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CITY ATTORNEY REPORT ON CITY COUNCIL TERM LIMITS AND CITY COUNCIL DIRECTION TO STAFF REGARDING SAME
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RECOMMENDED ACTION
Recommended Action
Council hear the report and provide direction to staff as it deems appropriate.
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SUMMARY
On July 21, 2015, the City Council requested that staff prepare a report on the City Council’s options regarding City Council term limits. This report has been prepared by the City Attorney’s office in consultation with the City Clerk in response to that request.
ENVIRONMENTAL REVIEW
The activity is not a “Project” as defined under Section 15378 of the California Environmental Quality Act State Guidelines; therefore, pursuant to State Guidelines Section 15060(c)(3) no environmental review is required.
BOARD/COMMISSION RECOMMENDATION
Not applicable.
DISCUSSION
I. Background
Pursuant to the City’s Charter, City Council members and the Mayor currently are elected to serve four-year terms. (Chula Vista City Charter, Section 300.C.) The Charter permits each Council member to serve two consecutive terms as a Council member, and the Mayor to serve two consecutive terms as Mayor. After two consecutive terms are served, a Council member or Mayor must allow at least one year to lapse from the termination of the second term before he or she may seek election to the same office again. This one-year “waiting” period also applies to any City Council member appointed to the Council. There is currently no limit on the total number of terms an individual Councilmember can serve during his or her lifetime.
The term limit rules currently in place were approved back in 1973, with voter approval of Proposition B. Prior to that, other than a nominal four-year term, there appears to have been no term limit restriction. The Proposition that converted City Council seats from “at-large” representation to “district” representation back in 2012 did not modify these rules. The term limit rules that apply to the Mayor and City Council also apply to the City Attorney.
II. Legal Framework
A. In General, City Voters Have Broad Authority to Make Rules on Term Limits.
The California Constitution empowers and authorizes chartered cities to legislate in four core areas, including the conduct of elections. (Cal.Const. Art. 11, §5.) The Constitution specifically provides that chartered cities “may make and enforce all ordinances and regulations in respect to municipal affairs,’ and that, with respect to municipal affairs, city charters “shall supersede all laws inconsistent therewith.” Id. It goes on to provide that “plenary authority is hereby granted, subject only to the restrictions of this article, to provide therein or by amendment thereto, the manner in which, the method by which, the times at which, and the terms for which the several municipal officers and employees whose compensation is paid by the city shall be elected or appointed, and for their removal.” Id. Accordingly, as a charter city, Chula Vista has plenary authority over its elections matters.
B. Federal and State Rules to Keep in Mind.
Notwithstanding this broad grant of authority, there are limitations on a chartered city’s authority, even with respect to legislating municipal affairs. These limitations include Constitutional considerations and areas in which the State has “occupied the field.”
The imposition of term limits have withstood Constitutional scrutiny. When term limits were imposed on state legislators by initiative in 1990, the measure was challenged on grounds that it violated the First Amendment (freedom of speech) and Fourteenth Amendment (equal protection) of the federal Constitution by substantially burdening the right to vote and the right to be a candidate. [Legislature v. Eu (1991) 54 Cal.3d 492, 514.] In upholding the measure, the California Supreme Court noted that no decisions of the U.S. Supreme Court had found that a limitation on incumbency was unconstitutional, and determined that the interests of the state in incumbency reform (including restoring a free and democratic system of fair elections and encouraging qualified candidates to seek public office), outweighed any of the “narrower interests of the legislators and constituents who wish to perpetuate their incumbency.” (Id. at 524.) The reasoning in Legislature v. Eu has been found to apply to local elections law in the state, as well. Canaan v. Abdelnour (1985) 40 Cal.3d 703, 712-713.
As stated above, the conduct of elections is an area over which charter cities have plenary authority. In addition, term limits specifically have been found to be municipal affairs. In Cawdry v. City of Redondo Beach, the court considered the term limits imposed by the Redondo Beach city charter. The court upheld the term limits, finding that they were a municipal affair and were not of statewide concern. Cawdry v. City of Redondo Beach (1993) 15 Cal.App.4th 1212, 1226. Subsequently, California Government Code section 36502 was amended to specifically authorize the imposition of term limits by both general law and charter cities. The statute provides, in part, that a “proposal to limit the number of terms a member of the city council may serve on the city council, or the number of terms an elected mayor may serve, shall apply prospectively only and shall not become operative unless it is submitted to the electors of the city at a regularly scheduled election and a majority of the votes cast on the question favor the adoption of the proposal.” Although Section 36502(b) purports to apply to chartered cities, as stated above, term limits have been found to be a municipal and not a statewide affair. Thus, arguably the statute would not be enforceable as to a chartered city.
It is important to note that in both Legislature v. Eu and Cawdry v. City of Redondo Beach the courts upheld term limits against constitutional challenges based, in part, on certain mitigating factors. These included: the voters’ continued right to vote for any qualified candidates, the candidates’ ability to run for other public offices, and the prospective application of the limitation. Accordingly, if the City Council pursues an amendment to its current term limits, we would recommend that it do so taking into account these mitigating factors. In addition, although it is our opinion that Section 36502 does not apply to chartered cities, on its face, it does purport to apply. Therefore, any amendment proposed by the City Council which would seek to amend the Charter outside of a regularly scheduled election, or to make the limits retroactive, would potentially subject the City to challenge based on an alleged violation of Section 36502. Although it remains our opinion that the City voters have broad authority to make their own rules on how term limits apply to their elected officials, the state’s action to impose its own rules prohibiting retroactivity is a risk factor that should be considered if the City were to contemplate the retroactive application of any new rule.
III. Options
In making its referral, the City Council asked staff to set forth some options for possible changes to the City’s existing rules on term limits. These options are set forth below. Please note that these options are provided for discussion purposes only, and are not intended to be staff recommendations.
A. Eliminate the One-Year “Waiting” Period: The City Council could do away with the requirement that its members sit out for one-year after serving two, four-year terms. This would effectively allow each member the ability to serve indefinitely, subject to the will of the voters. Based on our informal survey, described in more detail below, the majority of California cities do not impose term limits.
B. Extend the One-Year “Waiting” Period: The City Council could also propose an amendment which would extend the one-year period, requiring members who have served two terms to wait longer before running again. For example, the City could impose a three-year waiting period. Thus, a member who completed two full terms in 2016 would be required to wait three years before seeking office again. That member would not be eligible to run again until 2020.
C. Increase the Allowable Number of Consecutive Terms: The Charter currently allows for a maximum of two (2) consecutive four-year terms. The City Council could propose to increase the number to three or more consecutive four-year terms. One variation of this was recently adopted by the voters in the City of Santa Ana. Santa Ana amended its charter in 2008 to change its two consecutive term limit to three consecutive terms, with an eight year waiting period after three consecutive terms were served.
D. Lifetime Term or Service Limits: Another option would be to eliminate the waiting period and implement limits on the total number of terms one individual may serve. For example, the existing consecutive two-term limit with a one year “waiting period” could be changed to a three-term lifetime limit. Under this system, once three terms were served, a member would not be permitted to run for the same office again. Another possibility would be to keep a waiting period but limit the total number of years that a Council member may serve. For example, the Council could adopt a lifetime total limitation of 16 years of service, regardless of when the terms were served, with a waiting period imposed to prevent more than two consecutive terms being served at any one time.
E. Extend the Term Length: Alternatively, the City Council could propose an amendment which would extend the length of a member’s term. For example, instead of being elected to four-year terms, members could be elected to six-year terms. This could be done with or without a “waiting period” between a maximum number of consecutive terms, or with or without “lifetime” limits.
IV. Survey of Other Jurisdictions
In an effort to help inform the Council’s decision on this matter, we surveyed other cities in the County, as well as other cities in the state whose population sizes were close to Chula Vista. Twenty four cities were surveyed in all. Of these, nine had term limits. Six of these were charter cities. In each case, the city had imposed a limit of either two or three terms. Four of those cities had imposed “waiting” periods; these varied in duration from two years to eight years. A chart summarizing the information we gathered for these cities is included as Attachment A to this report.
V. Conclusion
In summary, the City Council has significant latitude in crafting the length and number of terms and limitations on total service terms of its members. If the Council wishes to pursue a Charter amendment to modify the existing Council member term provisions, staff would recommend that the matter be referred to the Charter Review Commission with direction on which options the Council would like to pursue. Staff and the Charter Review Commission can then conduct additional research and provide input specific to the proposed amendment.
DECISION-MAKER CONFLICT
Staff has reviewed the decision contemplated by this action and has determined that it is not site specific and consequently, the 500-foot rule found in California Code of Regulations section 18704.2(a)(1), is not applicable to this decision. Staff is not independently aware, and has not been informed by any City Council member, of any other fact that may constitute a basis for a decision maker conflict of interest in this matter.
LINK TO STRATEGIC GOALS
The City’s Strategic Plan has five major goals: Operational Excellence, Economic Vitality, Healthy Community, Strong and Secure Neighborhoods and a Connected Community. City Council member terms impact the members’ service to, and representation of, its residents. Implementing optimal term parameters will help the City stay connected to its community.
CURRENT YEAR FISCAL IMPACT
This item consists solely of presenting a report to the Council. There is no current year fiscal impact associated with it. If the Council directs that further action be taken in response to the report, staff will analyze the fiscal impacts associated with such action, if any.
ONGOING FISCAL IMPACT
This item consists solely of presenting a report to the Council. There is no ongoing fiscal impact associated with it. If the Council directs that further action be taken in response to the report, staff will analyze the fiscal impacts associated with such action, if any.
ATTACHMENTS
Attachment A: Term Limits Survey Chart
Staff Contact: Jill Maland, Assistant City Attorney