CITY OF GLENDALE CALIFORNIA REPORT TO CITY COUNCIL

Transcription

1 FORM CM-36 CITY OF GLENDALE CALIFORNIA REPORT TO CITY COUNCIL January 11, 2005 AGENDA ITEM Discussion ofpossible appointment of an individual to fill the vacancy created by the departure ofcouncil Member Gomez. (1) Motion to appoint an individual to fill the vacancy (2) Motion directing staff COUNCIL ACTION Public Hearing [] Ordinance [1 Consent Calendar [] Action Item [X] Report Only [ ] Approved for January 11, 2005 calendar ADMINISTRATIVE ACTION Submitted Scott H. Howard, City Attorney...c=- Signature ~~.1 Prepared L ; Scott H. Howard, City Attorney.,.,., -:-.-:-.:--.:-.:-..c=::::;;m~~f5-;;1:._.::...,.-~_-===4 ) Approved James Starbird, City Manager..,,,..~.~~~~ Reviewed Scott H. Howard, City Attorney., _. _. _. RECOMMENDATION Staff has no recommendation. The matter is on the agenda at the request of the Mayor for discussion of options or an appointment. REPORT On January 3, 2005, Council member Gus Gomez was sworn in as a Judge of the Superior Court thereby I WCDUNCI~\Council opti~n~ t~ fill vacancy T~Pt.WP1:l F

2 creating a vacancy on the City Council (Constitution Art. 6 Sec. 16(c). Pursuant to the Glendale Charter, the council can appoint an individual to serve pending the next general Municipal election (AprilS, 2005). The following provides information regarding the options as outlined by the Charter. Both the Charter and ordinances of the City call out the procedure for filling vacancies in elective office (Charter Art. VI Sec 13.), nominating candidates to run for council (GMC Chapter 1.08),and the lack of distinction between filling full and unexpired terms (Charter Art. V Sec. 6). FILLING VACANCIES Glendale CharterArt. VI Sec. 13 provides in pertinent part that any vacancy occurring in the Council shall be filled by a majority vote of the remaining members of the Council. The person so appointed shall serve the remainder of the unexpired term unless there is sufficient time after the occurring of the vacancy to nominate and elect a successor at the next general election. TIME FOR NOMINATING CANDIDATES GMC section as relevant here provides that nomination papers for Council shall be circulated for signature not earlier than the 89'" day nor later than the 68'" day prior to the general election. It is clear from the aforementioned that the remaining membcrs ofthc Council have the authority to appoint an individual to fill a vacancy created, in this case by a council member who is successful in attaining the position of Judge of the Superior Court, when he assumes office pursuant to the Constitution. Councilman Gomez's seat becomes vacant on January 3'd. It is clear that there would be sufficient time between the creation ofthe vacancy and the next general election for someone to stand for election in April 2005 and meet the requirements ofthe Charter (Art. VI Sec. 13). According to our calculations, the'89'" day prior to the AprilS, 2005 election would be January 6, 2005, three (3) days after the vacancy created by Council member Gomez's election as ajudge (January 3, 2005). As a result of the time frame as noted above, should the Council desire to appoint an individual to fill the vacancy, the Councilmay do so bymajorityvoteoftheremaining members (Charter Art. VI Sec. 13) at any time up to the election of April The individual so appointed would then serve until his/hersuccessor is duly elected on AprilS, It should be noted that if someone is appointed by the Council and the person has timely filed nomination papers, it is the opinion of this office that the individual so appointed would be considered an incumbent (see Barrell v. Hite (64) 37 Cal Rptr. 320 and People Ex ReI. Shoaff>. Parker (1869) 37 Cal 639 incumbent can mean in the broadest sense someone who is elected or appointed). Black's Law Dictionary defines "incumbent" as a person who is in present possession ofan office; one who is legally authorized to discharge the duties ofan office. See also Gov't Code sec person filling vacancy possesses all rights and powers and is subject to al1 the liabilities and duties of the officer whose vacancy he fills. 2 WCOUNCIL\COUTI~il options to fill vacancy rept.wpd

3 OPTIONS The Council may appoint someone to fill the vacancy. The person appointed serves until a successor is elected in April The Charter establishes no procedure for appointment of an individual to fill a vacancy on the council (State law is similar; Gov't, Code sec ). The Council can permit the "seat,,1 to remain vacant and so long as four or more persons qualify for the April 2005 election, the individual who places fourth (4 th ) in the balloting will be deemed to have been elected to serve the two year unexpired term (Charter Art. V Sec. 6). While the Council could appoint at any time up to April 5,2005, the Council could wait until after the close of the nominating period (January 27, GMC ) and then appoint an individual who has not sought nomination and have that person serve the remaining 68 days until the AprilS election. Calling a special election is NOT an option as the Charter requires that the position be filled at a general election if sufficient time exists after the occurrence of the vacancy. Here sufficient time exists. 'FISCAL IMPACT No impact unless the council determines the need to incur expenses to advertise the availability of the position and have a special meeting or meetings to interview, assess and possibly appoint someone to fill the vacancy. EXHIBITS None 1 Glendale has at large elections with no numbered seats. We use the word "seat" to describe a single council member's position on the Council, not to suggest the ex.istence of a numbered seat district, or office. 3 WCOUNCIL\Council Qption~ to fill vac~ncy repc.wpd

4 MOTION Moved by Council Member seconded by Council Member, that pursuant to Glendale Charter Article VI Section 13 the council hereby appoints to fill the vacancy on the city council created by the election of Gus Gomez as a Judge of the Superior Court. The appointee herein shall be eligible to Serve as a council person upon taking the oath of office as required by law. Vote as follows: Ayes: Noes: Absent: Abstain: c~:v:as~:f_o_r-m~-:> DAlE CITY ATIORNEY / -:f -cjo:> J:Wll..ES\DOCFlI..ESIFACTFIND\t\ppoinl person to fill Vllcar1CY on conndl mtll_wpd 8 F 1

5 MOT ION Moved by Council Member seconded by Council Member, that staff is hereby directed to [note and file the report dated January 4, 2005] [return to the council with a procedure for advertising, recruiting and selecting individual(s) to fill the vacancy on the city council created by the election of Gus Gomez to the position of Judge of the Superior Court]. Vote as follows: Ayes: Noes: Absent: Abstain: APPROVED AS TO FORM ~ ;> CITY ATIORNEY DATE /,,--of BFILES\DOCFIl...ES\FACTFlJ'D\DirecL suifftill V~lcant~ on comlcillllln_wpu 8 F 2