HomeMy WebLinkAboutCity Attorney Opinion - Interpretation of City Charter SectiFe
0 CITY OF HUNTINGTON BEACH
Interdepartmental Communication
TO: JOAN FLYNN, City Clerk
FROM: JENNIFER McGRATH, City Attorney
DATE: July 31, 2012
SUBJECT: Interpretation of City Charter Section 312(b)
On July 24, 2012, you advised potential City Council candidate Cathy Green that she was
permitted to run concurrently for the City Council and Orange County Water Board;
however, she would not be permitted to hold both offices. In short, she would have to
choose which office to retain if .successful in both elections_ You have .subsequently
indicated that you provided similar notice to current Oceanview School Boardmember
Norm Westwell in 2006 when he concurrently ran for City Council and School Board
Member. Upon further inquiry, you confirmed that you had not provided this notice to
Mayor Pro Tem Devin Dwyer or Councilmember Matthew Harper although both held
concurrent elected positions as Central Committee Members during their initial
campaigns and subsequently.
Huntington Beach City Charter Section 312(b) provides as follows-
(b) Forfeiture. If a member of the City Council is absent from all regular
meetings of the City Council for a period of thirty consecutive days from
and after the last regular City Council meeting attended by such member,
unless by permission of the City Council expressed in its official minutes,
the office shall become vacant. If an elected City officer pleads guilty or
no contest to or is convicted of a felony or any crime of moral turpitude, or
ceases to be an elector of the City, the office shall become vacant. The
City Council shall declare the existence of such vacancy. Any elective
officer of the City who shall accept or retain any other elective public
office, except as provided in this Charter, .shall be deemed thereby to
have vacated the office under the City (government (emphasis added)
This is the first interpretation of City Charter Section 312(b) which has been in the
Charter in various forms since 1966 and was recently approved by the voters in
Joan Flynn, City Clerk
Interpretation of City Charter Section 312(b)
Page 2
November 2010 in a comprehensive update of the City Charter. With your assistance,
my office was able to confirm when the Section was adopted; however, no legislative
intent or discussion of this specific language was identified.
ISSUES:
No. I Is potential City Council Candidate Green prohibited from holding the dual
offices of Orange County Water Board Member and City Councilperson if successful in
both elections?
No. 2 Did Mayor Pro Tem Devin Dwyer and/or Councilmember Matthew Harper forfeit
their City Council offices by accepting or retaining any other elective office?
CONCLUSION:
No. I Yes, potential City Council Candidate Cathy Green may concurrently run for both
offices but she is prohibited from holding the dual offices of Orange County Water Board
Member and City Councilperson pursuant to Huntington Beach City Charter Section
312(b).
No. 2 No, Mayor Pro Tern Devin Dwyer and Councilperson Matthew Harper did not
forfeit their City Council Office as the Central Committee position is not a "public"
office.
ANALYSIS:
No. I The City of Huntington Beach is a Charter City and as such may adopt a charter
giving it the power to "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." (Cal.
Const., Art. XI, §§5(a), 6(b). The conduct of elections is specifically identified as a
Charter City power. California Constitution, Article 11, Section 5 provides:
Sec. 5. (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.
(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:
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Joan Flynn, City Clerk
Interpretation of City Charter Section 312(b)
Page 3
(1) the constitution, regulation, and government of the city police force (2)
subgovemment 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, and for the number of deputies, clerks and other employees
that each shall have, and for the compensation, method of appointment,
qualifications, tenure of office and removal of such deputies, clerks and
other employees. (emphasis added)
City Charter Section 312(b) is a clear exercise of the public's right to regulate city
elections pursuant to the California Constitution.' A common theme expressed regarding
the right -to prohibit. dual holders.of.office is:
One person may not serve two masters. The duties of loyalty and fidelity
to the public interest: the soul of public service —cannot survive in an
atmosphere in which the holder of multiple offices must disregard the
interests of one constituency in order to serve the interests of another.
The plain language of the relevant Charter language is neither vague or ambiguous. As
such, it is unlikely that a court would find cause to look beyond the plain language to
permit the consideration of extrinsic evidence or argument. (Quarterman v. Kefauver
(1997) 55 Cal.App.4th 1366, 1371, 64 Cal.Rptr.2d 741; Hughes v. Board of Architectural
Examiners (1998) 17 Cal.4th 763, 775, 72 Cal.Rptr.2d 624, 952 P.2d 641.)
No. 2 As a Charter City, the City is not limited by State law in interpreting the City
Charter; however, State law can provide guidance. In addition, the language must be
considered in its entirety. The relevant language from Charter Section 312(b) provides:
Any elective officer of the City who shall accept or retain any other
elective public office, except as provided in this Charter, shall be deemed
thereby to have vacated the office under the City Government (emphasis
added)
1 This opinion is not intended to be determinative of whether or not the two positions are incompatible
under California Government Code Section 1099. The City Atto'rney's Office does not provide legal advice
to individual elected officials or candidate. The individual elected officials and candidates should contact
the Fair Political Practices Commission at 1-866-ASK-FPPC or www.fppc.co.gov. Further, this opinion does
not address any potential issue under West's Ann. Cal. Elec. Code § 8003
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Joan Flynn, City Clerk
Interpretation of City Charter Section 312(b)
Page 4
Although not dispositive, California Government Code Section 82023 provides in
relevant part:
Elective Office means any state, regional, county, municipal, district or
judicial office that is filled at an election. Elective office" also includes
membership on a couigy central committee of a qualified political party,
and membership through election on the Board of Administration of the
Public Employees' Retirement System or the Teachers' Retirement Board.
(emphasis added)
The City Charter language expressly states, it is when an elective officer of the City shall
"accept or retain any other elective p1iblic office". The relevant question becomes
whether or not membership on a county central committee is a "public" office.
Case law provides that the Central Committee is not a "public" office. In the case of
Moore v. Panish, 32 Cal.3d 535, 652 P.2d 32 Cal., 1982 (October 18, 1982), the Court
states:
A public office requires the presence of two essential elements: (1) an
office which is not transient, occasional or incidental but is in itself an
entity in which incumbents succeed one another; and (2) the delegation to
the office of some portion of the sovereign functions of government, either
legislative, executive or judicial. (City Council of San Diego v. McKinley
(1978) 80 Cal.App.3d 20.4, 21.0, 145 Cal.Rptr. 461; Spreckels v. Graham.
(1924) 194 Cal. 516, 527-531, 228 P. 1040). Party county central
committee members do not exercise any sovereign powers of government.
(Stout v. Democratic County Central Comm. (1952) 40 Cal.2d 91, 94, 251
P.2d 321; Azevedo v. Jordan (1965) 237 Cal.App.2d 521, 528, 47
Cal.Rptr. 125.
As membership on the Central Committee is not a "public" office, City Charter Section
312(b) does not prohibit the dual offices of City Council and Central Committee.
The City Clerk should verify if candidate or elected official has accepted or retained
"any other elective public office" at submission of nomination papers and subsequent to
'This opinion is not intended to be determinative of whether or not the two positions are
incompatible under California Government Code Section 1099. The City Attorney's
Office does not provide legal advice to individual elected officials or candidate. The
individual elected officials and candidates should contact the Fair Political Practices
Commission at 1-866-ASK-FPPC or www.fppc.ca.gov.
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Joan Flynn, City Clerk
Interpretation of City Charter Section 312(b)
Page 5
each primary, special, or general election. All candidates should receive the same notice
received by potential candidate Cathy Green. All elected officials should be immediately
notified of the forfeiture of their City Council office if elected to another "elective public
office" to permit the opportunity to retain their City Council position if preferred.
JENNIFER McGRAT'H
City Attorney
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