HomeMy WebLinkAboutAGENDA REPORT 1987 0429 CC ADJ ITEM 11M' MOORPARK ITEM.�i•^'�
THOMAS C. FERGUSON
Mayor
CLINT HARPER, Ph.D. �� ♦K �,�,�o
Mayor Pro Tern goo' 9
ELOISE BROWN
Councilmember
JOHN GALLOWAY o
Councilmember
BERNARDO PEREZ
Councilmember •
MAUREEN W. WALL
City Clerk
M E M O R A N D U M
TO: The Honorable City Council
FROM: Steven Kueny, City Manager
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DATE : March 1.8, 1987
STEVEN KUENY
City Manager
CHERYL J. KANE
City Attorney
PATRICK RICHARDS, A.I.C.P.
Director of
Community Development
R. DENNIS DELZEIT
City Engineer
JOHN V. GILLESPIE
Chief of Police
THOMAS P. GENOVESE
City Treasurer
SUBJECT: Consideration of a Charter VS General Law Form of Government
At the Joint Meeting of the City Council and the Planning Commission held on February
25, 1987, staff was directed to provide Council with information concerning the City
possibly becoming a Charter City.
Information was requested from the League of California Cities and said information
is attached along with the applicable Government Code sections. This information is
provided for review by the City Council, and it is obvious that additional research
will be needed before direction can be determined. In discussing this matter, the
Council should consider the relative priority of this matter with other current
projects.
mww MOORPARK, CALIFORNIA
attachments City Council Wieting
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ACTION:
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799 Moorpark Avenue Moorpark, California 93021 (805) 529 -6864
1. 2.
EXTENSION OF CHARTER CITY AUTHORITY IN GENERAL LAW CITIES
A proposal to extend charter city authority to general law cities has arisen once again in
the wake of Proposition 13. The purposes of such a proposal would be (1) to increase the
authority of a general law city to raise revenues; and (2) to expand a general law city`s
home rule powers, thereby assuring greater local control. This proposal would take one of
the following two general forms: (1) one statute giving general law cities plenary power
over municipal affairs; (2) several statutes enacted on a statute -by- statute basis giving
general law cities specific statutory authority to take certain specific actions currently
reserved to charter cities. As a general proposition, the main advantage of the charter
form of government stems from the potential breadth of local authority which may be
exercised. Chartered cities are not restricted to the exercise of such powers as are set
forth in the general law, although counteracting restrictions may be written into the
charter. On the other hand, general law cities are what their name implies, i.e., those
governed principally by the general laws of the state. In this, however, lies the main
advantage to flow to a general law city. The general laws have been subjected to judicial
scrutiny over the years, and there is a clarity of meaning and resultant understanding of
what can and cannot be done under the general laws of the state, which is rarely the case
when considering the provisions of an individual city charter.
Section 5 of Article XI of the State Constitution provides that chartered cities shall have
the power to make and enforce all ordinances and regulations in respect to "municipal
affairs ", subject only to restrictions and limitations providad in their charters. Thus, if a
matter is a "municipal affair" a chartered city has plenary power to act with respect to it
except to the extent that its own charter or the state or federal constitutions limit or
restrict it. The charter enabling language of the Constitution (Article XI, Section 5(b))
also contains specific authorization for the inclusion in city charters of provisions relating
to (1) the constitution, regulation, and government of the city police force; (2) sub -
government in all or part of a city; (3) the conduct of city elections; and (4) the method,
manner and terms of electing, appointing, removing, and compensating municipal officers
and employees.
This proposal, in either of its forms, would not transform general law cities into
constitutionally authorized charter cities, nor would it restrict in any way the horse rule
powers of chartered cities. Rather, it would extend the power chartered cities have with
respect to peculiarly local issues ( "municipal affairs ") to general law cities, either by
broad statutory sweep or on an issue -by -issue basis.
a. What Are "Municipal Affairs"?
On many occasions over the years, the courts have been called upon to decide whether a
particular power exercised by a chartered city is a "municipal affair". Generally, if the
subject is one upon which the state has not legislated and one which has direct interest to
the inhabitants of a city, the courts as the final arbiters will hold the subject to be a
"municipal affair ". The other side of the "municipal affairs" coin consists of those
matters which are of "statewide concern ". These are subject to the control of the State
Legislature and outside the autonoinous authority of a chartered city. With respect to a
matter of "statewide concern ", a chartered city, as well as a general law city, must yield
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to conflicting state legislation. However, as indicated, the courts are the final arbiters in
deciding whether a particular subject is a "municipal affair" or a matter of "statewide
concern ", and a mere declaration by the Legislature, although often persuasive, is not
conclusive.
Judicially determined municipal affairs include salaries of employees, taxation, the
election of municipal officers, providing water and sewer facilities, revenue bond
procedure, fire protection, internal organization, procedures for letting city contracts and
civil service. (NOTE: case citations have been omitted in the interest of brevity.) If
general law cities were given plenary power over municipal affairs, the substantial body of
case law determining what constitutes a "municipal affair" would be used to interpret such
a statute. However, adoption of such a legislative proposal would not preclude the Legis-
lature from determining that certain government activities were not "municipal affairs"
as that term would then apply to general law cities. Presumably, in those areas in which
the Legislature has enacted general laws which are otherwise "municipal affairs" for
chartered cities -- elections, letting of city contracts and internal organizations, for
example -- these general laws would continue to apply to general law cities. However, for
other municipal affairs -- taxation, user charges, fire inspection, police protection, refuse
disposal - -for which a comprehensive statewide scheme has not been enacted, a general
law city would have expanded powers.
If the second approach were taken, statutes would be proposed for those specific functions
for which a general law city was to be given authority to enact programs and procedures.
b. Post - Proposition 13 California
As a general proposition, the main advantage of this proposal stems from the potential
breadth of local authority which it allows. General law cities would be organized pursuant
to the general laws of the State of California, but with plenary power to act with respect
to "municipal affairs" as that term has been interpreted by the courts and may be further
defined by the Legislature.
There are three judicially determined "municipal affairs" which seem to provide most
significantly flexibility to general law cities in post- Proposition 13 California: (1)
taxation, (2) service charges, and (3) bond procedures. Under the general proposal they
would be included; under the specific statutes, each would be treated separately.
(1) Taxation. General law cities have only those corporate powers which are granted
expressly by statute or the Constitution, or which, under "Dillon's Rule ", are
necessary for, or incidental to, the exercise of such granted powers. In the field of
taxation, it is agreed that an express grant of power is necessary and taxes which
the Legislature has thus far authorized are relatively few. Specifically, general law
cities are authorized to impose sales and use taxes (Gov. Code Section 37101, Rev. &
Tax. Code Section 7200 et seq.), a room occupancy tax (Rev. & Tax. Code Sections
7280, 7281), and a documentary transfer tax on transfers of real property (Rev. &
Tax. Code Section 11901 et seq.). The Legislature has also authorized general law
cities to impose license taxes on businesses for revenue purposes (Gov. Code Section
37101). (These taxes are, of course, in addition to the statutorily authorized
property tax.)
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On the other hand, the outstanding example of an essential power which falls in the
"municipal affairs" category is taxation. Historically, chartered cities were deemed
to have taxing authority as broad as the entire field of taxation. In the absence of a
limitation in the charter itself or a restriction in the state or federal constitutions, a
chartered city could levy and collect any type of tax. Since the decision in Centur
Plaza Hotel Company v. City of Los Angeles, 7 Cal App 3d 616 (1970), however, such
a sweeping statement is not entirely accurate. In this case, the Court of Appeals
recognized that "there is no doubt that taxation for revenue for municipal purposes
ordinarily is a municipal affair." But under its authority to determine just what falls
in that classification, the court concluded that the city's tippler's tax was not a
municipal affair and therefore unauthorized. The city tax was imposed upon the
purchase price of alcoholic beverages sold by a retailer for consumption on the
premises where sold. The court, however, construed it as a tax on sales rather than
purchases of distilled spirits in contravention of the provisions of the alcoholic
beverage control law, making the state liquor taxes "in lieu of all county, municipal
or district taxes on the sale of beer, wine, or distilled spirits" (Rev. & Tax. Code
Section 32010). Despite this erosion of a chartered city's taxing authority, charter
cities have taken substantial advantage of their plenary power in this area to enact
utility user's taxes, admissions taxes, bedroom or property development taxes, and,
most recently, in the City of Oakland, the employee license tax (Weeks v. City of
Oakland, 21 Cal 3d 386 (1978)).
Proposition 13 has provided the second major limitation on the previously broad
power of chartered cities to tax. This limitation is provided by Section 4 of Article
13(a) restricting the imposition of "special taxes ". There has yet to be definitive
judicial interpretation of the term "special tax ". Until that interpretation is forth-
coming, it will be difficult to evaluate the extent to which charter cities, or general
law cities with plenary power over municipal affairs, have been limited in the field
of taxation and, therefore, the revenue - producing benefits of the proposal in this
area. It can be stated with some certainty that whatever the ultimate
interpretation of special tax, if general law cities had the authority of charter cities
for taxation purposes, general law cities would have the opportunity to propose a
special tax (in addition to business license, sales and use, and room occupancy taxes)
to the electorate, an opportunity otherwise limited to charter cities.
(2) Service Fees and User Charges. As has been noted in Item (1) above, a charter city
has greater authority to levy a use charge for the purposes of raising revenues to
provide city services and to fund future municipal expenditures. A general law city
may have authority to levy user charges as necessary and proper to the provision of
public services. However, such charges would be limited to volitional recipients of
those services and further limited to the cost of providing the service.
The importance of flexibility in this area has been discussed. Under this proposal,
general law cities would have increased flexibility to charge for city services on a
user basis and to spread the cost of those services throughout the community in
order to lessen the impact of the charges on the low- income community.
(3) Bonding Procedures. The viability of general obligation bonds has been severely
affected by the adoption of Proposition 13. The efforts of both cities and
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redevelopment agencies to construct or provide for public works and housing will be
hampered severely by the tax limitations contained therein. M ch discussion has
occurred relative to alternative financing ►nethods such as
authority, sales tax increment financing, and expanded special assessment authority.
Bonding procedures are judicially determined "municipal affairs (Roseville v. Terry,
54 Cal 2d 126• Cit of
158 Cal Ap 2d 75; City of Redondo Beach v. Tax a The flexibility inherent; in this
Santa Monica v. Grubb, 245 Cal Ap 2d 718.
determination will provide charter cities, or general law cities under the proposal,
with financing alternatives not otherwise available.
c. Should the Proposal Be General Or Specific?
As previously noted, the proposal under discussion could take one of two forms. The
following are the pros and cons of legislation enacting a statute giving general law cities
plenary power over municipal affairs:
PROS:
(1) Provides maximum flexibility to general law cities by not requiring an evaluation of
to what secific areas authority should be extended.
(2) Relies on judicial interpretation of "municipal affairs" rather than legislative
discretion relative to what areas authority should be extended.
CONS:
(1) Bypasses the statutory procedure for becoming a charter city and thereby the
electorate.
(2) Use of the term "municipal affairs" invades the province of charter cities e hereb
diluting their unique status and reducing substantially motivation g y
charter city.
(3) Allows the Legislature "to define away" municipal affair to the point that general
law cities have no greater authority than they presently possess.
The following are the pros and cons of legislation enacting several statutes which would
give general law cities authority to enact programs and procedures in specific areas:
PROS:
(1) Provides clear declaration of legislative intent to authorize general law cities to act
in the area provided.
(
2) Provides permanent authority which requires affirmative acts of the Legislature
specifically to repeal.
CONS:
(1) The statute -by- statute approach allows for less local flexibility in that the decision
will be made in Sacramento as to those areas in which it would be more beneficial to
increase local control rather than allowing that decision to be made on the local
level.
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(2) Requires a new statute each time an innovative technique is created in a charter
city or a "new" municipal affair is judicially determined.
(3) Allows the Legislature to attach more easily "strings" to the grant of authority
which may make the power less useful.
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NEW COUNCILS
and
THE LAW OF MUNICIPAL COIZPORATIONS
Betsy Strauss
City Attorney
Napa
TABLE OF CONTENTS
Page
I. LEGAL FOUNDATIONS OF CITY GOVERNMENT I
II. HOME RULE IN CALIFORNIA: THE CONSTITUTIONAL GRANT 2
A. Police Power 3
Conflict of Laws and "Preemption" 3
1. Acts Prohibited by State Law 3
2. Acts Authorized by State Law 3
3. Duplication of State Law 4
4. Agencies of the State 4
5. State Preemption 5
Jurisdiction Upon Incorporation or Annexation 6
B. Operation of Public Works 7
C. No State Tax for Local Purposes 7
D. Prohibition of Special Legislation 8
III. MUNICIPAL POWERS: CHARTER AND GENERAL LAW CITIES 8
A. Regulatory and Corporate
8
B. "Municipal Affairs"
8
C. Dillon's Rule
10
D. Specific Comparisons of Municipal Affair and
General Law Authority
10
1. Taxation
10
a. Chartered Cities
10
b. General Law Cities
12
(1) Property Tax
12
(2) Excise Tax
12
(3) Charter City Tax
13
(4) Special Tax
13
2. Internal Organization
14
a. Chartered Cities
14
b. General Law Cities
14
E. The "Statewide Concern" Doctrine 15
IV. LIMITATIONS AND RESTRICTIONS 15
A.
Eligibility for Office
15
B.
Filling Council Vacancies
16
C.
One Person - One Vote
17
D.
Meeting Requirements
17
"State Purpose" Expenditures
1. In General
17
18
Other Special Purpose Expenditures
2. The Ralph M. Brown Act
E.
Ordinance Enactment
20
b. Aviation Gas Tax Refunds
1. When is an Ordinance Required?
20
Regulatory Charges
a. To Amend or Repeal an Ordinance
20
a. Parking Meter Revenues
b. To Impose a Penalty
20
b. Sewer Rental Charges
c. When the Enabling Charter or Statutory Authority
Expressly Requires an Ordinance
21
2. Forms and Parts of an Ordinance
21
a. The Title and Subject
21
21
b. The Preamble
21
c. The Ordaining or Enacting Clause
d. The Body of an Ordinance
21
e. The Clause of Taking Effect
22
f. Signature and Attestation
22
3. Enactment Procedure
22
a. Introduction and Reading
22
b. Final Passage, Voting and Amendments
22
23
c. Publication or Posting
F.
Quasi - Judicial Actions
24
G.
Antitrust Liability
24
V. EXPENDITURES
A. Public, Municipal and State Purposes
26
1.
"Public Purpose" - Examples
26
27
2.
"Municipal Purpose" - Examples
"
27
3.
Mixed "Municipal and State Purposes
4.
"State Purpose" Expenditures
28
28
5.
Other Special Purpose Expenditures
a. Vehicle Code Fines and Forfeitures
29
b. Aviation Gas Tax Refunds
29
6.
Regulatory Charges
29
a. Parking Meter Revenues
29
b. Sewer Rental Charges
29
B.
Procedural
30
2.
1. Competitive Bidding - General Law Cities
30
3.
a. Exceptions
30
4.
(1) Personal Property and Furnishings
30
5.
(2) Garbage Collection Contracts
31
6.
(3) Personal Service Contracts
31
7.
b. Splitting
31
2. Claims Procedure
31
C.
Constitutional Debt Limit
31
1. Revenue Bonds and the Special Fund Doctrine
32
2. Special Assessment Bonds
33
3. Lease Purchase
33
4. Minor Exceptions
34
D.
Compensation of Elective Officers
35
1. Compensation of Council Members
35
2. Reimbursement Not Compensation
35
3. Compensating Elected Officials for Added Burdens
36
E.
Prohibition Against Gifts and Retroactive Pay
37
F.
Prohibition Against Official Interest in Contracts
37
G.
Appropriations Limitation - Article XIIIB
38
VI. PERSONAL LIABILITY OF COUNCIL MEMBERS 38
A. Expenditures 38
1. Authority 38
B. Individual Cities 39
1.
Individuals Cannot Bind Council
39
2.
False Arrests
39
3.
Personal Use of City Property
40
4.
Free Railroad Passes
40
5.
Specific Charter Prohibitions
40
6.
"Willful Omission" Misdemeanors
40
7.
Willful Misconduct in Office
40
t
NEW COUNCILS AND
THE LAW OF MUNICIPAL CORPORATIONS IN CALIFORNIA
Betsy StraussI
City Attorney
Napa
I. LEGAL FOUNDATIONS OF CITY GOVERNMENT
The law governing your city, your collective actions as a city council, and your individual
actions as a city council member, is found in several places: The state and federal
constitutions, particularly Article XI of the California Constitution, state statutes, codes
and rulings of state administrative agencies, the decisions of our state and federal courts,
and in your city charter and ordinances. Article XI of the Constitution was revised by the
electorate on June 2, 1970. All references are to the renumbered sections.
The fountainhead of city government in California is Article XI, Sections 2, 3, and 5 of the
Constitution.
Section 2 provides in part:
"The Legislature shall prescribe uniform procedure for city formation and
provide for city powers."
Section 3 provides in part:
"For its own government, a county or city may adopt a charter by majority
vote of its electors voting on the question .... "
Section 5 provides in part:
"(a) It shall be competent in any city charter to provide that the city governed
thereunder may make and enforce all ordinances and regulations in respect to
municipal affairs, subject only to restrictions and limitations provided in their
several charters and in respect to other matters they shall be subject to
general laws.
"City charters adopted pursuant to this constitution shall supersede any
existing charter, and with respect to municipal affairs shall supersede all laws
inconsistent therewith."
IIt would be misleading to suggest that this paper was prepared entirely by the League
attorney whose name appears above. Rather, it is the composite work, over a long period
of years, by a number of municipal attorneys including former League General Counsels
Richard Carpenter, William H. Keiser, former League attorneys Lewis Keller, Jack
Wickware and William G. Holliman, Jr., League Senior Staff Attorney Carlyn F. Galway,
League Attorney David F. Beatty, and the present "author" who has the privilege of being
the most recent editor of the document. Revised April, 1984.
Section 13 of the revised article states that the provisions of Sections 3(a) and 5 shall be
construed as a restatement of the related provisions prior to amendment, without
substantive change.
In 1883 the Legislature followed the mandate of the Constitution as it read at that time
and adopted the Municipal Corporations Act providing statutory charters for six different
classes of cities based on population (Stats. 1883, p. 93). In 1955 the Legislature dropped
all numerical classifications and the law presently provides for one class of city called a
"general law" city (Stats. 1955, Ch. 624). Therefore, California cities are either chartered
cities or general law cities. The procedure for incorporating a general law city will be
found in Sections 35000 et seq. (MORGA) of the Government Code. There are now 349
general law cities and 81 chartered cities.
A city may adopt a charter for its own government by a majority vote of its electors
voting on the question. The city council may propose a charter or revision for submission
to the electorate, or may submit to the voters a proposition for the election of a charter
commission to draft or revise a charter. Revision, amendment or repeal, or an election to
elect a charter commission may be proposed by initiative. A charter, or an amendment or
revision thereof, becomes effective when filed with the Secretary of State. (Art. XI,
Section 3, Cal. Const.). The procedure for adopting a charter is set forth in Government
Code Sections 34450 - 34463. (Under current procedures, a newly incorporated area forms
first as a general law city and may then subsequently adopt a charter form of government
if its electorate so desires.)
II. HOME RULE IN CALIFORNIA
Prior to the 1879 Constitution, when an influential group of city dwellers wished a new
city hall (City of San Francisco v. Canavan, 42 Cal. 541) or street improvement (People v.
San Francisco, 36 Cal 595), or a city bond issue in aid of railroad construction (Stockton be
Visalia Railroad v. Stockton, 41 Cal. 147), they would go to the State Capitol and have a
special law passed on their behalf. City government was controlled to the smallest detail
from the State Capitol. An excellent description of this period of California's municipal
history will be found in the series entitled "Municipal Home Rule in California" in 30
Calif. L. Rev. 1; 30 Calif. L. Rev. 272; 32 Calif. L. Rev. 341; and 34 Calif. L. Rev. 644, a
now classic series of articles on municipal law by the late Professor John C. Peppin.
Our present State Constitution represents a very strong reaction against this centralized
system of local government. The framers of the 1879 Constitution gave California cities
genuine "home rule." The California Supreme Court, in fact, four years prior to, and
foreshadowing the adoption of the Constitution of 1879, rendered a decision repudiating
the entire doctrine of legislative supremacy and embracing the theory of an "inherent
right of local self - government." (People v. Lynch, 51 Cal. 15.) As a result of this home
rule concept in the California Constitution and its protection by the courts, California
cities enjoy a great degree of local autonomy. (For a contemporary view of home rule,
see: "Municipal Affairs in California" by Professor Sho Sata, 60 Calif. L. Rev. 1055.)
The legal power exercised by you on behalf of the city, and independently of state
government, is municipal home rule. There are four basic parts of this package which are
applicable to all cities -- two grants of power to all cities followed by two restrictions on
state government for the benefit of all cities. It is also important to keep in mind the
distinction between a general law and a chartered city, and these distinctions will be
highlighted at appropriate points throughout this article.
i
A. Police Power
Article XI, Section 7, of the State Constitution provides:
"Sec. 7. A county or city may make and enforce within its limits all local,
police, sanitary, and other ordinances and regulations not in conflict with
general laws."
This section (formerly Art. XI, Section 11), which was adopted without debate in the
Constitutional Convention of 1879, was a first in the nation. It has subsequently been
substantially copied in a number of other states. The majority of the judicial decisions
which have construed it have defined its scope as the power to adopt regulations in the
form of "rules of conduct to be observed by the citizens." (Von Schmidt v. Widber, 105
Cal. 151). Under this view of the power granted by Article XI, Section 7, the police power
granted to counties and cities is the power to enact regulatory ordinances for the beneif t
of their citizens. This view of Article XI, Section 7, as granting only the power to enact
regulatory ordinances, has the support of the majority of the Supreme Court cases in
which it has been considered (Merced County v. Helm, 102 Cal. 159; In re Werner, 129 Cal.
567; Gilgert v. Stockton Port District, 7 Cal. 2d 384). On the other hand, there are a
number of appellate court decisions which take the point of view that Article XI, Section
7, grants to cities the power to undertake functions and provide services considered
necessary for the public welfare independently of other charter - derived or statutory
authority. We Aryan v. Butler, 119 Ca. App. 2d 674, (authority to intoduce fluorides into
municipal water system); Jardine v. City of Pasadena, 199 Cal. 64 (authority to establish
isolation hospital)). The most conservative assumption for reconciling these apparently
conflicting decisions is to assume that Article XI, Section 7, does not grant the authority
to undertake functions, but is limited to the enactment and enforcement of regulatory
ordinances. Since the provision of new services will normally involve the expenditure of
funds, some source of authority to proceed other than Article XI, Section 7, is the only
way of being certain that an adverse decision will not result in personal liability. (For rule
relating to chartered cities, see Part III.)
Conflict of Laws and "Preemption"
The power granted by Article XI, Section 7,
are not "in conflict" with "general laws."
general laws is not always easy. The courts,
determining when a conflict exists which will
is limited to enactment of regulations which
Determining what constitutes conflict with
however, have laid down some basic rules for
invalidate a local regulatory ordinance:
1. Authorization of acts which are prohibited by state law. Conflict within the
meaning of Article XI, Section 7, exists when a local ordinance purports to authorize that
which the state law prohibits. In such cases, the local ordinance is clearly invalid. For
example, a city could not license bawdy houses when the state had prohibited them
(Farmer v. Behmer, 9 Cal. App. 773). Nor could a city validly (during prohibition)
authorize a larger amount of intoxicating liquor by prescription than that allowed by state
law (In re Iverson, 199 Cal. 582). A city cannot authorize the wearing of a mask with a
permit to do so when the state law prohibits the act regardless of a local permit (In re
Martin, 221 Cal. App. 2d 14).
2. Prohibition of that which the State Legislature has specifically authorized. A
conflict between a city ordinance and a general law of the state exists when the State
Legislature has specifically authorized certain acts or conduct and the ordinance prohibits
am
such acts or conduct. Thus, it has been held that a city ordinance cannot prohibit a civil
service plumber employed by the state from practicing plumbing in connection with state
building projects without taking a city examination (In re Means, 14 Cal. 2d 254).
Similarly, where the state establishes precise regulatory standards for milk, a city
ordinance may not validly require higher standards (In re Hoffman, 155 Cal. 114).
Other examples are Ex parte Keeney, 84 Cal. 304 (city ordinance prohibiting interments
authorized by the state); In re Maki, 56 Cal. App. 2d 635 (city ordinance attempting to
license physicians). These cases are to be distinguished from those where a city ordinance
imposed requirements which are additional or supplementary to those imposed by state
law. Cases illustrating this rule are In re Mathews, 191 Cal. 35 (Pasadena could prohibit
as a nuisance the keeping of goats in the city even though this is not among the nuisances
named in Section 370 of the Penal Code or Sections 3479 -3480 of the Civil Code); In re
Bell, 19 Cal. 2d 488 (ordinance prohibiting assault while picketing); In re Borah, 92 Cal.
App. 2d 826 (ordinance prohibiting the use of profane language on the telephone) and
Papayanis, 101 Cal. App. 2d 918 (ordinance prohibiting discharging of oil in harbor).
3. Duplicate of a general law of the state is invalid. This is but another way of saying
that the act which is prohibited cannot be made the basis for two separate criminal
prosecutions. If the state law makes it a crime to drive on the left -hand side of the road,
an ordinance prohibiting driving on the left -hand side of the road would duplicate the state
law, subject violators to dual prosecutions for the same offense, and would consequently
be invalid (Humphrey v. U. S. Marcaroni, 49 Cal. App. 395).
It should be noted, however, that this rule applies only where the acts prohibited by the
local ordinance are exactly the same as those prohibited by state law. In these cases, the
local interest does not suffer for the city police need only enforce the state law rather
than the local ordinance and the same regulatory object is fully served.
4. Application of local ordinance to agencies of the state. This is a comparatively new
limitation on local police power resulting from the decision of the Supreme Court in Hall
v. City of Taft, 47 Cal. 2d 177. The Taft case held that school districts, as agencies of
the state for the local operation of the state school system, were not within the power
granted to cities by Article XI, Section 7, and that, accordingly, city building regulations
are not applicable to the construction of school buildings. In a later decision, Town of
Atherton v. Superior Court, 159 Cal. App. 2d 417, the principle of the Taft case was
extended to prohibit the application of city zoning ordinances to school facilities. The
Legislature acted in 1957 and 1959 to substantially modify the rule of the Taft and
Atherton cases by adding Section 4260 to the Health and Safety Code, and Sections 53090-
53095 to the Government Code which provide that a school district, or the state under the
State Contract Act, need not comply with the building ordinances of a county or city; a
school district is not required to comply with local zoning ordinances unless the zoning
ordinance makes provision for the location of public schools and unless the city or county
planning commission has adopted a master plan. The governing board of a school district
may render the zoning ordinance inapplicable to classroom facilities by a vote of two -
thirds of its members.
This general rule is qualified by an exception established by Board of Trustees v. City of
Los Angeles, 49 CA 3rd 45, in which the court noted that "local ordinances may not
impose a regulatory scheme upon private persons which operates to impinge upon the
sovereign power of the state" but distinguished that type of unlawful regulation and the
challenged regulation which required a use permit of certain state tenants to operate a
circus on state -owned land. In determining the latter regulation void, the court
distinguished between the immunity to be afforded to the state acting in its governmental
capacity and the impropriety of immunity (and propriety of regulation) for the state
acting in its proprietary capacity (leasing land).
5. Preemption by State Legislation. The courts have held that cities and counties have
full power to legislate in regard to local affairs unless the subject matter has been so fully
and completely covered by general law as to clearly indicate that it has become
exclusively a matter for state concern, the subject matter has been partially covered by
general law in such terms as to indicate that paramount state concern will not permit
further local action, or the subject has been partially covered by general law and the
subject is of such a nature that the adverse effect of a local ordinance on the transient
citizens of the state outweighs the benefit to the municipality. In an ever - increasing list
of decisions, the courts have invalidated local regulatory ordinances on the basis of their
finding that the Legislature has intended to preempt the field in question.
The leading case to announce this rule of "preemption by implication" was In re Lane, 58
Cal. 2d 99 (1962). The Supreme Court held that the Penal Code sections covering the
criminal aspects of sexual activity are so extensive so as to show a legislative intent to
adopt a general scheme for the regulation of that subject. From this the court reasoned
that "by implication" the sexual activity denounced by a city ordinance was not criminal.
Although some sixty code sections were recited in the Lane case as a "general scheme,"
since then one section has been held sufficient to preempt the field of intoxication in a
public place or on private property (In re Koehne, 59 Cal. 2d 646; In re Zorn, 59 Cal. 2d
650; People v. Lopez, 59 Cal. 2d 653; People v. de Young, 228 Cal. App. 2d 331). Applying
this same rule, the following regulatory fields have been determined to have been
preempted by the courts, thus excluding local regulation: convict registration (Abbott v.
City of Los An eles, 53 Cal. 2d 674); indecent exposure and obscene exhibition (In re Moss,
58 Cal. 2d 117); lewd or obscene motion picture exhibitions (Whitney v. Municipal Court,
58 Cal. 2d 907); wagering on horse races (In re Loretizo, 59 Cal. 2d 445); carrying of
knives (People v. Bass, 22 Cal. App. 2d 777); water conservation and regulation (Baldwin
Park County Water District v. Count of Los Angeles, 208 Cal. App. 2d 87); regulating the
wearing of masks In re Martin, 221 Cal. App. 2d 14); gambling (People v. Franks, 226 Cal.
App. 123) (but see below); lotteries (People v. Cole, 226 Cal. App. 2d 125); posing nude
(Spitcauer v. Los Angeles_ County, 227 Cal. App. 2d 376); and massage of opposite sex
( ancaster v. Municipal Court, 6 Cal. 3d 805).
In 1964, the Supreme Court reexamined the doctrine of preemption by implication in the
case of In re Hubbard, 62 Cal. 2d 119, in which the court held that the state has not
occupied the entire field of gambling or gaming despite earlier decisions and the many
state statutes on the subject. It upheld the validity of a city ordinance prohibiting playing
"games of chance for money or other representative of value" as a regulation of a
municipal affair where the subject matter was not fully covered by the general law and
the state statutes indicated no intent to regulate games of chance not expressly
prohibited. The court specifically rejected the negative type of argument that by making
specific acts illegal the Legislature intended all other acts of similar character to be free
of local authority. In other cases the courts held that the state had not preempted the
field in the areas of consumption of alcoholic beverages on streets and play rounds
(People v. Butler, 65 Cal. 2d 569 (1967); and regulation of live entertainment topless
waitresses as live entertainment), (People v. Kukkanen, 56 Cal. Rptr. 620 (1967); and the
Attorney General has ruled that an anti - loitering or curfew ordinance for minors was a
valid exercise of local police power and not in conflict with general vagrancy laws, 40
Ops. Cal. Atty. Gen. 112.
In 1969, in Galvan V. Superior Court, 70 Cal. 2d 851, the California Supreme Court upheld
an ordinance of the City and County of San Francisco requiring the registration of
firearms against the challenge of state preemption, stating that:
"The fact that there are numerous statutes dealing with guns or other weapons does
not by itself show that the subject of gun or weapons control has been completely
covered so as to make the matter one of exclusive state concern."
The court in the Galvan case, relying heavily on Hubbard, stated that the test is to
determine whether the state has occupied a relevant field by an area of legislation which
includes the subject of the local legislation, "and is sufficiently logically related so that a
court, or a local legislative body, can detect a patterned approach to the subject." On the
basis of the Hubbard and Galvan cases, the courts have upheld local ordinances regulating
the use of BB guns by minors Olson v. McGillicuddy, 15 Cal. App. 3d 897); model studio
operated in conjunction with a cocktail lounge Cristmat, Inc. v. Count of Los Angeles,
15 Cal. App. 3d 590); disposal of bait in water of harbor (People v. Muell Cal. App. 3d
949).
Following the Galvan decision, the Legislature enacted Section 9619 of the Government
Code which states that, "It is the intention of the Legislature to occupy the whole field of
regulation of the registration or licensing of commercially manufactured firearms as
encompassed by the Penal Code, and such provisions shall be exclusive of all local
regulations . . . . it
In determining whether the state has preempted by implication local regulation, the court
will look to the whole purpose and scope of the legislative scheme. While the test is still
less than clear, the more recent cases have reversed the trend immediately following the
establishment of the doctrine of "preemption by implication."
Jurisdiction Upon Incorporation or Annexation
The police power granted by Article XI, Section 7, applies equally to both counties and
cities. County regulatory ordinances are applicable only in the unincorporated area, and
city ordinances within city limits. When a city annexes unincorporated territory, the
county regulatory ordinances no longer apply and the territory becomes subject to the city
ordinances; Ex Parte Roach, 104 Cal. 272; Ex parte Pfirrman, 134 Cal. 143; City of South
San Francisco v. Berry, 120 Cal. App. 2d M. As to newly incorporated cities, however,
the law requires the city council to adopt immediately following its organization an
ordinance providing that all county ordinances shall remain in effect as city ordinances for
a period of 120 days or until the city council enacts superseding ordinances, whichever
occurs first (Gov. C. Sec. 35441). This procedure is designed to give a new city sufficient
time to consider and enact municipal regulations appropriate to the area. Since the
49 county must continue to render services within the territory for the balance of the fiscal
year (Gov. C. Sec. 35448), county enforcement of its own ordinances within the city is
facilitated.
M
B. Operation of Public Works
Article XI, Section 9 (formerly Section 19) of the California Constitution provides:
"(a) A municipal corporation may establish, purchase, and operate publIC
works to furnish its inhabitants with light, water, power, heat, transportation,
or means of communication. It may furnish those services outside its
boundaries, except within another municipal corporation which furnishes the
same service and does not consent.
"(b) Persons or corporations may establish and operate works for supplying
those services upon conditions and under regulations that the city may
prescribe under its organic law."
Perhaps the best illustration of the authority granted by this constitutional amendment
first enacted in 1911 is City of Mill Valley v. Saxton, 41 Cal. App. 2d 290. There, the city
attempted to issue bonds for the acquisition of a bus system and met the argument that
the Municipal Corporations Act has not granted this authority to sixth class cities. The
appellate court very quickly brushed aside this contention and said that Section 19 (now
Section 9) is a direct grant of power to all cities of the State of California to acquire and
operate the named public works.
The Legislature lacks the authority to in any way diminish or withhold any segment of the
power. Prior to 1911, California cities, unless specifically authorized by their charters,
had very little authority to acquire or construct public utilities. The sole pre -1911
statutory authority for the acquisition of utilities was the general law predecessor of
Section 38730 of the Government Code.
In the case of Glenbrook Development Co. v. City of Brea, 253 Cal. App. 2d 267, 61 Cal.
Rptr. 189, the District Court of Appeal held that under a statute providing that no
publicly owned utility shall supply water to land within a county water district which is
subject to a lien for bonded indebtedness, the city could not require a subdivider, as a
condition of approval of a subdivision map, to obtain water from the city water
department for lots in the city but also located within the county water district. This
case seems to be in direct conflict with the constitutional authority of Article XI, Section
9 (formerly Section 19).
C. No State Tax For Local Purposes
Article XIII, Section 24 (formerly Article XIII, Section 37) of the California Constitution
provides:
"The Legislature may not impose taxes for local purposes but may authorize
local governments to impose them.
"Money appropriated from state funds to a local government for its local
purposes may be used as provided by law. Money subvened to a local
government under Section 25 may be used for state or local purposes."
The purpose of this provision was to end the practice which developed during the state's
early history of the Legislature ordering specific local improvements and requiring the
levy of local tax to finance them. (Sinton v. Asbury, 41 Cal. 525). The theory of our
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present system, as expressed in Section 24, is that state taxes shall be expended only for
"state purposes" and that counties and cities shall levy and collect local taxes for local
purposes. Under this constitutional provision, state taxes which are expended by cities
must be expended for a state purpose. (City of Los Angeles v. Riley, 6 Cal. 2d 621.)
In 1969, the League sponsored legislation to permit use of motor vehicle in lieu taxes and
cigarette taxes for local purposes (Rev. & T. C. Sections 11003.37 110057 30462).
Conversely, taxes which are levied and collected by cities must be expended for a
municipal purpose (Perez v. City of San Jose, 107 Cal. App. 2d 562). State legislation
which mandatorily increases salaries, holidays, pensions, sick leaves or vacations of city
employees automatically increases the cost of city government and is, therefore, actually
a disguised and apparently unconstitutional attempt by the state to levy a local tax.
However, the Supreme Court has held one such seemingly mandatory state law to be
merely permissive and therefore constitutional. (Shealor v. City of Lodi, 23 Cal. 2d 647.)
D. Prohibition of Special Legislation
Another general but extremely important segment of constitutional home rule in
California is the requirement in Article IV, Section 16, that the Legislature act by general
laws: "A local or special statute is invalid in any case if a general statute can be made
applicable." If it were not for this constitutional section, it might be possible, as was done
in the early days, for a dissatisfied group of citizens in one city unable to persuade their
city council of the merits of their position to go to Sacramento to obtain the desired
legislation over the heads of the members of the city council by special legislation
applicable to their city by name. While this prohibition has not been completely effective
to prohibit legislation applicable to a single city (People v. Henshaw, 76 Cal. 436; Union
Ice Co. v. Rose, 11 Cal App. 357), the practices of pre -1879 Legislatures have not been
revived.
III. MUNICIPAL POWERS: CHARTER AND GENERAL LAW CITIES
A. Reeulatory and Corporate
Every power exercised by a city in California is either a regulatory power or a corporate
power. One is the power to regulate the conduct of citizens; the other is the power to
perform a particular type of service or activity. Both general law and chartered cities
draw regulatory power from Article XI, Section 7, and corporate power to establish and
operate public works from Article XI, Section 9. In all other cases, however, there is a
fundamental distinction between general law cities and chartered cities. The key is found
in the phrase "municipal affairs."
B. "Municipal Affairs"
In addition to the powers granted by Article XI, Section 7 and Article XI, Section 9,
Section 5 of Article XI provides to chartered cities the power to make and enforce all
laws in respect to "municipal affairs" subject only to charter limitations and state and
federal constitutional provisions. Thus, if a matter is a "municipal affair," a chartered
city has power to act with respect to it except to the extent that its charter or the state
and federal constitutions limit or restrict it. The courts, of course, are the final arbiters
concerning whether a matter is or is not a "municipal affair." In the case of Bishop v.
•
..
City of San Jose, 1 Cal. 3d 56, a case involving the question of whether the prevailing
wage statutes of the Labor Code are applicable to employees of a city, the State Supreme
Court in holding that the charter city was not required to pay its employees the
"prevailing wage," stated:
"However, the fact standing alone, that the Legislature has attempted to deal
with a particular subject on a statewide basis is not determinative of the issue
as between state and municipal affairs, nor does it impair the constitutional
authority of a home rule city or county to enact and enforce its own
regulations to the exclusion of general laws if the subject is held by the courts
to be a municipal affair rather than of statewide condern; stated otherwise,
the Legislature is empowered neither to determine what constitutes a
municipal affair nor to change such an affair into a matter of statewide
concern."
Section 5(b) of Article XI limits the determination of what constitutes a "municipal
affair:"
"It shall be competent in all city charters to provide in addition to those
provisions allowable by this Constitution, and by the laws of the State for: (1)
the constitution, regulation, and government of the city police force, (2)
subgovernment in all or part of a city, (3) conduct of city elections, and (4)
plenary authority is hereby granted, subject only to the restrictions of this
article, to provide therein or by amendment thereto, the manner in which, the
method by which, the times at which, and the terms for which the several
municipal officers and employees whose compensation is paid by the city shall
be elected or appointed, and for their removal, and for their compensation .. .
With respect to these enumerated areas there is no room for the court to determine that
such matters are not municipal affairs.
The following matters have been held by the courts to constitute "municipal affairs:"
Popper v. Broderick, 123 Cal. 456 (the pay of municipal officers); Los Angeles G. & E.
Corp. v. Los Angeles, 188 Cal. 307 (the sale and distribution of electrical energy
manufactured by a city); Ainsworth v. Bryant, 34 Cal. 2d 465; West Coast Advertising Co.
V. San Francisco, 14 Cal. 2d 516 (taxation); Socialist Party v. Uhl, 155 Cal. 776, Article
XI, Section 8%, California Constitution, Lindsey v. Dominguiz, 217 Cal. 533 (the election
of municipal officers); South Pasadena v. Pasadena Land Co., 152 Cal. 579 (supplying
water); Byrne v. Drain, 127 Cal. 663 improvement of city streets); Pasadena v.
Charleville, 215 Cal. 384 (procedure for the letting of city contracts); Klench v. Board of
pension Fund Commrs., 79 Cal. App. 171; Murphy v. City of Piedmont, 17 Cal. App. 2d 569
pensions of city employees); City of Redwood City v. Moore, 231 Cal. App. 2d 563
(creation of reclamation district is a municipal affair and also of statewide concern);
Cunningham v. Hart, 80 Cal. App. 2d 902 (civil service).
By dictum in the decision in Mallon v, /City of Long Beach, 44 Cal. 2d 199, the Supreme
Court characterized the following as purely municipal affairs (at pages 211 -212); City of
Grass Valley v. Walkinshaw, 34 Cal. 2d 595 (sewer); Jardine v. City of Pasadena, 199 Cal.
64 isolation hospital); Ste e v. City of Richmond, 194 Cal. 305 city streets ; City of
Pasadena v. Paine, 126 Cal. App. 2d 93 city library); Alexander v. Mitchell, 119 Cal. App.
2d 816 off - street parking facilities); Perez v. City of San Jose, 107 Cal. App. 2d 562 (city
highways); Beard v. City and County of San Francisco, 70 Cal. App. 2d 753 (public
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•,
hospital, ;); Armkls v. (pity <>f 0,lkland, 135 APP. till (tiro prot(•c1toll).
Conversely, the following subjects have been determined to be "matters of statewide
concern:" annexations, statutory liability, regulation of traffic, licensing professionals,
access of local citizens to state criminal records.
In general law cities, an entirely different rule obtains. A general law city has no power
to act unless it can point to a constitutional or statutory grant of authority. The bulk of
the powers vested in general law cities will be found in their general law "charter" (Gov.
C. Section 34000 et seq.). These powers run the gamut from Assessments to Zoning.
C. " Dillon's Rule"
In construing grants of authority to general law cities, the California courts have adopted
a rule which was laid down by the famous Judge Dillon in his textbook on the law of
municipal corporations which has become the Bible of municipal lawyers. This rule is
stated in Frisbee v. O'Connor, 119 Cal. App. 601, as follows:
"It is a general and undisputed proposition of law that a municipal corporation
possesses and can exercise the following powers, and no others: First, those granted
in express words; second, those necessarily or fairly implied in or incident to the
powers expressly granted; third, those essential to the accomplishment of the
declared objects and purposes of the corporation -- not simply convenient, but
indispensable. Any fair, reasonable, substantial doubt concerning the existence of
power is resolved by the courts against the corporation, and the power is denied."
This rule and this entire theory of corporate powers is in direct conflict with those
decisions which construed Article XI, Section 11 (now Section 7) to authorize the
performance of limited corporate functions. If on the theory of the case of Jardine v.
City of Pasadena, 199 Cal. 64, Article XI, Section 7, is adequate to authorize a city to
establish and maintain an isolation hospital, no grant of corporate authority to do so would
be required. Yet Dillon's rule purports to make a grant of corporate authority a
prerequisite to the performance of a municipal function. As suggested above, the more
conservative rule in general law cities is to assume that Article XI, Section 7, does not
grant any authority other than the authority to enact regulatory ordinances and that the
authority to provide municipal services must be granted by the State Legislature. In this
regard, Government Code Section 37112 provides that "In addition to other powers, a
legislative body may perform all acts necessary or proper to carry out the provisions of
this title." Of course, a rational legal argument for a broader rule can be made, and much
will depend on the factual context in which the question arises. As a result of the narrow
rule, the Legislature is asked at each session for additional grants of corporate powers to
general law cities to enable them to better cope with emerging problems.
D. Specific Comparisons Of Municipal Affair f air And General Law Authority
1. Taxation
a. Chartered Cities. In chartered cities, the important question is whether or not a
particular subject is a "municipal affair." Generally, if a particular subject is one upon
which the state has not legislated and one which has direct interest to the inhabitants of a
city, the courts, who are the final arbiters, will hold the subject to be a "municipal affair."
B- 10
An example of a broad field which has been held to be a municipal affair is taxation.
(West Coast advertising Co. v. San Francisco, 14 Cal. 2d 516.) In this connection,
probably the best example of the California "municipal affairs" concept and the operation
of a charter limitation is the case of Ainsworth v. Bryant, 34 Cal. 2d 465, in which the
City of San Francisco had attempted to impose its "purchase and use tax" upon a retail
liquor dealer. It was conceded at the outset that the general subject of taxation in a
chartered city is a "municipal affair" but the plaintiff contended that the State
Constitution had reserved to the state exclusive taxing jurisdiction over alcoholic
beverages.
The court's primary concern was whether or not the purchase and use tax was in conflict
with the reservation of exclusive taxing power to the state in Article XX, Section 22. The
conclusion was reached that since the state's exclusive jurisdiction was with respect to the
taxation of the "business" of selling and dealing in alcoholic beverages and since the
purchase by an individual of beverages for consumption is not a business, the tax in
question did not conflict with the State Constitution.
In the so- called tippler's tax case, however, the appellate court invalidated an ordinance
of the City of Los Angeles which imposed an excise tax on the purchase price of alcoholic
beverages sold by a retailer for consumption on the premises where sold, holding that the
state had reasonably and rightfully preempted the field of alcoholic beverage taxation and
that the ordinance imposed a tax on the sale of an alcoholic beverage. The court stated
that the Legislature could not transform a "municipal affair" into a matter of statewide
concern, simply by so declaring, but that the concept of "municipal affair" changes with
the changing conditions upon which it operates, and that in light of the intertwining of
taxation and the regulation of alcoholic beverages, such taxation is not a purely municipal
affair. (Century Plaza Hotel Co. v. City of Los Angeles, 7 Cal. App. 3d 616.)
Subsequently, the California Supreme Court upheld a utility user's tax of the City of
Fresno, imposing a tax of 5% of the total charges incurred for intrastate telephone
service, electrical energy, and gas, as a "substantially different tax" from the uniform
local sales and use taxes on tangible personal property and therefore not preempted by the
state. (Rivera v. City of Fresno, 6 Cal. 3d 132.) (See, also, City of San Jose v. Donohue,
51 CA 3d 40.
Two other types of taxes have been upheld more recently as a valid exercise of a charter
city's authority to tax under the municipal affairs doctrine. In Weekes v. City of Oakland,
21 Cal 3d 386, the court upheld the validity of an employee license tax and in County of
Alameda v. City and County of San Francisco, 19 CA 3d 750, a commuter tax was
validated.
The general rule is that chartered cities have taxing authority as broad as the entire field
of taxation itself. In the absence of a limitation in the charter itself or a restriction in
the state or federal constitutions, a California chartered city may levy and collect any
type of tax. As will be discussed more fully below, Proposition 13 (Article XIIIA of the
California Constitution) provides a significant restriction on a charter city's authority to
tax. Although it was argued initially that provisions of article XIIIA relative to the
imposition of a "special tax" do not apply to charter cities (cf. City and County of San
Francisco v. Farrell (1981), 116 Cal. App. 3d 350; modified 117 Cal. App. 3d 870. The
California Supreme Court determined that a charter city levying a "special tax" must
submit the tax for approval by 2/3 of those persons voting on the proposal (see, also,
Government Code Section 50077). (City and County of San Francisco v. Farrell X1982 32
Cal. 3d 47)
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b. General Law Cities. General law cities have only those corporate powers which are
granted expressly by statute or which, under Dillon's rule (and Government Code Section
37112) are necessary for, or incidental to, the exercise of the granted powers. The field
of taxation is an excellent example of this theory of general law corporate powers. Three
general types of taxes levied by cities are property taxes, excise taxes and "special taxes."
(1) Property Tax. The adoption of Proposition 13 (Article XIIIA of the California
Constitution ) in June 1978 required the property tax system to be completely
restructured. Prior to June 1978, Government Code Sections 43000 et seq. authorized
general law cities to provide a system for the assessment, levy and collection of city
property taxes. Sections 2260 et seq. of the Revenue and Taxation Code set forth the one
dollar tax rate limitation and an enumeration of the exceptions to that limit. A city could
levy a property tax rate in excess of one dollar with approval of the electorate.
Concurrent with the statutory limitation on maximum property tax rate, a system of
reimbursement for costs incurred to comply with state - mandated programs was
established through the "SB 90" process (see, generally, Revenue and Taxation Code
Sections 2250 et seq.) Reimbursement for costs incurred to comply with state - mandated
programs through a general fund appropriation or through appeal to the Board of Control
remains in the law subsequent to the adoption of Article XIIIA. In fact, the adoption of
Proposition 4 (Article XIIIB of the California Constitution) in November 1979 established
constitutional protection for the SB 90 reimbursement scheme (see, Section V.G, infra).
Article XIIIA of the California Constitution provides that the maximum amount of any ad
valorem tax on real property shall not exceed one percent 0%) of the full cash value of
such property. The limitation does not apply to ad valorem taxes to pay the interest and
redemption charges on any indebtedness approved by the voters prior to July 1, 1978.
(See, Carmen v. Alvord (1981), 123 Cal. App. 3d 946; accepted for hearing by California
Supreme Court. ) Each year the property tax rolls may reflect changes in assessed value
due to: (1) a 2% annual inflationary increase; (2) change in ownership; and (3) new
construction. In addition to the significant decrease in property tax revenues resulting
from this constitutional limitation, a major change had to be made in the property tax
imposition procedure. Prior to the adoption of Article XIIIA, each city levied its city -
imposed property tax on territory within its jurisdiction. After the adoption of Article
XIIIA, each city simply receives the revenues resulting from the Constitutionally - imposed
property tax rate.
Revenue and Taxation Code Sections 50 et seq. provide for the implementation of Article
XIIIA of the California Constitution by establishing a $4.00 county -wide "tax rate." Each
and every parcel of real property in the county, whether within a city or unincorporated
territory, is subject to the $4.00 county -wide "tax rate" which was established to provide a
procedural mechanism for calculating property tax revenues to be derived from real
property taxed at 1% of full cash value. A city no longer has the authority to alter the
amount of property tax revenues it receives. The amount is dependent upon 1% of the
1975 -76 full cash value of real property within the city adjusted for increases in assessed
value due to "new construction" (Revenue and Taxation Code Section 70), "change in
ownership" (Revenue and Taxation Code Sections 60 -62) and two percent per year for
inflation. When territory is annexed to a city, the law provides that the affected city and
county negotiate the amount of property tax to be derived from the territory by the city,
which formerly was received by the county (Revenue and Taxation Code Section 99).
(2) Excise Taxes. The second general class of tax authorized for general law cities
is the so- called business license tax. General law cities are authorized by Section 37101
B -12
of the Government Code to levy this type of excise tax. For the implications of article
XIIIA of the California Constitution on the business license tax, see Kehrlein v. City of
Oakland (1981), 116 Cal. App. 3d 332; modified 117 Cal. App. 3d 5206; City and County of
San Francisco v. Farrell (1981), 116 Cal. App. 3d 350; modified 117 Cal. App. 3d 870;
accepted for hearing by California Supreme Court.
An ordinance imposing a tax on the construction of dwellings, measured by the number of
bedrooms in the units to be constructed, was upheld as a valid license tax under Section
37101 (Associated Home Builders of the Greater East Bay, Inc. v. City of Newark, 18 Cal.
App. 3d 107; see, also, Westfield Palos Verdes Co. v. City of Rancho Palos Verdes, 73 CA
3d 486).
Since the standard type of retail sales tax is a tax on the privilege of selling tangible
personal property at retail, the authority to license retail and other businesses for revenue
carried with it the authority to levy a sales tax similar to that levied by the State of
California. In 1951, Section 37101 was amended to expressly authorize the levy of a
complementary use tax by general law cities which had already levied or which
simultaneously levied a sales tax. In 1971, Section 37101 was amended to provide that to
the extent a city levies a sales and use tax, it must do so in the manner prescribed by the
Bradley -Burns Local Sales and Use Tax Law. All California cities, both chartered and
general law, now levy a sales and use tax under the Bradley -Burns Local Sales and Use Tax
Law (Revenue and Taxation Code Sections 7200 et seq.). Under the Uniform Act the State
Board of Equalization collects and distributes to county and city governments a local sales
and use tax of one cent.
Since 1963, general law cities have been authorized to levy a transient occupancy tax.
Revenue and Taxation Code Sections 7280 -7281 provide that a city may levy a tax on the
privilege of occupying a room in a hotel, inn, tourist home or house for any period less
than 30 days. Authorization is also given to levy a tax on renting a mobilehome located
outside a mobilehome park for occupancy for a period less than 30 days.
(3) "Charter City Tax." In 1982, Section 37100.5 was added to the Government
Code to authorize the city council of a general law city to levy any tax which may be
levied by a charter city. This legislation is implicit authority for a general law city to levy
such traditional charter city taxes as the utility users' tax and the admissions tax. Please
note the limitation placed on this authority by the California Supreme Court's
interpretation of "special tax."
(4) "Special Tax." The third general class of tax authorized for general law cities is
a "special tax" as provided by Article XIIIA of the California Constitution and
implemented by Government Code Sections 50025 et seq. Article XIIIA, Section 4,
authorizes cities, counties and special districts, by a two - thirds vote of the qualified
electors, to impose "special taxes" except ad valorem taxes on real property or a
transaction tax or sales tax on the sale of real property. Government Code Sections 50025
et seq. clearly extend this authorization to general law as well as chartered cities.
The term "special tax" has been defined by the California Supreme Court in City and
County of San Francisco v. Farrell 0982) 32 Cal. 3d 47, to be a tax levied and earmarked
for a special purpose. Please note the following additional judicial interpretations of
of tax ": (1) special assessments levied on a benefit basis to fund public
improvements under the Municipal Improvement Act of 1913 and Improvement Act of
1911 are not "special taxes" (Fresno County v. Nialmstrom, 94 CA 3d 974); and (2) a user
Q -13
f (-(- or user charge which sloe,, riot exceed the cost of providing the service for which the
fee or charge is levied is not a special tax (Government Code Section 50076); 1.1111s v.
Countv of Trinitv (1980), 108 Cal. app. 3d 720; Trent - ierideth v. City of Oxnard 1980 ,
114 Cal. App. 3d 317.
2. Internal Organization
a. Chartered Cities. Another very important municipal affair is the determination of
the form of organization which the city government shall take. One of the subjects which
is usually covered rather completely by a city charter is organization. Chartered cities
are free to use any form of organization, and make any desired allocation of duties,
powers, and functions between the elective and appointive officers of the city. California
chartered cities most commonly use one of three basic forms:
(1) %layor- Council, with the mayor being elected from among the members of the
council;
(2) Strong Mayor- Council, with provision for a directly elected mayor having
strong executive powers; and
(3) Council - Manager, with all administrative authority being vested in the city
manager and policy making powers reserved to the city council.
While the foregoing classifications are adequate to describe the general category into
which all of California's chartered cities fit, there are many different minor variations in
each of these forms as a result of local needs.
b. General Law Cities. Under the provisions of the Government Code, general law
cities in California have either the council - manager, council- administrator, or the mayor -
council form of government with a mayor being elected from among the members of the
city council, by its members, or directly by the voters (Government Code Sections 34851,
34900, and 36801). In 1969, Sections 34900 and 34901 were amended to provide that a city
may submit to the voters with the question whether to elect a mayor and four city council
members, the additional question whether the mayor shall serve a two -year or four -year
term. In cities presently having elected mayors, the voters may determine whether the
mayor shall thereafter serve a two -year or four -year term. City council members in
general law cities may be elected by or from districts. There may be five, seven, or nine
districts with one member elected by or from each district. Provision is also made for
redistricting following changes in population within the district or annexation of territory
to the city (Government Code Sections 34870 et seq.) and, of course, as noted below, "one
person -one vote" applies.
A general law city may establish the council - manager form of government at the time of
incorporation or subsequently by adopting an ordinance establishing the city manager form
of government, by an ordinance submitted to the electors by the legislative body or as an
initiative measure (Section 34851). In addition to the city manager form of government,
general law cities may establish a council - administrative officer form of government
pursuant to the authority granted under Section 36505 of the Government Code providing
for the appointment by the city council of officers or employees deemed necessary.
Under this alternative, the city council does not delegate any of its administrative
authority to the administrative officer who merely acts as the agent of the council in
performing the council's administrative functions. Thus, while chartered cities enjoy
considerably more flexibility in the choice of alternative forms of organizaiton, general
law cities have substantially the same choices with the exception that there is no
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provision in the general law for the so- called "strong mayor" form of government.
Furthermore, a strict reading of the code sections would indicate that a general last- cite
cannot exercise both its di .-ectly- elected mayor and district election of council member
options. It should be noted that a Cirectly- elected mayor has no greater powers.
E. The "Statewide Concern" [doctrine
The other side of the "municipal affairs" coin in chartered cities are those matters which
are of "statewide concern." These are subject to the control of the State Legislature and
outside the autonomous authority of a chartered city. With respect to a matter of
" statewide concern," a chartered city must yield to conflicting state legislation even if
the subject matter has been determined to be a "municipal affair." An example is
annexation procedure. In order to annex territory outside of the city, a chartered city
must proceed according to state law. (People v. City of Los Angeles, 154 Cal. 220).
Annexation of territory outside its limits cannot be a "municipal affair" since the territory
most directly interested is not, during such proceedings, municipal.
In the case of Professional Fire Fighters, Inc. v. City of Los Angeles, 60 Cal. 2d 277, the
Supreme Court ruled that labor relations are of statewide concern and that Labor Code
Sections 1960 -1963 authorizing firefighters to organize and join labor organizations are
applicable to a chartered city. The court also characterized the following areas as being
of statewide concern (at pp. 244 -245); Healy v. Industrial Accident Commission, 41 Cal. 2d
118 (workers' compensation); Cunningham v. Hart, 80 Cal. App. 2d 902 Military and
Veterans Code provisions prevail over Civil Service regulations); Eastlick v. City of Los
Angeles, 29 Cal. 2d 661 (filing of claims); Dou lass v. City of Los Angeles, 5 Cal. 2d 123:
Wilkes v. City and Countv of San Francisco, 44 Cal. 2d 393 liability of municipalities); Ex
parte Daniels, 183 Cal. 636; Pipoly v. Benson, 20 Cal. 2d 366 (traffic regulation); City of
Sacramento v. Industrial Accident Commission, 74 Cal. App. 386 (pension system does not
supersede workers' compensation laws).
The Legislature has granted general law cities corporate authority approximating that of
chartered cities in many areas, and there are few powers possessed by chartered cities
which are not also available to general law cities in some form. The principal exception
continues to be the extent of the power to tax, but, as noted, others do exist.
IV. LIMITATIONS AND RESTRICTIONS
The powers granted to cities are accompanied by limitations on the exercise of such
powers, who can exercise them, and the manner in which they must be exercised.
�. Eligibility for Office
The law provides that a person is eligible for office if a registered voter of the city at the
time application is made for nomination papers (Government Code Section 36502). Since
June 30, 1971, when the Twenty -Sixth Amendment to the United States Constitution was
ratified, eighteen- year -olds are given the right to vote and, therefore, are eligible to hold
city office. (See Jolicoeur v. Mihaly, 5 Cal. 3d 565, 488 P. 2d l; Oregon v. klitchell, 400
AOR
,r
U.S. 1127 27 L. Ed. 2d 272). Article XI, Section 10(b) of the California Constitution
prohibits a city, including, a chartered city, from requiring that its employees be residents
of the city; employees m.-Ay be required to resldc within a re.-ison,►ble , ►nd specilic dist,111cc
of their place of employment. This prohibition h,ls been extended by the C.-Iliforni�►
Appellate Court to prohibit a city from requiring a job applicant to be a resident of the
city (Cooperrider v. San Francisco Civil Service Commission, 97 CA 3d 495).
Council members may exercise municipal powers only when they act as a group, and the
law authorizes the recall of those whose performance is considered deficient. (Elections
Code Sections 27500 et seq.). The Constitution also provides for substituting direct
popular legislative action for council action by the initiative and referendum. (Article IV,
Sections 22, 23 and 25, California Constitution; Elections Code Sections 4000 et seq.).
Another statutory safeguard is provided by laws calling for the removal of those who may
lose the basic qualifications of office. The office of council member becomes vacant upon
the death of the incumbent, a judgment of insanity, resignation, removal from office,
cessation of residence within the city, unlawful absence from the state, failure to
discharge the duties of the office, conviction of a felony, or commitment as an addict or
inebriate (Government Code Section 1770). If a city council member is absent without
permission from all regular council meetings for more than 60 days, his office becomes
vacant (Government Code Section 36513). The fact that council members present and
acting at a meeting are shown to have been improperly elected or ineligible to hold office
does not, however, detract from the validity of their actions in enacting an ordinance if
they are generally assumed, as a matter of fact, to be the city council members (Town of
Susanville v. Long, 144 Cal. 362).
B. Filling Council Vacancies
While chartered cities may, of course, adopt their own procedures for filling council
vacancies (and those for other elective offices), those procedures are prescribed by state
law for general law cities and are incorporated by reference by many chartered cities.
Under the law prior to January 1, 1974, general law city council and elected officer
vacancies were filled by appointment by the remaining council members. If not filled by
appointment within 30 days, the city council was required to cause an election to be held
to fill the vacancy. The officer so appointed holds office for the unexpired term of the
former incumbent (Government Code Section 36512).
As of January 1, 1974, a city may, as an alternative to Section 36512, enact an ordinance
requiring that a special election be held to fill every city council vacancy or requiring that
a special election be held to fill a city council vacancy when petitions bearing a specified
number of verified signatures are filed (Government Code Section 36512.1). A city may
also enact an ordinance providing that a person appointed to fill a vacancy on the city
council holds office only until the next regularly scheduled election for council members
(Government Code Section 36512.2).
The ordinances authored by the "city" appear to be capable of being initiated either by
city council action or by petition of the people, although this point has not been finally
ruled upon by any court. (The provisions of Section 36512 vested the responsibility for
filling vacancies entirely in the city council, not in the electorate at large through an
initiative proceeding.)
The law also now provides that no person appointed to serve out the remainder of a term
shall be given any designation indicating incumbency at the next election for the office
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(Government Code Section 36512.3).
C. One Person - One Vote
In 1968, the United States Supreme Court ruled in the case of Avery v. Midland County,
Texas, 20 L. Ed. 2d 45; 88 S. Ct. 1114, that the Fourteenth Amendment forbids the
election of local government officials from districts of substantially unequal population.
thus extending the "one man - one vote" rule applied earlier to apportionment of state
legislatures (Reynolds v. Sims, 377 U.S. 533; 12 L. Ed. 2d 506; 84 S. Ct. 1362 (1964)), to
units of local government having general governmental powers, such as city councils,
county boards of supervisors, and school district boards. More recent decisions by the
Court have precluded local governments from limiting voter eligibility in certain elections
to property owners. Kramer v. Union Free School District, 395 U.S. 6217 89 S. Ct. 1886
(school district elections , and Cyniano v. City of Houma, 395 U.S. 701 (revenue bond
elections). The Court in Kramer states that it will now require "compelling state interest"
before burdens may be placed on certain classes of those attempting to vote.
D. Meeting Requirements
Action of a city council can be taken only at duly convened public council meetings, at a
place designated by ordinance.
A duly convened meeting of the city council must be one which satisfies all of the legal
requirements for calling together the city council to act on city business. These
requirements in chartered cities will be found for the most part in the city charter.
However, the requirements discussed in this section are applicable to charter cities as
well as general law cities.
In General
For a meeting of a city council of a general law city to be legally convened, it must be
held at the place designated by ordinance and be open to the public (Government Code
Sections 36808, 54950 et seq.). If the meeting is a regL]Iar meeting, it must be one which
is held at least once a month at times fixed by ordinance or resolution (Government Code
Section 36805). Ordinances may be given final passage only at a regular or an adjourned
regular meeting (Government Code Sections 36934, 36805). Resolutions or orders for the
payment of money may be adopted at a regular meeting or at a special meeting for which
the notice of meeting specifies the business to be transacted (Government Code Section
36935).
Basically, there are four different kinds of meetings which a general law city council can
hold: regular, adjourned regular, special, and adjourned special. Regular meetings are
what their name implies, the regularly scheduled meetings at which the normal business of
the city is transacted by the city council. However, if for some reason the city council
does not or cannot finish all of its business at a regular meeting and some of its business
cannot wait until the next regular meeting, the law authorizes the holding of adjourned
meetings, which are regular meetings for all purposes (Government Code Sections 36805,
54955). Therefore, a regular meeting may be adjourned to a specified time and place in
the motion for, and order of, adjournment, and when the meeting is convened at that time
and place, the meeting is a regular meeting. If the order of adjournment fails to state the
hour at which the adjourned meeting is to be held, it must be held at the hour specified in
the ordinance or resolution for regular meetings (Government Code Sections 36809,
54955). Meetings may be adjourned by less than a quorum or by the city clerk if no
member of the city council is present. In holding adjourned meetings, careful attention
should be paid to the detailed procedural requirements of Section 54955.
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When matters arise which demand council action prior to the next regular meeting, the
city council can be called together for a special meeting. The Government Code
prescribes certain procedures for the calling of a special meeting and a deviation in the
required formalities will result in an improperly convened meeting at which no valid
action can be taken. (Baumgardner v. City of Hawthorne, 104 Cal. App. 2d 517.) Written
notice of special meetings must be given to council members 24 hours in advance of the
meeting under Section 54956 of the Government Code. However, written notice may be
dispensed with as to any member who files, prior to the time the meeting begins, a written
waiver of notice (which may be a telegram) or as to any member who is actually present
at the time it convenes. When a special meeting is called, notice thereof must be given to
each local newspaper of general circulation, radio and television station which has
requested such notices in writing. Meticulous attention must be given to the details of
calling a special meeting as set forth in Section 54946 of the Government Code. In
addition, Government Code Section 54956 provides that a meeting may be called in the
event of an "emergency" (as defined) without compliance with notice requirements.
For the council meeting to be duly convened and properly conducted, the mayor must
preside, or if absent or unable to act, the mayor pro tempore acts until the mayor returns
or is able to act (Government Code Section 36802), and there must be a majority of the
council present to constitute a quorum for the transaction of business. For the purpose of
filling council vacancies, two council members may constitute a quorum (Nesbit v. Bolz,
13 Cal. 2d 677). There are certain actions such as the adoption of ordinances and fiscal
actions which require three affirmative votes for passage.
2. The Ralph M. Brown Act
An extremely important requirement to be observed in connection with meetings of the
city council is imposed by the Ralph M. Brown Act (Government Code Sections 54950 et
seq.); all meetings of legislative bodies of local agencies must be open and public.
Enacted in 1953, the Act was, as to cities, primarily a restatement of their existing
statutory and charter law. In general, the purpose of the Act was to give new vigor and
meaning to the open meeting requirements then in existence, and to broaden the
application of such requirements to all local agencies and all local boards and
commissions. "Legislative body" includes any advisory commission, advisory committee or
advisory body of a local agency, created by charter, ordinance, resolution, or by any
similar formal action of the council or a member of the council. (But note that, in general
law cities, individual council members have no authority to take such action.) Special
notice provisions are prescribed for meetings of such advisory bodies. (Government Code
Section 54952.3.)
The Act makes punishable as a misdemeanor the attendance by a member of the
legislative body at a meeting at which action is taken in violation of the Act.
Amendments in 1961 defined "action taken" to mean a collective decision, commitment or
promise by a majority of the members of a legislative body to make a positive or negative
decision, or an actual vote by a majority of the members of a legislative body when sitting
as a body upon a motion, proposal, resolution, order or ordinance.
The District Court of Appeal in Adler V. City Council of Culver City, 184 Cal. App. 2d
763, held that the statute did not apply to anything less than a formal meeting of a city
council or one of a city's subordinate agencies. Based on this decision and 1961
amendments, it has been contended that informal gatherings of a legislative body or
discussion sessions are not meetings within the meaning of the Act. However, the
Attorney General has concluded to the contrary (42 Ceps. Ca. Atty. Gen. 61) and believes
B -18
that the Adler case i5 no Innger the law. In his opinion, he st,ites that the Brown Act doe,,
apply to pre - meeting brief ing sessions of the city council irrespective of whether or not
the individual members of the council intend or do not intend to take "action" at such
gatherings. Similarly, in 43 Ops. Cal. Atty. Gen. 240, the � \ttorney General concluded
that regularly held luncheons by a majority of the members of one or more city councils
with representatives of certain civic associations to discuss items of area importance
were governed by the Brown Act. The opinion was careful to exclude social attendance at
a luncheon or dinner such as might be given by service clubs or similar organizations.
There is no longer any serious question that study sessions and pre- meeting briefing
sessions of the council are subject to compliance with the Brown Act. (Sacramento
Newspaper Guild v. Sacramento County Board of Supervisors, 263 Cal. App. 2d 41. ) Such
meetings should be treated as subject to the Act and should be open and public, with
notice to the public. The safest way to provide for such regularly held meetings is the
adoption of an ordinance which provides for their being held at a regular time and place.
thus avoiding the necessity of any further notice and eliminating the possibility of such
meetings being challenged as having been held in violation of the law.
The Act contains only three express exceptions to the open meeting requirement. Section
54957 authorizes closed sessions to be held during a regular or special meeting to consider
the appointment, employment or dismissal of a public employee or to hear complaints
brought against such employee by another person or employee unless such employee
requests a public hearing; however, the discussion of an individual employee's
compensation is not a proper topic for closed session. San Diego Union v. City Council of
the City of San Diego (1983) 146 Cal. App. 3d 947. For purposes of that section,
"employee" does not include persons appointed to an office by a legislative body except
for certain non - elective positions set forth in the section. Since closed sessions to
consider employee - personnel matters are expressly authorized, the city council may vote
and act in executive session (Lucas v. Board of Trustees (1971) 18 Cal App. 3d 988).
However, Section 54957.1 requires that the legislative body shall publicly report at its
next public meeting any action taken, and the roll call vote thereon, to appoint, employ or
dismiss a public employee arising out of any closed session of the legislative body. A
second express exception is provision for the legislative body to hold closed sessions with
its designated representatives prior to and during discussion with representatives of
employee organizations (Government Code Section 54957.6). A third exception authorizes
closed sessions on matters posing a threat to the security of public buildings, or a threat
to the public's right of access to public services or facilities (Government Code Section
54957).
Another exception to the Act recognized by the court in Sutter Sensible Planning Inc. v.
Board of Supervisors (1981) 122 Cal. App. 3d 813, exists in the case of discussions between
the city attorney and the city council concerning potential, pending, proposed or
anticipated litigation where open discussion would benefit the city's adversary to the
detriment of the public. The position that the attorney- client privilege exists under the
Brown Act was upheld in the case of Sacramento Newspaper Guild v. Sacramento County
Board of Supervisors (1968) 263 Cal. App. 2d 41. The privilege must be strictly construed.
however.
In addition to imposing specific and detailed requirements for the calling of special
meetings and adjourned meetings, the Act requires notice to newspapers, radio and
television stations requesting notice of special meetings, and prohibits making the signing
of registration lists or completion of questionnaires a condition to the attendance of
meetings by members of the public.
6 -19
Although the question was not entirely free from doubt, the �ttornoy General ruled in
1958 (32 Ops. Ca. Atty. Gen. 240) that the Act does not apply to 'Meetings of council
committees composed of less than a quorum of the council membership. Amendments in
1961 cast some doubt on the continued validity of that pre -1961 opinion. Government
Code Section 54952.3, added in 1968, expressly provides that "legislative body" does not
include a committee composed solely of members of the council and which constitutes less
than a quorum. Legislation to make the Act applicable to meetings of committees of less
than a quorum has been defeated in each legislative session for several years. Fiowever,
the Attorney General has recently opined that it is a violation of the Brown ;'pct for
members of a city council to hold a series of closed discussions with citizens having
matters of business pending before them to gather or convey information so planned to
insure the absence of a quorum (65 Ops. Cal. Atty. Gen. 64) (1982).
Please see, generally, the papers entitled "The Brown Act and Training for Llected
Officials," "The Brown ,-pct - Questions and Answers," and "The Brown Act and Council
Meetings" in the meeting materials for a more complete discussion of the Brown Act.
E. Ordinance Enactment
Since the most important powers of a city are exercised by the city council by the
enactment of ordinances, these forms of council action must comply with a number of
legal requirements. For the most part, these requirements are designed to insure a full
and public consideration of proposed legislation, followed by majority action of the city
council and published notice of the final result (see Johanson V. City Council of Santa
Cruz, 222 Cal. App. 2d 68). There are several aspects of this process which merit
discussion. Primary attention must necessarily be given to general law cities since
charter requirements will vary considerably with individual charters.
1. When is an Ordinance Required? Because of the more complicated procedure for
enacting ordinances, the fact that they must be published, and the 30 -day waiting period
for effective date, it is important to know when the law requires an ordinance and when
the less formal kinds of council action can be used. The use of a resolution, or minute
action, when proper, saves two very important municipal resources -- time and money.
Used improperly, they waste the same resources. There is no completely foolproof rule
which will provide the right answer to this question every time. There are, however, three
applicable rules of law:
a. An ordinance must always be used to amend or repeal an ordinance. This can be
called the rule of "equal dignity." An ordinance can only be changed by an enactment of
equal dignity; that is, another ordinance. If the original ordinance had to be in ordinance
form, it is only reasonble to amend or repeal it by using the same form and going through
the same procedure. (Myers v. Cali atria, 140 Cal. App. 295; McQuillin, 1unicipal
Corporations, 3d ed, Section 21.04).
b. Regulations of persons or property, which impose a penalty by fine, imprisonment or
forfeiture for their violation, must always be in the form of an ordinance. This is an
almost universal rule of law and practice. It is based on the fundamental assumption that
before a citizen can be subjected to a law, violation of which can make him /her a criminal
or deprive him /her of his /her property, he /she must, at least in a legal sense, have some
notice of its pendency or existence. This notice is furnished in the case of ordinances by
both the reading requirement and the post - adoptive publication. (',IcQuillin, Municipal
Corporations, 3d ed., Section 15.02). This rule is also implicit in the controlling provisions
of the general law. (Government Code Sections 36900, 36901.)
B -20
JL
C. Action of the city council must always be in the fora: of an ordinance \then the
enabling charter or statutory authority under which the action is taken expressly require-,
an ordinance. The reason for this rule is apparent, and it can coma into oper,ition .-it any
time when a city council acts under express charter or statutory authority. In the case of
general law cities, except in the case of regulatory measures which are described under
rule b. above and must always be in ordinance form, every action will be under either
express or implied statutory authority, unless the action is taken pursuant to an ordinance
of the city itself. Accordingly, whenever action is taken by a city council of a general law
city, other than the adoption of a regulatory measure, or action under a city ordinance,
the statutory authority should be scrutinized carefully to determine whether or not an
ordinance is required. A resolution adopted without the formality required of :in
ordinance cannot be deemed an ordinance. (City of Sausalito v. County of klarin, 12 Cal.
App. 3d 550.)
The possibility of conflict between a charter provision requiring action to be taken by
ordinance and a statutory requirement that action be taken in the form of a resolution is
resolved by Section 50020 of the Government Code which provides that, in such event,
action by ordinance shall be compliance with the statute for all purposes.
2. The Form and Parts of an Ordinance. California statutes contain, only liniite('
requirements for the form of ordinances, although certain standards of form have ')ecornC
generally accepted throughout the state and nation. The law does not require that
ordinances be couched in this traditional form or that they incorporate all of the accepter,
parts. Council members should, however, be acquainted with those forms which have
received general acceptance.
a. The Title and Subject. Unless required by Constitution, charter or statute, :1 title is
not a requisite of a valid ordinance. The use of titles is, however, recognizc,d as <r
desirable practice. :1, title is not an indispensable part of an ordinance. (In re 7ohnson, 47
Cal. App. 465: Ex parte Young, 154 Cal. 317.) One exception to this rule that a title is not
a legally required part of city ordinances will be found in the procedure established by
Chapter 1466, Statutes of 1953 (Government Code Sections 50022.1 et seq.) for thy
adoption of "codes" by reference.
b. The Preamble. A preamble, while strictly an optional part of an ordinance, may be
useful in explaining the reason for it and its legislative objectives. Care in drafting must
be taken to avoid an unla,.vful ordinance by reason of unconstitutional objectives (Parr v.
Municipal Court, 3 Cal. 3d 861).
C. The Ordaining or Enacting Clause. While the general rule is t'Iat enacting clauses
must appear only when required by charter or statute, the better drafting practice is to
include such clauses. In general law cities, Section 36931 of the Government Code
requires that the enacting clause of an ordinance shall be "The City Council of the City of
.... does ordain as follows:" In chartered cities, requirements for ordaining clauses will
vary, but the practice of using such clauses appears to be universal. In the case of
initiative ordinances, the form of the enacting or ordaining clause will be "The People of
the City of .... do ordain as follows:"
d. The Body of the Ordinance. The body of the ordinance is the r,iost i.-nportant part.
because it contains the command or law ordained by the city council. It is also important
to note the requirement of making "findings" to support quasi - judicial actions, which
findings must be supported by substantial evidence on the record before tl -,e city council
when making its determination (To an a Association for a Scenic Communit\, v. County of
Los Angeles, 1 1 Cal. 3d 506; Ensign Bickford v. Livermore, 68 Cal. 3d !167).
B -21
e. The Clause of Taking Effect. Ordinances customarily contain a clause setting forth
the date when the ordinance will become effective. While this clause is desirable, it is not
essential to a valid ordinance. In general law cities, ordinances do not become effective
until 30 days following adoption unless they come within one of the exceptions set forth in
Section 36937 of the Government Code -- urgency measures, ordinances relating to an
election, taxes or street improvement proceedings, and ordinances covered by other
particular provisions of law.
f. Signature and Attestation. Section 36932 of the Government Code requires that the
mayor sign an ordinance of a general law city and that the city clerk attest it. While this
type of signing after final passage is probably not required for the ordinance to be valid
and effective (Pacific Palisades Assn. v. Fluntington Beach, 196 Cal. 211, 40 ALwhere R 782),
good drafting requires compliance with these requirements. In those
charter provision makes signature of the mayor a condition in the nature of an approval of
the ordinance after passage, failure to sign will invalidate the ordinance. (Pollok v. San
Diego, 118 Cal. 593.)
3. Enactment Procedure. With the city council duly convened in a regular or adjourned
meeting, presided over by the mayor at the designated time and place, and at least three
members of the council present and voting in favor, an ordinance may be enacted.
Normally, the process will take place in two stages, i.e., introduction and final passage. In
the course of council action at these stages, amendment and alterations may be needed
and questions on voting will arise.
a. Introduction and Reading. The first step is to have the ordinance in legible written
or typewritten form. There should be sufficient copies for every member of the council to
have a copy as well as the city clerk. The ordinance must then be "introduced." The law
does not specify what constitutes introduction, and any reasonable practice will suffice.
The most important matter in connection with introduction is that the minutes reflect the
fact that the ordinance was "introduced."
In some cities a motion is made and voted on that the ordinance be introduced, and the
ordinance is not recorded as introduced and is not considered as legally introduced unless
approved by a majority vote of the council members present. This procedure is not legally
required, but might be desirable as a practical matter to prevent the introduction of
ordinances which have no chance of passage, thereby saving the time of the city council
and the clerk, as well as cost of reproducing copies after introduction.
Either as a part of introduction or at time of passage, the ordinance must be read aloud, upon
either by the council member who is introducing it, or by t o e have clerk. innanpcedr1ead. In
the circumstances, the city council may or may not
such circumstances, further reading may be waived by regular motion adopted by
unanimous vote of the council members present after the reading of the title alone.
(Government Code Section 36934.)
b. Final Passage, Voting and Amendments. After an ordinance has been introduced, it
cannot be finally passed until the expiration of at least five days, except in the case of an
urgency ordinance, which can be finally passed at the same meeting at which it is
introduced.
In the normal situation, more than five days will elapse between the introduction of an
ordinance and the time when it comes up for passage. While it is legally possible for an
B -22
. 4
ordinance to be introduced or amended at a properly convened and noticed special
meeting, an ordinance can be finally adopted only at a regular or adjourned regular
meeting. (Government Code Section 36934.) The purpose of this interval between
introduction and final passage is to avoid hasty and ill - considered legislation.
It is absolutely necessary for final passage of an ordinance in general law cities that three
members of the city council vote "for passage." (Government Code Section 36936.) It
should be noted that two votes for passage are not sufficient where one or more other
members of the city council are present but abstain from voting, since the Government
Code very clearly and expressly requires three council member votes for passage. In other
situations, two affirmative votes may be sufficient to carry a proposition on the theory
that they constitute a majority of a quorum of three members, not counting the abstaining
members. (Martin v. Ballinger, 25 Cal. App. 2d 435.) This rule does not apply in the case
of final passage of an ordinance. (Anderson v. Pitten e;, 197 Cal. .App. 2d 188.)
Government Code Section 36937 requires a 4 Sths vote to pass an urgency ordinance.
Quite frequently, it will be necessary or desirable to amend an ordinance after it has been
introduced but prior to final passage. This may be necessary to correct drafting defects
discovered in the ordinance after introduction, or to meet opposition to the ordinance as
introduced. Amendments are authorized in general law cities, but require an additional
five days before final action can be taken. However, and this is important, typographical
or clerical corrections in an ordinance may be made at any time prior to final passage. If
the ordinance is an urgency measure, it may be amended at the time it is introduced
without waiting for five days.
After final passage, and adjournment of the meeting at which passage takes place, the
city council's part in the enactment process is concluded -- in a legal sense the cite
council loses "control" of that particular ordinance. Therefore if, an hour following
adjournment, it is suddenly discovered that a mistake has been made and the city council
unanimously wishes to change its mind and rescind passage of an ordinance -- it cannot
legally be done, and the ordinance can be prevented from going into effect only by the
passage in the regular manner of another ordinance repealing it. (96 . \LPG 1294.)
C. Publication or Posting. The mayor must sign the ordinance, and the ;-ity clerk must
attest it. Government Code Section 36932.) As the last official act, the city clerk must,
within 15 days after its passage, cause the ordinance to be published at least once in a
newspaper of general circulation published and circulated in the city. If there is no such
newspaper, the ordinance may be posted in at least three public places in the city or
published in a newspaper of general circulation printed and published in the county and
circulated in the city. (Government Code Section 36933.) In addition, Section 36933
provides for a procedure whereby a summary of the ordinance may be published and /or
posted. In those cities incorporated less than a ,year, ordinances may be either posted or
published. The publication of an ordinance, other than an urgency ordinance, an ordinance
relating to an election, street improvement proceeding or taxes (Government Coda
Section 36937) is a prerequisite to its taking effect. t",lthough not a condition to the
effectiveness of an urgency ordinance, a willful failure to publish could conceivably forn-,
the basis for removal proceedings under Sections 3060 et seq. of the Government Code as
misconduct in office.
The single publication mentioned above is the eg neral publication requirement applicable
to most of the ordinances of the city; however, care must be exercised to be sure that the
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ordinance in question is not adopted under a special procedure prescribing publication for
more than one time or within a different period. For example, an ordinance of intention
adopted under the Change of Grade Act of 1909 (Streets and Highways Code Section
8023), the Street Opening Act of 1903 (Streets and Highways Code Section u 125.5), or the
Vehicle Parking District Act of 1943 (Streets and Highways Code Section 31 543) must be
published twice, and a failure to comply with publishing, requirements under these .ictl;
might be held to constitute a jurisdictional defect.
F. Quasi- Judicial Actions
The city council is primarily a legislative and administrative body, but often sits in a
quasi- judicial capacity. Such matters as hearings on variances, use permits, annexation
protest hearings, civil service disciplinary hearings, and hearings on the issuance or
revocation of regulatory licenses are usually quasi - judicial in character. (cf. Arnel
Development Co. v. City of Costa iliesa, (1981) 126 Cal. App. 3d 330.) Under former case
law, members of a city council acting in a quasi - judicial capacity were subject to
disqualification on the ground of bias in much the same manner as judges. (Saks and Co. v.
Beverly Hills, 107 Cal. App. 2d 260.) However, Saks has now been overruled in Fairfield v.
Superior Court, 14 Cal. 3d 768. Regardless of Fairfield, however, it should be obvious that
a degree of circumspection in connection with public comments relating to matters to be
"adjudicated" by a city council by members of that council is desirable. Furthermore,
procedural due process requirements are applicable to the conduct of such hearings. A
record should be kept of the witnesses and their testimony, the evidence introduced on
both sides, and the findings of the council.
The importance of an adequate and complete record of all quasi- judicial actions by local
bodies is emphasized by the 1974 holding in Strumskv v. San Diego Countv Employees
Retirement Association, I1 Cal. 3d 28. In Strumsky the California Supreme Court has
held that in all "quasi- judicial" proceedings involving a "fundamental vested right"
subjected to judicial review, the courts will review the entire local record and reweigh the
evidence in reaching their determination as to the validity. (The former rule was that, if
there was substantial evidence in the record to support the local action, that action would
be upheld, regardless of the quantity or quality of opposing evidence.) While Strumskv
involved the review of a widow's death benefit award, the language of the case is so broad
( "fundamental vested right" is defined as " . . . . of a fundamental nature from the
standpoint of its economic aspect or its 'effect . in human terms and . . . . the life
situation . ) as to create considerable doubt as to the ultimate scope of the holding.
Indeed, the case casts serious doubt on the validity of any "quasi- judicial" proceedings by
y
cities, and Strumsk will certainly be the source of on -going definition and interpretation
in the courts and, perhaps, the Legislature) during the coming years. (Note, too, that
Strumsky applies to quasi - judicial actions by local bodies and officers other than the city
council.
G. Antitrust Liabilitv
Until about four years ago, local governments and their attorneys had little cause to
concern themselves with antitrust analyses. In 1904, only fourteen years after the original
passage of the Sherman Act, the United States Supreme Court had turned aside an
antitrust challenge to Texas legislation which permitted only state licensed harbor pilots
to operate in the ports of Texas; the Court had stated rather summarily that "no monopoly
or combination in a legal sense can arise from the fact that the duly authorized agents of
the state are alone allowed to perform the duties devolving upon them by law." (Olsen v.
Smith (1904) 195 U.S. 332, 345.) Subsequently, in 1943. the Supreme Court had upheld a
5 -24
alifornia statutory schema which expressly restricter competition rnong raisin growers,
holding in Parker v. Brown (1943) 317 U.S. 3411 352, that "(t)he state . . . as sovereign,
imposed the restraint as an act of government which the Sherman .pct did not undertake
to prohibit."
The 1978 U.S. Supreme Court decision in City of Lafayette v. Louisiana Power and Light
Company, (1978) 435 U.S. 389, marked the beginning of the serious consideration of
municipal antitrust exposure. The Lafayette litigation was commenced by two Louisiana
municipalities who owned and operated electric utility systems and who alleged in federt-il
district court that Louisiana Power and Light Company and others had engaged in
predatory practices and had in other ways violated the federal antitrust laws. As often
happens in antitrust litigation, LP&L counterclaimed, alleging that the plaintiff
municipalities had engaged in antitrust violations, including a purportedly illegal tying
arrangement by which one municipality would provide gas and water service only on the
condition that such customers also purchase electricity from the municipality. The
plaintiff municipalities moved to dismiss the counterclaim on the ground that Parker v.
Brown rendered the federal antitrust laws inapplicable to them as political subdivisions of
the State of Louisiana. A plurality of the court took the view that federal antitrust laws
are applicable to local government activities unless the state authorized or directed a
municipality to act as it did. The final and decisive vote was cast by Chief Justice Burger
who expressed the view that the Parker v. Brown exemption is available to municipalities
within the realm of traditional governmental functions but is unavailabe when acting in a
proprietary capacity.
The distinction drawn between proprietary and governmental activities was erased by the
United States Supreme Court in Community Communications Co. v. City of Boulder,
(1982) 50 U.S.L.W. 4144. On December 19, 1979, the Boulder City Council enacted two
ordinances, the net effect of which was to prohibit Boulder's current cable television
company from expanding its area of service for a period of three months. The stated
purpose of both ordinances was to provide a moratorium on construction to give other
cable companies an opportunity to make proposals to enter the municipality's regulated
market. The trial court considered the Lafayette decision, determined Parker v. Brown to
be "wholly inapplicable," and entered a preliminary injunction against the moratorium
ordinances. On appeal, a panel of the United States Court of Appeals for the Tenth
Circuit, with one member dissenting, reversed, holding that Boulder Was "exempt from the
antitrust laws."
The United States Supreme Court reversed the judgment of the Court of Appeals holding,
that the Parker v. Brown exemption was not available to municipalities in the absence of
sufficient articulation of state policy to displace competition with regulation.
In 1980 the Supreme Court decided an antitrust case involving a state statutory scheme
which permitted wine producers to establish the resale price schedule under which
wholesalers sold the product to retailers, California Retail Liquor Dealers Assoc. v.
klidcal Aluminum, Inc., (1980) 445 U.S. 97. The Court held that the price fixing scheme
was "clearly articulated and affirmatively expressed" because the "legislative policy is
forthrightly stated and clear in its purpose to permit resale price maintenance." The
Court further held, however, that the activity was not protected under Parker v. Brown
because the state policy restricting competition was not "actively supervised" by the state
itself; rather, California "simply authorizes price - setting and enforces the prices
established by private parties." Nl dcal clearly stands for the proposition that both state
authorization and active supervision are necessary elements of a Parker v. Brown defense.
B -25
Justice Brennan in Boulder avoided the "active supervision" prong of the Parker v. Brown
defense by stating as follows in a footnote:
"Because we conclude in the present case that Boulder's moratorium ordinance does
not satisfy the 'clear articulation and affirmative expression' criterion, we do not
reach the question whether that ordinance must or could satisfy the 'active state
supervision' test focused upon in Midcal."
Justice Rehnquist replied as follows in a footnote to his dissent:
"The Court understandably avoids determining whether local ordinances must satisfy
the 'active state supervision' prong of the Midcal test. It would seem rather odd to
require municipal ordinances to be enforced by the state rather than the city itself."
Among the many questions left unanswered by Boulder is the question whether the "active
supervision" element of a Parker v. Brown defense can be satisfied by municipal rather
than state supervision.
The recent cases in this area indicate a trend away from requiring "state supervision" in
order to immunize municipalities and other public defendants from antitrust liability.
Gold Cross Ambulance v. City of Kansas City, 705 F. 2d 1055 (8th Cir. 1983); Golden State
ransit Cor oration v. City of Los Angeles (1984) 84 Daily Journal D.A.R.
9th Cir. .
A successful plaintiff in an antitrust suit is entitled to treble damages.
V. EXPENDITURES
A. Public, Municipal and State Purposes
All expenditures of locally levied tax moneys must be for a public and municipal purpose.
If the expenditure is for something which will substantially benefit the general public
rather than an identifiable group of individuals, it will generally be upheld as public. In
addition to the public purpose requirement, there is the more specific municipal purpose
requirement of Article XIII, Section 24, of the California Constitution. The public which
benefits from the expenditure must be that portion of the public comprising the citizens
of the municipality.
The corollary of the requirement that local tax revenues be expended for a "municipal
purpose" is that state tax levies which are expended by cities or other local agencies must
be expended for a "state purpose," except where authorized for local purposes pursuant to
Article XIII, Section 24, unless otherwise provided by the Legislature. Examples of the
various situations in which expenditures have been held to be for a "public," a "municipal,"
or a "state" purpose are rather numerous in the appellate decisions in our state courts.
1. "Public Purpose" - Examples. One of the most important principles in determining
whether or not a particular expenditure is for a public purpose is that the courts will not
assume to substitute their judgment for that of the local legislative body unless there is
showing that its judgment or discretion has been unquestionably abused. (City of Oakland
B- 26
v. Williams, 206 Cal. 315). Applying this principle to a variety of expenditures, \ve find
that the appellate courts of this state have held to be a public purpose: (1) the payment of
the necessary expenses of city officers and employees in attending an Annual Conference
of the League of California Cities, (City of Roseville v. Tulley, 55 Cal. App. 2d 601); (2)
the expenditure of city funds for advertising the advantages of a city through a contract
with the Chamber of Commerce, (Chamber of Commerce v. Stephens, 212 Cal. 607); (3)
expenditures of public funds for relief of assessment districts, County of San Diego v.
Hammond, 6 Cal. 2d 709). Further, while the principal distinction between a public
purpose and a non - public purpose is that the former is of benefit to the general public
while the latter is not, there are many expenditures of public funds which benefit the
public generally and are for valid public purposes even though they may directly benefit
specific individuals. Examples of these are: MacMillan v. Clarke, 184 Cal. 491 (free
school text books); Veterans' Welfare Board v. Riley, 188 Cal. 607 transportation, tuition
and living expenses for education of veterans); Allied Architects Assn. v. Payne, 192 Cal.
431 (erection of memorial hall for war veterans); City of Oakland v. Garrison, 194 Cal.
298 (street improvements); Patrick v. Riley, 209 Cal. 350 payments for destruction of
diseased cattle); Sacramento & San Joaquin Drainage District v. Riley, 199 Cal. 668 (flood
control); City of San Francisco v. Collins, 216 Cal. 187 bond issue for relief of indigent
sick and poor); Housing Authority of Los Angeles v. Dockweiler, 14 Cal. 2d 437 (slum
clearance); County of San Diego v. Hammond, 6 Cal. 2d 709 use of county funds to pay
delinquent assessment on overburdened property); Goodall v. Brite, 11 Cal. App. 2d 540
(free treatment in county hospital only for those unable to pay); Winkelman v. City of
Tiburon, 32 Cal. App. 3d 834 (encouragement of construction of low moderate income
housing); Lehane v. San Francisco, 30 Cal. App. 3d 1051 (payment of city's annual dues for
membership in the League of California Cities).
2. "Municipal Purpose" - Examples. The municipal purpose requirement imposed on top
of the public purpose requirement by Article XIII, Section 24, of the State Constitution is
one which requires that there be municipal benefit from a municipal expenditure, in
addition to the larger public benefit. In Adams v. Ziegler, 22 Cal. App. 2d 135, it was held
that the conduct of an otherwise authorized summer music and drama program under the
general supervision of the playground commission of a city constituted a proper municipal
purpose. In Bank v. Bell, 62 Cal. App. 320, the court held that the maintenance of a public
market by a city was a municipal purpose. However, in City of Redwood City v. Myers, 7
Cal. 2d 283, it was held that the municipal Investment Bond Act of 1915 was invalid for
the reason that it authorized the imposition of a tax upon a city for which the city
received no benefit and was, accordingly, in violation of Article XIII, Section 24.
In the case which would best illustrate a violation of Article XIII, Section 24, the court
seemed to base its decision upon the "municipal purpose" requirement but did not mention
the specific constitutional requirement. In that case, Chapman v. City of Fullerton, 90
Cal. App. 463, it was held that the proposal for the expenditure of the city for the
extraterritorial purpose of helping to police other cities was invalid.
3. Mixed ".Municipal and State Purposes." Some matters have been held to be both a
state and municipal purpose. It has been held that highways (Perez v. San Jose, 107 Cal.
App. 2d 562) and state parks within cities (City of Sacramento v. Adams, 171 Cal. 458)
can be of mixed benefit and serve both a state and municipal purpose simultaneously. The
.Attorney General has ruled that community redevelopment projects are both "municipal
affairs" and "matters of state concern" (25 Ops. Cal. Atty. Gen. 67).
B -27
4. "State Purpose" Expenditures. A substantial number of the expenditures made by
city councils in California are of funds which are raised from state tax levies and %vhich
must, accordingly, be expended for a state purpose under Article XII1, Section 24, unless
otherwise provided in the Constitution. The Legislature authorized the use of motor
vehicle license fees and cigarette taxes for local purposes as well as for purposes of
general interest and benefit to the state. (Revenue and Taxation Code Sections 11005,
30462.) Section 11005.1 of the Revenue and Taxation Code expressly authorizes
expenditure of motor vehicle license funds for rapid transit purposes. Liquor license fees
are not governed by Section 12, but by Article XX, Section 22, and may be validly
expended for local purposes (14 Ops. Cal. Atty. Gen. 149).
In a number of cases the courts have indicated that certain items were not "municipal
affairs" or that they were matters of "statewide concern" or a "state affair." The
following have been held to be "state purposes:" City of Los Angeles v. Post War etc. M.,
26 Cal 2d 101 (relief of unemployment is a state purpose); City of Los Angeles v. Riley, 6
Cal. 2d 621 (regulation, control and fire protection of highway traffic are state purposes);
Bacon Service Corp. v. Huss, 199 Cal. 21 (maintenance of state and county highways is a
state purpose); Ex parte Daniels, 183 Cal. 636 (traffic law enforcement on city streets is a
state affair); Boss v. Lewis, 33 Cal. App. 792 (enforcement of state regulatory statutes by
local officers is a state purpose); In re Shaw, 32 Cal. App. 2d 84 (enforcement of Penal
Code in freeholder's charter city court is a state affair); City of Pasadena v. Chamberlain,
204 Cal. 653 (joint acquisition and distribution of water for domestic uses is a state affair
-- possibly a state purpose); Pasadena Park Improvement Co. v. Lelande, 175 Cal. 511
(flood control of non - navigable streams is "more than" a municipal affair); Peterson v.
Board of Supervisors, 65 Cal. App. 670 (reclamation of private lands "indicated" to be a
state purpose"); Gadd v. McGuire, 69 Cal. App. 347 (sanitary and storm sewers outside of
a city not a municipal affair - -hence a state purpose); Pixley v. Saunders, 168 Cal. 152
(sanitation may become a matter of more than municipal concern); Van de Water v.
Pridham, 33 Cal. App. 252 (drainage system is a state affair (inferentially)); Fragley v.
Phelan, 126 Cal. 383 (conduct of charter elections is a state affair - Uhl v. Collins, 217
Cal. 1); People v. Oakland, 123 Cal. 604 (annexation proceedings is a state affair);
of Water and Power v. Inyo Chem. Co., 16 Cal. 2d 744 (liability for, and payment of, tort
claims is not a municipal affair ); Esberg v. Badaracco, 202 Cal. 110 (the school system of
the state is a matter of general concern; Cal. Const. Art. IX, Section 1, "promotion of
intellectual, scientific, moral and agricultural improvement" (any expenditure for such
Cromotion should thus be for a state purpose)); Andrews v. Superior Court, 29 Cal. 2d 208
(prosecution of state offenses is a state affair); and 25 Ops. Cal. Atty. Gen. 67
(community redevelopment projects are both municipal and state affairs); Santa Clara v.
von Raesfield, 90 Cal. Rptr. 8 (interest notes on bonds for regional or quasi- regional
sanitation project is statewide concern).
State allocations and subventions which must be spent for state purposes should be kept in
a special fund or in a separate account of the general fund to facilitate proper accounting,
for all expenditures therefrom.
5. Other Special Purpose Expenditures. Under certain circumstances, in addition to the
constitutionally imposed requirements that expenditures be for a "municipal," "public," or
"state" purpose, state statutes require that some funds be expended for specific purposes.
a. Vehicle Code Fines and Forfeitures. Section 42200 of the Vehicle Code requires that
the proportion of the total amount of fines and forfeitures which a city receives resulting
from Vehicle Code misdemeanors or infractions (Vehicle Code Section 42204) shall be
deposited in a special fund to be known as the "Traffic Safety Fund." The section then
provides that moneys in such fund shall be used exclusively for " . . . official traffic
control devices, the maintenance thereof, equipment and supplies for traffic law
enforcement and traffic accident prevention, and for the maintenance, improvement or
construction of public streets, bridges, and culverts within such city, but such fund shall
not be used to pay the compensation of traffic or other police officers. The fund may be
used to pay the compensation of school crossing guards who are not regular full -time
members of the police department of such city." Fines and forfeitures collected for
violations of the Off - Highway Motor Vehicle Law of 1971 must be deposited in an Off
Highway Vehicle Fund for expenditure by the State Department of Parks and Recreation.
Fifty percent of the funds are available to cities and counties on a matching basis for
recreation projects for off - highway vehicles (Vehicle Code Sections 383007 42204).
Repeated efforts have been made in the Legislature to divert these funds to non -local
purposes, but so far those efforts have not been successful.
b. Aviation Gas Tax Refunds. Funds from the State Transportation Fund paid to cities
which own and operate an airport may be expended only for specified airport and aviation
purposes of a capital improvement nature. A special aviation fund must be created by the
city. W.U.C. Sections 21680 et seq.)
6. Regulatory Charges. Another type of fund which is subject to restricted purpose
expen iture is that resulting from the imposition of regulatory charges. Some of these are
imposed under the city's constitutional police power, and others may be imposed under
statutory authority.
a. Parking Meter Revenues. An example of the latter is the parking meter charge
which is used in a great many California cities. Section 22508 of the Vehicle Code
expressly authorizes cities to enact ordinances establishing parking meter zones and fixing
rates of fees.
The fee to be charged must bear a reasonable relation to the service rendered and the cost
of rendering it. De Aryan v. City of San Diego, supra. So long as the primary purpose of
the ordinance is to regulate and not to raise revenue, the mere fact that the receipts from
fees exceed the cost of regulation is not objectionable (City of Madera v. 131ack, 181 Cal.
306; In re Higgins, 50 Cal. App. 533; Glass v. City of Fresno, 17 Cal. app. 2d 555). The
funds derived from such regulatory fees must be expended for some purpose substantially
connected with the problem of traffic regulation and control; thus, such funds may
probably be expended for traffic enforcement, traffic engineering, traffic circulation,
purchase of off - street parking facilities, signalization, street signs, traffic enforcement
officers' salaries, as well as the purchase, installation, supervision, protection, inspection,
maintenance and operation of the parking meters themselves.
b. Sewer Rental Charges. Another example of a use charge which is authorized by
statute and the expenditure of which is limited by the authorizing statute is that resulting:
from the imposition of sewer rental charges which are authorized by Section 5470 et seq.
of the Health and Safety Code. Under the terms of Section 5471, the funds received can
be expended only for " ... the acquisition, construction, reconstruction, maintenance and
operation of water systems and sanitation or sewerage facilities, to repay principal and
interest on bonds issued for the construction or reconstruction of such water systems and
sanitary or sewerage facilities; provided, however, that such revenue shall not be used for
the acquisition or construction of new local street sewers or laterals as distinguished frog
main trunk, interceptor and outfall sewers." The power to levy sewer connection charges
•
by a city for revenue purposes pursuant to Section 5471 was declared constitutional under
former Article XI, Section 11, of the Constitution (now ,Article XIII, Section 37
(Associated Home Builders v. City of Livermore, 56 Cal. 2d 847).
As noted above, the scope of regulatory fees and charges is the subject of a significant
amount of litigation statewide interpreting the term "special tax" for purposes of Article
XIIIA of the California Constitution. The most definite statement that can be made at
this writing is that a fee or user charge which does not exceed the reasonable costs of
providing the service for which the fee or user charge is imposed is not a "special tax" and
would not require a 2 /3rds approval of the electorate.
B. Prodedural Steps
All procedural requirements imposed by charter or by applicable statute must be followed.
The requirements most commonly encountered are those applicable to the payment of
claims and demands in general law cities, and those requiring that contracts for public
projects be let by competitive bidding. Such procedural requirements will be found in
most charters, as well as the general law.
1. Competitive Bidding - General Law Cities. The competitive bidding requirement
which applies to all "public projects" and the annual contract for publication of official
notices of general law cities will be found in Sections 20161 and 20169 of the Public
Contracts Code. Section 20161 defines "public project" in the following manner:
"Section 20161. As used in this chapter, 'public project' means:
(a) A project for the erection, improvement, and repair of public buildings and
works.
(b) Work on or about streams, bays, waterfronts, embankments or other work for
protection against overflow.
(c) Street or sewer work except maintenance and repair.
(d) Furnishing supplies or materials for any such project, including maintenance or
repair of streets or sewers."
Section 20162 then provides as follows:
"Section 20162. When the expenditure required for a public project exceeds five
thousand dollars ($5,000), it shall be contracted for and let to the lowest responsible
bidder after notice."
The principal portion of Section 20161 which requires interpretation is subsection (a),
since the other subsections are either quite specific or dependent upon the meaning given
to (a). In Swanton v. Corby, 38 Cal. App. 2d 227, the court adopts the following general
definition of "public works."
"'Public Works' may be said to embrace all fixed works constructed for public use or
protection -- including bridges, waterworks, sewers, light and power plants, public
buildings, wharves, breakwaters, jetties, seawalls, schoolhouses, and street
improvements."
a. Exceptions
(1) Personal Property and Furnishings. In the Swanton case, supra, it was held
that the bidding requirements were not applicable to the labor and materials required for
. `s
the installation of a two -way short wave radio for use by the city police department.
However, Government Code Sections 54201 et seq. require a city to adopt policies and
procedures governing purchases of supplies and equipment.
(2) Garbage Collection Contracts. In another decision, the District (court of
Appeal hold th.it Sections 37901 and 37902 are not applicable to the contract whereby a
general law city authorizes the collection and disposal of garbage within the city Mlivis V.
City of Santa Ana, 108 Cal. App. 2d 669).
(3) Personal Service Contracts. Although there are no reported decisions on the
question, it seems likely that Section 37901 will be held not to include contracts for
personal services, such as engineering or legal services. In Kennedy v. Ross, 28 Cal. 2d
569, a charter requirement similar to Section 37901 was held inapplicable to contracts for
professional engineering services. Similarly, a public bidding requirement for school
districts was Held inapplicable to a contract with an architect for his professional
services. Additional support was based on a provision similar to Section 37103 of the
Government Code which authorizes contracts for special services and advice in financial,
economic accounting, engineering, legal or administrative matters. (Cobb v. Pasadena
City Board of Education, 134 Cal. App. 2d 93). Insurance contracts would also seem to be
outside the scope of the requirement, particularly where the insurance service includes
provision for legal defense work of claims against the city. Government Code Section
53060 provides similar authorization to contract for special services.
b. Splitting. The practice of splitting larger integral projects for the construction of
public works in order to avoid the $5,000 amount over which public contracts must be lot
by bidding is unlawful and punishable as a misdemeanor. (Government Code Section
37902.1.) Prior to this statutory prohibition, the common law rule condemning the
practice was adopted by our courts in Gamewell Fire Alarm Co. v. City of Los Angeles, 45
Cal. ,App. 149.
2. Claims Procedure. The basic and mandatory procedure for payment of claims and
demands in general law cities is set forth in Sections 37201 through 37208 of the
Government Code. The most important requirement is that no claim or demand may
validly be paid unless it has previously been "audited" (i.e., approved) by the city council.
Exceptions to this are authorized for payroll warrants and warrants issued in payment of
claims conforming to a budget approved by ordinance or resolution. In both cases,
however, such demands must be audited at the first meeting after payment.
Properly authorized revolving funds are an exception. In the case of a revolving fund, the
payment or expenditure is audited when it is originally made to the fund and the
subsequent expenditures therefrom are again audited when a new claim is made for
purposes of reimbursing the fund.
A carefully drafted procedural ordinance for the payment of claims is the best protection
against the liability which can result from a failure to observe the la«-'s requirements.
C. Constitutional Debt Limit
Article XVI, Section 18, of the California Constitution (formerly Article XIII, Section 40)
contains the following language:
"No county, city, town, township, board of education, or school district, shall incur
any indebtedness or liability in any manner or for any purpose exceeding in any year
]1
the income and revenue provided for such year, without the assent of two - thirds of the
qualified electors thereof, voting at an election to be held for that purpose .... It
The purpose of this section is to prohibit indebtedness obligating the city to pay in future
years for a consideration already received. The intent is to prohibit accumulated
indebtedness by requiring that each year's taxes and revenues pay fully for obligations
incurred that year. If the revenues are not sufficient, a creditor may not recover.
(,Mahoney v. San Francisco, 201 Cal. 248; McFayden v. Calistoga, 74 Cal. App. 378.) The
authorized exception provided in the section is the approval by two - thirds of the
electorate of a proposition authorizing the creation of an indebtedness, the issuance of
bonds and the levy of an annual tax to defray payments of principal and interest thereon.
This is the so- called "general obligation" bond method of financing. Cities have for many
years used this method of financing public works under the Bond Act of 1901 (Government
Code Sections 43600 et seq.). On June 30, 1970, the California Supreme Court in
Westbrook v. Mihaly, 2 Cal. 3d 765, and several companion cases, held that the
constitutional requirement for a t�vo- thirds vote violates the equal protection clause of
the United States Constitution as enunciated by the United States Supreme Court in the
one person - one vote decisions, and likewise invalidated statutory provisions requiring
more than a simple majority vote. The U.S. Supreme Court subsequently held that a state
may require more than a simple majority on tax and revenue measures as long as the
requirement does not discriminate against any identifiable class. (Gordon v. Lance, 403
US 19 29 L Ed 2d 2739 91 S Ct. 1889.)
A number of major "exceptions" to the prohibitions against indebtedness have been
approved by the courts. Each of these has developed into a method of financing. A brief
discussion of these methods of financing capital improvements may be helpful to an
understanding of this limitation on indebtedness.
1. Revenue Bonds and the Special Fund Doctrine. Bonds or other obligations which are
payable solely from the revenues in a special fund or a particular public enterprise and
which by their terms can never become a charge on the general funds or property of a
municipality need not be subjected to the requirements of submission to the electorate or
an annual tax. This is the judicially created "special fund" doctrine. The special fund
cannot be maintained out of the general fund or tax levies should the special fund prove
insufficient. Such obligations are not considered to be an indebtedness or liability of the
political subdivision within the meaning of the constitutional limitation (Garrett v.
Swanton, 216 Cal. 220; City of Oxnard v. Dale, 45 Cal. 2d 729; The City of Redondo Beach
v. Taxpayers, Property Owners, etc., 54 Cal. 2d 126). Under the revenue bond method of
financing, there is now statutory authority for California cities to acquire and operate
systems for providing sewers, water, off - street parking, ferry systems, small craft
harbors, garbage disposal systems, airports, hospitals, and golf courses (Government Code
Sections 54300 et seq.) Since the decision in City of Oxnard v. Dale, supra, it is now clear
that extensions and improvements of existing revenue - producing enterprises may be
financed through the issuance of revenue bonds. It is also clear that the source of revenue
for the special fund need not be restricted to the improvements for which the bonds were
issued but rather there can be a pledge of revenue from the entire facility or agency to be
benef ited.
Agencies created pursuant to the Joint Exercise of Powers Act (Government Code
Sections 6500 et seq.) are specifically authorized to issue revenue bonds for the
acquisition or construction of exhibition buildings, sports arenas or any other public
building (Government Code Section 6546). Such authorization must be by ordinance which
Q -32
is subject to referenduin (Government Code Section 6547). S,,jch revenue bonds do not
constitute a debt or -)bligation of any of the public agencies whic,) are parties to thQ,
agreement creating a joint powers entity (Government Code Section 6551). An excellent
review of the constitutional debt limitation and joint powers authority revenue bonds inay
be found in 41 So. Calif. L. Rev. 19.
Sales and use tax revenues constitute general funds and may not he pledged for financing
of improvements without compliance with the constitutional provision. Two decisions on
this point are City of Palm Springs v. Ringwald, 52 Cal. 2d 620, and City of Redondo
Beach v. Taxpayers, etc., supra. Both of these cases also held that the requirement that a
general obligation bond issue contain provision for an annual tax capable of insuring its
repayment was satisfied by the pledging of a portion of the general funds, namely, future
sales and use tax revenues.
Shortly :after the Palm Springs decision, Section 43401 was added to the Government Code
to provide that "all moneys received from sales and use taxes shall be paid into the
General Fund, or into such special fund or funds for such propose or purposes as shall be
established by ordinance." The court in the Redondo Beach decision held that despite
these provisions, sales tax revenues may not be considered as a special fund within the
meaning of the special fund doctrine and that this statute was designed to grant authority
to general law cities otherwise lacking to use sales tax revenues to repay bonded
indebtedness but only after the constitutional requirements are met.
It is not required that revenue bonds be used, and special fund contracts are permitted.
The special fund contract is very much like a single revenue bond, but instead of the
contract being in the form of a bond, it is in ordinary contract form with a single financier
who agrees to provide the capital for the acquisition, improvement, or extension of the
revenue- producing enterprise and look only to the revenues of the enterprise for payment.
This type of financing was used by the City of Montclair to construct a library and lease it
to the county, the rental payments to be placed in a special fund to pay for the
construction costs. A financial organization agreed to pay the successful contractor in
consideration for the assignment of rental payments. This arrangement was upheld in City
of Montclair v. Donaldson, 205 Cal. App. 2d 201. These contracts have been specifically
authorized for financing samll craft harbors (Harbors and 'navigation Code Sections 5828.
5829.11 5829.29 6499.6) and subdivision drainage facilities.
2. Special Assessment Bonds. Where an improvement is constructed under one of the
special assessment acts, such as the Improvement Act of 1911 (Streets and Highways Code
Sections 5000 et seq.) and the costs are assessed against the benefited property owners in
the district (the district being only a portion of the city), the unpaid amounts are
frequently represented by the issuance of bonds, payment of which is secured by a specific
lien against a specific parcel of property and payable over a number of years by the
property owner. In this situation, the courts have held that the indebtedness is not one of
the "city," but merely of the particular parcel of property or district, and consequently
Article XVI, Section 18, is not violated (Stege v. City of Richmond, 194 Cal. 305).
3. Lease Purchase. Another exception exists, under which a long -term lease is held not
to be an indebtedness for the total or aggregate of all of the annual lease payments, but
only for the amount of each year's payments as they come due. kiany cities have used this
method of financing for construciton of public improvements. The annual lease payments
are usually well within the normal year's income and revenue, and there consequently is no
violation of the constitutional debt limit. When the lease is determined to be a valid lease
0- 33
creasing
and not a disguised conditional sales contract, the inclusion of a series of de
purchase options based on an agreed depreciation schedule and exercisable annually by the
if s ice c=ity does riot render the agreement invalid. (City of Los Angeles v. Offner, 19 Cal.
2d 483.) One later case has indicated that passage of title at the conclusion of the lease
term without any option amount being paid is valid (Dean v. Kuchel, 35 Cal. 2d 444), but
most municipal attorneys have indicated a reluctance to take this decision at its face
value and insist on following the type of agreement approved in the Offner case. In
County of Los Angeles v. Byram, 36 Cal. 2d 694, in which funds of the County Retirement
System were used to finance a needed courthouse, the court approved a lease - purchase
agreement and also stated that the county was obligated by law to provide adequate
quarters for courts and that such obligation was not an indebtedness or liability within the
constitutional debt limitation. More recently, lease - purchase agreements for police and
station buildings (City of La Habra v. Pellerin, 216 Cal. App. 2d 603) and urban
transportation equipment Ruane v. City of San Diego, 267 Cal. App. 2d 548) have been
approved on grounds similar to Byram. In County of Los Angeles v. Nesvig, 231 Cal. App.
2d 603, the court upheld the validity of a contract for a lease of county land with a lease
back to the county after construction of a music center for a 30 -year term at a fixed
annual rental, following the standards set forth in the Offner case. The State Building
Construction Act of 1955 (Government Code Sections 15800 et seq.) would permit the use
of Public Employees' Retirement System funds for financing state buildings on a rather
novel combination of lease - purchase and special fund financing. In 27 Ops. Cal. Atty.
Gen. 115, the Attorney General concludes that this Act is not a violation of the
constitutional debt limit.
4. Minor Exceptions. In addition to the foregoing, there are a number of exceptions to
Article XVI, Section 18, which are of less common use. A contract whereby a city buys a
portion of the seller's property and is given options to be exercised at annual intervals for
purchase of the remaining six parcels but without any obligation to buy was held valid
(Baker v. City of Palo Alto, 190 Cal. App. 2d 744; Calif. Pac. Title and Trust Co. v. Boyle,
209 Cal. 398. The court held that the contract did not create an immediate obligation for
the total price of all the land and therefore was not "an installment purchase contract."
Also, a contract for services of a civil engineer over a five -year period has been held valid
on the theory that each year's services will be paid from the revenues of that year (San
Francisco v. Boyd, 17 Cal. 2d 606). Similarly, a contract providing for "progress
payments" on a construction project has been held not to constitute a prohibited debt
where each year's payments are only for the portion of the work completed for that year
( Smilie v. Fresno County, 112 Cal. 311). Subsequent cases, however, have developed a
theory that where each year's consideration results in an "increasing compulsion" to
complete the entire contract, there is an indebtedness for the total amount at the time
the contract is executed. (Chester v. Carmichael, 187 Cal. 287; Mahoney v. San
Francisco, 201 Cal. 248; In re City and County of San Francisco, 195 Cal. 426; Garrett v.
Swanton, supra.) These later cases tended to cast some doubt on the doctrine of the
Smilie case.
Section 18 is applicable only to those agencies which it names and others are not bound by
it. (Shelton v. City of Los Angeles, 206 Cal. 544; Department of Water and Power v.
Vroman, 218 Cal. 206; Strain v. East Bay Municipal Utility District, 21 Cal. App. 2d 281;
29 Ops. Cal. Atty. Gen. 195.
At an early date, our courts held that former Section 18 of .Article XI applied only to
obligations voluntarily incurred and not to obligations mandatorily imposed by law upon a
M,
city (Lewis v. Widber, 99 Cal. 412). On this basis, It judgment agl-linst I city may be
collected from revenues of successive years pursuant to Section 50170 et seq. of the
Government Code (`.Metropolitan Life Insurance Co. V. Deasy, 41 Cal. App. 667).
Similarly, Section 18 does not apply to an indebtedness from obligations on water district
bonds imposed upon a city upon merger of a district into the city (People ex rel City of
Downey v. Downey County Water District, 202 Cal. App. 2d 7S6).
It should be noted that the debt limit applies only in the event the funds of a particular
vear which could be applied to the obligation are exhausted. If funds exist at the end of a
year and are carried over into future years, they may be validly expended at that time or
reached by a judgment creditor (Title Guarantee & Trust Co. v. Long Beach, 4 Cal. 2d 56).
`questions involving the debt limit are quite technical and highly important since moneys
paid out in violation thereof are unlawfully expended and may provide a basis for
individual liability of city officers approving payment (:'Mines v. Del Valle, 201 Cal. 272).
Consequently, it would appear advisable whenever a contract is proposed which
contemplates payment of city moneys out over a period extending beyond the fiscal year
in which the contract is executed to ask the city attorney whether or not there is a
violation of Article XVI, Section 18.
D. Compensation of Elective Officers
1. Compensation of Council Members. There are two methods by which city council
members of general law cities may be paid compensation for their services. One method
is to submit to the electors the question whether council members shall be paid and the
amount of such compensation. As an alternative to electorate approval, the Legislature in
1965 authorized a city council to enact an ordinance to pay council members a salary
established by statute. The amount payable is determined by a statutory schedule which is
based upon population (Government Code Section 36516). Amounts paid by a city for
retirement, health and welfare and federal social security benefits may not be included in
determining the salary schedule under Section 36516 provided that the same benefits are
available and paid by the city for its employees. In addition, the statutory compensation
schedule does not affect a council member's ability to participate in a plan of health and
welfare benefits authorized by Government Code Section 53800 et seq. (Government Code
Section 53208). Should the council wish to receive any amount above or below the
statutory schedule, voter approval must be obtained. In 1966, the Legislature provided
that mayors in general law cities who are directly elected by the people pursuant to
Section 34900 of the Government Code may receive a salary in excess of the statutory
amount. This additional amount may be provided either by ordinance of the city council
or by electorate approval. (Government Code Section 36516.1.) The Legislature revised
the salary schedule in 1972 and provided further that salaries may be increased annually
by an amount not to exceed 5 percent for each calendar year following the operative date
of the last adjustment of the salary in effect when the salary ordinance or amendment
thereto was adopted. The ordinance may not provide, however, for automatic future
increases. (Government Code Section 36516.2.) Government Code Section 36516.5
prohibits an increase in compensation during the term of office, except when adjustment
of the compensation of council members serving staggered terms is necessary whenever
one or more council members becomes eligible for a salary increase at the beginning of a
new term.
2. Reimbursement Not Compensation. It is important to note that reimbursement for
actual and necessary expenses incurred in the performance of city business is not
"compensation" and may be made to council members or other elective officers
B -35
notwithstanding statutory or charter prohibitions against payment or increase of
compensation. Elective officers of a city may be reimbursed for out -of- pocket expenses
incurred while engaged in authorized municipal business. This is directly authorized by
Government Code Section 36514.5. Municipal expenditures made for the purpose of
improving municipal administration or for any proper municipal purpose authorized by the
council are valid so long as they have a reasonable connection with the object sought to be
obtained. It is the city council which must in the first instance determine the relationship
of the expenditure to the purpose. Few, if any, persons would question the value of the
city engineer of one city visiting another to determine how a sewage plant was
constructed and operated. Many thousands of dollars have been saved the taxpayers by
such conferences, and courts of this state have approved attendance of municipal officers
at a conference of the League of California Cities (City of Roseville v. Tully, 55 Cal. App.
2d 609; 169 ALR 1218). The courts will not generally interfere with the discretion of city
officials in determining what is necessary and proper to carry out municipal functions.
In connection with reimbursement of municipal officials for out -of- pocket expenses,
however, one word of caution as to procedure is offered. Authority to make such
expenditure should always be given in advance. Such expenditures will normally be in an
amount nominal enough to permit reimbursement upon the filing of a claim by the officer
or employee who has made an out -of- pocket expenditure while on municipal business.
There are occasions, however, when the amount will be sufficient to warrant an advance.
In this case, also, after the expenditure has been made by the officer, a claim should be
filed detailing actual and necessary expenditures and attaching such receipts as are
ordinarily given in the course of normal business transactions.
In Porter v. City of Riverside, 261 Cal. App. 2d 832, the appellate court upheld an
ordinance which authorized payment to each council member of $350 per month as
reasonable reimbursement for expenses without presentation of any claims. Also, note
Albright v. South San Francisco, 44 Cal. App. 3d 866, in this regard.
The dangers of misappropriating city funds drawn for the purpose of paying expenses of
trips taken on official business are clearly set out in People v. Byers, 5 Cal. 2d 676, where
a city official was sent to prison for the filing of fraudulent expense claims.
3. Compensating Elective Officials For Added Burdens. Additional compensation may
be paid to public officers for the performance of new and additional duties outside the
scope of their elective office, provided further that such duties are compatible and in no
way conflict with the performance of their normal official duties. When such compatible
added duties are assumed by an elective officer, he may be given additional compensation
therefor without violating any prohibition against increasing the compensation of an
elective officer during his term (Mousseau v. Garey, 200 Cal. 201; San Luis Obispo v.
Felts, 104 Cal. 60; Abbott v. McNutt, 218 Cal. 225; Kilroy v. Whitmore, 115 Cal. App. 43 .
In utilizing this exception, extreme care should be taken to avoid the assumption by an
officer of a second public office which is incompatible with his primary office, since
acceptance of a second incompatible office renders the first office held vacant by
operation of law (People ex rel Bag haw v. Thompson, 55 Cal. App. 2d 147).
The Legislature has specifically recognized the importance of paying compensation for the
additional duties imposed on council members in cities of less than 200,000 population who
also serve as members of the redevelopment agency. In such circumstances, Section
�-J
33114.5 of the Health and Safety Code permits payment of $30 per member for each
meeting attended not to exceed four per month. Similarly, council members who serve as
members of a local agency formation commission are authorized to be reimbursed the
actual amount of their reasonable and necessary expenses, and the board of supervisors
may authorize payment of a per diem to commission members for each day while in
attendance at meetings of the commission. (Government Code Section 54783.)
E. Prohibition Against Gifts and Retroactive Pay
Article IV, Section 17, of the Constitution prohibits general law cities from granting extra
compensation for services already rendered. The predecessor to this prohibition was held
to be inapplicable to charter cities (Tevis v. City and County of San Francisco, 43 Cal. 2d
190). However, Article XI, Section 10, now provides:
"A local government body, may not grant extra compensation or extra allowance to a
public officer, public employee, or contractor after service has been rendered or a
contract has been entered into and performed in whole or in part, or pay a claim
under an agreement made without authority of law."
Thus the revision extends application of the provision to charter cities. The Attorney
General has ruled that the Constitution is not violated if a general law city increases
salaries by a resolution which provides that such increase will be effective after the date
of the resolution but before the date upon which the actual raise will be determined (33
Ops. Cal. Atty. Gen. 143).
Article XVI, Section 6, prohibits all gifts of public funds. The greatest danger of violating
this section occurs when an attempt is made to be "fair" and pay out city money to a
contractor when the city's obligation is moral and not legal. See Article XI, Section 10,
above. In the following cases, expenditures were held to be invalid as gifts because they
were not based upon a legal obligation: Robinson v. Dunn, 77 Cal. 473 (relating to a
retroactive increase in pay of state employees); Bourn v. Hart, 93 Cal. 321 (relating to an
appropriation to compensate a state employee for personal injuries sustained while in the
service of the state); Conlin v. Board of Supervisors, 99 Cal. 17 (relating to an
appropriation for the relief of a street contractor who had a moral but not a legal claim
against the city); Buck v. City of Eureka, 109 Cal. 504 (relating to extra compensation to
a city attorney for services he was already bound to perform); and City of Ojai v. Chaffee,
60 Cal. App. 2d 54 (relating to the cancellation of taxes). These cases are to be
distinguished from those cases cited above under "Public Purpose" in which moneys were
appropriated for the benefit of the general public to specific individuals. Here, the
expenditure is to a specific individual for that individual's benefit (not the general public's
benefit) and must, consequently, be supported by a legal obligation, i.e., even if there is no
legal obligation or quid pro quo, if expenditure is for a proper municipal purpose, it is not
a violation of the gift prohibition.
F. Prohibition Against Official Interest in Contracts
One of the most important requirements relating to the expenditure of public funds is that
no member of the city council have any personal interest therein. There are two statutes
which cover this subject: The Political Reform Act of 1974 and the law relative to public
officials' itnerests in contracts (Government Code Sections 81000 et seq, Sections 9090 et
seq., respectively). This subject is treated separately beginning at page D -1 of t'lese
Proceedings.
B -37
rp
G. Appropriations Limitation - Article XIIIB of the California Constitution
In November 1979, the voters of the State of California added Article XIIIB to the
California Constitution by initiative. The "Gann Initiative" provides that each city,
county and special district (and State) may not appropriate proceeds of taxes in excess of
its appropriations limit. The city's appropriations limit is calculated initially for the 1978-
79 fiscal year by determining all appropriations of proceeds of taxes and subtracting those
appropriations of proceeds of taxes exempted under the initiative (appropriations for debt
service, appropriations to comply with a court mandate). Proceeds of taxes are all
revenues from taxes, revenues from fees and user charges to the extent they exceed the
costs of providing the service for which the fee or charge is levied, and state subventions.
After determining the appropriations limit for the 1978 -79 fiscal year, the limit is
adjusted each year for changes in (1) population, and (2) CPI or per capita personal
income, whichever is less. The limit may also be adjusted in the event of an emergency or
by a vote of the city's residents.
If a city receives proceeds of taxes in any fiscal year in an amount in excess of the
amount which may be appropriated under the appropriations limit, this excess must be
returned to the city's residents.
Government Code Sections 7900 et seq. implement Article XIIIB of the California
Constitution.
VI. PERSONAL LIABILITY OF COUNCIL MEMBERS
A. Expenditures
1. Authority. There must always be legal authority to make the expenditure or
perform the action for which the expenditure is required. One city attempted to set up a
system of employee group insurance. The action was challenged and it was held that the
city lacked the authority to do so. (Frisbee v. O'Connor, 119 Cal. App. 601.) Personal
liability could have resulted if the members of that city council had expended city funds
for group insurance. Cities now have express statutory authority for this kind of
expenditure in Section 53200 et seq., Government Code. A general law city's authority to
expend or act is found in the Constitution, the general laws, or as an incident to the
exercise of its constitutional police power. In a chartered city, somewhat different tests
apply, but in every city a question directed to the city attorney should clear up the
doubtf ul cases.
An important question of authority will arise when a proposed expenditure is for a service
to be rendered outside of the city limits. As a general proposition a city can act outside
its boundaries only when expressly authorized by statute. (Mulville v. San Diego, 183 Cal.
734.) However, when a city serves territory immediately adjacent to its limits for the
purpose of protecting persons and property within its limits from fire (Raynor v. City of
Arcata, 11 Cal. 2d 113), indications are that the power will be implied. Again, there is
rather broad authority under the Joint Exercise of Powers Act (Government Code Sections
6500 et seq.) for contracts between public agencies having powers in common whereby one
serves the other. (City of Oakland v. Williams, 15 Cal. 2d 542.) It should be noted that
Section 55432 of the Government Code grants specific authority for one local agency to
contract with another for the furnishing of fire or police protection. With respect to
public works of the kind included in Article XI, Section 9, of the Constitution, there is
B- 33
. r
direct authority for service beyond city limits, provided that consent of any neighboring
city served is granted by ordinance. (Duran v. Beverly Hills, 39 Cal. App. 2d 133; City of
Mill Valley v. Saxton, 41 Cal. App. 2d 290.
B. Individual Actions
Historically, in most situations there will be no personal liability if a council member
acted in good faith and without intent to injure anyone. However, in 1978 the United
States Supreme Court declared in Monel v. Department of Social Services, 436 U.S. 658,
that a previous bastion of governmental immunity no longer existed. In Monell the Court
held that a city was a "person" within the meaning of the Civil Rights Act of 1968, as
amended (42 U.S.C.A. Section 1983) (creating a cause of action for violation of
constitutional or federal statutory law by a person acting under "color of law "), and could
be sued directly under certain circumstances. A number of related statutes adopted in the
same post -civil rights era can touch on city liabilities under the Civil Rights Act: (1) 42
U.S.C.A. Section 1981, often used in employment cases in conjunction with Title VII; (2)
42 US.C.A. Section 1982, granting equal rights with respect to ownership of property; and
(3) 42 U.S.C.A. Section 1985 prohibiting conspiracies to deprive an individual of civil
rights. These statutes significantly affect city law enforcement, land use regulation,
business licensing and personnel matters. Even with the expanded liability declared under
Monell, "good faith" was assumed to be a defense to an action brought under the Civil
Rights Act. In a 1980 decision of the United States Supreme Court, in Owens v. City of
Independence, (1980) 445 U.S. 622, the court again expanded the liability of local public
officials by removing "good faith" as a defense. If a city council member through official
action deprives an individual of constitutional or federal statutory rights, the council
member may be personally liable for damages for this violation of civil rights. Please
note that although punitive damages are not available against a city (City of Newport v.
Fact Concerts, Inc. 453 U.S. 247 (1981), individual council members may be the subject of
suc an award.
Other principles important to note relative to the personal liability of council members
include:
1. Individuals Cannot Bind Council. It is important that individual council members
avoid taking any action which purports to bind the city council (Zottman v. San Francisco,
30 Cal. 96). Such things as promising subdividers that they may connect free of charge to
the city's water or sewer system or promising tax advantages or low -cost services to
attract industry are highly dangerous. If the individual subdivider or industrialist acts on a
justifiable assumption that the individual council member is the agent of the city council
and has authority to represent the city, it is conceivable that he might become legally
entitled to damages for his losses from the individual council member when the city
council fails to take the promised action. (For the result of an informal collective
"agreement" between council members and a developer /subdivider, see Carruth v. Madera,
233 Cal. Appl 2d 688.)
2. False Arrests. Members of a city council have no rg eater authority to arrest alleged
wrongdoers than any other citizens. Citizens have authority to make arrests under certain
described circumstances and peace officers have somewhat broader authority. These
circumstances are described in Sections 834 et seq. of the Penal Code. The office of city
council member does not carry with it peace officer status. Consequently, council
members should avoid making any arrests which they could not make as a private citizen.
5 -3q
3. Personal Use of City Property. Council members and other city officials should take
care to avoid the use of city property for their personal benefit or advantage. In one
reported decision, it was held that a city council member who used official city stationery
in his campaign for reelection was indictable under Section 504 of the Penal Code (Peo le
v. Nathanson, 134 Cal. App. 2d 43). In another case, People v. Holtzendorf, 177 Cal. App.
2d 72d 798, a violation was found in using city personnel to type campaign etters.
4. Free Railroad Passes. An important and little known specific constitutional
prohibition relates to the acceptance of free passes from railroads or other transportation
companies. Article XII, Section 7, of the State Constitution specifically prohibits
acceptance of such passes by any public officer and provides that acceptance of such
passes will work a forfeiture of the public office.
5. Specific Charter Prohibitions. Council members in chartered cities should read their
city charter very carefully. Particular note should be taken of any specific prohibitions
applicable to city officers. One fairly common type of prohibition prohibits the
resignation of a city council member and acceptance of city employment within one year
thereafter. When this was done in one city by a council member who resigned and
accepted employment as a police officer prior to the expiration of a year, he was
compelled to pay the city all the salary received as a police officer (Briare v. Matthews,
202 Cal. 1.).
6. "Willful Omission" Misdemeanors. The foregoing are only a few of the specific
penalties app lica le to individual council members. Others are scattered throughout the
codes, and still others are found in individual city charters. Section 1222 of the
Government Code reads as follows:
"Every willful omission to perform any duty enjoined by law upon any public officer,
or person holding any public trust or employment where no special provision is made
for the punishment of such delinquency, is punishable as a misdemeanor."
Every statutory mandate or prohibition, and every ordinance and charter requirement
which is imposed upon a council member is enforceable by criminal sanctions. Section 177
of the Penal Code provides that when an act or omission is declared to be a public offense
and no penalty is described, the offense is punishable as a misdemeanor.
7. Willful Misconduct in Office. Under Sections 3060 et seq. of the Government Code,
a public officer may be removed from office for willful misconduct in office even though
he has not committed a crime. In addition to complying with the multitude of specific
written laws, you must be careful not to engage in any practices which a jury would
consider "willful misconduct" even though they are not prohibited by statute or ordinance.
4/84
R11 M
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i
CIT V or
"A LIN[M
CAL,rORNl♦
March 15, 1983
CITY OF LOMA LINDA
1 1 128 Anderson St., Loma Linda, California 92354 . (714) 796 -2531
From the Office of : DEPUTY CITY CLERK
Miss Lorraine Okabe, Librarian
League of California Cities
1400 "K" Street
Sacramento, CA 95814
Dear Miss Okabe:
Subject: Your Letter of February 17
Enclosed is a copy of the report City Manager Robert R. Mitchell presented
to the City Council pertaining to becoming a chartered city. I have also
enclosed a copy of a brochure drafted by our "Blue Ribbon Committee" and
distributed door -to -door; and lastly a copy of our Charter.
I hope this will of assistance to you. Should you have further questions
or would like additional information, please call.
Sincerely,
r�
Pamela A. Byrnes
Deputy City Clerk
Enclosures (3)
Sister City— Manipal. Karnataka, India
J.,.,
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CI f V 049 LONIA i.i,ND.A
CAI.�O�ti.a
TO:
FROM:
SUBJECT:
C.I`I'Y OF I _,OMA LINDA
P. O. Box 965, Loma Linda, California 92354 Tel. (% 14) 796 -2531
From the Office of:
CITY COUNCIL
CITY WINAGER '
CITY :L414AGER
January 16, 1981
"CHARTER OR GENERAL LAW CITY ?"
S UIU ARY
It is the goal of the City to develop a more diversified tax base.
These efforts can be enhanced by the use of industrial development bond
financing. Although recent changes in the general law permit this for
Loma Linda, state restrictions and procedures diminish the desirability
of using this avenue. A major area of local concern is not adequately
addressed. These shortcomings in the state and general law can be
overcome .by adopting a city charter.
Do we wish to do so? If yes, what type of city charter? Who is to
draft it? Who is to educate the voters on the merits of the city
charter? When is this to be done?
As you know, the question has arisen as to whether or not now is an
appropriate time for the City of Loma Linda to consider adopting a city
charter. Concerns have been expressed, "Is it good for the City ? ", or
"Is it bad ?"
Like many things facing the City a charter is not necessarily good nor
�
a it necessarily bad. The same can be said for the general law we now
operate under.
Rather than try to produce an entirely new document, -you will find
attached a copy of a report prepared by the League of California Cities
approximately a decade -ago on this very subject. There have been
changes and the report is a bit dated; basically the fundamentals
expressed in this report remain as accurate today as they were when it
was written.
In studying this problem, there are several steps which should be taken
by the City Council. First, we should answer the questions: Do we want
a charter or do we want to remain a general law city? If we remain a
general law city, tiler is the end of it. If w- wan*_ a chat ter, then the
question is, "What kind of a charter do we want? and "Who is going to
write it ?" and "How will it be explained to the citizenry in such a
matter that the voters will approve it ?" If in our first study session
.y
CHARTER CITY
January 16, 1981
Page 2
we can answer the question, "Do we want a charter ?" we will have crossed
one of the first big hurdles and reached a fundamental decision.
If you wish to explore further the possibility of having a charter then
we would have to decide what type of charter we want. Some charters are
long, some are very short. Charters can be "good" or they can be
"bad ". From a political science point of view, it has been said that
the charter of the City of San Bernardino guarantees the chaos and "side
show spectacle" which is too often in evidence there. Contrary wise,
some of the most efficiently operated cities in the state have charters
which are models of excellence.
It can also be argued that charters are fine for large cities but not
for small ones. This is not necessarily true as one of the smallest
charter cities in this state for many decades was Delmar and they
operated quite effectively. More and more small cities are adopting
charters. Less than ten years ago, Temple City took this action not
that they really wanted a change in the basic form of government, but
rather they wanted "to send a message to the legislature in Sacramento"
that they did not trust them with the changes they were making in the
general law at that time. They adopted a charter which basically froze
in place the general law and few or no changes have been made since.
Of course, nearby cities such as San Bernardino, Riverside, Long Beach,
Los Angeles, Pasadena, Santa Monica and many others are examples of
large charter cities. The accompanying pamphlet will give you some of
the basic reasons for this. In most instances their charters are long.
This need not necessarily be so. I have personally seen city charters
that were only two (2) pages.
Should we decide to draft a charter for submission to the voters, then
it would have to be determined who should undertake _this task. There
are two (2) alternatives. One, the City Council may do it; or two, a
Charter Commission. If we anticipate a short charter that would really
bring about only minor changes for specific purposes, then this could be
handled by your present city staff, namely the City Attorney and City
Manager. On the other hand, if we anticipate a complete rewriting of
the fundamental "Constitution of the City ", this will require a massive
amount of work and careful study. lie may wish to retain the services of
an expert on this matter.
If the City Council oversees the charter writing task, then it would
require additional workshop sessions to review the project. On the
other hand, if a city charter commission is appointed, as outlined in
the code, then that group would undoubtedly spend a great deal of time
draftin^ the charter and prep-trtng it for s-0),iiqcion to tii^ :voters.
Membership on this charter commission would be crucial as they would
have significant input into the drafting of the document. They would
also be highly influential at the time it is submitted for voter
approval.
s
CHARTER CITY
January 16, 1981
Page 3
Assuming a charter proposal is approved by the voters, then it is only a
matter of legal procedures before it is put into operation. The City
then, at that point, would be operating; under its own "City
Constitution ".
The proposal at hand is for the C -_y to adopt a city charter which would
change little, but would authorize the issuance of industrial
development bonds. These bonds would be paid out of various revenues,
probably mortgage payments. They would not be a debt of the CitI. They
most assuredly could not be a charge on the tax bills. State
regulations pertaining to general law cities now provide for this type
of financing. It is common in other states. however, there are
restrictions, limitations and state involvement. It is now known that
the general law city industrial development bonds could not be used for
some very primary needs in Loma Linda. This could be overcome through
the use of a charter. We should be careful, however, in drafting any
such charter provision so that it would be applicable to not one special
interest group, but rather be a fundamental tool of the City Council in
achieving a balanced economic base. This is, of course, one of our
foremost objectives. Loma Linda is now lawfully dependent upon a very
limited economic base, a base which provides through perfectly proper
constitutional provisions little property tax income. Enhancinlp our tax
base would be the chief inducement for adoption of a charter at this
time.
In addition to the report from the League of California Cities, you will
also find attached copies of various applicable state constitutional
provisions and state government code provisions pertaining to the
adoption of charters. These are provided for your information, however,
it is prudent to draw to your attention the fact that interpretation of
these provisions should be referred to our City Attorney whenever
questions arise.
I trust that the above is an aid in considering the charter vs. general
law issue. Should you have any further questions, please contact me.
Respectfully submitted,
Robert R. Mitchell
City Manager
RRM:kb
CONSTITUTION
1-.3. Charters; adoption by counties and cltias; amendment, revision or repeal;
conflicting measures
Sec. 3. (u) For Its own government, a county or city may adopt it charter by 1
( majority rote of its electors voting on the question. The charter Is effective when
filed with the Secretary of State. A charter may be amended, revised, or repealed
In the same mamier. A charter, amenduient, revision, or repeal thereof shall be
.published In the official state statutes. County charters ndopted pursuant to this
section shall supersede any existing charter and all lawn inconsistent therewith.
The provisious of a charter nre the law of the State and have the force and effect
of legislative enactments.
(b) The governing body or charter commission of a county or city may, propose
a charter or revision. Amendment or repeal may he proposed by initiative or by
the governing body.
(c) An election to determine whether to draft or revise a charter and elect a
charter commission may be required by Initiative or by the governing body.
(d) It provisions of 2 or more measures approved at the same election conflict, �
those of the measure receiving the highest affirmative vote shall prevail. I
!i
S. City charters; provisions
Sea 5. (a) It shall be competent In any city charter to provide that the city
governed thereunder may make and enforce all ordinances and regulatioi,s In re-
spect to municipal affairs, subject only to restrictions and limitations Provided in
their several charters and In respect to other matters they shall be subject to
general laws. City charters adopted pursuant to this Constitution shall super,*de
any existing charter, and with respect to municipal affairs shall supersede all laws
Inconsistent therewith.
(b) It shall be competent in all city charters to provide, In addition to those
provisions allowable by this Constitution, and by the laws of the State for: (1) the
eonstltutlon, regulation, and government of the city police force (2) subgovernmeut
In all or part of a city (3) conduct of city elections and (4) plenary authority Is
hereby granted, subject only to the restrictions of this article, to provide therein
or by amendment thereto, the manner in which, the method by which, the t::nrs at
which, and the terms for which the several municipal officers and employees whose
compensation is paid by the city shall be elected or appointed. and for their removal,
and for their compensation, and for the number of deputies, clerks and other em-
ployees that each shall have, and for the compensation, method of appointment, qual-
Ifications, tenure of office and removal of such deputies, clerks and other ecnploypgs_
CITY CHARTER
FOR
THE CITY OF LOMA LINDA
CHARTER OF THE CITY OF LOMA LINDA
WE, the people of the City of Loma Linda, County of San Bernardino,
State of California, do ordain and establish this Charter as the organic
law of the City of Loma Linda under and by virtue of the Constitution of
the State of California.
ARTICLE I
Status of City
Section 100. Name of City. The general law city, in existence
prior to the effective date of this Charter, known as the "City of Loma
Linda ", shall be deemed, for all purposes, to continue in existence, as
a chartered city from and after the effective date of this Charter, said
city, as a chartered city, shall continue to be known as the "City of
Loma Linda ", and shall hereafter be referred to and termed the City.
Section 101. Boundaries. The boundaries of the City, as a
chartered city, shall be identical to the boundaries of said City, a
general law city, as were lawfully in existence as of the effective date
of this Charter. After the effective date of this Charter, the
boundaries may be altered only as authorized by general law.
Section 102. Effective Date of Charter. This Charter shall be
effective from and after the date upon which a favorable vote of the
electors occurs and when accepted and filed by the Secretary- of State of
the State of California.
a
f
ARTICLE II
Succession
Section 200. Rights and Liabilities. The City shall be deemed,
for all purposes, to be the successor in interest to the former city.
The said City shall continue to own, possess, hold and control all
f
rights, including, but not limited to, rights in and to personal and
real property of every kind and nature owned, possessed, controlled, or
held by said former city, as of the effective date of this Charter. The
City shall be subject to all debts, obligations, liabilities, duties and
contracts of the said former city, as such existed as of the effective
date of this Charter.
Section 201. Validation of Prior Acts. All lawful acts heretofore
taken by, or on behalf of, the said former city, by its City Council, or
any commission, committee, board, officer, or employee thereof, shall
continue in full force and effect from and after the effective date of
this Charter, until they shall have been duly repealed, amended,
changed, or superseded by proper authority. The validation of such acts
as provided for herein shall include, but not be limited to, all
ordinances, resolutions, codes, rules and regulations or any portion
thereof in force at the time this Charter takes effect, and not in
conflict or inconsistent herewith.
Section 202. Continuance of Terms of Office. The members of the
City Council in office at the time this Charter takes effect shall
continue to hold their respective offices for the terms for which they
were elected.
a
{
Section 203. Status of Officers and Employees. All officers and
employees in offices or positions at the time this Charter takes effect
shall continue to perform the duties of their offices, positions and
employment without interruption and for the same compensation and under
the same conditions until the election or appointment and qualification
of their successors and subject to removal and control as herein
provided.
Section 204. Pending Proceedings. Any action or proceeding,
civil, criminal or administrative, pending as of the effective date of
this Charter, brought by or against the City or any officer, employee,
office, department, or agency thereof, shall not be effected or altered
by reason of the adoption of this Charter or anything herein contained.
Any such action or proceeding shall proceed to its conclusion in
accordance with all rules, regulations, and laws applicable thereto.
ARTICLE III
Powers of the City
Section 300. Powers. The City shall have all powers possible for
a general law City to have under the Constitution and laws of the State
of California as fully and completely as though they
were specifically enumerated in this Charter. The City shall have the
power to make and enforce all laws and regulations in respect to
municipal affairs which may he heretofore or hereafter established,
granted or prescribed to cities organized under the general laws of the
State of California, and such additional powers in respect to municipal
affairs as may be provided for in this Charter.
Section 301. Intergovernmental Relations. The City may exercise
any of its powers or perform any of its functions and may participate in
the financing thereof, jointly or in cooperation, by contract or
otherwise, with any one or more cities, counties, states, or civil
divisions or agencies thereof, or the United States or any agency
thereof.
Section 302. Financing. The City may finance or re--finance the
acquisition, construction, improvement, furnishing, equipping, repair,
reconstruction or rehabilitation of public facilities, hospitals and
health care facilities, and such residential, industrial, and commercial
facilities as the City Council may determine to be a proper public
purpose, in whole or in part, through the issuance of bonds secured by
the revenue of such facilities, or otherwise, or by means of such other
methods of financing that the City Council determines to be a proper
t public purpose; and provided further that where the general laws of the
state provide a procedure for carrying out an enforcement of the powers
granted herein, such procedure shall control and be followed, unless a
different procedure shall have been provided in this charter, or by
ordinance.
ARTICLE IV
Definitions
S ?ction 400. Definitions. For the nurooses of this Charter, the
following definitions shall apply unless from the context thereof a
contrary meaning is clearly intended:
(a) "City" is the City of Loma Linda, and "department ", "board ",
9. commission ", "agency ", "officer , or 'employee' is a
department, board, commission, agency, officer, or employee
as the case may be, of the City of Loma Linda.
(b) "City Council" shall mean the legislative body of the City.
(c) "Constitution" shall mean the Constitution of the State of
California.
(d) "Facilities" shall mean land, including without limitation,
the acquisition, preparation, and development thereof; and
all improvements thereon, including without limitation,
structures, buildings, roadways, landscaping, furnishings,
equipment, machinery, and appurtenances.
(e) "General Law" shall mean an enactment of the Legislature of
the State of California which lawfully governs, allows, or
regulates activities of a general law city as defined in
Sec. 34102 of the Government Code of the State of
California.
(f) "Law" includes ordinance.
(g) "May" is permissive.
(h) "Municipal Affair" shall mean those matters which have been,
and continue to be held to be such by courts of record in
the State of California.
(i) "Shall" is mandatory.
(j) "State" is the State of California.
(k) The masculine, feminine, and neuter genders shall be
interchangeable, as shall be the singular and plural.
Section 401. Reference to Laws. Whatever reference is made in
this Charter to any law or Code provision enacted by the Legislature of
the State, or to any constitutional provision, said reference shall
mean, and include, any amendment thereto, enacted after the effective
date of this Charter; provided, however, if any such law is repealed in
whole or in nar`, --ht-- City Council, by ordinance, may 2aact pcovi.sion,
consistent with this Charter, covering the substance of such repealed
legislation.
Section 203. Status of Officers and Employees. All officers and
employees in offices or positions at the time this Charter takes effect
shall continue to perform the duties of their offices, positions and
employment without interruption and for the same compensation and under
the same conditions until the election or appointment and qualification
of their successors and subject to removal and control as herein
provided.
Section 204. Pending Proceedings. Any action or proceeding,
civil, criminal or administrative, pending as of the effective date of
this Charter, brought by or against the City or any officer, employee,
office, department, or agency thereof, shall not be effected or altered
by reason of the adoption of this Charter or anything herein contained.
Any such action or proceeding shall proceed to its conclusion in
accordance with all rules, regulations, and laws applicable thereto.
ARTICLE III
Powers of the City
Section 300. Powers. The City shall have all powers possible for
a general law City to have under the Constitution and laws of the State
of California as fully and completely as though they
were specifically enumerated in this Charter. The City shall have the
power to make and enforce all laws and regulations in respect to
municipal affairs which may he heretofore or hereafter established,
granted or prescribed to cities organized under the general laws of the
State of California, and such additional powers in respect to municipal
affairs as may be provided for in this Charter.
ARTICLE V `
Violations
Section 500. Violations. A violation of this Charter, or any
ordinance of the City, shall constitute an infraction. Any person
violating any of such provisions or failing to comply with any of the
requirements of this Charter or any ordinance of the City, shall be
guilty of an infraction. Any person convicted of an infraction under
the provisions hereof shall be punishable by (1) a fine not exceeding
Fifty Dollars ($50.00) for a first violation; (2) a fine not exceeding
One Hundred ($100.00) for a second violation of the same ordinance
within one (1) year; and (3) a fine not exceeding Two Hundred Fifty
Dollars ($250.00) for each additional violation of the same ordinance
within one (1) year. Each such person shall be guilty of a separate
offense for each and every day during any portion of which any violation
of any provision of this Charter or any City ordinance is committed,
continued, or permitted by such person and shall be punishable
accordingly.
ARTICLE VI
VALIDTY
Section 600. Validity. If any provision of this Charter, or the
application thereof to any person or circumstance, is held invalid, the
remainder of the Charter, and the application of such -provision to other
persons or circumstances, shall not be affected thereby.
i
e r
LEAGUE OF CALIFORNIA i
Cities
1400 K Street
a ornia Charter
Sacramento, California 98814 Z
2 WEEKS PLEASE 8.1" c ti es
2/83
*1980
Date of Present
City
County
Population
Charter
Alameda
Alameda
639852
1937
Albany
Alameda
159130
1927
Alhambra
Los Angeles
649615
1915
Anaheim
Orange
2219847
1965
Arcadia
Los Angeles
451,994
1969
Bakersfield
Kern
1059611
1915
eley
�amdey,� q/a/�HO
1039328
84,625
1909 �9�3
1927
Pica -�- Burbank
os An ef'es
9
�Ik 4 Cerritos
Los Angeles
529756
1964
Chico
Butte
26,601
1960
Chula Vista
San Diego
835927
1949
Compton
Los Angeles
815286
1948
Culver City
Los Angeles
389139
1947
Cypress
Orange
409391
1975
Del Mar
San Diego
5,017
1960
Downey
Los Angeles
82,602
1965
Eureka
Humboldt
24,153
1959
Fresno
Fresno
218,202
1957
Gilroy
Santa Clara
219641
1959
Glendale
Los Angeles
139,060
1921
Grass Valley
Nevada
61,697
1953
Hayward
Alameda
94,167
1956
Huntington Beach
Orange
170,505
1937
Industry
Los Angeles
664
1976
Inglewood
Los Angeles
949245
1927
Irvine
Orange
621,134
1975
Irwindale
Los Angeles
15030
1976
Loma Linda
San Bernardino
10,694
1981
Long Beach
Los Angeles
3619334
1921
Los Alamitos
Orange
11,529
1967
Los Angeles
Los Angeles
299669763
1925
Marysville
Yuba
9,898
1919
Merced
Merced
369499
1949
Modesto
Stanislaus
1069105
1951
Monterey
Monterey
279558
1962
Mountain View
Santa Clara
582655
1953
Napa
Napa
509879
1915
Needles
San Bernardino
49120
1959
Newport Beach
Orange
63,475
1955
Oakland
Alameda
339,288
1969
Oroville
Butte
8,683
1933
Pacific Grove
Monterey
159755
1969
Palo Alto
Santa Clara
555225
1909
Pasadena
Los Angeles
119,374
1901
pctai+imn
Sonoma
33,R {a
1947
Piedmont
Alameda
102498
1923
Placentia
Orange
359041
1965
California Charter Cities
Population - 1980
Page 2
2 -2 -83
*Population figures are from the 1980 Federal Decennial Census
Date of Present
Charter
1965
1927
1949
1929
1909
1953
1955
1921
1919
1905
1931
1931
1965
1933
1955
1971
1913
1953
1967
1951
1948
1947
1923
1964
1923
1949
1971
1947
1923
1970
1971
1969
1960
1955
*1980
City
Count
Population
Pomona
Los Angeles
929472
Porterville
Tulare
199707
Redondo Beach
Los Angeles
579102
Redwood City
San Mateo
54,965
Richmond
Contra Costa
749676
Riverside
Riverside
1709876
Roseville
Placer
24,347
Sacramento
Sacramento
2759741
Salinas
Monterey
809479
San Bernardino
San Bernardino
1189057
San Diego
San Diego
8755504
San Francisco
San Francisco
678,974
San Jose
Santa Clara
6369550
San Leandro
Alameda
639952
San Luis Obispo
San Luis Obispo
34,252
San Mateo
San Mateo
779561
San Rafael
Marin
449700
Santa Ana
Orange
203,713
Santa Barbara
Santa Barbara
74,542
Santa Clara
Santa Clara
879746
Santa Cruz
Santa Cruz
41,483
Santa Monica
Los Angeles
889314
Santa Rosa
Sonoma
831,205
Seal Beach
Orange
253,975
Stockton
San Joaquin
1499779
Sunnyvale
Santa Clara
106,618
Temple City
Los Angeles
289972
Torrance
Los Angeles
131,497
Tulare
Tulare
229475
Vallejo
Sonoma
809188
Ventura
Ventura
749474
Visalia
Tulare
49,729
Watsonville
Santa Cruz
239543
Whittier
Los Angeles
689872
*Population figures are from the 1980 Federal Decennial Census
Date of Present
Charter
1965
1927
1949
1929
1909
1953
1955
1921
1919
1905
1931
1931
1965
1933
1955
1971
1913
1953
1967
1951
1948
1947
1923
1964
1923
1949
1971
1947
1923
1970
1971
1969
1960
1955
86 34308 to 34333 GOVERNMENT CODE
Repealed
DIVISION 2. ORGANIZATION AND BOUNDARIES
Part
2. Municipal Organization Act ...........................
..... ............................... 35000
PART 1. ORGANIZATION
Chapter 1. pecial Charter Cities ...:�. Section
2. City Charters ............: 1................ .. .......................... 34300
3. Corporate Name ........
...�� ........... ............. ..........................34450
4. Alternative Forms of Government ............................ .. .. .....34500
.r ..... .......................... 34851
CHAPTER 1.\ SPECIAL CHARTER CITIES
Chapter I was renumbered Cha
Scats 1977, a I tSJ, p. 4691, S. *r 1 from firmer Chapter t and amended by
Former Chapter 1, New Cities, - was vpealed by Stats.ion, a 125J, P. 4692, 1 1.
44 34300 to 34333. Repealed by Stats.1977, c.
Prior to repeal, 1 34301 was amended by Stats.1973, a
119, P. 180, 1 1.
Prior to repeal, 1 34302.1. formerly 34303.3, renumber-
ed 1 34302.1 and amended by Stats.1971, a 34, p. 74. 1 1.
was amended by Stats.1974, c. 866; p. 1833, 1 1.
Former 1 34302.3. added by Stats.1972. c. 389, p. 709,
1 1. related to tidelands of submerged loads
Prior to repeal, 1 34302.5 ,sins amended by Stab. 1974. c.
866, P. 1853, 1 2.
Prior to repeal, 1 34303 was amended by Stats.1973, a
119, P. 180. 12, Stats.1974, c. 866. p. 1854, 1 3.
Former 1 34303.5' was renumbered 1 34302.1 and
amended by Stata.1971, c. 54, p. 74, 1 1.
Prior to repeal, 1 34305 was amended by Stats.1974. c.
866, p. 1854, 1 4.
Prior to repeal, 1 34306 was amended by Stats.1969, c.
324. p. 697, 1 1; Stats.1973, a 415, p. 881, 1 1; Stats.1974,
Q 866. p. 1854, 1 5.
Prior to repeal, 11 34307 to 34308 were amended by
Stats.1974. C. 866, P. 1835, 11 6 to S.
Prior to repeal, 11 34310, 34311 were amended by Stab.
1974;c. 478, p. 1109, 11 2, 3.
former 1 34311.1, added by Stats.1974, c. 478, p. 1109,
¢�4, provided for written requests for exclnsiomW property.
P. 4692, 1 1
Former 1 34311.1. added by Stats.1971, c. 1160, p. 2181,
1, relating to adjournment or recess of bearing and termi-
of proceedings to woorporate territory in counties of
4,000,000 Population. was repealed by force of its own
on December 31, 1973.
to repeal. 1 3431 S was amended by Stab 1969. a
1301. p. 1 l; Stets 1971, c. 774, p 1323, ¢ 1.
Prior to 1 34317 was amended by Stats.1971, c-
774, p. 15 1 2.
Prior to 1 34321 was amended by Stats.1977, e.
�• P- 12361 1 2.
Former 1 343 1. added by Stats.1970, a 736, p. 1367,
1 5, amended by S 1971, c. 438, p. 888, 1 118. provided
for a notice of ele�ion can to load agency formation
commissions and the 1`4q ation of an impartial analysis of
the proposed city inoorpgration
Former 1 34323.2 to 323.4. added by Scats 1970. a
736. - p. 1368. 11 6 to 8, for filing of written
arguments, admum from m 'Pic arguments for printing
and _ distribution and stated requirements for ballot
Prior to repeal, 1 34325 was aded by Stats.1973, c-
415, p. 882, 1 2.
See, now. 1 3M et seq.
CHAPTER 2. CITY CHARTERS
Section
34450. Authorization.
34451. Charter commission; proposals; eligibility of candidates.
34452. Election of charter commissioners; vacancies.
34453. Questions submitted; effect of vote.
34454. Nomination of candidates for charter commission.
34455. Proposed or revised charter, publication.
34456. Availability of copies; distinguishing type styles; notice.
34457. Proposed or revised charter; submission to electors.
34458. Proposal by governing body; advertising; election.
Undedine indicates changes or additions by amendment
6
CODE«
Section
. 35000
Section
. 34300
.34450
. 34500
.34651
by
>, p. 2161,
and termi-
ounties of
of its own
ts.1969. c.
i 1.
b. 1971. a
ts.1977, C.
S, p. 1367,
ti
provided
formation
analysis of
Fs-1970, c.
`of written
x printing
for ballot
ds.1973, a
GOVERNMENT CODE
§ 34451
Section
34459. Amendment or repeal; methods.
34460. Petitions for amendment or repeal; requirements.
34461. Petitions for amendment or repeal; publication of proposal; submission to voters.
34461.5. R.ecodification; submission to voters; date of election.
34462 Calculation of required percentages of registered electors.
34463. Favorable vote of electors; ratification; acceptance and filing by secretary of state.
34464. Certification; authentication; filing; contents.
34465. Secretary of state; acceptance and filing; publication; judicial notice.
34470. Cities and counties; proposed or revised charters; submission to electors.
Chapter 2 was renumbered Chapter 8 from former Chapter J and amended by
Stats.1977, a 185.1, P. 4691, 13 J.
Former Chapter 8 was renumbered Chapter I and amended by Stats.1977, a 1851, p.
469-0, ¢ 8.
Chapter J added by Stats.1969, a 124 p. 8475, ¢ P, became operative upon adoption by
the people of Assembly Constitutional Amendment No. 89, 1.969 [Res. Ch. J.11, P. 40MI at
the special election consolidated with the primary election held June 8, 1970.
Another Chapter J, Cities Chartered Under the Constitution, comprising ff 14450 to
J4454, added by Stats.1949, a 79, p. 106, 11, was repealed by Stats.1969, a 1264, p. 8475,
¢ 2, and became operative upon adoption by the.people of Assembly Cont. Amend No.
29, 1969 [Res. Ch. JJl, P. 400J] at the special election consolidated with the primary
election held June 8, 1970. See, Chapter J, ante.
Tie addition of Chapter J. City Charters, by Stats.1968, a 767, p. 1495, ¢ 5, and the _
repeal of another Chapter J. Cities Chartered Under the Constitution, added by
Stats.1949, a 79, p. 106, is 1, failed to become operative because of rejection by the voters
of Assembly Const. Amend No. J0, 1968, at the general election held Nov. 5, 1968.
Library Retwesices
Municipal Corporations v44.
C.J.S. Municipal Corporations ¢ 89.
§ 34450. Authorization
Any city or city and county may ' ' enact or revise a charter for its own government according
to the provisions of this article. - -
(Added by Stats.1969, c. 1264, p. 2475, § 3, operative June 2, 1970. Amended by Stats.1975, c. 238, p.
627, § 12, urgency, eff. July 8, 1975.)
1961 Legislation. This section became operative upon adoption by the
The repeal of ¢ 34450, added by Stats.1949, c. 79, p. 106, poople of A.CA. primary 2
¢ t, and the addition of another ¢34450 by Stats.1968. a Another section of the same number. added by Stats.i949,
767, p. 1495, ¢ 5, failed to become operative because of a 79. p. 106, ¢ 1, was repealed by Stats.1969. c. 1264, p.
rejection by the voters of Assembly Coos, Amend No. 30, 2475, ¢ 2, operative upon adoption by people of A.A. No.
1968. at the g�era! election held Nov. S, 1968. 29, C. 1969 (Fees. ch. 331, p. 40031 at the special election
no Legislation. _ consolidated with the primary election held June 2, 1970.
§ 34451. Charter commission; proposals; eligibility of candidates
The charter may be proposed or revised by a charter commission chosen by the electors of the city
or city and county, at any general or special election, but no person shall be eligible as a candidate
for such commission unless he is an elector of the city or city and county.
(Added by Stats.1969, c. 1264, p. 2475, § 3, operative June 2, 1970.)
16 Legislation. rejection by the voters of Assembly Const. Amend. No. 30,
The repeal of 1 34451, added by Stats.1949, c. 79, p. 106, 1969. at the general election held Nov. 5, 1969.
¢ 1. and the addition of another § 34451 by Stats.1%8, c.
767, p. 1495, ¢ 5, filled to become operative because of no Legidsvion.
Asterisks • Indicate deletions by amendment
7
§ 34451
This section became operative upon adoption by the
people of A.C.A. No. 29, 1969, at the special election
consolidated with the primary election held June 2, 1970.
Another section of the same number, added by Stats.1949,
c. 79, p. 106, § 1, was repealed by Stats.l %9, e. 1264, p.
GOVERNMENT CODE
2475, § 2, operative upon adoption by people of A.C.A. No.
29, 1%9 [Res. Ch. 331, p. 4003] at the special election
consolidated with the primary election held June 2, 1970.
§ 34452. Election of charter commissioners; vacancies
- W An election for choosing charter commissioners may be called by a majority vote of the
governing body of a city or city and county, or on presentation of a petition signed by not less than
15 percent of the registered electors of such city or city and county. Any such petition shall be
verified by the authority having charge of the registration records of the city or city and county and
the expenses of such verification shall be provided by the governing body thereof. The governing
body shall call such election not less than 75 nor more than 90 days from the date of its vote or the
date of verification of the petition.
(b) If any vacancy arises in a charter commission established for a city or city and county pursuant
to this chapter, such vacancy shall be filled by an appointment by the mayor of such city or city and
(Added by Stats.1969, c. 1264, p. 2475, § 3, operative June 2, 1970. Amended by Stats.1972, c. 409, p.
730, § 4; Stats.1979, G 37, p. 107, § 1, urgency, eff. April 19, 1979.)
1966 Legislation.
The repeal of § 34452, added by Stats.1949, e. 79, p. 106,
§ 1, and the addition of another § 34452 by Stats.1969, c.
767, p. 1496, § 5, fuzed to become operative because of
rejection by the voters of Assembly Const. Amend. No. 30,
1%8, at the general election held Nov. 5, 1%8.
1%9 L gislatloa.
§ 34463. Questions submitted; effect of vote
This section became operative upon adoption by the
people of A.C.A. No. 29, 1969, at the special election
consolidated with the primary election held June 2, 1970.
Another section of-the same number, added by Stam 1949,
c. 79, p. 106, § 1. was repealed by Stater 1969. c. 1264, p.
2473. J 2, operative upon adoption by people of A.GA. No.
29, 1969 [Res. Ch. 331. p. 40031 _ at the special election
consolidated with the primary election held June 2,. 1970.
At such election the electors shall vote first on the question "Shall a charter commission be elected
to propose a new charter or to revise the charter?" and secondly for the candidates of -the office of
charter commissioner. If the first question receives a majority of the votes of the qualified voters
voting thereon at such election, the 15 candidates for the office of charter commissioner receiving the
highest number of votes shall forthwith organize as a c arter commission, but if the -first question
receives less than a majority of the votes of the qualified voters voting thereon at such election no
charter commission shall be deemed to have been elected.
(Added by Stats.1969, c. 1264, p. 2475, § 3, operative June 2, 1970.)
1966 Legislation.
The repeal of § 34453, added by Stats.1949, c. 79, p. 106,
§ 1. and the addition of another § 34453 by Stata.1968, a
767, p. 1496, § 5, failed to become opaative because of
rejection by the voters of Assembly Const. Amend. No. 30,
1968, at the general election held Nov. 5, 1%8.
1%9 Ledslstioa.
This section became operative upon adoption by the
people of A.C.A. No. 29, 1%9, at the special election
consolidated with the primary election held June 2, 1970.
Another section of the same number, added by Stats.1949,
c. 79, p. 106, § 1, was repealed by Stats 1969. c. 1264, p.
2475, § 2, operative upon adoption by people of A.GA. No.
29, 1969 [ Res. OL 311. p. 40031 at the special election
consolidated with the primary election held June 2. 1970.
§ 34454. Nomination of candidates for charter commission
Candidates for the office of charter commissioner shall be nominated either in such manner as may
be provided for the nomination of officers of the municipal or city and county government or by
petition, substantially in the same manner as may be provided by general laws for the nomination by
petition of electors of candidates for public offices to be voted for at general elections.
(Added by Stats.1969, c. 1264, p. 2475, § 1, operative June 2, 1970.)
1966 Lesidatioa. 29, 1969 [ Rea. Ch. 331, p. 4003] at the special election
Another section of the same number, added by Stats.1949, consolidated with the primary election held June 2, 1970.
c. 79, p. 106, § 1, was repealed by Stats.1969, c. 1264, p. The repeal of § 34454, added by Stats.1949, c. 79, p. 106,
2475, § 2, operative upon adoption by people of A.C.A. No. § 1, and the addition of another § 34454 by Stats.l %8, c.
Underline Indicates changes or additions by amendment
8
- G,,''ERNMENT CODE § 34458
767, p. 1496, § 5, failed to become operative because of This section became operative upon adoption by the
rejection by the voters of Assembly Const. Amend. No. 30, people of A.C.A. No. 29, 1 %9, at the special election
1968, at the general election held Nov. 5, 1968. consolidatgd with the primary election held June 2, 1970.
1 %9 Legislation.
§ 34455. Proposed or revised charter, publication
The charter commissioners shall propose a charter for the government of the city or city and
county or revise a charter. The charter so prepared shall be signed by a majority of the charter
commissioners and shall be filed in the office of the clerk of the governing body of the city or city
and county. The governing body of the city or city and county shall, within 15 days after such filing,
cause such charter to be published once in the official newspaper of said city or city and county and
in each edition thereof, during the day of publication. In case there is no such official newspaper,
the charter shall be published in a newspaper of general circulation within such city or city and
county and in all the editions thereof issued during the day of publication.
(Added by Stats.1969, c. 1264, p. 2475, § 3, operative June 2, 1970.)
1%8 Legwation, 1969 Legblation.
The addition of another § 34455 by Stats.1969, c. 767, p. This section became operative upon adoption by the
14 %, § 5, failed to become operative because of rejection by of A n b No. op 1969, at the
the voters of Assembly Cont. Amend. No. 30, 1968, at the people special election
general election held Nov. 5, 1968. consolidated with the primary election held June 2, 1970.
§ 34456. Availability of copies; distinguishing type styles; notice
In any city or city and county with over 50,000 population, the governing body shall cause copies of
the charter to be printed ' ' ' in type of not less than 10 -point and shall ' ' ', until the day fixed
for the election upon the charter, advertise in one or more newspapers of general circulation in said
city or city and county a notice that copies are available up2n request at the elections official's office.
The text of the proposed charter may show the difference from exlstinq provisions of w y e use
n - uttinanikhino, tvna atv as
The impartial analysis prepared by the city attorney's office pursuant to Section 5011 of the
orrice ana request that a copy oi; the proposed or revised charter be mailed to them at no cost.
(Added by Stats.1969, c. 1264, p. 2476, § 3, operative June 2, -1970. Amended by Stats.1986, c. 866,
1%8 Leodation. 1969 Legislation,
The addition of another § 34456 by Stats.1968, c. 767, p. 1� operative upon adoption by the
1496, § S. failed to become operative because of rejection by
the voters of Assembly Const. Amend No. 30, 1968, at the people of A.GA. No. 29, 1969; at the special election
general election held Nov. S, 1968. consolidated with the primary election held June 2, 1970.
§ 34457. Proposed or revised charter, submission to electors
The proposed or revised charter shall be submitted to the electors of the city or city and county at
a ' ' ' special election. to he held on the next established election date not less than ' ' ' 74 days
from the completion of the publication of the charter as provided in -this article ' ' '.
(Added by Stats.1969, c. 1264, p. 2476, § 3, operative June 2, 1970. Amended by Stats.1973, c. 1146,
p. 2366, § 19.)
1%8 Legislation. 1%9 Legislation.
The addition of another § 34457 by Stats.1968, c. 767, p. This section became operative upon adoption by the
1496, § S, failed to become op=tive because of rejection by
the voters of Assembly Cont. Amend. No. 30, 1968, at the people of A.C.A. No. 29, 1969, at the special election
general election held Nov. 5, 1968. consolidated with the primary election held June 2, 1970.
§ 34458. Proposal by governing body; advertising; election
As an alternative to the procedure provided for in Sections 34450 through 34457 of this article, the
governing body of any city or city and county, on its own motion may propose or cause to be
Asterisks • Indicate deletions by amendment
9
w
§ 34461
Derivation: Former § 34461, added by Staml%9, c.
1264, p. 2477, § 3, amended by Stats.1974, c. 662, p. 1524,
§ 4.
§ 34461.5. Recodification; submission to voters; date of election
GOVERNMENT CODE
The governing body of any city or city and county may, on its own motion, recodify the charter of
the city or city and county and by resolution submit the proposal for charter recodification to the
electors of the city or city and county, provided such recodification does not, in any manner,
substantially change the provisions of said charter. Such proposals shall be submitted to the electors
at either a special election called for that purpose or at any general or special election.
The governing body shall cause copies of the recodified charter to be printed in convenient
pamphlet form and in type of not less than 10 -point and shall, within 15 days after adoption of the
resolution ordering the recodification proposal submitted to the electors and until the day fixed for
the election upon the recodified charter, continuously advertise in one or more papers of general
circulation in said city or city and county, a notice that copies may be had upon application therefor.
The election on the proposed recodified charter shall be held at a date to be fixed by the governing
body of the city or city and county, which date shall not be less than 40 days nor more than 60 days
after the date on which the resolution ordering submission of the recodification proposal submitted to
the electors was adopted by the governing body of the city or city and county.
(Added by Stats.1971, c. 452, p. 936, § 1, urgency, eff. Aug. 2, 1971.)
Library References
Municipal Corporations a44.
C.J.S. Municipal Corporations § 89.
§ 34462. Calculation of required percentages of registered electors
The percentages of the registered electors required for the election of charter commissioners or
the submission of amendments to charters or the proposal for charter repeal shall be calculated upon
the total vote cast for all candidates for Governor in the city or city and county at the last preceding
general state election at which a Governor was elected ' ' '. The election laws of such city, or city
and county shall, so far as applicable, govern all elections held under the authority of this
chapter.
(Added by Stats.1969, c. 1264, p. 2477, § 3, operative June 2, 1970. Amended by Stats.1972, c. 409, p.
730, § 6.)
1%8 Legislation.
The addition of another § 34462 by Stats.1968, c. 767, p.
1497, § S, failed to become operative because of rejection by
the voters of Assembly Const. Amend. No. 30, 1%8, at the
general election held Nov. 5, 1968.
1 %9 Legislation.
This section became operative upon adoption by the
people of A.C.A. No. 29, 1969, at the special election
consolidated with the primary election held June 2, 1970.
Notes of Decisions
In general 1
Number of signatures 2
1. L general
An insufficient charter city initiative petition may be
supplemented with additional signatures after election for
which it was first submitted has occurred, yet within one
year of first signature. Coalition for Fair Rent v. Abdeln-
our (1980) 165 Cal.Rptr. 685, 107 C.A.3d 97.
2. Number of signatures
Controlling election used in determining amount of signa-
tures needed on a charter city initiative petition is the last
election preceding the date of the first signature on the
initiative petition. Coalition for Fair Rent v. Abdelnour
(1980) 165 Ca1.Rptr. 685, 107 C.A.3d 97.
§ 34463. Favorable vote of electors; ratification; acceptance and riling by secretary of state
If the electors vote in favor of the charter proposal, revision, amendment, or repeal, it shall be
deemed to be ratified, but shall not take effect until accepted and filed by the Secretary of State
pursuant to the provisions of Section 34464.
(Added by Stats.1975, c. 238, p. 627, § 14, urgency, eff. July 8, 1975.)
Underline Indicates changes or additions by amendment
12
T UJ )l
charter of
ion to the
i manner
, rs
ie electo
=venient
-ion of the
fixed for
A general
i therefor.
governing
in 60 days
bmitted to
;sioners or
dated upon
preceding
sty, or city
this . . .
2, c. 409, p.
ition may be
r election for
et within one
ut v. Abdeln-
oust of signs,-
ion is the last
tattue on the
v. Abdelnour
ry of state
it shall be
.ry of State
amendment
GOVERNMENT CODE
§ 34470
1968 Legislation. Former § 34463, added by Stats.1969, c. 1264, p. 2477,
The addition of another § 34463 by Stats.1%8, c. 767, p. § 3, requiring the legislature to approve city charters before
filing with secretary of state and for courts to take judicial
1498, § 5, failed to become operative because of rejection by notice of the charters, was repealed by Stats.1975, c. 238, p.
the voters of Assembly Const. Amend. No. 30, 1968, at the 627, § 13, urgency, eff. July 8, 1975-
general election held Nov. 5, 1968,
1%9 L.egiandon. Crass References
Similar provisions for county charters. see if 23712.
Former § 34463 became operative upon adoption by the 23723.
people of A.C.A. No. 29, 1%9, at the special election
consolidated with the primary election held June 2, 1970. Ll�y Rs 4-3.
Counties a3.
1975 Legislation. CJ.S. Counties §§ 5, 6.
§ 34464. Certification; authentication; filing; contents
Three copies of the complete text of a charter proposal or of any revised, amended or repealed
section ratified by the electors of a city or city and county shall be certified and authenticated by the
chairman and clerk of the governing body and attested by the city clerk, setting forth the submission
of the charter to the electors of the city, and its ratification by them. One copy shall be f17ed with
the recorder of the county in which the city is located, and one in the archives of the city. In the case
of a city and county, one copy shall be filed with the recorder thereof, and one in the archives of such
city and county.
The third copy shall be submitted to the Secretary of State with the following.
(a) Certified copies of all publications and notices required of the city by this chapter or by the
laws of this state in connection with an election to propose, revise, amend or repeal a city charter.
(b) Certified copies of any arguments for or against the charter proposal, revision, amendment or
repeal which were mailed to voters pursuant to Section 5012 of the Elections Code.
(c) A certified abstract of the vote at the election at which the charter proposal, revision,
amendment, or repeal was approved by the voters.
(Added by Stats.1975, c. 238, p. 627, § 15, urgency, eff. July 8, 1975.)
Goss References Library References
Similar provisions for county charters, see § 23713. Counties 4-3.
G.S. Counties if 5, 6.
§ 34465. Secretary of state; acceptance and filing-, publication; judicial notice
A charter proposal, revision, amendment, or repeal by the electors of a city or city and county and
submitted to the Secretary of State in compliance with the provisions of this chapter shall be
accepted and filed by the Secretary of State. The charter proposal, revision, amendment, or repeal
shall be published in the statutes in a charter chapter series under the designation "Statutes of
(year), Charter Chapter " Under the chapter number, the date of
the ratification election and the date of filing with the Secretary of State shall be indicated.
After a charter proposal, revision, amendment, or repeal is accepted and filed by the Secretary of
State, the courts shall take judicial notice thereof.
(Added by Stats.1975, c. 238, p. 628, § 16, urgency, eff. July 8, 1975.)
Cron References
Similar provisions for county charters, see -1 23714.
§ 34470. Cities and counties; proposed or revised charters; submission to electors
(a) A charter commission established for a city and county pursuant to this chapter on or after
January 1, 1979, shall complete a proposed or revised charter and submit such charter to the electors
of the city and county within two years of the date of the election of the charter commissioners and
at the expiration of such period is abolished. Any charter commissions established for a city and
county pursuant to this chapter prior to January 1, 1979, shall complete a proposed or revised charter
and submit such charter to the electors of the city and county on or before December 31, 1980, and as
of such date is abolished.
Asterisks • Indicate deletions by amendment
13
341141 t:UVERNMENT CODE
i. (b) A charter commission may submit portions of the proposed or revised charter to the electors
periodically.
(Added by Stats.1978, c. 1158, p. 3554, § 1.)
Library Refaawes
Counties 4- 69(3).
C.J.S. Counties § 130.
CHAPTER 3. CORPORATE NAME
Section
34502. Chang of name by ordinance.
34503. Filing ies of ordinance passed by legislative body or by initiative r referendum.
34504. Two year riod for reconsideration after failure of ordinance to pass.
Chapter J renumbered from former Chapter 4 and amended by S ta.1977, a 125J,
P. 4893, 14.
Former Chapter was renumbered Chapter 2 and amended by ts.1977, a 1253, p.
4893,43
§ 34502. Change of name ordinance
The legislative body may, by rdinance adopted by a four - fifth#// to of its members, change the
name of the city. In the same er, the legislative body may/eliminate the word "city" from the
corporate name and substitute th word "town" or eliminate/the word "town" and substitute the
word "city."
(Added by Stats.1985, c. 617, p. 10.) '
Derivadoa: Forma j 34509, added by Stam l % c. 79,
p. 107, 1 1.
i
§ 34503. Filing copies of ordinance passed b leg
Within 10 days of the effective date of an o ' a c
10 days of the date the legislative body deehres th
referendum, _the city clerk shall file a copy of the ordi
supervisors of the county in which the ci is located,
the county in which the city is located. .
(Added by Stats.1985, c. 617, p. 12.)
,
dative body or by initiative or referendum
adopted pursuant to Section 34502, or within
vote on an ordinance passed by initiative or
ce with the Secretary of State, the board of
the local agency formation commission of
1986 I.e&latioe- / Dafiadoa: *rmer §1 34507. 34510, added by StaM
Forma § 34503 was repealed by Staff 1985, C. 617, p. 1949, c. 79, pp. t 08, § L
§ 34504. Two year periodlior reconsideration after failure of ordina> ss
ce to pa
If an ordinance proposed pursuant to Section 34502 fails passage by the ' lative body or if the
voters fail to confi. -ir. a ordinance, no ordinance changing the name of the shall be considered
for two years fromple date of the vote of the legislative body or from the to of the election.
(Added by Stats.110", c. 617, p: , § 14.) `
1985 Le&bwdoa./ Dat ad, Forma 1 3.4508, added 1949, c. 79,
Forma j 34504 was repealed by Stat& 1985, c. 617, p. P. 107, § 1.
-,1 13.
§§ 3450" 34512. Repealed by Stats.1985, c. 617, p. , §§ 15 to 22
§§ 34600 to 34610. Repealed by Stata,1977, c. 1253, p. 4693, § 5
See, now. j 56000 et seq.
Underline indicates shames or additions by amendment
14
r
§ 34458 GOVERNMENT CODE
proposed or revise or cause to be revised, a charter and submit the proposal for the adoption or
revision thereof to the electors at either a special election called for that purpose or at any general or
special election. Any charter so submitted shall be advertised in the same manner as provided for
the advertisement of a charter proposed by a charter commission; and the election on such charter
shall be held at a date to be fixed by the governing body of the city or city and county, which shall be
not less than 40 nor more than 60 days after the completion of the advertising in the official paper.
(Added by Stats.1969, c. 1264, p. 2476, § 3, operative June 2, 1970.)
1%8 Legislation.
The addition of another § 34458 by StatLI%8, G 767, p.
1497, § 5, failed to become operative because of rejection by
the voters of Assembly Const. Amend. No. 30. 1968, at the
general election held Nov. 5, 1968.
§ 34459. Amendment or repeal; methods
1%9 Legislation.
This section became operative upon adoption by the
people of A.C.A. No. 29, 1 %9, at the special election
consolidated with the primary election held June 2. 1970.
The charter of any city may be amended or repealed by proposals submitted by the governing body
on its own motion or by petition signed by 15 percent of the registered voters, or both.
The charter of a city and county may be amended or repealed by proposals submitted by the
governing body or by a petition signed by 10 percent of the qualified electors of the city and county,
computed upon the total number of votes cast in the city and county for all candidates for Governor
at the last general election at which a Governor was elected, or both. Such proposals shall be
submitted to the electors at either a special election called for that purpose or at any general or
special election. ' ' '
(Added by Stats.1969, c. 1264, p. 2476, § 3, operative June 2, 1970. Amended by Stats.1974, c. 1203,
p. 2594, § 3; Stats.1981, c. 136, p. 917, § 14; Stats.1984, c. 520, p. -, § 1.)
1968 Legislation.
The addition of another § 34459 by Stats.1968, c. 767, p.
1497, § 5, failed to become operative because of rejection by
the voters of Assembly Const. Amend. No. 30, 1968, at the
general election held Nov. 5, 1968. -
1%9 Legislation.
This section became operative upon adoption by the
people of A.C.A. No. 29, 1969, at the special - election
consolidated with the primary election held June 2, 1970.
1981 Amendment. Substituted "voters" for "electors" in
the first sentence; and added the last sentence of the second
paragraph.
1984 Amendment. Deleted the last sentence of the sec-
ond paragraph, added in 1981, which read: -I'm election
on the proposed amendment or the proposal for charter
repeal shall be held at a date to be fixed by the governing
body of the city and county, which is not less than 40 and
not more than 60 days after the completion of the advertis-
ing in the official paper."
Notes of Decisions
Construction and appIkation 1
Petitions 4
Preemption 3
W itbdrawal 2
1. Coosbvction and applkation
Action of board of supervisors of City and County of San
Francisco in submitting to electorate proposed amendment
to San Francisco charter changing wages, hours and other
terms and condition of municipal employment did not
violate "amnesty, provision of agreement signed by mayor,
under his emergency powers, to settle fire fighters' and
policemen's strike. San Francisco Fire Fighters, Local 798,
Intern. Assn of Fire Fighters, AFL-CIO v. Board of Sup'rs
of City and County of San Francisco (1979) 158 CaLRptr.
145, % CA-3d 538.
Provisions of charter of city and county of San Francisco,
insofar as they purported to authorize and establish proce-
dures regulating charter amendments by initiative process
different from procedures in general state laws dealing with
charter amendments, procedures were preempted. District
Election of Sup'rs Committee for 5% v. O'Connor (1978)
144 Ca1.Rptr. 442, 78 CA-3d 261.
Gary board of supervisors was vested with the power on its
own motion to submit proposed charter amendment to
electorate for approval or disapproval, and mayor had no
power either to repeal or sign such a submission, so that
submission of proposition by board was not a "legislative
act" within meaning of provision of city charter that every
"legislative act" shall be by ordinance. Clark v. Patterson
(1977) 137 Ca1.Rptr. 275, 68 CA-3d 329.
Despite fact that Coast. Art. 11, former § 8 had provided
that charter could be amended by proposal submitted by
legislative body of city "on its own_ motion," whereas
amended constitutional provision eliminated phrase "on its
own motion," elimination of phrase was not intended as
substantive change, and thus under this section which in-
cluded term, city charter could not require motions of board
of supervisors for submission of proposed charter amend-
ments and ordinances to the voters to be first sent to mayor
for his action, as this section containing language previously
found in former Cont. Art. 11, § 8 was exclusive and
controlling. Id.
2. Withdrawal
City board of supervisors had implied power to withdraw
proposed charter amendment and proposed initiative ordi-
nance from primary election ballot; such implied power was
necessary, as board action which was reasonable and neces-
sary when taken might have become unnecessary and harm-
Underline Indicates changes or additions by amendment
10
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GOVERNMENT CODE
ful by time of election for reasons not readily apparent to
the electorate. Clark v. Patterson (1977) 137 Cal.Rptr. 275,
68 C.A.3d 329.
City board of supervisors was not required to follow
procedures set forth in city charter for passage of ordinances
in withdrawing proposed initiative ordinance. Id.
3. Preemption
In enacting general laws dealing with charter amendment
procedures, legislature was properly acting upon matter of
statewide concern with intention of preempting that field of
regulation to the exclusion of any attempted municipal
§ 34461
regulations in the same field; thus, general laws supersede
conflicting provisions in city and county charters. District
Election of Sup'rs Committee for 5% v. O'Connor (1978)
144 Cal.Rptr. 442, 78 C.A.3d 261.
4. Petitions
An insufficient charter city initiative petition may be
supplemented with additional signatures after election for
which it was first submitted has occurred, yet within one
year of first signature. Coalition for Fair Rent v. Abdeln-
our (1980) 165 Cal.Rptr. 683, 107 C.A.3d 97.
§ 34460. Petitions for amendment or repeal; requirements
Petitions for the submission of any amendment or petitions for the repeal of a charter shall be in
the form and shall be ' ' ' circulated and processed in the manner prescribed in Article 3
(commencing with Section 4080) of pter 3 of 1vislon 5 of e Elections Code.
(Added by Stats.1969, c. 1264, p. 2476, § 3, operative June 2, 1970. Amended by Stats.1972, c. 409, p.
730, § 5; Stats.1977, c. 1205, p. 4075, § 87; Stats.1981, c. 136, p. 917, § 15.)
1968 1 asisiatim
The addition of another § 34460 by States 1968, a 7671 p.
1497, § 5, failed to become operative because of rejection by
the voters of Assembly Const. Amend. No. 30, 1968, at the
general election held Nov. 5, 1968.
1969 I,eglalatim
This section became operative upon adoption by the
people of A.C.A. No. 29, 1969, at the special election
consolidated with the primary election held June 2, 1970.
1977 Ameadmeat. Added the last sentence.
1981 Amendment. Rewrote the section which had for-
merly read:
"Petitions for the submission of any amendment or peti-
tions for the repeal of a charter shall be filed with the
governing body of the city or city and county not less than
90 days prior to a statewide general election and not more
than one year after the date of the first signature affixed
then eon. The signatures on such petitions shall be verified
by the authority having charge of the registration records of
the city or city and county, and the expanses of such
verification shall be provided by the governing body thereof.
The signatures may be verified by means of the random
sampling technique as provided for in Elections Code Sec-
tion 3708."
Notes of Decisions
1. In games
An insufficient charter city initiative petition may be
supplemented with additional signatures after election for
which it was first submitted has occurred, yet within one
year of fast signature. Coalition for Fair Rent v. Abdeln-
our (1980) 165 CaLRptr. 683, 107 C.A.3d 97.
§ 34461. Petitions for amendment or repeal; publication of proposal; submission to voters
If the petition is signed by not less than 15 percent of the registered voters of the city, or not less
than 10 percent of the registered voters of a city and county, the legls&tive body shall, within 20
days after it is presented, order an election at which the proposal, without alteration, shall be
submitted to a vote of the voters of the city or the city and county. The election shall be held at the
next regularly scheduled or established election, at which all the voters of the city or the city and
county are eligible to vote, occurring not less than 90 days after the order of the legislative body.
Amendments proposed by the governing body and amendments proposed by petition of the voters
may be submitted at the same election. The geverning body of the city or city and county stall
cause the proposed charter amendments or the proposal for charter repeal to be published once in the
official newspaper of the city or city and county and in each edition thereof, during the day of
publication, not less than 40, and not more than 60, days prior to the election. In case there -is no
official newspaper, the proposals for charter amendment or repeal shall be published in a newspaper
of general circulation within the city or city and county and in all editions thereof, issued during the
day of publication. ' '
(Added by Stats.1981, c. 136, p. 918, § 17. Amended by Stats.1981, c. 1045, p. 4031, § 8.5;
Stats.1982, c. 1163, p. 4162, § 4; Stats.1984, c. 520, p. -, § 2; Stats.1986, c. 866, § 26.)
1%8 Lgblatioa.
The addition of another § 34461 by Stats.1968, c. 767, p.
1497, § 5, failed to become operative because of rejection by
the voters of Assembly Const. Amend No. 30, 1968, at the
general election held Nov. 5, 1968.
1981 Legisladm
Former § 34461, added by Stats.1969, c. 1264, p. 2477,
§ 3, operative June 2, 1970, amended by Stats.1974, c. 662,
p. 1524, § 4, dealing with similar subject matter, was re-
peakd by Stms.1981, c. 136, p. 918, § 16.
trit Asterisks • ' Indicate deletions by amendment
11