anticipated that other sections may be identi?ed for legal review. Given the number of potential amendments the Council may want to consider adopting a more streamlined and modern Charter. In either case, we are available to provide assistance upon further direction from the Council. JAN I. GOLDSMITH, CITY ATTORNEY By Paul E. Cooper Executive Assistant City Attorney Attachments RC-2014-3 Doc. No. 713088 Office of The City Attorney City of San Diego MEMORANDUM MS 59 (619) 533-5800 DATE: October 22, 2013 TO: iMayor and Members of the City Council FROM: City Attorney I an Goldsmith g? I SUBJECT: Charter Reform DRAFT PLAN Our City Charter contains provisions that are ambiguous, outdated and incomplete. In addition, key governance issues are not addressed in the City Charter. For example, there is no express provision setting forth authority and responsibility regarding labor negotiations. Nor, is there a provision that addresses incapacity of the Mayor or City Attorney. The appointment process for commissions and boards is incomplete and the elections process is inconsistent with portions of state law. As a result, our office is often faced with interpreting ?City Charter provisions without clear language in the Charter. I believe a complete Charter review is needed. After all, this is our local Constitution, the highest law in our City. This brief memo provides background and timelines that may be helpful in announcing a comprehensive Charter review involving our office. We recommend five stages: .1. Our office will lead a legal analysis to identify sections of the Charter needing review and options that might be available. We would solicit input from attorneys from the community and would retain outside experts to assist. This work would be done in law libraries and not in a public setting, but the results would be presented in a public report to the City Council by the end of January. 2. The City Council would create a Charter Review Commission before the end of January. Membership could consist of City Council members and/or members of the community. The purpose would be to take ideas from the leg-a1 team and the City Council out into the community for public input. 3. Schedule the election?related amendments now before the Rules Committee for the Honorable City Councilmembers October 22, 2013 Page 2 June 2014 primary. One or two other proposals from the City Council might be added. 4. Schedule high priority changes for the Novcmber 2014 ballot. 5. Schedule the bulk of amendments for the 2016 ballot. DISCUSSION 1. Governing Law for Charter Amendments Charter section 223 and the California Constitution govern amendments to the San Diego City Charter. State law govorns the placement of a Charter amendment on a municipal ballot, even in a Charter city such. as San Diego. A new law passed by the California Legislature in 2013 prohibits certain Charter amendments from appearing on. any ballot but a general election, citywide ballot. The next such election will occur November 4, 2014. When a Charter amendment measure is proposed, our office would review its text to determine if it may appear on any other ballot. 2. A Pending Charter Amendment Regarding Elections is Targeted for the June 12014 Ballot The City?s Committee on Rules. and Economic Development, as directed by Committee Chair Sherri Lightner, has been ?conducting an overview of the City?s election laws with our office to place related Charter amendments on the ballot. Our office has prepared a draft ballot measure that is expected to be" placed on the June 2014 ballot: The measure will extend deadlines for City special elections to fill a Councilmember or Mayoral vacancy, and will change the date of the inauguration of City officials. The Rules Committee has directed our of?ce to ?nalize this measure and bring it to the Council in January for placement on the June ballot. Although the Committee has asked our of?ce to review many other election law issues, it has not asked us to prepare any other measures. The public can bring in other proposals for the Council?s consideration in January. 3. Potential Amendments to the City Charter Deputy City Attorneys will be very helpful in reviewing the specific areas of the Charter they routinely interpret, to determine where language most needs amendment. Our Deputies work with City apartments on a daily basis and can identify issues. For example, the Charter requires that all contracts be drafted and signed off by the City Attorney?s office. The problem is that purchase orders, amendments and change orders are all deemed contracts. Requiring our office to sign off on everything could shut the City down. Our intent is to solicit input from our Deputy City Attorneys and City departments, explore options and set them out for the City Council by late January. We would invite attorneys with special expertise to volunteer to assist and would want to retain an expert consultant. That consultant would assist us and then continue on as consultant to the Charter Review Conunission. Honorable City Councilmembers October 22, 2013 Page 3 Timeline and Process of Amendments for the November 2014 Ball-0t Given the short timeframe before measures are due for a June 2014 ballot, initial Charter amendment proposals should be targeted for the November 4, 2014, citywide, general election ballot. City Council Policy 000-21 establishes the procedure for submittal of ballot measures that would appear on that ballot. Members of the public submit proposals to the City Clerk, who then transmits them to the Rules Committee for review and comment. In 2014, proposed measures will no longer be sent to the Rules Committee, but instead will be sent by the Council President to any Council committee on which he or she is a member. This is due to recent amendments to the Council?s Permanent Rules, found in the Municipal Code. Ballot proposals must be submitted in time for the Clerk to list them on a?Council Docket at least 127 days prior to the November 2014 election, so the public will know what the Council committee will review. Although the deadlines for the November 4, 2014, election remain tentative and have not been published, we have received these projected deadlines from the City Clerk?s Office: DAY DATE DAYS EVENT BEFORE ELECTION Friday 6/6/14 151 LAST DATE (10:00 am.) for public, departments and agencies to submit ballot proposals to City Clerk for review by Council Committee Wednesday 6/11/14 146 Council Committee review Monday 6/16/14 141 Council Docket (PUBLIC NOTICE) lists proposals referred by Council Committee Monday 6/23/14 134 Council adopts propositions for ballot; directs City Attorney to prepare ordinances Monday 7/14/14 113 Council adopts ordinances prepared by City Attorney Friday 8/8/14 88 Last day for City Clerk to file with Registrar of Voters all elections material Honorable City C?ouncilmembers October 22', 2013 Page 4 Thursday - 8/21/14 75 Last day to file ballot arguments with City Clerk Thus, initial drafts of proposed Charter amendment measures for the November 2014 ballot should. be prepared well before June 2014, which is only eight months away. A more comprehensive revision of the Charter can target the November 2016 ballot, with the draft due on the same timeframe (June 2016). Additionally, to the extent it may be helpful; We have attached two documents from the City?s last Charter Review Committee, which convened in 2007. One document is the Executive Summary that accompanied the Committee?s final report; the other is the memo from former Mayor Sanders that was distributed when the appointments were made. As our of?ce. served as counsel to the Committee and its subcommittee, we have additional materialsthat may be helpful as the process begins. CONCLUSION Initial Charter amendment proposals should be targeted for the November 2014, citywide, general election ballot. State law indicates a preference for all. Charter amendments to be heard at a citywide, general election and requires some to only appear on such a ballot. Measures that will appear on'the November 2014 ballot need to be ?nalized by June and adopted by the Council no later than July 14, 2014. The measures would first be reviewed by a Council committee, and then placed on the ballot by. the City Council. As cost will also be an issue, initial measures could be proposed for 2014 and a more comprehensive Charter revision can- be planned for the November 2016 general election ballot. G:cs Attachment: What Is the City Charter - and How Does It Affect Me? What Is the City Charter?and How Does It Affect Me? Prepared by the San Diego Charter Review Committee The Charter is the ?Constitution? for the City of San Diego. Just as the United States Constitution serves as the ?supreme law of the land? for our country, the San Diego Charter serves as the basic set ofrules for our City government. The San Diego Charter limits City officials in much the same way that the Constitution constrains the officials of the federal government. They are not allowed to pass any law or act in any way the Charter prohibits. The Charter establishes the boundaries that San Diego?s people have imposed upon their City government. It is the source of the City's system of checks and balances, prescribing the relationship between the two branches of government: the Mayor and the City Council and the interaction of the City Attorney with both. The Mayor?s authority to recommend policies, the Council?s power to enact policy subject to Mayoral veto, and the Mayor?s control over the implementation of City policy are all established by the Charter as the City?s basic law. The Charter Review Committee The Mayor and City Council have recognized that there are a number of?areas within the . City Charter that require clarification or modification. Consequently, the Mayor and the Council have assembled a Committee of independent, qualified and broadly representative members of the community to take on the task of addressing the ambiguities and problems of the current Charter. Mission Statement The San Diego Charter Review Committee?s mission is ?to determine modifications necessary to implement the Kroll report recommendations and other financial reforms; to clarify the roles and responsibilities of elected officials and the separation of powers under the strong mayor form of governance; to identify modifications that would improve the functionality of the strong mayor form of governance during the trial period; and to identify legislative tightening that would be required for effective permanent implementation of the Strong Mayor form of governance.? The Committee has established a work?plan to help achieve this important mission. How Does the Charter Affect Me? The Charter is the vehicle through which the people of San Diego limit and control the powers and responsibilities of their City government. If it is clear and consistent, it can allow voters to reward and punish City officials for their job performance. If it is vague, it makes it difficult for officials to act on behalf of the public. The City provides many services through responsible use of taxpayer dollars. If the Charter provides the opportunity for accountable leadership, the City can improve the quality and quantity of services delivered to the public. Otherwise, City officials are hamstrung in the performance of their duties, and cannot provide San Diego with the quality of public service that our City deserves. Meeting Dates and Times The Charter Review Committee and its three subcommittees are meeting every Friday from 9 a.m.u12 noon on the 12th floor of the City Administration Building, 202 Street, San Diego, CA 92101. Please come in and make your voice heard. We are also holding several public meetings throughout the City during evening hours so that we can elicit further public input on how the Charter can be improved. The SD. Charter Review Committee is online at Historical Background San Diego has had several different charters since this City became part of the United States In 1850. The City is presently governed under the terms of the Charter of 1931. This document has been amended hundreds of times in the past 76 years. The most significant changes increased the size of the City Council from six to eight members, provided for electing City Council members by district elections, and transformed the City from a Council-Manager to a strong Mayor~Council form of government. Elected Offices The Charter mandates the structure of City government. Among other things, this document establishes the number of officials. who are elected to serve the public, the number of districts from. which they are elected, which officials are to be elected citywide, and how much authority elected officials may eXercise. The Charter also determines how City elections shall be conducted, including the process for redistricting. Under San Diego?s current Charter, the City is governed by a Mayor and City Council- members elected by eight districts. The Charter also provides for the election of a City Attorney on a citywide basis. The City Attorney generally rules on the legality of ordinances considered by the Council and approves most contracts involving the City or any of its officers or agencies. Appointed Offices There are several important appointed officials whose roles and duties are prescribed by the Charter. The Chief Operations Officer (formerly, City Manager), Auditor and Comptroller, Treasurer, Independent Budget Analyst, and the chiefs of the Fire and Police departments, are-all officers whose positions are established by the Charter. Some of these officers have their duties spelled out in great detail, such as the Auditor and Comptroller. Others have whatever powers are given them by a. specific City ordinance, such as the Independent Budget Analyst. - There are several important boards and committees that are established by the Charter. The Charter provides for the Board of Administration of SDCERS, which administers the retirement system for City employees. The Charter provides for the appointment of a Civil Service Commission and specifies the powers of the Ethics Commission, which are authorized to oversee the integrity of the City's employment and governmental processes. The Charter also establishes the manner in which other City agencies, boards, committees and departments may be created and staffed by the Mayor and City Council. For several agencies mandated by state law, such as the Centre City Development Corporation, the Charter sets up the method for appointing the City?s representatives. How Can I Get Involved? Remember that the San Diego Charter cannot be changed without a vote of the people! This means there will always be public involvement. Your participation as San Diegans is critical. We welcome your involvement at every- stage of this important process of Charter change. Email the Charter Review Committee: Charterreview?sandio.oov The SD. Charter Review Committee is online at Greece os MAY-0R JERRY SANDERS CITY es SAN DIEGO- MEMORANDUM DATE January 22, 2007 To Council President Peters 201? embers of the San Diego City Council FROM Mayor Jerry Sanders SUBJECT 1 Estebiishment oi? a Charter eview Committee In the City? ?rst year operating under Charter Article XV Strong Mayor Triel Form of Governance it has become apparent there are a number of areas where clari?cation and tine tuning Would help eohi eve the original intent of this reform. In ooOperetion with the City Attorney? 5 of?ce we have begun to work through some of these issues as they arise, but much more work must be focused on these issues in order to fully prepare for an effective long-tom implementation of the Strong Mayor form of governance. I believe we can all agree that when roles and are unclear, the business of the public is not served, and that a fresh review of this Chatter section is a timely priority. 'In addressing these issues, there are four subject areas or questions around which a work plan for the Committee wil] be set: What Charter modi?cations we neoesser;7 to impiernent the Kroll recommendations and other ?nancial reforms? What- is a oiesr de?nition of the roles are resn o_1si'bilities of elected of?cials and the What measr res me I he tore the functionality of sirens me'ror tiuriL-CT this trial I . .l perroo? 5 What legislative tightening would be required for or" Artioie ?n nT+c ._.__cctive permanent implementation each or these areas Irli oe explores o3 and aooresseo Enlt?tterB'S work. A concurrently in the Cor Committee meetings will be held twice and will be noticed to the public in keeping with the Ralph M. Brown Act. Subcommitteesworking in each topic area are anticipated to meet once or twice as is convenientfor their membership and in keeping with their workload. I will move immediately to empanel the Committee in preparation for them to begin their work on or around March it is my intention that the Committee complete its work and return its recommendations in readiness fer the 2008 election cycle. Valuing varied points of view, I would like to work with each of you to identify and nominate three individuals who may be appropriate to serve on the Committee from which i will select one from each of your submissions. In addition, 1 will make a number of appointments to round out the Committee ensuring a representative balance. We are looking for individuals who can be independent, possess scholarly and operational subject matter expertise, those who have experience with? previous charter reform efforts and who are broadly representative of our talented citizenry. In addition tothe Committee members, three ex?officio members will serve as support resources and advisers to the Committee; one each from theCity- Attorney, Mayor and the independent Budget Analyst. I look forward to working with you on these issues so critical to our City?sfuture and welcome your mpport for this effort. CHARTER CITIES REMOVAL PROVISIONS Mm San Jose Charter The Council shall be the judge of the City Council remOVal authority for all Manager-Council structure election and quali?cation of its members, elective of?cers with due process including the Mayor, and of any other provisions 405 Judge of Quali?cations elective of?cer, and of the grounds for forfeiture or loss of their reSpective of?ces, and for that purpose shall have the pewer to subpoena witnesses, administer oaths and require the production of evidence. A member, or the Mayor, or the holder of any other elective of?ce, charged with conduct Constituting grounds for forfeiture or loss of his or her of?ce shall be given, if he or she so demands, an opportunity to be heard in his or her own defense at a public hearing after reasonable notice to such members. Sacramento Charter The city manager cannot be removed from Due process provisions for removal of Manager-Council Structure of?ce except by a vote of siX members of City Manager no discussion of elective the city council. The city manager shall not of?cers 63 Removal of City Manager be subject to removal from of?ce within twelve months of the date that the city manager ?rst assumes the duties of of?ce except for incompetence, malfeasance, misfeasance or neglect of duty. If the removal is proposed within the ?rst twelve months, the city manager may demand written charges and a public hearing before the city council prior to the date upon whieh his removal becomes effective; but the CHARTER CITIES REMOVAL PROVISIONS decision of the city council shall be ?nal, conclusive and binding upon the city manager, and pending such hearing the council may suspend the city manager from duty without loss of normal compensation. San Francisco Charter ayor-Supewisor structure 13.101 Vacancies 15.105 Suspension Removal If the Of?ce of Mayor becomes vacant because of death, resignation, recall, permanent disability or the inability to carry out the responsibilities of the of?ce, the President of the Board of Supervisors shall become Acting Mayor and shall serve until a successor is appointed by the Board of Supervisors. ELECTIVE AND CERTAIN APPOINTED OFFICERS. Any elective of?cer, and [other appointed board and commission positions omitted] is subject to suspension and removal fer of?cial misconduct as provided in this section. Such of?cer may be suspended by the Mayor and the Mayor shall appoint a quali?ed person to discharge the duties of the of?ce during the period of suspension. Upon Such suspension, the Mayor shall immediately notify the Ethics Commission and Board of Supervisors thereof in writing and the cause thereof, and shall present written charges against such suspended of?cer to the Ethics Commission and Board of Supervisors at or prior to their next regular meetings following such suspension, and shall Board appointment of Mayoral successor for vacancy in of?ce Mayoral authority to suspend and remove for of?cial misconduct as described with due process provisions CHARTER CITIES REMOVAL PROVISIONS immediately furnish a copy of the same to such of?cer, who shall have the right to appear with counsel before the Ethics Commission in his or her defense. The Ethics Commission shall hold a hearing not less than ?ve days after the ?ling of written charges. After the hearing, the Ethics Commission shall transmit the full record of the hearing to the Board of Supervisors with a recommendation as to whether the charges should be sustained. If, after reviewing the complete record, the charges are sustained by not less than a three?fourths vote of all members of the Beard of Supervisors, the suspended of?cer shall be removed from of?ce; if not so sustained, or if not acted on by the Board of Supervisors within 30 days after the receipt of the record from the Ethics Commission, the suspended of?cer shall thereby be reinstated. REMOVAL FOR CONVICTION OF A FELONY CRIME INVOLVING Mandatory removal for conviction of MORAL TURPITUDE. certain felonies. Mayor is considered (1) Of?cers Enumerated in Subsections appointing authority for purposes of and removal of elected of?cials (A) An appointing authority must immediately remove from of?ce any of?cial enumerated in subsections or upOn: a court's ?nal conviction of that of?cial of a felony crime involving moral turpitude; and CI-LARTER CITIES REMOVAL PROVISIONS (ii) a determination made by the Ethics Commission, after a hearing, that the crime for which the of?cial was convicted warrants removal. (B) For the purposes of this subsection, the Mayor shall act as the appointing authority for any elective of?cial. (C) Removal under this subsection is not subject to the precedures in subsections and of this section. [provisions for appointee removal omitted] (3) Penalty for Failure to Remove. Failure to remove an appointee as required under this subsection shall be of?cial misconduct. DISQUALIFICATION. (A) Any person who has been removed from any federal, state, County or City of?ce or employment upon a ?nal c011viction of a felony crime inVolving moral turpitude shall be ineligible for election or appointment to City of?ce or employment for a period of ten years after removal. (B) Any person removed from any federal, state, County or City of?ce or employment for of?cial misconduct shall be ineligible for election or appointment to City of?ce or employment for a period of ?ve years after removal. Failure to remove is itself of?cial misconduct 10~year disquali?cation for removal based upon felony convictions involving moral turpitude; 5?year disquali?cation for removal based upon of?cial misconduct CHARTER CITIES REMOVAL PROVISIONS (2) (A) Any City department head, Procedural due process provisions with board, commission or other appointing appeal to ethics commission with authority that removes a City of?cer or potential to overturn decisions based employee from of?ce or employment on the upon of?cial misconduct (no similar grounds of of?cial misconduct must invoke provision for felony conviction) the disquali?catiOn provision in subsection and provide notice of such disquali?cation in writing to the City of?cer or employee. (B) Upon the request of any former City of?cer or employee, the Ethics Commission may, after a public hearing, overtum the application of the disquali?cation provision of subsection if: the decisiOn that the former of?cer or employee engaged in of?cial misconduct was not made after a hearing by a court, the Board of Supervisors, the Ethics Commission, an administrative body, an administrative hearing of?cer, or a labor arbitrator; and (ii) if the of?cer or employee does not have the right to appeal his or her restriction on holding future of?ce or employment to the San Francisco Civil Service Commission. OFFICIAL MISCONDUCT. Of?cial Of?cial misconduct de?ned miScOnduct means any wrong?il behavior by a public of?cer in relation to the duties of his or her of?ce, willful in its character, including any failure, refusal or neglect of an of?cer to perform any duty enjoined on him or her by law, or conduct that falls below the standard of decency, good faith CHARTER CITIES REMOVAL PROVISIONS and right action impliedly required of all public of?cers and including any violation of a speci?c con?ict of interest or governmental ethics law. When any City law provides that a violation of the law constitutes or is deemed of?cial misconduct, the conduct is covered by this de?nition and may subject the person to discipline and/ or removal ??om of?ce. Los Angeles Charter Mayor?Council Structure 430 Subject of Recall Any incumbent of an elected of?ce, Whether elected by vote of the people or appointed to ?ll a vacancy, may be removed from of?ce by the registered voters" of the City of Los Angeles, or the registered voters of the SchOol District in the case of removal of a member of the Board of Education. The removal of the incumbent shall be known as the recall. Removal by recall Santa Barbara Charter Mayor?Council structure 503 Vacancies If the Mayor or other member of the City Council absents himself from all regular meetings of the City Council for a period of sixty (60) days consecutively from and after the last regular Council meeting attended by him, unleSs by permission of the City Council expressed in its of?cial minutes, or if convicted of a crime involving moral turpitude, or ceases to be an elector of the City, his of?ce shall become vacant. The City Council shall declare the existence of any such vacancy. Provision for automatic vacancy in of?ce for suf?cient number of unexcused absences or conviction of crime involving moral turpitude (no misdemeanor/ felony distinction) CHARTER CITIES REMOVAL PROVISIONS Oakland Charter Mayor-Council structure 304 Vacancy: What Constitutes The of?ce of Mayor shall be declared vacant by the Council when the person elected or appointed thereto fails to qualify within ten days after his term is to begin, dies, resigns, ceases to be a resident of the City or absents himself/herself continuously from the City for a period of more than thirty days Without permission from the Council, is convicted of a felony, is judicially determined to be an incompetent, is permanently so disabled as to be unable to perform the duties of his of?ce, forfeits his of?ce under any provision of this Charter, or is removed from of?ce by judicial procedure. A ?nding of disability shall require the af?rmative vote of at least six members of the Council after considering competent medical evidence bearing on the physical or mental capability of the Mayor. Upon occurrence of various events, included extended absence or felony conviction, Council is required to declare the of?ce vacant. Fresno Charter Mayor?Council structure 305 Vacancies An elective of?ce becomes vacant when the incumbent thereof dies, resigns, is removed from of?ce under reCall proceedings, is adjudged insane, is convicted of a felony or of an offense involving a violation of his or her duties, ceases to be a resident of the City or the district corresponding in number to the office to which he or she was elected, neglects to qualify within the time prescribed by the provisions of this Charter, is absent from the State without leave for more than sixty consecutive days, or fails Provides for ?vacancy? to occur under various circumstances, including for conviction of a felony involving the of?cial?s duties. CHARTER CITIES REMOVAL PROVISIONS the attend the meetings of the body of which he or she is a member for a like period Without being excused therefrom by such body. The Council shall declare the existence of any vacancy except vacancy caused by death or resignatiOn. Such declaration shall be a ?nal determination of the existence of the vacancy unless a court review is Sought within thirty days after such declaration. New York Charter Mayoerouncil structure 9 Removal of Mayor The mayor may be removed from of?ce by the governor upon charges and after seryice upon him of a copy of the charges and an opportunity to be heard in his defense. Pending the preparation and disposition of charges, the governor may suspend the mayor for a period not exceeding thirty days. Authority to remove mayor rests with governor with due process provisions Seattle Charter Mayor?Council structure Article V. Executive Department 10 Removal of Mayor The Mayor may be removed from office after a hearing, for any will?ll violation of duty, or for the commission of an offense involving moral turpitude, upon written notice from the City Council at least five days before the hearing. He or she shall have the right to be present, to the aid of counsel, to offer evidence and to be heard in his or her own behalf. Upon the af?rmative Mayoral removal by City Council for willful violation of duty, with due process provisions, 2/3 vote CHARTER CITIES REMOVAL PROVISIONS Article XIX. Of?cers; Terms and Vacancies 5 Vacancies 7 Suspensions and Removals 8 SuSpension of Elective Appointive Of?cers vote of two?thirds of all the members of the City Council, acting as a court of impeachment, the of?ce shall become vacant. An of?ce becomes vacant on failure to Similar to Oakland, where of?ce qualify within the time limited by law; upon ?becomes? vacant upon occurrence of the death or removal from of?ce or speci?ed events resignation of the incumbent, or his or her removal from or absence from the City for sixty days without leave of the City Council, or upon an adjudication of insanity; by a conviction of drunkenness, or by any permanent disability, preventing the prop er discharge of duty. Any elective or appointive of?cer may be Allows for elective of?cer to be removed suspended and removed for cause by the by City Council ?for cause? with due Council, as hereinafter provided and the process provisions, without de?nition of Council shall temporarily fill the vacancy, ?cause? except as hereinafter provided. Whenever the Council shall suspend any of?cer it shall immediately notify the of?cer of such suSpension and the cause thereof. The accused shall be furnished with a copy of the charges, and shall have the right to appear with counsel and make his or her defense. The City Council shall speedily try such officer on such charge, and for that purpose shall have power to adjourn from time to time until the trial shall be completed, to summon and compel the CHARTER CITIES REMOVAL PROVISIONS attendance of witnesses, to hear their testimony, to receive other evidence, and to hear the arguments of counsel. SUSPENSION OF REMOVAL: In case of the suspension of a member of the City Council by that body, the member so suspended shall be tried in like manner as herein provided, except that the charges may be preferred by any elector or member of the City Council. In either case, the President of the City Council shall preside at such trial, and in his or her absence or disability the acting President. If two?thirds of all the members of the City Council shall by resolution ?nd the accused guilty, then the suspended of?cer shall thereby be removed frOm of?ce. Doc. No. 715724 (2/3/14)