CITY OF HUNTINGTON BEACH
CITY COUNCIL MEETING – COUNCIL MEMBER ITEMS REPORT
TO: THE HONORABLE MAYOR AND CITY COUNCIL
FROM: DAN KALMICK, CITY COUNCILMEMBER
NATALIE MOSER, CITY COUNCILMEMBER
DATE: SEPTEMBER 28, 2023
SUBJECT: SEEK AN OPINION FROM THE CALIFORNIA ATTORNEY GENERAL ON ELIGIBILITY
FOR THE PRIMARY BALLOT FOR CHARTER AMENDMENTS INVOLVING CITY CLERK, CITY ATTORNEY AND INVESTIGATIONS OF ELECTED OFFICIALS.
On August 1, 2023, the Charter Amendment Ad Hoc Commi ttee brought forward to the City Council, among other things, two proposals involving changes to the roles of the City Attorney and City Clerk. At the conclusion of the discussion of those proposals, Councilmember McKeon brought forward several more proposals including a proposal to add procedures for investigating elected officials.
At the September 5, 2023 City Council meeting, the City Attorney’s Office brought forward language for the City Council to review and be placed on the March 2024 Primary Ballo t. That language involved the status, benefits,
and rights of multiple employees, elected and appointed.
Based on advice the City Council had received for a prior ballot measure, questions arose as to whether state law precludes placing such Charter amendment proposals on a primary election ballot as opposed to the November 2024 General Election ballot.
The City Attorney’s office has proffered a conclusory, unwritten legal opinion that these Charter amendments are eligible for the March Primary Ballo t. It is apparently the policy of the City Attorney’s Office to not release those opinions in writing to either the City Council (their client) nor the public. We believe substantial questions remain about the employment -related proposals’ eligibility for a primary ballot, especially in the absence of a thoroughly -reasoned, written legal opinion, and given the subject matter is the City’s Charter, its most fundamental governing document.
Election Code Section 1415 (a)(2)(A) – created by SB 311 (2013 Padil la) – Refers to the Special Elections code and Charter Amendments being placed on a Primary ballot. It essentially says a Charter amendment proposal may only be placed on a primary ballot if it:
---[P]roposes to amend a charter in a manner that does not alter any procedural or substantive protection, right, benefit, or employment status of any local government employee or retiree or of any local government employee organization.
Below is the language as it currently stands to be placed before the people of Huntington Beach. (The Charter section headings are provided, for context)
An amendment to modify the role of the City Council and City Attorney:
SECTION 304 (b) [Proceedings]
. The City Council shall have control of all legal business and proceedings and all property of the legal department, and may employ other attorneys to take charge of or may contract for any prosecution, litigation or other legal matter or business.
Section 309. CITY ATTORNEY, POWERS AND DUTIES. (emphasis added)
… The City Attorney represents the City of Huntington Beach, a Chartered City under the Constitution of the State of California and a Municipal Corporation.
The elected City Attorney is, by virtue of the election, designated by the people as the City's exclusive legal counsel. The City Attorney may hire, contract, and/or appoint outside contract attorneys and/or such in-house deputy or deputies to assist or act for the City Attorney, at such salaries or compensation as the City Council may by ordinance or resolution prescribe; provided that the employ of attorneys to assist the City Attorney in the execution of his or her duties is the exclusive purview of the City Attorney. Neither the City Council, the City Manager, nor any other City Official or department may hire their own attorneys, consult with, attempt to contract with attorneys for services, or obtain other/outside legal opinions, without the prior express written consent of the City Attorney.
Because of the unique nature of the City Attorney's work at the pleasure of the electorate, and in order to protect the City Attorney's work from political interference, neither the compensation of the City Attorney nor the City Attorney's annual budget or any aspect thereof shall be reduced by the City Council from year to year unless approved by a four-fifths majority of the total members of the City Council, but in no event shall any such reduction exceed 3% in a year and from the previous year.
Keep, maintain, and protect all City confidential attorney-client privileged, and attorney work product privileged information. Such confidential information shall not be accessible to any other City Official, City Staff, or third party, unless the City Attorney authorizes such access or the City Council votes to authorize such access by majority vote.
Additions to Section 309 of this Charter, if approved by the voters at the March 5, 2024 election, shall take effect on January 1, 2027.
The foregoing amendment makes substantial changes to the roles of both the City Council and City Attorney.
An amendment to modify the requirements to become City Clerk:
SECTION 310. CITY CLERK. POWERS AND DUTIES. (emphasis added)
To become and remain eligible for City Clerk, the person elected or appointed shall have a Bachelor's Degree in business, public administration, or a related field , and hold a certification as a Municipal Clerk or obtain such ce1iification within the first three years in office. The City Clerk shall have the power and shall be required to…
By eliminating key qualifications for becoming City Clerk, the foregoing proposal provides a new benefit to any existing employees who previously would not have been qualified to run for or be appointed City Clerk.
An amendment to add in third-party investigation of malfeasance, would remove current roles performed by City Manager, HR Director, and the Police Department:
SECTION 314. INVESTIGATIONS OF MALFEASANCE
To avoid potential conflicts of interest and political interference, any allegation of malfeasance, wrongdoing or misconduct against an elected official of the City, shall not be investigated by the City, any other City Official, or member of City Staff. Rather, such allegations shall be referred to the Orange County District Attorney, the California Attorney General, the Fair Political Practices Commission, or other appropriate higher level government agency.
It is our view that because of the ambiguity in analysis and the potential for costly litigation if items were placed on the ballot that would be ruled ineligible, the City Council of Huntington Beach should ask the Attorney General of the State of California for an opinion on the application of Election Code §1415(a)(2)(A) to the above proposed amendments to the charter of the City of Huntington Beach.
RECOMMENDED ACTION:
Direct the City Manager to work with the City Attorney to seek an opinion from the California Attorney General on the question of SB311 (2013 Padill a), portions of which were chaptered as Election Code Section 1415, applying to the proposed charter amendments making changes to the roles of the City Clerk, City Attorney, City Council and City Manager, HR Department Head and/or Police Chief.