Loading...
HomeMy WebLinkAboutNB 8 REFERENDUM 11-20-89.AGENDA ,,- r~ . j.-~, 11-20-89 TO: FROM: SUBJECT: __ COUNCILMAN EARL PRESCOTT CITY ATTORNEY PROPOSED REFERENDUM ORDINANCE TO PRESCRIBE NOVEMBER ELECTION DATE FOR COUNCILMEMBERS ' The City Manager has advised us that you would like to have an Ordinance prepared in the form of a referendum to go before the City electors at the November, 1990 election to prescribe that the City election date be changed from April to November. It is also our understanding that you wish this Ordinance to be subject to amendment only by a vote of the people. In our opinion, it is not possible to submit such an Ordinance to the voters. The reasons for this conclusion are (1) that in the absence of a statute to the contrary, an ordinance proposed and submitted by the City Council to the voters is subject to amendment by the City Council; and (2) the proposed ordinance is not a proper subject to be submitted to the voters in the form of a referendum. When a measure is put before the voters by voluntary action of the City Council rather than pursuant to an initiative petition, it is commonly called a "voluntary" referendum. (31 Ops. Cal.Atty.Gen. 100, 101.) There are statutory provisions which permit both Boards of Supervisors (Elections Code Section 375C) and City Councils (Elections Code Section 4017) to propose measures to be placed on the ballot for approval by the voters. However, only city "ordinances proposed by initiative petition" are beyond the power of the City Council to amend once approved by the voters. (Elections Code Section 4013.) Referendum ordinances, on the other hand, may be amended or repealed by the legislative body. (See California Constitution, Article III, Section 10(c) . See also, Clark v. Patterson, 68 Cal.App.3d 329 at page 334 (1977) in which the Court concluded that a Board of Supervisors could withdraw a measure it had proposed for the ballot at any time before absentee voters were permitted to cast their ballots.) The general theory of these Inter-Com to Councilmember Earl Prescott Page 2 November 2, 1989 Code Sections and cases is that if the legislative body voluntarily enacts a law in the first place, it retains the power to amend the law, even if the law is later approved by the voters. However, if the proposal is made by the people through the initiative process, then the legislative body does not have the right to change what the people have enacted. It is also our conclusion that the City Council does not have the authority to submit to the voters a referendum Ordinance changing the City's election date from April to November on a permanent basis. State statutes govern when general law city elections are to be held. Government Code Section 36503 provides that general law city elections are to be held on the second Tuesday in April in each even-numbered year. Elections Code Section 36503.5 allows the City Council to change this date by enacting an ordinance requiring its general municipal election to be held on the same day as the Statewide direct primary election 6r the · Statewide general election. The City Council has previously enacted an Ordinance consolidating its elections with the November Statewide general election pursuant to Section 36503.5. The same Section also allows the City Council to repeal the Ordinance and return the election to the April date. However, there is no provision in the statute for submitting the election date to the voters. In our opinion, the State has preempted the field on the method for determining the election date for City Councilmembers in general law cities. The City Council has been given the duty under Government Code Section 36503.5, and to make the decisions it would be improper for it to submit this matter to the voters. (See Geiger v. Board of Supervisors, 48 Cal.2d 832 at page 838, in which the court held that a referendum would not be proper on a tax measure adopted by a Board of Supervisors where the statute required action by the Board of Supervisors, and Committee ..of Seven Thousand v .... Superior Court, 45 Cal.3d 491 at page 501 (1988), holding that a municipal initiative prohibiting a city council from imposing new fees or taxes to finance construction of transportation corridors was invalid because it was in conflict with a state statute giving the City Council that power. See also, Steinkamp v. Teg~ia, 210 Cal.App.3d 402, (1988) holding that a city ordinance limiting the number of terms of city councilmen is preempted by State law.) Inter-Com to Councilmember Earl Prescott Page 3 November 2, 1989 CITY ATTORNEY If you have any questions concerning this matter, or wish to pursue other possible ses of action, please feel free to contact us. · ~s ~. ~ c~.a~ ~. ~. DEPUTY' CITY ATTORNEY CFI:cj :C2197 cc: City Councilmembers ~/W. Huston