HomeMy WebLinkAboutCity Treasurer - Candidate Interviews - Assuming Office Proc CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION V
HUNTINGTON BEACH
TO: Honorable Mayor and City Council Members
RECEIVED FROM "^
AND MADE A PART OF THE R CORD AT THE
FROM: Ray Silver,Assistant City Administratore" COUNCIL MEETING OF _.aU
OFFICE OF THE CITY CLERK
DATE; May 20, 1996 CONNIE BROCKWAY,CITY CLERK
SUBJECT: Summary of Results from Technical Oral Board Interviews
of City Treasurer Candidates on May 20, 1996
Today,the Technical Oral Board interviewed the six finalists selected by the City Council for the
vacant City Treasurer's position. These six finalists were selected by the City Council on Friday,
May 17, 1996,after they invited all applicants to an interview with them.
The Technical Oral Board was comprised of Don Watson, Former City Treasurer for the City of
Huntington Beach,Dennis Danner,Administrative Services Director/City Treasurer for the City of
Newport Beach, Charlene Jung, City Treasurer for the City of Anaheim,Don Villella,Finance
Director for the City of Huntington Beach and myself.
Following are the names of the persons interviewed. The cumulative percentage score resulted
from adding together the individual scores of the members of the Technical Oral Board of each
candidate and dividing this total by the number of scores added together.
Names Score
1. Bess Paul 90.5
2. Freidenrich, Shari 90.0
3. Mras James 82.4
4. Tomko, Chris 82.2
5. Stevens, Russell 81.4
6. Holm JeM 78.6
The City Council is scheduled to meet on Friday, May 24, 1996,at 1:00 p.m.,in the Council
Chambers to make the final selection for the City Treasurer position. If you have any questions or
comments regarding the above,please feel free to contact me.
RS:ip
xc: Mike Uberuaga
Bob Franz
i
CA 96-3
City !'of Huntington Beach
COUNCIL.-ADMINISTRATOR COMMUNICATION
HUNTINGTON BEACH
TO: HONORABLE MAYOR;AND CITY COUNCIL MEMBERS
FROM: MICHAEL T. UBERUAGA, City Administ or
SUBJECT: CITY TREASURER INTERVIEWS
DATE: May 15, 1996
Enclosed for your review are copies of candidate resumes, a Qualifications Summary
Worksheet, and a set of oral board questions to be used for the City Treasurer
interviews. In addition, I have included two related memorandums from our City Attorney
dated May 14, 1996.
There are 21 candidates scheduledi to attend over the two-day period as noted below.
Candidates are scheduled 20 minutes apart.
Thursday May 16, 1996 5:30 PM -10:00 PM 13 Candidates
Friday May 17, 1996 2:30 PM - 5:30 PM 8 Candidates
One of the candidates, Patricia McCabe, is unable to attend the interviews because she
will be out of town. However, she has faxed the attached letter and has requested that
she be considered for the technical interviews. A summary of her background is included
in the Qualifications Summary Worksheet.
At the end of Friday's interviews, Council will need to identify the top five candidates.
These top candidates will then be invited to attend the technical oral board that is
scheduled for Monday morning, May 20, 1996. The technical oral board will then select
the top candidates for Council's consideration. A summary of their results, with a
recommendation, will be presented to Council that same Monday evening. A subsequent
background and reference check will, be conducted on the top 2 or 3 candidates during
the days that follow. Based on thi's information, Council will interview the top 2 or 3
candidates and make an appointment on Friday, May 24, 1996, at a special meeting
scheduled for 1:00 P.M.
Should you have any concerns or questions regarding the enclosed materials, or the
selection process, please feel free to contact me at your convenience.
CTCOUNCL.DOC 05/15/96 5:05 PM
CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION HUNVIG P-t
HUNTINGTON BEACH
1Jb
TO: Michael T. Uberuaga, City Administrator
iiV
FROM: Gail Hutton, City Attorney
DATE: May 20, 1996
SUBJECT: City Treasurer-Assuming Office
We have reviewed the City Clerk's memorandum dated May 20, 1996, and believe that the Clerk
has raised an important point. Although our previous memorandums did not specifically address
Charter Section 312(c), we did review it as part of our analysis, and we do not believe that it
conflicts with our analysis.
However, upon review of this matter with the City Clerk, we wish to clarify our earlier statement
regarding the time frame for administering the oath of office. The oath is an essential step in the
appointment process and,must be administered within 60 days of the vacancy; otherwise, the City
Council's appointment process to fill the vacancy will not have been completed within the 60 days
prescribed by the Charter.
Thus, if the successful applicant is a non-resident and non-registered voter at the time the City
Council makes the appointment, he or she must become a resident and registered voter, and be
sworn into office, within the Charter's 60 day time period; as discussed by the Clerk in her
memorandum, the Clerk cannot administer the oath to a non-resident or non-registered voter. If
the vacancy is not filled within the 60 day period, the matter must be put to the voters forthwith.
I hope this memorandum has clarified our earlier opinions; if not, please contact me as soon as
possible.
GAEL HU TON
City Attorney
c: Honorable Mayor Sullivan and Members of the City Council
Connie Brockway, City Clerk
William Osness, Personnel Director
4ls:GA-96Memosmssumin2
CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH
TO: Michael T. Uberuaga, City Administrator I n;,
FROM: Gail Hutton, City Attorney ,f '
DATE: May 17, 1996
SUBJECT: City Treasurer-Assuming Office
BACKGROUND
You have asked for clarification of when an elected official of the City assumes office. The
question has arisen in the context of the City Treasurer vacancy:
ISSUE
Since the City Council has the power to appoint a person to fill the vacancy,does that person
assume office immediately upon appointment?
ANSWER
An elected official"assumes office"upon taking and subscribing the oath or affirmation set forth
in Section 3, Article.XX of the California Constitution.
ANALYSIS
The Charter provides that the term of each member of the City Council,the City Clerk, City
Treasurer and the City Attorney shall commence on the first Monday following his election.
Normally, the oath or affirmation is administered at the City Council meeting on the first Monday
following the election, and the officer assumes office that evening.
In the case of an appointment to fill a vacancy, however, the Charter is silent as to the length of
time from when the City Council makes an appointment, and the appointee takes the oath or _.
affirmation and assumes office. It is clear, however, that"before entering upon his duties, each
city officer shall take and file with the city clerk the constitutional oath of office. . . ." (Cal. Gov't
Code Sections 1360, 36507.)
As discussed in our previous memorandum, the Municipal Code allows the City Council to
appoint a non-resident and non-registered voter of the city to an elective office, provided that
such person becomes a resident and registered voter of the city prior to assuming office.
4\s:G:4-96Memos:assuming
Michael T. Uberuaga
May 17, 1996
Page 2
CONCLUSION
We conclude that there is no requirement that the oath or affirmation,upon which one assumes an
elective office, must be administered immediately after the City Council makes an appointment to
fill a vacant elective office. To find otherwise would essentially preempt the Municipal Code,
which provides that non-residents or r non-registered voters are candidates for an appointment to
fill a vacant elective office.
We believe that the oath or affirmation should be administered as soon as practicable after the
appointment is made. This allows the successful appointee a reasonable time to find a residence
and register to vote in the city, if necessary.
GAIL HUTTON
City Attorney
c: Honorable Mayor Sullivan and Members of the City Council
Connie Brockway, City Clerk
William Osness, Personnel Director
4\s:G:4-96Memos:assuming
d
A
C
rV
CITY OF HUNTINGTON BIEACIW ': ' __:�i :� _
INTER-DEPARTMENT COMMUNICATI%_ y
U ,
HUNTINGTON BEACH
TO: Michael T. Uberuaga, City Administrator
FROM: Gail Hutton, City Attorney
DATE: May 17, 1996
SUBJECT: Eligibility for City Treasurer
BACKGROUND
City Treasurer Don Watson resigned in October of 1995. His replacement, Dan Villella,
resigned in March of 1996. The City Council is currently interviewing candidates to be the
new City Treasurer. The person appointed will have the right to assume the office of City
Treasurer for the remainder of the elected term, which expires in December 1996. A
question has arisen about the eligibility requirements for candidates to serve out the
remainder the elected term.
ISSUE
What are the eligibility requirements for candidates who seek an appointment to fill a
vacancy in an elective office of the City?
ANSWER
To be an eligible candidate, a person must be a resident and a registered voter of the City
at the time of assuming the office.
ANALYSIS
A. Municipal Code requirement. The Huntington Beach Municipal Code (hereinafter
"HBMC') provides in pertinent part that:
No person is eligible to hold any elective office in the City of Huntington
Beach unless that person was a resident and a registered voter of the City
both at the time of assuming such office and at the time of issuance of
nomination papers.
4\s:GA-96Memos:Candidat
Michael T. Uberuaga
May 17, 1996
Page 2
No person shall be appointed to fill a vacancy in an elective office in the City
unless that person is at the time of assuming such office a resident and a
registered voter of the City.
Any elective officer of the city, whether elected or appointed, shall at all times
during his term of office be a resident and a registered voter of the City, and
if during his term of office he moves his place of residence outside of the city
limits or ceases to be a registered voter of the city, his office shall
immediately become vacant. (HBMC Section 2.04.030)
B. Requirement for candidates for election. To be an eligible candidate to run for elective
office, one must be a resident and a registered voter both at the time of assuming office and
at the time of issuance of nomination papers. Thus, a non-resident cannot run for election;
one must be a resident, registered voter at the time of issuance of nomination papers.
C. Requirements for candidates to fill a vacancy. The present situation is different. The
candidates are not running for office; they seek an appointment to fill a vacancy in an
elected office. For such candidates, there-is no requirement that one must be a resident
and registered voter of the City when,-seeking such an appouitinent t The requirement is
that one must be a resident and registered voter-of the-City y when^assuming the vacant
office; i.e., at the time the candidate is sworn into office by the City Clerk. (? ..
D. Penalty for violation of residency requirements. The penalty for violating ese �
requirements is drastic: if an elective officeholder, whether elected or appointed to the
office, moves his residence outside the city limits or ceases to be a registered voter of the
City, the office in question immediately becomes vacant.
CONCLUSION
The candidates for appointment to fill the City Treasurer vacancy need not be residents or
registered voters of the city until such time that they assume the office of City Treasurer.
'T?z /
GAIL HUTTON
City Attorney
c: Honorable Mayor Sullivan and Members of the City Council
Connie Brockway, City Clerk
William Osness, Personnel Director
4\s:G:4-96Memos:Candidat
a
Huntington Beach Municipal Code 2.04.030
Chapter 2.04
ELIGIBILITY OF CANDIDATES
(1756-7172,2023-1/75,2943-7/88)
Sections:
2.04.010 Repealed, Ord. 2507-11/81
2.04.030 Residence and registered voter requirement for elective officers
2.04.050 Repealed,Ord. 2507-11/81
2.04.090 Repealed, Ord. 2507-11/81
2.04.030 Residence and registered voter requirements for elective o ficers. No person is
eligible to hold any elective office in the City of Huntington Beach unless that person was a
resident and a registered voter of the City both at the time of assuming such office and at the time
of issuance of nomination papers.
No person shall be appointed to fill a vacancy in an elective office in the City unless that person
is at the time of assuming such office a resident and a registered voter of the City.
Any elective officer of the city,whether elected or appointed,shall at all times during his term of
office be a resident and a registered voter of the City, and if during his term of office he moves
his place of residence outside of the city limits or ceases to be a registered voter of the city,his
office shall immediately become vacant. (1756-7/72,2023-1l75,2943-7/88)
7/88
RECEIVED
HB °CITY OF HUNTINGTON BEACH City el Huntington Beach
Perecnnei Dept.
INTER-DEPARTMENT COMMUNICATION
TO: MICHAEL T. UBERUAGA, City Administrator
FROM: GAIL HUTTON, City Attorney
DATE: May 14, 1996
SUBJECT: Appointment of City Treasurer
FACTUAL BACKGROUND:
The office of the City Treasurer is an elected position in the City of Huntington Beach.
The recent retirement of Mr. Don Watson, the elected City Treasurer, and the
resignation of Mr. Dan Vllella, the Council appointee to the elected position, has left a
vacancy in that position. Pursuant to the terms of the City Charter, the City Council is
going to appoint a City Treasurer who will serve as City Treasurer until an election is
held in November.The City Administrator has created a technical board to evaluate the
candidates and assist Council in selecting the City Treasurer.
QUESTIONS PRESENTED:
1. May the City Council meet in closed session to discuss the appointment of the
City Treasurer or to receive information from the technical board relative to that
appointment?
2. Must the technical board make its meetings open to the public?
ANSWER:
The City Council may not meet in dosed session to consider the appointment of the
City Treasurer, however the technical board may by itself meet privately.
ANALYSIS:
Under Cafifomia Govemment Code sections 54950 et seq (the Brown Act), the City
Council may not meet in dosed session unless that meeting is covered by one of the
specifically enumerated exceptions contained in that legislation. One of those
exceptions, found at section 54957, does permit dosed meetings to discuss the
Page 2
Appointment of Treasurer
appointment of employees. However, that same section makes dear that"the term {
'employee' ...shall not include any elected official, member of a legislative body or other
independent contractors"(Government Code section 54957.61(b)). Since the City
Treasurer's position is an elected one, the Council cannot retire to closed session to
discuss the appointment, whether or not the technical board is present at that closed
session. There is no other exemption to the Brown Act which would permit the Council
to meet with the board or privately to discuss the elected official's office.
The technical board is an advisory group created by the City Administrator. Only
legislative bodies are subject to the Brown Act(Califomia Government Code section
54953). Section 54952 of the Brown Act defines legislative body for these purposes.
That definition does not cover board members appointed solely by the City
Administrator. The technical board is therefore free to meet in private to review and
rank the applications for the position of City Treasurer.
x4l�
GAIL HUTTON,
City Attorney
/scl
C. Ray Silver,Assistant City Administrator
Robert Franz, Deputy City Administrator/Administrative Services
Bill Osness, Personnel Director
7/scmen
RECEIVE
�4rfej CITY OF HUNTINGTON BEACH NAY 7. 0 '4fi
INTER-DEPARTMENT COMMUNICATION City of Huntington Beach
HUNnNG70N BEACH Perscnnel Dept.
TO: Michael T. Uberuaga, City Administrator
FROM: Gail Hutton, City Attorney
DATE: May 17, 1996
SUBJECT: Eligibility for City Treasurer
BACKGROUND
City Treasurer Don Watson resigned in October of 1995. His replacement, Dan Villella,
resigned in March of 1996. The City Council is currently interviewing candidates to be the
new City Treasurer. The person appointed will have the right to assume the office of City
Treasurer for the remainder of the elected term, which expires in December 1996. A
question has arisen about the eligibility requirements for candidates to serve out the
remainder the elected term.
ISSUE
What are the eligibility requirements for candidates who seek an appointment to fill a
vacancy in an elective office of the City?
ANSWER
To be an eligible candidate, a person must be a resident and a registered voter of the City
at the time of assuming the office.
ANALYSIS
A. Municipal Code requirement. The Huntington Beach Municipal Code(hereinafter
"HBMC')provides in pertinent part that:
No person is eligible to hold any elective office in the City of Huntington
Beach unless that person was a resident and a registered voter of the City
both at the time of assuming such office and at the time of issuance of
nomination papers.
4ls:G:4-96Memos:Candidat
Michael T. Uberuaga
May 17, 1996
Page 2
No person shall be appointed to fill a vacancy in an elective office in the City
unless that person is at the time of assuming such office a resident and a
registered voter of the City.
Any elective officer of the city, whether elected or appointed, shall at all times
during his term of office be a resident and a registered voter of the City, and
if during his term of office he moves his place of residence outside of the city
limits or ceases to be a registered voter of the city, his office shall
immediately become vacant. (HBMC Section 2.04.030)
B. Requirement for candidates for election. To be an eligible candidate to run for elective
office, one must be a resident and a registered voter both at the time of assuming office and
at the time of issuance of nomination papers. Thus, anon-resident cannot run for election;
one must be a resident, registered voter at the time of issuance of nomination papers.
C. Requirements for candidates to fill a vacancy. The present situation is different. The
candidates are not running for office; they seek an appointment to fill a vacancy in an
elected office. For such candidates, there is no requirement that one must be a resident
and registered voter of the City when seeking such an appointment. The requirement is
that one must be a resident and registered voter of the City when assuming the vacant
office; i.e., at the time the candidate is sworn into office by the City Clerk.
D. Penalty for violation of residency requirements. The penalty for violating these
requirements is drastic: if an elective officeholder, whether elected or appointed to the
office, moves his residence outside the city limits or ceases to be a registered voter of the
City, the office in question immediately becomes vacant.
CONCLUSION
The candidates for appointment to fill the City Treasurer vacancy need not be residents or
registered voters of the city until such time that they assume the office of City Treasurer.
GAIL HUTTON
City Attorney
c: Honorable Mayor Sullivan and Members of the City Council
Connie Brockway, City Clerk
William Osness, Personnel Director
4ls:G:4-96Memos:Candidat
Huntington Beach Municipal Code 2.04.030
Chapter 2.04
ELIGIBILITY OF CANDIDATES
(1756-7/72,2023-1175,2943-7188)
Sections:
2.04.010� Repealed,Ord. 2507-11/81
2.04.030 Residence and registered voter requirement for elective officers
2.04.050 Repealed, Ord. 2507-11/81
2.04.090 Repealed, Ord. 2507-11/81
2.04.030 Residence and registered voter requirements for elective officers. No person is
eligible to hold any elective office in the City of Huntington Beach unless that person was a
resident and a registered voter of the City both at the time of assuming such office and at the time
of issuance of nomination papers.
No person shall be appointed to fill a vacancy in an elective office in the City unless that person
is at the time of assuming such office a resident and a registered voter of the City.
Any elective officer of the city,whether elected or appointed,shall at all times during his term of
office be a resident and a registered voter of the City,and if during his term of office he moves
his place of residence outside of the city limits or ceases to be a registered voter of the city,his
office shall immediately become vacant. (1756-7n2,2023-1R5,2943-7/88)
7/88
H CITY OF HUNTING TON BEACH
INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH
TO: Michael T. Uberuaga, City Administrator
FROM: Gail Button, City Attorney
DATE: May 17, 1996
SUBJECT: City Treasurer-Assuming Office
BACKGROUND
You have asked for clarification of when an elected official of the City assumes office. The
question has arisen in the context of the City Treasurer vacancy.
ISSUE
Since the City Council has the power to appoint a person to fill the vacancy, does that person
assume office immediately upon appointment?
ANSWER
An elected official"assumes office" upon taking and subscribing the oath or affirmation set forth
in Section 3, Article XX of the California Constitution.
ANALYSIS
The Charter provides that the term of each member of the City Council, the City Clerk, City
Treasurer and the City Attorney shall commence on the first Monday following his election.
Normally, the oath or affirmation is administered at the City Council meeting on the first Monday
following the election, and the officer assumes office that evening.
In the case of an appointment to fill a vacancy, however, the Charter is silent as to the length of
time from when the City Council makes an appointment, and the appointee takes the oath or
affirmation and assumes office. It is clear, however, that"before entering upon his duties, each
city officer shall take and file with the city clerk the constitutional oath of office. . . ." (Cal. Gov't
Code Sections 1360, 36507.)
As discussed in our previous memorandum, the Municipal Code allows the City Council to
appoint a non-resident and non-registered voter of the city to an elective office, provided that
such person becomes a resident and registered voter of the city prior to assuming office.
41s:G:4-96Memos:assun ing
a
Michael T. Uberuaga
May 17, 1996
Page 2
CONCLUSION
We conclude that there is no requirement that the oath or affirmation, upon which one assumes an
elective office, must be administered immediately after the City Council makes an appointment to
fill a vacant elective office. To find otherwise would essentially preempt the Municipal Code,
which provides that non-residents or non-registered voters are candidates for an appointment to
fill a vacant elective office.
We believe that the oath or affirmation should be administered as soon as practicable after the
appointment is made. This allows the successful appointee a reasonable time to find a residence
and register to vote in the city, if necessary.
�,- GAIL HUTTON
City Attorney
c: Honorable Mayor Sullivan and Members of the City Council
Connie Brockway, City Clerk
William Osness, Personnel Director
4\s:G:4-96Memos:assuming
HB CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION
TO: MICHAEL T. UBERUAGA, City Administrator
FROM: GAIL HUTTON, City Attorney
DATE: May 14, 1996
SUBJECT: Appointment of City Treasurer
FACTUAL BACKGROUND:
The office of the City Treasurer is an elected position in the City of Huntington Beach.
The recent retirement of Mr. Don Watson, the elected City Treasurer, and the
resignation of Mr. Dan Villella, the Council appointee to the elected position, has left a
vacancy in that position. Pursuant to the terms of the City Charter, the City Council is
going to appoint a City Treasurer who will serve as City Treasurer until an election is
held in November. The City Administrator has created a technical board to evaluate the
candidates and assist Council in selecting the City Treasurer.
QUESTIONS PRESENTED:
1. May the City Council meet in closed session to discuss the appointment of the
City Treasurer or to receive information from the technical board relative to that
appointment?
2. Must the technical board make its meetings open to the public?
ANSWER:
The City Council may not meet in closed session to consider the appointment of the
City Treasurer, however the technical board may by itself meet privately.
ANALYSIS:
Under California Government Code sections 54950 et seq (the Brown Act), the City
Council may not meet in closed session unless that meeting is covered by one of the
specifically enumerated exceptions contained in that legislation. One of those
exceptions, found at section 54957, does permit closed meetings to discuss the
• Page 2
Appointment of Treasurer
appointment of employees. However, that same section makes clear that"the term
`employee' ...shall not include any elected official, member of a legislative body or other
independent contractors" (Government Code section 54957.61(b)). Since the City
Treasurer's position is an elected one, the Council cannot retire to closed session to
discuss the appointment, whether or not the technical board is present at that closed
session. There is no other exemption to the Brown Act which would permit the Council
to meet with the board or privately to discuss the elected official's office.
The technical board is an advisory group created by the City Administrator. Only
legislative bodies are subject to the Brown Act (California Government Code section
54953). Section 54952 of the Brown Act defines legislative body for these purposes.
That definition does not cover board members appointed solely by the City
Administrator. The technical board is.therefore free to meet in private to review and
rank the applications for the position of City Treasurer.
GAIL HUTTON,
City Attorney
/scl
c: Ray Silver, Assistant City Administrator
Robert Franz, Deputy City Administrator/Administrative Services
Bill Osness, Personnel Director
t
P
7/sclAreas
CITY OF HUNTINGTON BEACH
INTER-DEPARTMENT COMMUNICATION
HUNTINGTON BEACH
TO: MICHAEL UBERUAGA, City Administrator
FROM: GAIL HUTTON, City Attorney
DATE: May 14, 1996
SUBJECT: Public Records Act Opinion Regarding the Disclosure of Applications
for the Vacant City Treasurer Position
QUESTION:
Whether Government Code Section 6250 et seq, the Public Records Act, requires
disclosure of applications for the position of Elected Treasurer of the City of Huntington
Beach.
ANSWER:
1. No, at the screening stage the personnel applications for the position of city
treasurer, while an elected, public office, need not be disclosed pursuant to
Government Code Section 6254(c) and Section 6255.
2. If the applications of the finalists are forwarded to the city council to be discussed
in the open session, they would be subject to disclosure. Government Code
Section 54957.5.
FACTS:
Applications have been received for the vacant position of City Treasurer of the City of
Huntington Beach. The applicants were required to fill out the regular city personnel
form which includes name, residential address, telephone number, social security
number, driver's license number, present and former employment and salary at that
employment, statement of ethnic origin, length of time on the job, etc. By way of
comparison, applications for city boards and commissions are less intrusive into
specifics of employment, salary, social security, etc. This form was not used.
ANALYSIS:
While Government Code Section 6254(c) (the Public Records Act) generally requires
that the public's business must be disclosed, Government Code Section 6254(c)
(Personnel Records) provides the following exemption:
MICHAEL UBERUAGA
5/14/96
Page 2
"§6254 Exemption of particular records
"Except as provided in Section 6254.7 and 6254.13, nothing in this
chapter shall be construed to require disclosure of records that are any
of the following . . . .
"(c) Personnel, medical, or similar files, the disclosure of which would
constitute an unwarranted invasion of personal privacy."
(emphasis added)
Government Code Section 6254(c) clearly provides a narrowly construed exemption
from disclosure of employee personnel records such as the referenced personnel
information, and, in the absence of fraud or prior disclosure, nondisclosure has been
upheld. Braun v. City of Taft(Polston) 154 Cal.App.3d 340, 201 Cal.Rptr. 654, 661,
Keynote No. 7 (Cal.App. 5 Dist. 1984).
The job applications for treasurer contain much personal information which would be
exempt from disclosure under Section 6254(c), such as driver's license and social
security numbers and past salary information. On the other hand, appointment of
elected officials by the city council must be done at an open meeting. While the Brown
Act normally permits closed personnel sessions, it exempts appointment of elected
officials and commissioners from closed sessions (Government Code Section 54957).
Further, any documents transmitted to the council for consideration at an open meeting
are public records (Government Code Section 54957.5). This leaves unsettled the
question of whether applications for a public, elected office, though appointed by the
city council for the remainder of a current four year term, are entitled to the same
exemption provided employee personnel records.
In this circumstance, determining disclosure requires a balancing of the public interest
served versus the facts of the particular case. Government Code Section 6255
provides as follows regarding the justification for withholding of records,:
"The agency shall justify withholding any records by demonstrating that
the record in question is exempt under express provisions of this chapter
or that on the facts of the particular case the public interest served by
not making the record public outweighs the public interest served by
disclosure of the record." (emphasis added)
In considering the personnel records exemption, the court in Braun, id p. 661, stated:
"[9] The weighing process under section 6254, subdivision (c) to
determine whether the disclosure would constitute an unwarranted
invasion of privacy requires a consideration of almost exactly the same
g:hutton\citytrea
MICHAEL UBERUAGA
5/14/96
Page 3
elements that should be considered under section 6255. The burden of
demonstrating a need for nondisclosure is upon the agency claiming the
right to withhold the information. (San Gabriel Tribune v. Superior Court,
supra, 143 Cal.App.3d 762, 780, 192 Cal.Rptr. 415.)
"The public interest served by nondisclosure has been upheld under
section 6255, where the plaintiff sought to disclose audit manuals which
contained the "game plan" for audits regarding Medi-Cal regulations
(Eskaton Monterey Hospital v. Myers (1982) 134 Cal.App.3d 788, 184
Cal.Rptr. 840), where the burden of segregating exempt from nonexempt
information would be substantial (American Civil Liberties Union
Foundation v. Deukmejian, supra, 32 Cal.3d 440, 453, 186 Cal.Rptr.
235, 651 P.2d 822), and where information was obtained with the
understanding that it would be kept confidential (Johnson v. Winter
(1982) 127 Cal.App.3d 435, 439, 179 Cal.Rptr. 585).
"The public interest in disclosure outweighs that of nondisclosure and
allows disclosure of pesticide applicator spray reports (Uribe v. Howie
(1971) 19 Cal.App.3d 194, 213, 96 Cal.Rptr. 493), and allows disclosure
of the provisions of governmental contracts made on behalf of residents
of a town. (San Gabriel Tribune v. Superior Court, supra, 143
Cal.App.3d 762, 780, 192 Cal.Rptr. 415.)" (emphasis added)
In analyzing the issue under Government Code Section 6255, the city's justification for
nondisclosure of confidential information at the initial "technical review board" stage is
that disclosure of the applications might affect the applicants' current employment.
Typically, the fact someone has applied for a new job is not initially disclosed to their
current employer. However, once the finalists are selected and forwarded to the city
council, their expectation of privacy diminishes. At this juncture, I recommend that the
social security number and driver's license number and past and current salary be
redacted, as this is traditionally kept confidential; however, the remainder of the
application would be forwarded to the council and made public.
CONCLUSION:
The Public Records Act, at Section 6254(c), provides an exemption for confidential
personnel records, release of which would constitute an invasion of privacy. During the
early application phase of the city treasurer recruitment, the provision would allow for
confidentiality exemption of all application forms submitted. However, the applications
of the finalists need to be treated differently. The Brown Act, Government Code
Sections 54957 and 54957.5, provides that documents forwarded to city council at a
public meeting or to be discussed at a public meeting are public records and that
g:hutton\citytrea
MICHAEL UBERUAGA
5/14/96
Page 4
appointment of elected officials must be considered at an open meeting. Therefore,
applications of the finalists nominated by the "technical board" would be subject to
disclosure.
GAIL HUTTON
City Attorney
GH/rjl
c: Ray Silver, Assistant City Administrator
Connie Brockway, City Clerk
Pat Dapkus, Management Assistant
g:hutton\citytrea
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