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File#: 23-837 MEETING DATE: 9/28/2023
Subject:
Submitted by Councilmembers Kalmick and Moser-Seek an opinion from the California
Attorney General on eligibility for the primary ballot for Charter amendments involving City
Clerk, City Attorney, and investigations of elected officials
Recommended Action:
Direct the City Manager to work with the City Attorney to seek an opinion from the California Attorney
General on the question of SB311 (2013 Padilla), portions of which were chaptered as Election Code
Section 1415, applying to the proposed charter amendments making changes to the roles of the City
Clerk, City Attorney, City Council and City Manager, HR Department Head and/or Police Chief.
Attachment(s):
1. Kalmick and Moser- Seek an Opinion from the California Attorney General
City of Huntington Beach Page 1 of 1 Printed on 9/27/2023
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City Council/ ACTION AGENDA September 28, 2023
Public Financing Authority
17. Sections 300, 401, 406, 407, 408 -Appointed Charter Officers (Kalmick) — Continue
discussion on October 5 3/4 (Van Der Mark, Strickland, McKeon, Burns-No) Straw Vote Fails
18. Section 309 - City Attorney Political Participation (Kalmick) — Continue discussion on
October 5 3/4 (Van Der Mark, Strickland, McKeon, Burns-No) Straw Vote Fails
19. New Section 406 - Office of Legislative Counsel (Kalmick) — Continue discussion on
October 5 3/4 (Van Der Mark, Strickland, McKeon, Burns-No) Straw Vote Fails
20. Section 300 - City Council, Attorney, Clerk and Treasurer Terms - Term Limits (Bolton) —
Continue discussion on October 5 3/4 (Van Der Mark, Strickland, McKeon, Burns-No) Straw
Vote Fails
21. Section 312 - Council Vacancies, Forfeitures and Replacement (Strickland) Approve
language presented to voters in 2022 7/0 Straw Vote Passes
COUNCILMEMBER ITEMS
3. 23-837 Item Submitted by Councilmembers Kalmick and Moser FAILED - Seek an
opinion from the California Attorney General on eligibility for the primary
ballot for Charter amendments involving City Clerk, City Attorney, and
investigations of elected officials
Recommended Action:
Direct the City Manager to work with the City Attorney to seek an opinion from the California
Attorney General on the question of SB311 (2013 Padilla), portions of which were chaptered
as Election Code Section 1415, applying to the proposed charter amendments making
changes to the roles of the City Clerk, City Attorney, City Council and City Manager, HR
Department Head and/or Police Chief.
Failed 3-4 (Van Der Mark, Strickland, McKeon, Burns-No)
PUBLIC COMMENTS (90-Second Time Limit)— 13 Speakers
ADJOURNMENT—At 10:16 pm, a motion to adjourn was made by Burns, second Kalmick
The next regularly scheduled meeting of the Huntington Beach City Council/Public Financing
Authority is Tuesday, October 3, 2023, in the Civic Center Council Chambers, 2000 Main Street,
Huntington Beach, California.
INTERNET ACCESS TO CITY COUNCIL/PUBLIC FINANCING AUTHORITY AGENDA
AND STAFF REPORT MATERIAL IS AVAILABLE PRIOR TO CITY COUNCIL
MEETINGS AT
http://www.huntingtonbeachca.gov
Page 4
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CITY OF HUNTINGTON BEACH
CITY COUNCIL MEETING—COUNCIL MEMBER ITEMS REPORT
TO: THE HONORABLE MAYOR AND CITY COUNCIL
FROM: DAN KALMICK, CITY COUNCILMEMBER
NATALIE MOSER, CITY COUNCILMEMBER
DATE: SEPTEMBER 28, 2023
SUBJECT: SEEK AN OPINION FROM THE CALIFORNIA ATTORNEY GENERAL ON ELIGIBILITY
FOR THE PRIMARY BALLOT FOR CHARTER AMENDMENTS INVOLVING CITY
CLERK, CITY ATTORNEY AND INVESTIGATIONS OF ELECTED OFFICIALS.
On August 1, 2023, the Charter Amendment Ad Hoc Committee brought forward to the City
Council, among other things, two proposals involving changes to the roles of the City Attorney
and City Clerk. At the conclusion of the discussion of those proposals, Councilmember McKeon
brought forward several more proposals including a proposal to add procedures for investigating
elected officials.
At the September 5, 2023 City Council meeting, the City Attorney's Office brought forward
language for the City Council to review and be placed on the March 2024 Primary Ballot. That
language involved the status, benefits,and rights of multiple employees, elected and appointed.
Based on advice the City Council had received for a prior ballot measure, questions arose as to
whether state law precludes placing such Charter amendment proposals on a primary election
ballot as opposed to the November 2024 General Election ballot.
The City Attorney's office has proffered a conclusory, unwritten legal opinion that these Charter
amendments are eligible for the March Primary Ballot. It is apparently the policy of the City
Attorney's Office to not release those opinions in writing to either the City Council (their client)
nor the public. We believe substantial questions remain about the employment-related
proposals' eligibility for a primary ballot, especially in the absence of a thoroughly-reasoned,
written legal opinion, and given the subject matter is the City's Charter, its most fundamental
governing document.
Election Code Section 1415 (a)(2)(A) —created by SB 311 (2013 Padilla)— Refers to the Special
Elections code and Charter Amendments being placed on a Primary ballot. It essentially says a
Charter amendment proposal may only be placed on a primary ballot if it:
---[P]roposes to amend a charter in a manner that does not alter any procedural or
substantive protection, right, benefit, or employment status of any local government
employee or retiree or of any local government employee organization.
Below is the language as it currently stands to be placed before the people of Huntington Beach.
(The Charter section headings are provided,for context)
An amendment to modify the role of the City Council and City Attorney:
SECTION 304 (b) [Proceedings]
legal department and m ployth oer attorney s to take charg~.of or may contract for
i
.,ution litigati„n r. other legal matter or bucinerr
i
Section 309. CITY ATTORNEY, POWERS AND DUTIES. (emphasis added)
... The City Attorney represents the City of Huntington Beach, a Chartered City under the
Constitution of the State of California and a Municipal Corporation.
The elected City Attorney is, by virtue of the election, designated by the people as the
City's exclusive legal counsel. The City Attorney may hire, contract, and/or appoint outside
contract attorneys and/or such in-house deputy or deputies to assist or act for the City Attorney,
at such salaries or compensation as the City Council may by ordinance or resolution prescribe;
provided that the employ of attorneys to assist the City Attorney in the execution of his or her
duties is the exclusive purview of the City Attorney. Neither the City Council, the City Manager,
nor any other City Official or department may hire their own attorneys, consult with, attempt to
contract with attorneys for services,or obtain other/outside legal opinions, without the prior
express written consent of the City Attorney.
Because of the unique nature of the City Attorney's work at the pleasure of the electorate,
and in order to protect the City Attorney's work from political interference, neither the
compensation of the City Attorney nor the City Attorney's annual budget or any aspect thereof
shall be reduced by the City Council from year to year unless approved by a four fifths majority
of the total members of the City Council, but in no event shall any such reduction exceed 3%in a
year and from the previous year.
Keep, maintain, and protect all City confidential attorney-client privileged, and
attorney work product privileged information.Such confidential information shall not be
accessible to any other City Official, City Staff, or third party, unless the City Attorney
authorizes such access or the City Council votes to authorize such access by majority vote.
Additions to Section 309 of this Charter, if approved by the voters at the March 5,
2024 election,shall take effect on January 1,2027.
The foregoing amendment makes substantial changes to the roles of both the City Council and
City Attorney.
An amendment to modify the requirements to become City Clerk:
SECTION 310. CITY CLERK. POWERS AND DUTIES. (emphasis added)
Ems ,
To become and remain eligible for City Clerk, the person elected or appointed shall have
a Bachelor's Degree in business, public administration, or a related field, and hold a
certification as a Municipal Clerk or obtain such celification within the first three years
in office.The City Clerk shall have the power and shall be required to...
By eliminating key qualifications for becoming City Clerk, the foregoing proposal provides a new
benefit to any existing employees who previously would not have been qualified to run for or be
appointed City Clerk.
An amendment to add in third-party investigation of malfeasance, would remove current
roles performed by City Manager, HR Director, and the Police Department:
SECTION 314. INVESTIGATIONS OF MALFEASANCE
To avoid potential conflicts of interest and political interference, any allegation of
malfeasance, wrongdoing or misconduct against an elected official of the City, shall not
be investigated by the City, any other City Official, or member of City Staff. Rather, such
allegations shall be referred to the Orange County District Attorney, the California
Attorney General, the Fair Political Practices Commission, or other appropriate higher
level government agency.
It is our view that because of the ambiguity in analysis and the potential for costly litigation if
items were placed on the ballot that would be ruled ineligible, the City Council of Huntington
Beach should ask the Attorney General of the State of California for an opinion on the application
of Election Code §1415(a)(2)(A)to the above proposed amendments to the charter of the City of
Huntington Beach.
RECOMMENDED ACTION:
Direct the City Manager to work with the City Attorney to seek an opinion from the California
Attorney General on the question of SB311 (2013 Padilla), portions of which were chaptered
as Election Code Section 1415,applying to the proposed charter amendments making changes
to the roles of the City Clerk, City Attorney, City Council and City Manager, HR Department
Head and/or Police Chief.
From: Paula Shawa
To: Suoolementalcomm(a surfcity-hb.orq
Subject: Agenda Item 3/Special Mtg.City Council Sept.28
Date: Thursday,September 28,2023 6:16:21 AM
To Whom It May Concern:
I, as a resident of Huntington Beach, support this initiative to seek a legal opinion on some of
the charter amendments. These amendments are being proposed and handled in a reckless
and hasty manner and are not in the best interests of the greater community.
Paula Shawa, 16822 Edgewater Lane, HB
SUPPLEMENTAL
COMMUNICATION
Meeting Gate: q/2
Agenda Item No.; 3 (°2-3—g:;7-)
From: Fikes,Cathy
To: Agenda Alerts
Subject: FW:YES on 9/28/2023 Meeting Agenda Item No.23-837
Date: Thursday,September 28,2023 8:45:43 AM
From: Paula Schaefer<pas92649@gmail.com>
Sent:Wednesday,September 27, 2023 7:51 PM
To:CITY COUNCIL(INCL. CMO STAFF)<city.council@surfcity-hb.org>
Subject:YES on 9/28/2023 Meeting Agenda Item No. 23-837
Mayor and Council Members:
It is imperative that the City Council vote YES on Agenda Item#23-837.
The City Manager and City Attorney should be directed to obtain an opinion from the CA
Attorney General on the legal questions that remain unanswered in any meaningful way by the
City Attorney's office.
I have been at the 9/5,the 9/14, and the 9/21 meetings at which the proposed Charter
Amendments have been discussed. Multiple people have asked why the 2022 Charter
Amendments were on the statewide general election, YET the 2024 charter amendments are
being jammed through to make the March 2024 primary election. WHY?
If people are not asking about this issue,they are asking why the City Clerk's credentials are
being lowered, and why the City Attorney's office is being protected. If this is so important,
why aren't the City Clerk and the City Treasurer's budgets being protected as well?
The City Attorney has failed to provide an adequate analysis of these issues beyond saying
that his office has analyzed the issues and the City Council should trust this analysis.
However,that analysis has not been provided to the City Council -even in a closed session.
This despite the fact that the City Council is the client of the City Attorney.
Vote YES on Agenda Item No. 23-837 and obtain the necessary legal analysis that should
have been provided months ago.
Paula A. Schaefer
HB resident 30+years
Paula Schaefer
From: tikes.Cathy
To: Agenda Alert
Subject: FW: "Yes"on Meeting Agenda Item No.23-837,9/28/2023
Date: Thursday,September 28,2023 8:46:16 AM
From: Shirlee Krause<shirleekrause@yahoo.com>
Sent:Wednesday, September 27, 2023 8:48 PM
To: CITY COUNCIL(INCL. CMO STAFF)<city.council@surfcity-hb.org>
Subject: "Yes" on Meeting Agenda Item No. 23-837,9/28/2023
Good Day!
Yes, I am the 80 year old, handicapped mobile home owner(for 23 years) and previous renter
for three years here in Huntington Beach who is fed up with what the City Council is
attempting to do! How dare you try to pull the wool over H.B. voters' eyes by attempting to
sneak the 2024 charter amendments on the March 2024 primary election instead of the
statewide general election as was done in 2022!
I think you don't believe in the true American justice that our country was founded upon. You
people just want to rule us as if you were ordained to do so. Well, let me tell you
something...you don't walk on water,you pass it just the same as all humans do!!
Another thing --why are the City Clerk's credentials being lowered, and why is the City
Attorney's office being protected? Why aren't the City Clerk and Treasurer's budgets being
protected,too? What the heck is really going on here? This is all very disturbing to me,my
friends and professional associates.
I strongly urge you to vote "yes" on Agenda Item No. 23-837 plus finally get the important
and much needed legal analysis. It appears that you're acting like "bulls in a china shop"
instead of what you were chosen to do. That being leaders of good will,well-founded and
good intentions for the people of Huntington Beach with decisions based on facts, not
foolishness and self-aggrandizing!
Shirlee Krause
shirleekrause@yahoo.com