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HomeMy WebLinkAbout15 TERM LIMITS ORD 03-03-97 LAW OFFICES OF '~VOODRUFF, SPRADLIN & SMAR'~ A PROFESSIONAL CORPORATION MEMORANDUM NO. 15 3-3-97 TO: Honorable Mayor and Members of the City Council City of Tustin FROM: City Attorney DATE: RE: February 26, 1997 Proposed Term Limits Ordinance Mayor Worley would like the City Council to reconsider adding language that would state the Council's intent that the ordinance not be amended or repealed except by a vote of the people. This is because the City has just received a copy of a Legislative Counsel's opinion that concludes that the special legislation allowing the City Council to implement the Tustin voters' wishes on term limits should be interpreted as precluding the amendment or repeal of the ordinance except by a vote of the people. ' --" "--'"--: ~-: .... *-If th-i§ la-ng-ba'~:& i~ a~l-e~ ~-th-~'-p-en~iing-O*~-din'an~7-it-w-~i-reqUire the Council to have first reading on March 3, 1997. Second reading would occur at the next City Council meeting. I have attached a copy of the ordinance with the addition of the subject language. DISCUSSION: Although the language of Government Code Section 36502.5 (the specific Tustin legislation) is not explicit as to the amendment or repeal of a City Council ordinance adopted pursuant to the section, the Legislative Counsel is of the opinion that the ordinance should not be amended or repealed, except by a vote of the people. A copy of that opinion is attached. While a Legislative Counsel's opinion does not have the same weight as a specific statutory provision, an Attorney General's opinion, or a court decision, it would be given more deference by the court than a City Attorney opinion. It clearly would be entitled to deference by a court in interpreting Section 36502.5. In our view, the Legislative Counsel's opinion is a reasonable interpretation under the legal rules of statutory construction. What the Legislative Counsel says, in essence, is that term limit ordinances are special creatures of the legislature; they are not like other ordinances that may be repealed or amended by a subsequent City Council. Accordingly, even though the special legislation for Tustin is 1100-00012 42460_1 Honorable Mayor and Members of the City Council City of Tustin February 26, 1997 Page 2 not worded the same as the special legislation enabling cities to enact term limits (Section 36502), it should be interpreted as part of the same legislative scheme for the adoption, repeal, or amendment of term limits ordinances. LOIS. E. JEFFREY'// 0 Attachments cc: William A. Huston, City Manager 1100-00012 42460_1 6 10 II 12 14 15 17 2O 21 22 23 24 25 26 27 28 1100- 39827 l18u ORDINANCE NO.~ A~ ORDINANCE OF THE CITY COUNCIL OF T~E CITY OF TUSTIlq, CALIFORNIA,. CONFIRMING T~tE VOTERS' WISHES EXPRESSED ON NOVEMBER 8, 1994, TO LIMIT CONSECUTIVE TERMS OF MEMBERS OF THE CITY COUNCIL. The City Council of the City of Tustin hereby ordains as follows: SECTION 1. AUTHORITY. This Ordinance 'is enacted pursuant to Government Code Section 36502.5 (Chapter 310, 1996 Statutes; SB 1421).. SECTION 2. FINDINGS. On November 8, 1994, at a regularly scheduled election, the electors of the City of Tustin approved a proposa% to limit consecutive terms of members of the City Council to two (2) full consecutive terms. This proposal added Section 1307 of Chapter 3 of Article 1 of the Tustin City Code. This ordinance contains the same provisions on the limitation of City Council terms as the proposal approved by Tustin electors. SECTION 3. ESTABLISHMENT OF LIMITATIONS ON CONSECUTIVE TERMS OF MEMBERS OF THE CITY COUNCIL. City Code is hereby amended to read as follows: ~1307 Limitation On Consecutive Terms of Members of the Council. (a) Findings and Purpose. The City Council hereby acknowledges that the voters of Tustin have found and declared that: (1) The Founders established a System of representative 9overnment based upon free, fair, and competitive elections. The'increased concentration of political power in the hands of incumbent representatives has made our electorial system less free, less competitive, and less representative. (2) The ability of legislators to serve an unlimited number of terms contributes heavily to the extremely high number of incumbents who are reelected. This unfair incumbent advantage 'discourages qualified candidates from seekin~ public office and creates a class of career politicians, instead of the citizen representatives envisioned by the Founders. These career politicians become representatives of the bureaucracy, rather than of the people whom they are elected to represent. 012 1 Ordinance Page 2 1180 (3) The purpose of this Ordinance is to restore a free and democratic system of fair elections, and to encourage qualified candidates to seek public office, by limiting the powers of incumbency, by placing limitations upon the number of consecutive terms which may be served by members of the City Council. (b) Limitations on Consecutive Terms for Council Member~. (1) No person shall be elected as a member of the City Council for more than two (2) full consecutive terms. Any member of the City Council who has served two (2) consecutive terms shall not be reelected as a member of the City Council for at least two (2) years from the last date of the second consecutive term. I0 12 13 (2) This Ordinance shall not operate to shorten any current term of members of the City Council' presently in office. (3) This Ordinance shall apply prospectively from the effective date of the enactment of Government Code Section 36502.5 which date is January 1, 1997. ' SECTION 4 SERVILITY. 16 17 18 19 2O 21 If any section, subsection, subdivision, sentence, clause, phrase, or portion to this Ordinance, is for any reason held to be invalid'or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Tustin hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof,' irrespective of the fact. that any one or more sections, subsections, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional. 23 PASSED AND ADOPTED, at a regular meeting of the City Council for the City ~f Tustin on this day of , 1997. 24 TRACY WILLS WORLEY, Mayor 26 ATTEST: 27 28 PAMELA STOKER, City Clerk 11, 1 John T. D~ F. ~-~ C. D~ 0~ ~Cu~ ~nO.G~ ~J.~ T~O. ~H ( lif rnia BION M. GREGORY Sacramento, California February 20, 1997 Honorable Ross Johnson 5087 State Capitol T_ustin City Council: Term Limits Dear Senator Johnson: You have asked that we consider the following in conjunction with your question posed below: ' On November 8,' 1994, voters in the general law City of Tustin passed Measure H, which purported to impose terT~ limits on members of the Tustin City Council. At that time a general law city had no authority to impose term limits. Subsequently, Chapter 432 of' the Statutes of 1995, effective January 1, ~996, was enacted, amending Section 36502 of the Government Code' to provide that the city council of a general law city, by ordinance, or the residents of the city through the qualification of an initiative, may submit to the electors of the city a measure to limit, or repeal a limit on, the number of terms that the mayor or a member of the city.council may serve, and to provide that the measure may not become operative unless it is submitted at a regularly scheduled election and a majority of the votes cast on the question are in favor of its adoption (subd. *(b), Sec. 36502). Chapter 432 was of prospective operation, and did not validate the purported action taken pursuant to Measure H on November 8, 1994. In this connection, Chapter 310 of the Statutes of 1996, effective January 1, 1997, was enacted to add Section 36502.5 to authorize the Tustin City Council to adopt by ordinance a proposal to limit the number of terms a member of the city council may serve*, without submitting the proposal to the electors of the city for approval, provided that a proposal containing those same provisions was submitted to the electors of the City of Tustin at Ail further code references are to the Government Code. Honorable Ross Johnson - p. 2 - #7485 a regularly scheduled election and a.majority of votes cast on the question favored the adoption of the proposal. You have asked, if the Tustin City Council adopts an ordinance to incorporate the provisions of Measure H pursuant to Section 36502.5, whether that ordinance coUld be amended or repealed by ordinance, or whether amendment or repeal would require a vote of the electors of the City of Tustin. section 36502.5 reads as follows: "36502.5. Notwithstanding the provisions of Section 36502, the city council of the City of Tustin may adopt by ordinance a proposal to limit the number of terms a member of the city council may serve on the city council without submitting the proposal to the electors of the city for approval, provided that a proposal containing those same provisions was submitted to the electors of the City of Tustin at a regularly scheduled election and a majority of the votes cast on the question favored the adoption of the proposal. ed rs nt to section shall apply prospectively from the effective date of this section.- This statute establishes a procedure under which the Tustin City Council is authorized to impose term limits by ordinance on the condition that the electorate of the city had previously voted in favor of the particular term limits included in the ordinance. In other words, the city council is authorized under Section 36502.5 to incorporate by reference and adopt, by ordinance, any previous term limits proposal adopted by the electorate, in this case, Measure ~ of the November 8, 1994, ballot. This raises the issue as to whether Section 36502.5 would have the additional effect of authorizing the Tustin'city Council to amend or repeal those term limits by ordinance. By way of background in addressing this issue it is pertinent to examine the underlying powers of a general'law city in relation to term limits. As a general proposition general law cities have only those powers conferred .on them by the - Legislature, together with such powers as are necessarily incident to those granted (~ v. ~ of Manhattan e~, 65 Cal. 2d 13 20; and ~ v. Ko__~, 263 Cal~ App. 2d 2~8, 239). While the ~ Legislature has broadly empowered cities to pass ordinances not i conflict with state law or the Constitution (Sec. 37100), we view this simply as a legislative recognition of a city's ability to Honorable Ross Johnson - p. 3 - #7485 enact local regulatory and prohibitory legislation under the city's police power (Sec. 7, Art. XI, Cal. Const.). In this regard, a limitation upon the number of consecutive terms that an elective city official Such as a city council member may serve is not, in our opinion, a measure that can be enacted under the police power because it is not a regulatory measure of the sort associated with the exercise of the police power (see Rose v. Stat~ of california, 19 cal. 2d 713, 730) . In Steinkamp v. Teqlig, 210 Cal. App. 3d 402, at page 405, the court invalidated a general law city's ordinance limiting council members to two consecutive terms. The court concluded that various provisions of the Government Code (Secs. 36501 to 36524, incl.) affect the eligibility of persons for local Offices in a general law city and establish the intent of the Legislature to preempt local regulation of eligibility for election to offices of general law cities (Id., at p..404). Thus, under state law applicable to general law cities prior to the operative date of Chapter 432, January 1, 1996, there was no limitation on the number of term~._t~a~__a.city counci!~--.~-~- member~of?a=generat~_ot.~'~-~ity.=~O~ld~s~e~and"th~re ~s~n~'= ............... . .... authority given to the legislative body of a general law city to Z limit the number of terms that a city council member could serve. This history serves to illustrate that the authority of a general law city to impose, amend, or repeal term limits must be expressly set forth in statute. In view of the limited authority of a general law city it is important to recognize that Section 36502.5, as added by Chapter 310 of the Statutes of 1996, is a special statute, based upon a finding of circumstances unique to the City of Tustin (Sec. 2, Ch. 310, Stats. 1996), that provides an exception to the general authority to establish term limits as conferred by Section 36502. Two fundamental rules of statutory construction ~pply to a situation of this nature: (1) a statute'is to be given a ~ Where a city has no power to act under an existing state statute, that power cannot be created by an initiative measure (BaGle¥ v. Cit~ o__fManhattan Beach, 18 Cal. 3d 22, 26-27). Honorable Ross Johnson _ p. 4 - #7485 reasonable and commonsense construction in accordance with the apparent purpose and intention of the lawmaker (County ~t~ Alameda v. ~uchel, 32 Cal. 2d 193, 199; see also ~elect Base Materials,Inc. v. Board o_~fu~., 51 Cal. 2d 64~, 645), and (2) when a statute con~aln~ an exception to a general rule laid down therein, that exception is strictly construed, and other exceptions are necessarily excluded (~oins v. Boar____~d of Commissioner~, 96 Cal. App. 3d 1005, 1009). -- /~-' Under a reasonable and'common sense construction, it could be said that, in view of the uniaue circumstances in the City of Tustin, where term limits had ~een recently approved by its electors, Section 36502.5 establishes a procedure by which · term limits may be imposed without the burden of an additional election, and that the statute does no more. In our opinion, the apparent purpose and intent of the Legislature was to enable the City of Tustin to give effect to the previous decision of the electors of Tustin, and not to confer upon the Tustin City Council a power possessed by no other city council in California, namely to repeal or amend local term limits by ordinance. It would be contrary to this apparent purpose and intent to empower the city council to validate the popular vote~.and then negate~o~ revise ........ - .... --~'"that~v°te~a~a-~tat~i~e'by th~-~d&pt~on of a subsequent ordinance. Moreover, and perhaps more importantly, Section 36502.5 contains no language that confers this authority. Furthermore, we think that the courts would strictly construe Section 36502.5 as an exception to a general rule. Section 36502 applies to all general law cities in permitting the imposition of term limits o~ t__h_~ repeal, and requires a vote of the local electors in order to accomplis~ either action. Section 36502.5, as an exception to this general procedure, does no more than authorize the Tustin City council to adopt by reference term limits previously approved by the local electors. Under a strict construction, it is our view that the courts would not expand the powers of the Tustin City Council to include the authority to amend or repeal term limits adopted pursuant to Section 36502.5. Accordingly, we conclude that if the Tustin City Council' adopts an ordinance to incorporate the provisions of Measure H pursuant to Section 36502.5, that ordinance could not be amended Honorable Ross Johnson - p. 5 - ~7485 or repealed by ordinance, and that repeal or amendmen~ would require a vote of the electors of the City of TuStin.- Very truly yours, Bion M. Gregory Legislative Counsel DBJ:dlm Deputy Legislative Counsel 3 We note that the procedure set forth in Section 36502 specifically authorizes only a proposal to limit, or repeal a limit on, the number of terms that an elected mayor or member of the city council may serve, by a vote of the electors of the jurisdiction. However, since these categories would encompass repealing the existing limits and adding revi~ed limits, which would have the same effect as amending existing limits, we think that the omission of the word "amend" from the statute would be viewed by the courts as a semantical'difference that would not preclude the proposal of a measure to amend term limits previously imposed pursuant to Section 36502.