Title
Adoption of Resolution Calling for the Holding of a Consolidated Municipal Election in the City of Alameda on Tuesday, November 3, 2020, for the Submission of a Proposed Charter Amendment to Clarify the Prohibition Against Members of the Council Interfering with Duties of the City Manager and Other Executive City Officials, Authorize the City Attorney to Prosecute State Law Misdemeanors, and Amend Outdated Provisions including Utilizing Gender Neutral Language, and Authorizing City Councilmembers to File Written Arguments For or Against the Measure. (City Attorney/City Clerk)
Body
EXECUTIVE SUMMARY
On June 2, 2020, City Council directed staff to prepare ballot measures that would amend the City Charter in a number of respects. For this measure, sections to be amended include clarifying the prohibition against Council interference with the duties and powers of the City Manager and other executive officials, authorizing the City Attorney to prosecute State law misdemeanors, and amending various sections of the Charter that are outdated or no longer applicable, including utilizing gender neutral language.
The City Council will consider adoption of the resolution authorizing the submittal of the ballot measure to the voters in November. The resolution also authorizes the City Council, or members thereof, to submit arguments concerning the measure.
BACKGROUND
In December 2018, Mayor Ezzy Ashcraft appointed a Charter Review Subcommittee to review the City Charter and recommend potential measures to the City Council concerning amendments to the Charter. In May 2020, Council considered those recommendations and on June 2, 2020, provided direction to staff to prepare ballot measures concerning certain sections of the Charter to be placed on the November 3, 2020 ballot for the voters’ consideration.
On June 2, 2020, Council specifically directed staff to prepare ballot measures to return with two ballot measures. This measure clarifies the non-interference of the City Manager’s duties and powers, authorizes the City Attorney to prosecute State law misdemeanors, and amends or deletes outdated or no longer applicable sections of the Charter, including enhancement of gender neutrality in the Charter.
A brief discussion of is set forth below along with the proposed ballot question.
DISCUSSION
The proposed ballot question and ballot measure language for the measure is being presented to Council for approval to be submitted to the voters. If the measure receives a majority vote of those voting on the measure, the Charter provisions in question will be amended or deleted as proposed. Each ballot question is limited to 75 words.
This measure addresses Council interference with the powers and duties of the City Manager and other executive officials, authorizes the City Attorney to prosecute State law misdemeanors and clean up language, including enhancement of gender neutrality in the Charter. In addition to the amendments addressed on June 2, 2020, staff added changes to Article 10 regarding the Board and Commission nomination process since nominations do not only occur between May 1 and July 1.
Ballot Question: Shall the measure amending the City Charter to clarify the prohibition against members of the City Council interfering with City Manager’s duties, authorize the City Attorney to prosecute State law misdemeanors, and amend outdated provisions, including utilizing general neutral language, be adopted? Such amendments will be accomplished by amending Charter Sections 2-9, 2-16, 7-3, 8-2, 10-2, 10-3, 10-4, 10-4.1, and deleting Sections 2-15, 22-7, 22-8, as set forth in City Council Resolution No. ____.
The measure has the following three components and amends Sections 7-3, 8-2, 2-9, 2-15, 2-16, 10-2, 10-3, 10-4, 10-4.1, 22-7 and 22-8 as follows:
A. Section of the Charter concerning interference with the powers and duties of the City Manager and other executive City officials.
Section 7-3 would be amended as follows: Except for the purpose of inquiry, the City Council and its members, including the Mayor, shall deal with the administrative service under the City Manager and other appointed or elected officers solely through the City Manager or such other officer. Neither the City Council nor any member, including the Mayor, shall give orders to any subordinates under the jurisdiction of the City Manager or such other officers, either publicly or privately, nor shall they attempt to coerce or interfere, directly or indirectly, with the City Manager or such other officers, in respect to any contract, purchase of materials, or any other administrative action, nor shall they in any manner, directly or indirectly, direct, request or take part in the appointment, discipline, or removal of any employee by the City Manager or other such officers, or their subordinates. The City Council may further implement this section by ordinance, resolution, or rules of conduct. Violation of any provision of this section by a member of the Council, including the Mayor, shall be prosecuted as prescribed by State law, conviction of which shall immediately forfeit the office of the convicted member. Neither the Council nor any of the members thereof shall interfere with the execution by the City Manager of his or her powers and duties. Except for purposes of inquiry, the Council and its members shall deal with that portion of the administrative service for which the City Manager is responsible solely through him or her. An attempt by a Councilmember to influence the City Manager in the making of any appointment or the purchase of any materials or supplies shall subject such Councilmember to removal from office for malfeasance.
B. Section of the Charter concerning the prosecutorial duties of the City Attorney.
Section 8-2 would be amended as follows: The City Attorney shall have the authority and discretion to prosecute all violations of the ordinances of the City, and all misdemeanor offenses arising out of the laws of the State of California. The City AttorneyHe shall, subject to the general direction of the Council, board or elective officer having jurisdiction of the matter, prosecute and defend for the City, and all boards, officers and employees in their official capacity all proceedings before judicial or quasi-judicial tribunals. The City AttorneyHe shall not compromise, settle or dismiss any action for or against the City without permission of the Council. The City AttorneyHe shall not commence any action without permission of the Council or written instruction of the City Manager. The City AttorneyHe shall be the legal advisor of and attorney and counsel for the City and for all officers and boards thereof, in all matters relating to their official duties, and whenever requested in writing by any of them, the City Attorneyhe shall give his or her legal advice in writing.
C. Amendments to sections of the City Charter that are outdated, including adding gender neutral pronouns. In addition to the amendments discussed on June 2, 2020, staff has also included revisions to four sections in Article 10 to reflect that nominations do not only occur between May 1 and July 1.
Section 2-9 would be amended as follows: If any elected or Council-appointed officer of the City who shall remove from the City or absent himself or herself therefrom for more than thirty days consecutively without the permission of the Council, or shall fail to qualify by taking the oath of office within fifteen days from the time his or her certificate of election or appointment is mailed or delivered to him or her, or shall resign, or be convicted of a felony, or be adjudged insane, his or her office shall be vacant.
Section 2-15 would be deleted in its entirety in that those changes have been implemented: Repealed. All references to Councilman here in shall be changed to Councilmember.
Section 2-16 would be amended as follows: In order to use neutral gender personal pronouns, aAll references to “he” shall be changed to “they” and “his” shall be changed to “his or her” shall be changed to “their”, and all references to “him” shall be changed to “him or her” shall be changed to “them”, and all references to “himself” shall be changed to “himself or herself” shall be changed to “themselves”, and all the references shall indicate a singular individual unless the context indicates to the contrary.
Section 10-2 would be amended as follows: Each of said Boards, except the Public Utilities Board, Social Service Human Relations Board and the City Planning Board shall consist of five members. Upon nomination of the Mayor, the Council shall appoint, between May 1 and July 1 of each year, one member of each such Board for a term commencing the first day of July following such appointment and continuing for four years, and thereafter until the successor of such member is appointed and qualified.
Section 10-3 would be amended as follows: The Public Utilities Board shall consist of five members, one of whom shall be the City Manager, who shall have full power of participating and voting. Upon nomination of the Mayor, the Council shall appoint, between May 1 and July 1 of each year, one member of such Board for a term commencing the first day of July following such appointment and continuing for four years and thereafter until the successor of such member is appointed and qualified.
Section 10-4 would be amended as follows: The Social Service Human Relations Board shall consist of seven members. Upon nomination of the Mayor, the Council shall appoint, between May 1 and July 1 of each year, at least two members of such Board for terms commencing on the first day of July following such appointment and continuing for four years and thereafter until the successor of such member is appointed and qualified.
Section 10-4.1 would be amended as follows: The City Planning Board shall consist of seven members. Upon nomination of the Mayor, the Council shall appoint, between May 1 and July 1 of each year, such members as are necessary to maintain a full board, for terms commencing on the first day of July following such appointment and continuing for four years and thereafter until the successor of such member is appointed and qualified; provided, however, that nor more than two terms shall expire in any year other than by resignation of a member.
Section 22-7 would be deleted in its entirety in that these matters are handled through City administrative policies: Repealed. Traveling expenses shall not exceed actual cost of transportation, plus a reasonable per diem allowance, the latter to be fixed annually by the Council uniformly for all officers and employees. Traveling expenses, except for routine duties, shall be allowed only if authorized by the Council.
Section 22-8 would be deleted in its entirety in that these days and hours are no longer the applicable days and hours when public offices are open and are better handled through administrative policies: Repealed. All public offices, except where otherwise provided by law, shall be open for business every day, except holidays, from 9:00 A.M. to 5:00 P.M., subject to modification by Council.
Ballot Arguments and Impartial Analysis:
In addition, the resolution authorizes the City Council to submit arguments and rebuttals concerning the measure. Arguments and rebuttals shall be submitted in accordance with Elections Code Sections 9280-9287. The City Clerk, as the City Elections Official, has set the deadline for submitting arguments as 5:00 p.m. on Wednesday, July 22, 2020 and rebuttals are due 5 p.m. on Monday, August 3, 2020.
If the City Council elects to prepare ballot arguments and potential rebuttals, it has the following options: 1) draft an argument as a whole body in open session and decide signers at that time; 2) authorize no more than two Councilmembers to meet as a subcommittee of the City Council to draft an argument and have the entire Council sign; 3) authorize no more than two Councilmembers to draft an argument and decide to have a combination of Councilmembers and/or other signers; or 4) authorize no more than two Councilmembers to draft and sign an argument and have up to three/four other signers. The City Council could also elect not to draft an argument.
The resolution also direct the preparation of an impartial analysis of the effects of the measure on the existing law and operation of the measure for each proposed measure. Since the measure has the potential to affect the organization of the City Attorney’s Office, the City Clerk is directed to prepare the impartial analysis. The applicable resolution authorizes the City Clerk to engage special counsel to assist in the preparation of such impartial analysis.
ALTERNATIVES
1. Adopt the resolution placing the measure on the November 3, 2020 ballot amending/deleting the Charter sections as described in this agenda report.
2. Adopt the resolution placing the measure on the November 3, 2020 ballot amending/deleting only some of the Charter sections described in this report.
3. Direct staff to return to Council with revised Charter amendment language, such as splitting amendments into multiple measures.
4. Do not adopt the resolution placing the Charter amendment on the November 3, 2020 ballot.
5. The Council also has alternatives related to drafting the argument and rebuttal, which are outlined above.
FINANCIAL IMPACT
The cost of translating, typesetting and printing the measure would be approximately $15,000 to $20,000, and is included in the Fiscal Year (FY) 2020/2021 budget.
MUNICIPAL CODE/POLICY DOCUMENT CROSS REFERENCE
The City Charter is the policy document governing the City. Any amendments must be approved by the voters.
ENVIRONMENTAL REVIEW
Adoption of the attached resolution placing the measure on the ballot is not subject to environmental review under the California Environmental Quality Act (CEQA). Amending the Charter to clarify the non-interference of the City Manager’s duties and powers, revise the duties of the City Attorney concerning prosecutorial functions, and amend outdated or no longer applicable sections of the Charter is exempt from CEQA pursuant to CEQA Guidelines Section 15378 as it does not constitute a project within the meaning of CEQA because it does not have a potential for resulting in a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment. As a separate and independent basis, this action is also exempt under CEQA Guidelines Section 15061(b)(3) (no significant environmental impact).
CLIMATE IMPACTS
The proposed Charter amendments do not have climate impacts.
RECOMMENDATION
Adopt the resolution to place the measure on the November 3, 2020 ballot to amend the City Charter by amending and deleting various sections of the Charter concerning (1) Council interference with the powers and duties of the City Manager, (2) the prosecutorial duties of the City Attorney, and (3) amending sections that are outdated or no longer applicable, including utilizing gender neutral language.
CITY MANAGER RECOMMENDATION
The City Manager concurs with the City Attorney’s and City Clerk’s recommendation. One caveat is that there was discussion by at least one Councilmember that potentially the language should be split into a separate ballot measure. This is a discretionary decision by the City Council.
Respectfully submitted,
Lara Weisiger, City Clerk
Michael Roush, Chief Assistant City Attorney
Celena Chen, Assistant City Attorney
cc: Eric Levitt, City Manager