The URL can be used to link to this page

Home My WebLink AboutNB 1 LTR FROM CITY ATTY 3-5-90D MICI-iAEL CLAUSS DAVID A. DE 6ERRY CRAIG G. FARRINGTON CLARK F. IDE LOIS E. JEFFREY MAGDALENA LONA-WIANT SUSAN R. MEDWIED THOMAS F. NIXON SRiAN K. OKAZAKI JAMES G. ROURKE -4ENNARD R. SMART, JR. CAN] ---L K, SPRADLIN ALAN R. WATTS , "OMAS L. WOODRUFF LAW OFFICES OF 1 RourKe & V��oodrufr A PROFESSIONAL CORPORATION SUITE 7000 701 SOUTH PARKER STREET ORANGE, CALIFORNIA 92668 February 28, 1990 COUNCILMAN EARL J. PRESCOTT 230 S. "A" Street Tustin, California 92680 NEW BUSINESS N0. 1 3-5-90 TELEPHONE (714) 556-7000 FACSIMILE: (714) 835-7787 COUNCILMAN JOHN KELLY c/o Kelly's Tobacco Shop 330 E1 Camino Real Tustin, California 92680 Re: Your letter of -February 27, 1990 Dear Councilmen Prescott & Kelly: Your letter of February 27, 1990 has been received and reviewed and will be responded to in the order of points it contained. 1. It is to be hoped that your commitment to "fulfill all lawful duties of our offices" is followed by actions in addition to these words. 2. As far as you fulfilling your "roles as representatives of the people in regard to this legislative prerogative" you should take careful counsel with the lawyers you have been meeting with to be sure that you have the prerogative to violate the provisions of the Government and Elections Codes. 3. You have proposed that a resolution be prepared and adopted by the City Council which: a. Would cause "vacation of Resolution No. 1032". The resolution referred to as "Resolution No. 1032" is in fact Ordinance No. 1032. An ordinance cannot be "vacated" by a resolution but rather may only be repealed by a subsequent ordinance which must have a first reading and then a second reading and adoption at a subsequent council meeting. This could not all be accomplished on March 5. 1990. b. Would "call a special election April 10, 1990 to elect a Councilmember to the position left vacant by Ronald B. Hoesterey thereby leaving the remaining two positions "to be filled by the previously scheduled general election in November 1990". The April 10, 1990 election is not a special election COUNCILMAN EARL J. PRESCOTT COUNCILMAN JOHN KELLY February 28, 1990 Page -2- but is the general municipal election of the City of Tustin. There is no scheduled general election in November. It is legally impossible at this date to change the election and which seats are to be on the ballot. If the election is to be held on April 10, 1990 in compliance with the statutory requirements there is no way to now revise the election to elect councilmembers for some seats and not others. The state of the law at this time is that the seats of Councilwoman Kennedy and Councilman Kelly will be on the ballot as well as the vacant seat formerly held by Councilman Hoesterey. 4. The reference to the Yonkers' case of Spallone v. United States will upon a clear reading afford little comfort or support for anyone violating the provisions of the Government and Election Codes. 5. Even if it were possible to change the election from the general municipal election to a special election as proposed (and it is not possible, as noted above) there would be no "savings" to the taxpayers. Substantial sums of taxpayers' money have already been spent for the April 10, 1990 election. If the election is not held on April 10, 1990 as legally prescribed these thousands of dollars of taxpayers' funds will be totally wasted. Very truly yours, ROURKE., WOODRUFF J G. ROURKE JGR:kbg:D:2/28/90(a/1) * 3/14/90 cc: MAYOR EDGAR COUNCILWOMAN KENNEDY CITY MANAGER F E D- 2 8- 9 0 W E D 0: 3 0 R O U R K E & W O O D R U F F EARL J. PRESCOTT JOHN XELLY Councilmen CITY OF TUSTIN 300 Centennial Way Tustin, California 92680 (714) 544-8890 February 27, 1990 James G. Rourke, 7sq. City Attorney city of Tustin c/o Rourke & Woodruff 701 South parker Street Suite 70"00 orange, California 92669 Re: ��r4mis. �tesglut�o.�3.,,.fs�.x..•� a1 E1eo Dear Mr, Rourke: R _ 0 2 First of all, as you and others have recently questioned our honorable intentions as councilmembers, we wish to confirm our commitment to fulfill. all, lawful duties of our offices, In regard to the current controversy over the April eleotion, we must again reemphasize that we have nevdr been opposed to a Special Blection in April for the vacancy created by Council.member Hoesterey+s November 15, 19s9, move to orange. On the other hand, we consider the attempt to move the regular November election back to April as a purely political *Hove, and we are determined to follow the dictates of our respective consciences in fulfilling our roles as representatives of the people in regard to this legislative prerogative, As a compromise to the current stalemate regarding the upcoming election, we hereby request that the following proposal be agendized for the March 51 1990, City Council meeting. we propose that the City Council unanimously adopt a resolution (to be drafted by your office in final form by the March 5 Council meeting ) providing for: P E B— 2 0— '9 0 W E D S:41 R O U R K E& W O O D R U F F Q2. 2 Z. 9 0 0 8: 0 a IMIZt m p jj J &W OC *$2 James G. Rourke, Esq. rebruary 27, 1990 Page 2 (1) vacation of Ordinance Ind. 1032 (the adoption of which we have always contested)= (2 ) a special Election on April 10, 1990, to elect a Councilmember to the position left vacant by Ronald S. Noesterey (leaving the remaining two positions to be filled by the previously scheduled general +Taction in November 1990)1 and (3) all other enabling legislation necessary fear the April 1990 Special El ection- P . 0 6 PO2 The resolution we are proposing should allow all announced office seekers either to rami in selectionPOC reiated Election or to withdraw (and recoup date if they so choose)* moneys spont with the City to The practical benefits of this proposal are self- evident, not the least of which is avoidancceof o a constitutional a�.rcumstances that ,, could deteriorate #� a court in Now confrontation akin' to the recentp y York to sanction individual Yonkers Oouncilmembers for their failure to enact an ordinance. �, sllone v. St.es, 110 Sq Ct. 620 (January 10, om9underminesythe 'Public restriction on a legislator's Freed good,' by interfering with the rights of the peoples to represontation in the democratic process.")• Reatricting the special Election to fillingthe currant vacancy will cost the local taxpayers very Little if y in iate expensoo, will save the City' future recurring axpensas connected with having April elections (thereb bringing Tustin bac}( into conformance with the vast ma3ority of our fellow cities in orange county), and will avoid litigation costa. FEE - 2 8- 9 0 W E D 8:40 R O U R K E& W O O D R U F F P.04 r James G. Rourke, Esq, February 27, 1990 Page 3 Please let us know if we can be of assistance in answering any questions you may have regarding tho proposed resolution, Yours truly, rvl� Earl. a. Prescott ,john Kelly cc: Tustin City Manager Tustin City Clark Tustin News orange County Register Loi Angeles 'Times