HomeMy WebLinkAboutAGENDA REPORT 1996 0619 CC REG ITEM 10LMEMO
To: The Honorable City Council
From: Lillian Hare, City Clerk
Subject: CITY ATTORNEY'S OP ON - PROPOSED BALLOT MEASURE
Date: June 11, 1996
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Under cover of this memo, I am transmitting the City Attorney's opinion regarding the ballot
measure proposed by Councilmember Brown at the June 5, 1996 Council Meeting relative to
filling a Council vacancy.
Enc.
cc: Steven Kueny, City Manager
Cheryl Kane, City Attorney
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LAW OFFICES
BURKE, WILLIAMS & SORENSEN
VENTURA COUNTY OFFICE 611 WEST SIXTH STREET, SUITE 2500
2310 PONDEROSA DRIVE
SUITE 1 LOS ANGELES, CALIFORNIA 90017
CAMARILLO. CALIFORNIA 93010 12131 236.0600
16061 667.3163
TE LECO MER: 12131 236-2700
BY FAC811iILE AND RAIL
June 10, 1996
Ms. Lillian Hare
City Clerk
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Re: Ordinance to Fill City Council Vacancy
Dear Lillian:
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ORANGE COUNTY OFFICE
3200 PARK CENTER DRIVE
SUITE 760
COSTA MESA, CALIFORNIA 32626
17141549-6658
WRITERV DIRECT DIAL
213.296.2721
OUR FILE NO. 01360.001
An initiative ordinance has been proposed by which a
councilmanic vacancy subsequent to the November election would be
filled by appointment of the person with the third highest number
of votes at the November election. In all probability such an
ordinance, albeit an initiative ordinance, is preempted by
Government Code section 36512.
Discussion
Pursuant to Government Code section 36512, the City
Council may fill mayoral and councilmanic vacancies by
appointment or special election, unless:
(a) two members of the City Council are already serving by
appointment, in which event the vacancy must be filled by
election; or
(b) the City has adopted an ordinance which requires that
(i) all vacancies be filled by special election, or (ii)
individual vacancies by filled by special election when
requested by petition.
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Ms. Lillian Hare
June 10, 1996
Page 2
Neither Government Code section 36512 nor any other
state statute contemplates the type of ordinance that has been
proposed for the November ballot. In the absence of state
enabling legislation, the issue is whether the City is preempted
from adopting such an ordinance.
A local ordinance is preempted by state law if "the
state Legislature has either fully occupied the field or so fully
covered it as to indicate a paramount state concern." (Steinkamp
v. Tealia (1989) 210 Cal.App.3d 402., 404.) The preemption
doctrine applies equally to City Council and voter approved
ordinances. (Folis v. City of La Palma (1992) 10 Ca1.App.4th 25,
29.) The doctrine even applies to an ordinance that serves a
significant local interest, unless that local interest differs
from city to city. (,I&.)
To date, there is no reported case in which the filling
of City Council vacancies has been analyzed in terms of
Government Code section 36512 and the preemption doctrine.
However, there are two reported cases in which the courts have
invalidated local ordinances, one of which was adopted by
initiative, that sought to impose term limits on councilmembers.
In each case, the court found that the state Legislature intended
to preempt local regulation of the eligibility requirements for
local elective office via eligibility provisions in the
Government Code. (polis v. Ci y of La Palma, supra; Stainkamn y.
Teglia, supra.)
In Steinkamp, the court observed that general law
cities are creatures of the state and that voters "have the right
to pass upon the composition of their local government within the
legal framework established by the laws enacted by the
Legislature." (Id. at 404 -405.) In Polis, the court observed
that the Legislature has expressed its desire to "'micromanage "
city councils. (Id. at 30.)
Conclusion
Given the specificity with which the state Legislature
as addressed filling vacancies on the City Council, it is very
likely that the courts would find that the City is preempted from
adopting an ordinance outside of the scheme of Government code
section 36512. This is true albeit that the City has a
legitimate interest in avoiding the cost of a special election on
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Ms. Lillian Hare
June 10, 1996
Page 3
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the heels of the general election, given that such a financial
interest would be commonly shared by cities.
V ry truly yours,
CHE YL KANE
CIT ORNEY, OORPARK; and
BURKE, WILLIAMS & SORENSEN
cc. Steven Kueny, City Manager
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