1 STAFF REPORT
DATE: November 7, 2023
TO: Justin Hess, City Manager
FROM: Joseph McDougall, City Attorney
Betsy McClinton, Management Services Director
BY: Hazel Turrubiartes, Senior Administrative Analyst
SUBJECT: Approval of a Budget Amendment of the Fiscal Year 2023-24 Budget to Appropriate Funds for the Legal Fees and Costs Related to a Lawsuit under the California Voting Rights Act
RECOMMENDATION
Approve a Budget Amendment o f the Fiscal Year (F Y) 2023-24 Budget to Appropriate Funds for the Legal Fees and Costs Related t o a Law suit under the California Voting Rights Act (CVRA).
BACKGROUND
On August 23, 2022, the City received a notice of a potential violation (NOV) of the CVRA on behalf of a Latino voter in the City of Burbank, Nick Gutierrez. (Elec. Code §§14027- 14032.) With the NOV, Gutierrez provided both a report allegedly evidencing racially polarized voting and a draft complaint for future litigation.
Following the NOV, a Council District Formation effort was begun by way of a unanimous January 24, 2023 Resolution of Intent to Initiate a Transition to District Elections with authorization to retain National Demographics Corporation (NDC), proven expert demographers serving local governments in California in successful districting, to guid e the process. In partnership with NDC, staff developed and fulfilled a robust timeline of workshops and public hearings for the districting process. S taff, in collaboration with communications partner Arellano Associates, conducted extensive and wide- reaching community outreach to inform the public about the process and numerous ways to get involved.
CITY ATTORNEY’S
OFFICE
2 Over subsequent months, several districting map variants were presented to the Council.
On October 3, 2023, the demographer presented Map 130, and variants 130B, 130C, 130D and 130E for Council selection . S taff recommended introduction of a draft ordinance for a five- district map and sequencing of elections , and a second draft ordinance, necessary as a clean- up ordinance to coordinate the City’s Elections Code with the new by-district electoral system created by the first ordinance.
Following deliberation, Council decided not to introduce either ordinance for adoption.
Instead, they directed staff to research the feasibility of implementing cumulative voting for residents and to engage the Charter Review Committee to explore a range of topics, including the future size and composition of the City Council, various iterations of districts, the possibility of creating a separately elected Mayor, and a re- districting process .
Additionally, Council extended an invitation to the claimant, Gutierrez, to participate in future discussion s to ensure that any po ssible outcome effectively addresses the concerns raised in the NOV.
On October 20, 2023, the City of Burbank was served with the lawsuit identified by the NOV, Nicholas Gutierrez v. City of Burbank, challenging the City’s at-large voting system.
DISCUSSION
The nature of the allegations and the expertise and information required to defend the City in this lawsuit are highly specialized and require knowledge of the CVRA , demographic analysis, voting analysis, racial polarization analysis, and more. The costs of jurisdictions in defending such lawsuits are notoriously high. The City Attorney’s Office (CAO) has retained special counsel, Marguerite Leoni, from the firm Nielsen Merksamer Parrinello Gross & Leoni LLP, to defend the City.
Staff has separately assessed potential liability for legal costs/fees for this litigation and is requesting a budget amendment in the amount of $1,000,000. The costs for the City’s legal defense of Nicholas Gutierrez v. City of Burbank were not previously anticipated in the Fund 530 Liability Fund budget for FY 2023-24, therefore, a separate appropriation is required.
ENVIRONMENTAL REVIEW
This activity has no potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment and, as such, is not a “project” subject to the requirements of the California Environmental Quality Act (CEQA) 14 Cal. Code Regs § 15378.
3 FISCAL IMPACT
Staff is requesting Council authority to ame nd the FY 2023 -24 Budget by appropriating $1,000,000 for legal costs and fees from account number 530.ND000.30011.0000.000000.00000 (General Liability Insurance Fund, Non- Departmental, Assigned Fund Balance) to expenditure account number 530.MS04A.62875.0000.000000.00000 ( General Liability Insurance Fund, Risk Management, Judgments – uninsured losses) for the legal action arising from the Nick Gutierrez v. City of Burbank lawsuit.
CONCLUSION
Staff recommends a budget amendment of $1,000,000 to appropriate funds for the City’s defense in the CVRA challenge, Nicholas Gutierrez v. City of Burbank.
ATTACHMENTS
None.