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Home My WebLink About16 RESOLUTION 21-64 DECLARING THE COUNCIL’S INTENTION TO TRANSITION TO DISTRICT ELECTIONS DocuSign Envelope ID: DDD9C2EF-6C1 D-4CCA-946F-4C7ECDC22483 16 Agenda Item Reviewed: DS AGENDA REPORT City Manager �� Finance Director N/A MEETING DATE: AUGUST 3, 2021 TO: MATTHEW S. WEST, CITY MANAGER FROM: DAVID E. KENDIG, CITY ATTORNEY SUBJECT: RESOLUTION 21-64 DECLARING THE CITY COUNCIL'S INTENTION TO TRANSITION FROM AT-LARGE TO DISTRICT ELECTIONS. SUMMARY The City of Tustin currently utilizes an at-large election system to elect its City Council Members. On June 23, 2020, the City received a letter from the Mexican American Legal Defense and Education Fund asserting that the at-large election system violates the California Voting Rights Act and threatens litigation if the City declines to voluntarily convert to district-based elections. The first step in transitioning to district-based elections is adoption of a resolution of intention. A resolution of intention to transition from at-large to district-based elections has been prepared which would, if adopted, express the City Council's intention to complete the transition in time for the 2022 General Municipal Election. The purpose of this report is to present the Resolution for Council consideration. In the event the Council approves the attached Resolution it is also recommended that the Council concurrently authorize the City Manager to proceed with an agreement to extend the deadline to adopt an ordinance establishing district-based elections by an additional 90 days (increasing the period from 90 days to 180 days) in order to provide additional time to conduct public outreach, encourage public participation, and receive public input. RECOMMENDATION It is recommended that the City Council take the following actions: 1. Adopt Resolution 21-64, entitled "A RESOLUTION OF CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, DECLARING ITS INTENTION TO TRANSITION FROM AT-LARGE TO DISTRICT-BASED ELECTIONS PURSUANT TO CALIFORNIA ELECTIONS CODE 10010(e)(3)(A)"; and 2. Authorize the City Manager to approve and execute an agreement with MALDEF to extend by an additional 90 days the deadline to adopt an ordinance establishing district-based elections in a form to be approved by the City Attorney. DocuSign Envelope ID: DDD9C2EF-6C1 D-4CCA-946F-4C7ECDC22483 Agenda Report— Resolution Declaring Intent to Transition to District Elections August 3, 2021 Page 2 FISCAL IMPACT Significant staff time will be required to transition to district-based elections and to administer the process including the need for at least several public hearings. Transitioning to district-based elections also involves the services of a demographer. Additionally, the City will be required to reimburse MALDEF for its documented costs, up to $30,000. However, such expenses would likely be significantly lower than the costs of litigating the threatened lawsuit if district-based elections are not approved. BACKGROUND The City currently utilizes an at-large election system where voters citywide select each of the five City Council Members. By contrast, a district-based election system is one in which a city is physically divided into separate districts, each with one council member who resides in the district and is chosen solely by the voters residing in that district. MALDEF's Demand to Convert to District Elections. On June 23, 2020, the City received a letter (Attachment 1) from Tanya G. Pellegrini, an attorney representing the Mexican American Legal Defense and Education Fund (MALDEF) in Sacramento, California. The letter asserts that the "lack of success of Latino candidates results from the inability of Latino voters to elect candidates of choice due to racially polarized voting among the electorate, and that continued use of at-large elections therefore violates" the California Voting Rights Act (CVRA). The letter demands that the City convert to district-based elections and threatens litigation if the City declines to voluntarily convert to district-based elections. The California Voting Rights Act Imposes Significant Costs of Litigating The CVRA, codified as Elections Code sections 14025 et seq., became law on January 1, 2003. The declared purpose of the CVRA is to prevent the disenfranchisement of protected classes, which are broadly defined to include members of a race, color, or language minority group. Any voter who resides in a city and is a member of a protected class may file a lawsuit for a violation of the CVRA. To succeed, the plaintiff must only show that, as a result of an at-large election, "racially polarized voting" has occurred. "Racially polarized voting" means there is a difference between the choice of candidates preferred by voters in a protected class and candidates preferred by voters in the remainder of the voting population. If the plaintiff prevails in litigation, the CVRA allows for the recovery of significant attorneys' fees and expert witness fees. On the other hand, DocuSign Envelope ID: DDD9C2EF-6C1 D-4CCA-946F-4C7ECDC22483 Agenda Report— Resolution Declaring Intent to Transition to District Elections August 3, 2021 Page 3 even if the city that is sued prevails in the lawsuit, it cannot recover either attorneys' fees or costs. Consequently, cities throughout the State have increasingly faced legal challenges to their at-large election systems. Nearly all have settled claims out of court by voluntarily transitioning to district-based elections. Those cities that have attempted to defend their existing at-large election systems have incurred significant legal costs. A few examples of significant CVRA settlements' include: Palmdale: $4.7 million Modesto: $3 million Highland: $1.3 million Anaheim. $1.1 million Whittier: $1 million Santa Barbara: $600,000 Tulare Hospital: $500,000 Camarillo: $233,000 Compton Unified: $200,000 Staff is unaware of any city that has prevailed in a lawsuit defending an at-large election system after a claim is filed pursuant to the current version of the CVRA. A "Safe Harbor" If A Resolution of Intention to Transition to Districts is Adopted. On September 28, 2016, the Governor signed into law AB 350, which enacted Elections Code section 10010. That legislation established a "safe harbor" from CVRA litigation for cities. Once a city receives a demand letter, it has a period of protection2 from litigation to assess its situation. In Tustin's case, the CVRA safe harbor period of protection runs until August 14, 2021. If within that period, the City Council adopts a resolution of intention declaring its intent to transition from at-large to district-based elections, outlining specific steps to be undertaken to facilitate the transition, and estimating a timeframe for action, then a CVRA lawsuit could not be filed for an additional 90-day period from the date of adoption of the Resolution. And under AB 350, the City's liability would be capped at $30,000 if it utilizes the safe harbor provisions and subsequently adopts an ordinance establishing district- based elections. A CVRA case against the City of Santa Monica is still on-going but the City has already spent an estimated $8 million so far, and the plaintiffs have requested $22 million in attorney and expert fees and litigation costs in connection with their win in the trial court. z Ordinarily the period of protection is a 45-day period from receipt of the demand letter. However, due to the Governor's COVID-related emergency orders, that period of protection has been effectively extended to August 14, 2021. DocuSign Envelope ID: DDD9C2EF-6C1 D-4CCA-946F-4C7ECDC22483 Agenda Report— Resolution Declaring Intent to Transition to District Elections August 3, 2021 Page 4 The Proposed Resolution of Intention If approved, the attached Resolution of Intention to transition to district-based elections (Attachment 2) would declare the City's intention to transition to district-based elections in time for the 2022 General Municipal election. Exhibit A of the Resolution includes a tentative timeline for consideration and implementation of a district-based election method. Following the approval of a resolution of intent, there are two steps for transitioning from at-large to district-based elections: (1) engaging in a public hearing process to establish district boundaries, and (2) adopting an ordinance formally establishing district-based elections. Authorization for an Agreement to Extend the 90-Day Deadline In the event the Council approves the attached Resolution, it is also recommended that the Council concurrently authorize of the City Manager to negotiate and enter into an agreement with MALDEF to extend by an additional 90 days the deadline to adopt an ordinance establishing district-based elections. California Elections Code section 10010(e)(3)(c)(i) allows the City and MALDEF to enter into a written agreement to extend that 90 day period of protection for up to an additional 90 days (increasing the period of protection from 90 days up to as much as 180 days). This would provide additional time to conduct public outreach, encourage public participation, and receive public input. If approved by the City and MALDEF, such an agreement and the additional time it affords would also enable the City and its demographer to review and analyze additional official population data anticipated to be released in late September/early October before engaging in the public hearings on draft proposed district maps. Although City staff requested such a 90-day extension agreement be entered at this time by both parties (e.g., concurrently with approval of the Resolution of Intention), MALDEF's legal counsel responded that they are open to discussing such an agreement only after the City Council votes to adopt the Resolution of Intent to transition district elections. (See email from MALDEF's legal counsel, attached as Attachment 3.) Future Step: Setting District Boundaries Prior to adopting an ordinance actually establishing district-based elections, the City Council would be required to establish district boundaries and the sequencing of district elections. California Elections Code section 10010 sets forth the City Council public hearing process for establishing district boundaries and the sequencing of district elections. This process requires a series of noticed public hearings during which the public has a right to provide input on proposed district boundaries. Specifically, the City must hold at least two "clean slate" hearings at which the public can provide input on DocuSign Envelope ID: DDD9C2EF-6C1 D-4CCA-946F-4C7ECDC22483 Agenda Report— Resolution Declaring Intent to Transition to District Elections August 3, 2021 Page 5 district boundaries before any maps are prepared. Thereafter, the City must hold at least two more public hearings to consider draft maps. Finally, the City must hold a public hearing at which the map is adopted and the sequencing of district elections is established. The map and sequencing would be approved by City ordinance. The creation and approval of voting district maps is intended to be a transparent public process. Voting district maps must be prepared in compliance with certain State and federal requirements and include consideration of communities of interest, natural geographic boundaries, and the "one-person, one vote" standard, which requires all voting districts be as nearly equal in population as possible. Future Step: Adopting an Ordinance Transitioning to District-Based Elections Transitioning to district-based elections is effectuated by the City Council enacting an ordinance pursuant to Government Code section 34886, provided that the ordinance includes a declaration that it is being adopted to further the purposes of the CVRA. Under this method, the City Council would need to determine whether it wants to have a mayor elected at-large, with the remaining seats chosen through a district-based election process (with four, six, or eight voting districts). If the City Council chooses not to have a mayor elected at-large, it has the option of establishing five, seven, or nine voting districts.3 These decisions will be made by the City Council based on information from the public hearings, and other appropriate considerations at future meetings, after adoption of the proposed resolution of intent. ATTACHMENTS 1. June 23, 2020, Demand Letter from MALDEF 2. Resolution 21-64 3. June 29, 2021 Email from MALDEF 3 Cal. Gov't Code § 34871. ! Kvof!34-!3131! ! WJB!V/T/!NBJM!'!FNBJM! ! Es/!Bmmbo!Cfsotufjo-!Nbzps Uvtujo!Djuz!Dpvodjm 411!Dfoufoojbm!Xbz! Uvtujo-!DB!!:3891!! F.nbjm;!bcfsotufjoAuvtujodb/psh !Sf;!Efnboe!gps!Dpnqmjbodf!xjui!Dbmjgpsojb!Wpujoh!Sjhiut!Bdu! ! Efbs!Nbzps!Cfsotufjo;! ! !Xf!xsjuf!po!cfibmg!pg!Mbujop!wpufst!jo!uif!Djuz!pg!Uvtujo!xip!bsf! dpodfsofe!uibu!uif!vtf!pg!bo!bu.mbshf!tztufn!gps!uif!fmfdujpo!pg!uif!Djuz! 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DocuSign Envelope ID: DDD9C2EF-6C1 D-4CCA-946F-4C7ECDC22483 ATTACHMENT 1 RESOLUTION NO. 21-64 A RESOLUTION OF CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, DECLARING ITS INTENTION TO TRANSITION FROM AT-LARGE TO DISTRICT-BASED ELECTIONS PURSUANT TO CALIFORNIA ELECTIONS CODE 10010(e)(3)(A) WHEREAS, members of the City Council of the City of Tustin ("City") are currently elected in at-large elections, in which each Councilmember is elected by all registered voters of the entire City; and WHEREAS, Government Code Section 34886 authorizes the City Council to adopt an ordinance to change its method of election from an at-large system to a district-based system, in which each Councilmember is elected only by the voters in the district in which the candidate resides; and WHEREAS, on Tuesday June 23, 2020 the City received a letter from Tanya G. Pellegrini, Staff Attorney for the Mexican American Legal Defense and Education Fund ("MALDEF"), asserting that the City's at-large election system violates the California Voting Rights Act ("CVRA") and threatening litigation if the City declines to voluntarily change to a district-based election system for electing Councilmembers; and WHEREAS, the City denies its election system violates the CVRA or any other provision of law and asserts the City's at-large election system is legal in all respects and further denies any wrongdoing whatsoever regarding the way it has conducted its City Council elections; and WHEREAS, despite the foregoing, the City Council has concluded it is in the public interest to begin the process of transitioning from at-large to district- based elections due to the uncertainty of litigation to defend against a CVRA lawsuit and the potentially extraordinary cost of such a lawsuit, even if the City were to prevail; and NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUSTIN DOES RESOLVE AS FOLLOWS: SECTION 1 . The above recitals are true and correct and are incorporated herein by reference. SECTION 2. The City Council hereby outlines its intention to transition from at-large to district-based elections, the specific steps it will undertake to facilitate this transition, and an estimated time frame for doing so. 1600173.1 DocuSign Envelope ID: DDD9C2EF-6C1 D-4CCA-946F-4C7ECDC22483 SECTION 3. The City shall utilize a demographer experienced and qualified to assist the City in drafting a district map consistent with the CVRA and the Federal Voting Rights Act. SECTION 4. City staff shall work with the demographer to provide a detailed analysis of the City's current demographics and any other information or data necessary to prepare a draft map that divides the City into voting districts in a manner consistent with the intent and purpose of the CVRA and the Federal Voting Rights Act. SECTION 5. The City Council hereby approves the tentative timeline as set forth in Exhibit "A", attached to and made a part of this Resolution, for conducting a public process to solicit public input and testimony on proposed district-based electoral maps before adopting any such map. SECTION 6. The timelines contained in Exhibit "A" may be adjusted by the City Manager as deemed necessary, provided that such adjustments shall not prevent the City from complying with the time frames specified by Elections Code Section 10010, and/or as the same time frames may be modified by agreement approved pursuant to California Elections Code section 10010(e)(3)(C)(i). SECTION 7. The City Clerk shall certify as to the adoption of this Resolution. PASSED AND ADOPTED by the City Council of the City of Tustin at a regular meeting held on the 3rd day of August, 2021 . LETITIA CLARK, Mayor ATTEST: ERICA N. YASUDA, City Clerk DocuSign Envelope ID: DDD9C2EF-6C1 D-4CCA-946F-4C7ECDC22483 STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) I, Erica N. Yasuda, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council is five; that the above and foregoing Resolution No. 21-64 was duly and regularly passed and adopted at a regular meeting of the City Council held on the 3rd day of August, 2021 by the following vote: COUNCILPERSONS AYES: COUNCILPERSONS NOES: COUNCILPERSONS ABSTAINED: COUNCILPERSONS ABSENT: ERICA N. YASUDA, City Clerk DocuSign Envelope ID: DDD9C2EF-6C1 D-4CCA-946F-4C7ECDC22483 Exhibit A TENTATIVE TIMELINE: CONSIDERATION AND IMPLEMENTATION OF "DISTRICT-BASED" ELECTION METHOD DATE EVENT COMMENT August 3, 2021 City Council adopts Resolution CVRA action cannot be declaring its intention to commenced for 90 days transition from at-large to (Deadline: November 1, 2021) district-based elections August 2021 Public Outreach regarding process and to encourage public participation August 31 1St Public Hearing City Council hearing regarding composition of districts; no maps et. September 21 2nd Public Hearing City Council hearing regarding composition of districts; no maps Must be conducted no more yet. than 30 days from the 1"'public hearing date September 28 Post draft maps and potential Draft maps and proposed sequence of elections sequence of elections must be posted publicly at least 7 days before 3rd Public Hearing. October 5 3rd Public Hearing City Council hearing regarding composition of districts. October 12 Post any new or amended maps Draft maps and proposed and potential sequence of sequence must be posted publicly elections. at least 7 days before 3rd Public Hearing. October 19 41" Public Hearing —Select map, City Council introduces ordinance establishing district elections, including district boundaries and election sequence October 26 51" Public Hearing —adoption of ordinance establishing district elections Day 90— November 1, 2021 November 25 Effective date of ordinance establishing district elections DocuSign Envelope ID: DDD9C2EF-6C1 D-4CCA-946F-4C7ECDC22483 David E. Kendig From: Tanya Pellegrini <Tpellegrini@MALDEF.org> Sent: Thursday,July 29, 2021 8:23 PM To: David E. Kendig Cc: Michael S. Daudt; Ernest Herrera Subject: Re: Tustin District Elections Attachments: image001.jpg; log o_24a83e77-8c70-415f-9dcc-6892f2286ea0.JPG Hi David, Thanks for speaking with me this afternoon. As discussed, we are open to a go-day extension under Election Code Section loolo after the City Council votes to convert to single-member district elections. However, an extension is premature at this time since the City Council has not yet voted to adopt a resolution to convert to district elections. We would be happy to discuss the go-day extension after the City Council passes a resolution of intent to convert to district elections. Please feel free to contact me should you like to discuss this matter further. Thank you. Sincerely, Tanya G. Pellegrini (she/hers) Staff Attorney MALDEF 1512 14th Street Sacramento, CA 95814 Ph (916) 444-3031 www.maldef.org<http://www.maldef.org/> CONFIDENTIALITY NOTICE: This e-mail transmission from The Mexican American Legal Defense &Educational Fund, and any documents, files or previous e-mail messages attached to it may contain confidential information that is legally privileged. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that any disclosure, copying, distribution or use of any of the information contained in or attached to this transmission is strictly prohibited. If you have received this transmission in error, please immediately notify us by reply e-mail or by telephone at (916) 444-3031, and destroy the original transmission and its attachments without reading or saving it in any manner. From: Michael S. Daudt <mdaudt@wss-law.com> Sent: Wednesday, July 28, 20216:18 PM To: Tanya Pellegrini Cc: David E. Kendig Subject: FW: Tustin District Elections Hello Tanya, As you know, I am heading out of state tomorrow. In my absence, can you please contact City Attorney David Kendig at your earliest convenience. David is working to finalize the City Council staff report to go out tomorrow. He is cc'd on this email and can be reached via cell at (949) 310-2524• 1 DocuSign Envelope ID: DDD9C2EF-6C1 D-4CCA-946F-4C7ECDC22483 Thanks, Michael [cid:logo_24a83e77-8c7o-415f-9dcc-6892f2286eao.JPG] Michael S. Daudt Attorney at Law 555 Anton Boulevard, Suite 1200 Costa Mesa, California 92626 714-415-1059 • Fax: 714-415-1159 mdaudt@wss-law.com www.wss-law.com<http://www.wss-law.com> CONFIDENTIALITY NOTICE —This e-mail transmission, and any documents, files or previous e- mail messages attached to it may contain information that is confidential or legally privileged. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that you must not read this transmission and that any disclosure, copying, printing, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify the sender by telephone at 714-415-1059 or return e-mail and delete the original transmission and its attachments without reading or saving in any manner. Thank you. From: Michael S. Daudt <mdaudt@wss-law.com> Sent: Wednesday, July 28, 2021 12:04 PM To: Tpellegrini@MALDEF.org Subject: Tustin District Elections Hi Tanya, Sorry for missing your call. Per your voicemail, I'd appreciate your sending a sample template agreement that could be modified for use in Tustin and presented to the City Council on Tuesday. Even if we are unable to secure your client's signatures and approval of the agreement in advance of the meeting, we would like to present a draft agreement in connection with the request for City Manager authorization to execute an extension agreement that substantially complies with the attached draft. Please let me know what you think. Best, Michael [cid:imageool.jpg@o1D783DC.F2663FBo] 2 DocuSign Envelope ID: DDD9C2EF-6C1 D-4CCA-946F-4C7ECDC22483 Michael S. Daudt Attorney at Law 555 Anton Boulevard, Suite 1200 Costa Mesa, California 92626 714-415-1059 • Fax: 714-415-1159 mdaudt@wss-law.com<mailto:mdaudt@wss-law.com> www.wss-law.com<http://www.wss-law.com> CONFIDENTIALITY NOTICE —This e-mail transmission, and any documents, files or previous e- mail messages attached to it may contain information that is confidential or legally privileged. If you are not the intended recipient, or a person responsible for delivering it to the intended recipient, you are hereby notified that you must not read this transmission and that any disclosure, copying, printing, distribution or use of any of the information contained in or attached to this transmission is STRICTLY PROHIBITED. If you have received this transmission in error, please immediately notify the sender by telephone at 714-415-1059 or return e-mail and delete the original transmission and its attachments without reading or saving in any manner. Thank you. This email has been scanned for spam and viruses by Proofpoint Essentials. Click here<https://us3.proofpointessentials.com/indexol.php?mod_id=11&mod option=logitem&mail_id =1627521510-4xkTFRa8n8vv&r_address=tpellegrini%4omaldef.org&report=l> to report this email as spam. 3