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Ordinance No. 1197ORDINANCE NO. 1197 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VERNON AMENDING CHAPTER 2, ARTICLE XII OF THE VERNON CITY CODE ESTABLISHING PROCEDURES FOR ELECTION CONTESTS Whereas, the provisions of Chapter 2 of the City Charter of the City of Vernon state that: ."The city shall have full power and authority to adopt, make, exercise and enforce all legislation, laws, and regulations and to take all actions in respect to municipal affairs, without limitation, which may lawfully be adopted, made, exercised, taken or enforced under the Constitution of the State of California subject only.to such limitations as may be provided by this Charter"; and Whereas Chapter 3.4 of the City Charter of the City of Vernon provides that "the city council shall be the final judge of election results and the qualifications of its members"; and Whereas Chapter 5.3 of the City Charter of the City of Vernon provides, in part: "The city council is authorized to adopt by ordinance procedures governing municipal elections"; and Whereas Chapter 4.3 of the City Charter of the City of Vernon provides that, "[a]n ordinance calling or otherwise relating to an election" shall take effect upon adoption, and that such an ordinance may be introduced and adopted atone and the same regular or special meeting; and Whereas Chapter 4.4 of the City -Charter of the City of Vernon provides: "An ordinance declared by the city council to be necessary as an emergency measure for the immediate preservation of the public peace, health, or safety, and 1 containing a statement of the reasons for its urgency, may be adopted in the manner provided by this Charter except that such emergency ordinance.may be introduced and adopted at one and the same regular or special meeting, and shall take effect immediately"; and Whereas, on June 18, 2012, an election contest of the June 5, 2012 Special Municipal Election was filed with,the City Council of the City of Vernon invoking its jurisdiction pursuant to Chapter 3.4 of the City Charter of the City of Vernon; Whereas, the City Council of the City of Vernon has determined that the enactment of an ordinance establishing procedures for election contests filed pursuant to Chapter 3.4 of the City Charter of the City of Vernon is within the power and authority conferred on the City of Vernon.by virtue of its Charter and the Constitution of the State of California; and Whereas, the City Council of the City of Vernon has determined that the enactment of an ordinance establishing procedures for elections contests filed pursuant. to Chapter 3.4 of the.City Charter of the City of Vernon is in the best interests of the residents of the City of Vernon as well as the thousands of employees who work in the City of Vernon. THE CITY COUNCIL OF THE CITY OF VERNON HEREBY ORDAINS: Section 1: The foregoing recitals are all true and correct. Section 2: The title of Article XII of Chapter 2 of the Vernon Municipal Code is hereby amended to read as follows: CITY COUNCIL ELECTION CONTESTS. 2 Section 3: Article XII of Chapter 2 of the Vernon Municipal Code is hereby amended to provide as follows: ARTICLE XII CITY COUNCIL ELECTION CONTESTS TABLE OF CONTENTS Section 2.90. Exercise of Jurisdiction by the City Council Section 2.90-1. Declaration of Election Section 2.90-2. Certificate of Election and Oath of Office Section 2.90-3. Time for Filing Election Contest Section 2.90-4. Grounds for Election Contest Section 2.90-5. Procedures for Election Contest Section 2.90-6. Statement of the Reasons for Urgency Section 2.90. Exercise of Jurisdiction by the City Council The City Council shall exercise its jurisdiction under Chapter 3.4 of the City Charter of the City of Vernon over election contests in accordance with the procedures set forth in this article. Section 2.90-1. Declaration of Election Notwithstanding any provision of law, including California Elections Code § 10263, § 12064 and § 15400, as they now exist or may hereafter be amended, the City Council of the City of Vernon shall not declare the results of an election or install any person 3 in office as a member of the City Council of the City of Vernon, if an election contest has been filed with the City Council pursuant to Chapter 3.4 of the Charter of the City of Vernon and this article. The issuance of a Declaration of Election shall not prevent the filing of an election contest pursuant to Chapter 3.4 of the Charter of the City of Vernon and this article. Section 2.90-2. Certificate of Election and Oath of Office Notwithstanding any provision of law, including California Elections Code § 10265 and § 15401, as they now exist or may hereafter be amended, the elections official of the City of Vernon shall not sign or deliver to any person a certificate of election or administer an oath of office as prescribed in the California Constitution if an election contest has been filed with the City Council pursuant to Chapter 3.4 of the Charter of the City of Vernon and this article. The delivery of a certificate of election and administration of an oath of office shall not prevent the filing of an election contest pursuant to Chapter 3.4 of the Charter of the City of Vernon and this article. Section 2.90-3. Time for Filing Election Contest An elector (as defined in the California Elections Code) of the City of Vernon. shall file the statement of contest within 10 days of the certification of the result of the election by the body or elections official canvassing the returns thereof. For a consolidated election, the 10 days shall run from the date the County elections official conducting the election prepares the certified statement of the results pursuant to the California Elections Code. A statement of contest filed prematurely shall be deemed filed within 10 days of certification as set forth above. 4 Section 2.90-4. Grounds for Election Contest (a) Any elector (as defined in the California Elections Code) of the City of Vernon may contest any election held therein for any of the following causes: 1. That the precinct board or any member thereof was guilty of malconduct 2. That the defendant who has been declared elected to an office was not, at the time of the election, eligible to that office. 3. That the defendant has given to any elector or member of a . precinct board any bribe or reward, or has offered any bribe or reward for the purpose of procuring his or her election, or has committed any other offense against the elective franchise defined in Division 18 (commencing with Section 18000) of the California Elections Code. 4. That illegal votes were cast, including, without limitation, votes by person(s) who were not eligible to vote in City of Vernon Elections. 5. That eligible voters who attempted to vote in accordance with the laws of the state were denied their right to vote. 6. That the precinct board in conducting the election or in canvassing the returns, made errors sufficient to change the result of the election as to any person. 7. That there was an error in the vote -counting programs or summation of ballot counts. (b) Definitions. 5 "Defendant" means that person whose election is contested or those persons receiving an equal and highest number of votes, other than the elector filing the contest, where the body canvassing the returns declares that no one person has received the highest number of votes for the contested office. "Precinct board" means the board appointed by the elections official to serve at a single precinct or a consolidated precinct. "Precinct board," when used in relation to proceedings taking place after the polls have closed, likewise includes any substitutive canvassing and counting board that may have been appointed to take the place of the board theretofore serving. Section 2.90-5. Procedures for Election Contest The City Council of the City of Vernon may adopt by resolution additional procedures for election contests which shall provide for fair, transparent, and expedited adjudication consistent with due process and equal protection of the law. Section 2.90-6. Statement of the Reasons for Urgency On June 18, 2012, an election contest of the June 5, 2012 Special Municipal Election in the City of Vernon was filed with the City Council of the City of Vernon invoking its jurisdiction pursuant to Chapter 3.4 of the City Charter of the City of Vernon. The City of Vernon has not enacted an ordinance establishing procedures for election contests. Such an ordinance is necessary for the immediate preservation of the public peace, health, and safety in order to, consistent with fairness and due process, 1) give full and expeditious effect to the will of Vernon's qualified voters as expressed in the June 5, 2012 Special Municipal Election, 2) provide certainty to the residents of the City of Vernon about the results of the June 5, C 2012 Special Municipal Election and seat the legitimately elected candidate at the earliest possible time, 3) avoid disruption of city government by prolonged uncertainty about who was legitimately elected at the June 5, 2012 Special Municipal Election, 4) avoid disruption of city business with third parties by prolonged uncertainty about who was legitimately elected at the June 5, 2012 Special Municipal Election, 5) avoid Vernon residents and businesses losing confidence in the integrity of City of Vernon elections caused by prolonged uncertainty about who was legitimately elected at the June 5, 2012 Special Municipal Election, 6) remove expeditiously any cloud of impropriety from the electoral process for the June 5, 2012 Special Municipal Election in the City of Vernon, 7) provide for the expeditious adjudication of the pending election contest consistent with due process and equal protection of the law, S) authorize procedures to ensure fairness, transparency, and integrity in the adjudication of City Council election contests, and 9) instill confidence in City of Vernon residents about the integrity of the City's electoral process so that city residents will vote in -city elections and run for.city office. Section 4: Severability. If any part of this Ordinance is held to be invalid for any reason, such decision shall not affect the validity of the remaining portion of this Ordinance, and this City Council hereby declares that it would have passed the remainder of this Ordinance if such invalid portion thereof had been deleted. Section 5: Book of Ordinances. The City Clerk shall attest and certify to the adoption of this Ordinance and shall cause this Ordinance and the City Clerk's certification to be entered in the Book of Ordinances of the Council of this City. The City Clerk shall cause this ordinance to be published or posted as required by law. 7 SECTION 6: Effective Date. In accordance with Chapter 4.3 and Chapter 4.4 of the Charter of the City of Vernon, this ordinance shall take effect immediately upon its adoption. APPROVED AND ADOPTED this 27th day of June 2012 Name: William J. Davis Title: f Mayor Pro-Tem 0 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, WILLARD G. YAMAGUCHI, City Clerk of the City of Vernon, do hereby certify that the foregoing Ordinance, being Ordinance No. 1197, was duly passed and regularly introduced at a special meeting of the City Council of the City of Vernon, held in the City of Vernon on Wednesday, June 27, 2012, and adopted at that meeting by the following vote: AYES: Councilmembers: Mayor Pro-Tem Davis, McCormick, Ybarra NOES: Councilmembers: None ABSENT: Councilmembers: Maisano And thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this A day of July, City (SEAL) 12, at Ve�on, California. E CITY CLERK'S OFFICE INTEROFFICE MEMORANDUM DATE: July 11, 2012 TO: Mark Whitworth, City Administrator/Fire Chief FROM: Willard Yamaguchi, City Clerk RE: Ordinance No. 1197 An Ordinance of the City Council of the City of Vernon Amending Chapter 2, Article XII of the Vernon City Code Establishing Procedures for Election Contests Transmitted herewith is a copy of Ordinance No. 1197 referenced above, which was approved by City Council on June 27, 2012. Thank you. WY:dj Attachment c: Ana Barcia Kristen Enomoto City Council Ordinance No. 1197 REC EIVEID dUN 2 5 2Q12' CITY GLERK'.S OFFICE STAFF REPORT CITY ADMINISTRATION DATE: June 23, 2012 TO: Honorable Mayor Pro Tem and City Council ' FROM: MarkC. Whitworth, City Administrator W RE: ORDINANCE OF THE CITY COUNCIL OF THE CITY OF VERNON AMENDING CHAPTER 2, ARTICLE XII OF THE VERNON CITY CODE ESTABLISHING PROCEDURES FOR ELECTION CONTESTS The Vernon City Charter section 3.4 provides in relevant part; "The city council shall be the final judge of election results and the qualifications of its members." This provision empowers the City Council of the City of Vemon to receive and adjudicate election contests. People v. bletzker (1874) 47 Col. 524; Carter v. Superior Court (1902) 138 Cal. 150 McGregor v. Bd. of Trustees of Town of Burlingame (1911) 159 Cal. 441.. On June18, 2012, an election contest of the June 5, 2012 Special Municipal Election was filed with the City Council of the City of Vernon invoking its jurisdiction pursuant to Chapter 3.4 of the City Charter ofthe City of Vernon. The attached "ORDINANCE OF THE CITY COUNCIL. OF THE CITY OF VERNON AMENDING CHAPTER 2, ARTICLE XII OF THE VERNON CITY CODE ESTABLISHING PROCEDURES FOR ELECTION CONTESTS", would amend the Municipal Code of the City of Vernon to establish procedures by which the City Council would exercise its authority under Vernon City Charter Section 3.4 This report recommends that the City Council introduce and adopt the ordinance at its duly noticed special meeting of June 25, 2612. As set forth below, the ordinance would be immediately effective. Background On June 5, 2012; a special municipal election was held in the City of Vernon to fill a vacancy on the City Council. Because that date coincided with the date of the statewide primary election the City Council election was consolidated with the statewide primary and was administered by the Los Angeles County Registrar of Voters. On May 10, 2012, attorney Frederic Woocher of Strumwasser & Woocher LLP, on behalf of a Vernon voter and the Vernon Chamber of Commerce, submitted a letter to the Los Angeles County Registrar of Voters challenging for lack of residency in the City of Vernon any vote -by - mail ballots cast in the special municipal election by 21 named voters. Included with that submission were evidentiary materials related to each of the challenges. Mr. Woocher submitted supplemental evidentiary materials to the County Registrar on June 5, 2012. In both the May 10 and in the June 5 submissions, Mr. Woocher requested that the County Registrar hold an evidentiary hearing to adjudicate the challenges and indicated that he was prepared to present the testimony of many Vernon residents who could attest to the non- residency of the challenged voters. On June 5, 2012, the County Registrar responded that he would not receive the live testimony, and that he would instead rule on the pending challenges to voters based only on the written documentation previously submitted. The Registrar indicated that he would issue his determinations on the challenged ballots by the close of business on Friday June 8, 2012, and keep the challenged ballots secured and unopened until June 22, 2012, in order to allow any of the affected parties the opportunity to seek relief from his determinations. On June 8, 2012, the County Registrar issued his determinations on the voter challenges, indicating that ten of the challenged voters had submitted vote -by -mail ballots for the June 5, 2012 special municipal election. In each case, the Registrar acknowledged that the written evidence submitted raised questions concerning the residency of the challenged voter, but he ultimately determined that the written evidence submitted was not a sufficient basis upon which to disqualify the ballots of these ten challenged voters prior to the processing of their ballots. The County Registrar emphasized, however, that he wanted to ensure that appropriate due process is afforded both to the challenger.and to the voters whose ballots were challenged, and that "[b]ecause the Elections Code is not specific in identifying a process that serves that purpose, I want to further ensure that there is adequate time available for any party subject to the proceedings to seek additional review." Accordingly, the Registrar stated that the ten ballots subject to challenge would remain secured and unopened until Friday, June 22, 2012. On June 18, 2012, an election contest of the June 5, 2012 Special Municipal Election was filed with the City Council of the City of Vernon invoking its jurisdiction pursuant to Chapter 3.4 of the City Charter of the City of Vernon. On June 20, 2012, the City Council discussed the contest at its duly noticed special meeting and the importance to the integrity of Vernon elections of Vernon residents being accorded the opportunity to a hearing before the City Council on an election contest and to provide testimony concerning the residency of persons who have cast votes in Vernon elections. The City Council unanimously voted to ask the Registrar that the challenged ballots remain secured and unopened until Friday, June 29, 2012, to provide any impacted parties additional time to seek appropriate relief. In a letter to City Clerk Willard Yamaguchi dated June 21, 2012, the Registrar declined the City Council's request, but advised that the ballots would remain unopened until at least 1:00 P.M. on Monday, June 25, 2012, in accordance with the Registrar's publicly posted election update schedule. Contents of the Proposed Ordinance The attached Ordinance establishes generally applicable procedures for elections contests, not only for the June 5, 2012 Special Municipal Elections. The operative provisions of the ordinance are: Section 2.90. This section confirms that the City Council shall exercise jurisdiction over election contests in accordance with procedures set forth in the Ordinance. Section 2.90-1. This section prohibits the issuance of a Declaration of Election by the City Council or the installation of any person into the office of member of the City Council if an election contest is pending before the City Council. Section 2.90-2. This section prohibits the City Clerk from issuing a Certificate of Election or administering an Oath of Office if an election contest is pending before the City Council. Section 2.90-3. This section sets forth the time for filing election contest. Section 2.904. This section sets forth the grounds for an election contest. Section 2.90-5. This section authorizes the City Council to enact by resolution additional procedures for the adjudication of election contests filed before it. Authorization for City Council Action The City Council has authority to introduce and enact this ordinance at its special meeting of June 25, 2012 as an urgency measure. The provisions of Chapter 2 of the City Charter of the City of Vernon state that: "The city shall have full power and authority to adopt, make, exercise and enforce all legislation, laws, and regulations and to take all actions in respect to municipal affairs, without limitation, which may lawfully be adopted, made, exercised, taken or enforced under the Constitution of the State of California subject only to such limitations as may be provided by this Charter". Chapter 5.3 of the City Charter of the City of Vernon provides, in part: "The city council is authorized to adopt by ordinance procedures governing municipal elections". Chapter 4.3 of the City Charter of the City of Vernon provides that, " [a]n ordinance calling or otherwise relating to an election" shall take effect upon adoption, and that such an ordinance may be introduced and adopted at one and the same regular or special meeting. Urgency Ordinance Chapter 4.4 of the City Charter of the City of Vernon provides: "An ordinance declared by the city council to be necessary as an emergency measure for the immediate preservation of the public peace, health, or safety, and containing a statement of the reasons for its urgency, may be adopted in the manner provided by this Charter except that such emergency ordinance may be introduced and adopted at one and the same regular or special meeting, and shall take effect immediately" The following reasons support enactment of the Ordinance as an urgency measure: The Ordinance is necessary for the immediate preservation of the public peace, health, and safety in order to, consistent with fairness and due process, 1. Give full and expeditious effect to the will of Vernon's qualified voters as expressed in the June 5, 2012 Special Municipal Election. 2. Provide certainty to the residents of the City of Vernon about the results of the June 5, 2012 Special Municipal Election and seat the legitimately elected candidate at the earliest possible time. 3. Avoid disruption of city government by prolonged uncertainty about who was legitimately elected at the June 5, 2012 Special Municipal Election. 4. Avoid disruption of city business with third parties by prolonged uncertainty about who was legitimately elected at the June 5, 2012 Special Municipal Election. 5. Avoid Vernon residents and businesses losing confidence in the integrity of City of Vernon elections caused by prolonged uncertainty about who was legitimately elected at the June 5, 2012 Special Municipal Election. 6. Remove expeditiously any cloud of impropriety from the electoral process for the June 5, 2012 Special Municipal Election in the City of Vernon. 7. Provide for the expeditious adjudication of the pending election contest consistent with due process and equal protection of the law. 8. Authorize procedures to ensure fairness, transparency, and integrity in the adjudication of City Council election contests. 9. Instill confidence in City of Vernon residents about the integrity of the City's electoral process so that city residents will vote in city elections and run for city office. Snecial Meetin Introducing and enacting the Ordinance at a special meeting on June 25, 2012 before the challenged ballots are opened will avoid any appearance that the City Council is adopting the Ordinance in response to the outcome of the vote count of the June 5, 2012 Special Municipal Election. The ordinance will thus provide clear guidance and impartial procedures to any Vernon elector who wishes to challenge the results of the June 5, 2012 Special Municipal Election, no matter the outcome, by filing a contest with the City Council of the City of Vernon. Recommendation It is recommended that: 1. The City Council introduce and adopt the Ordinance Amending Chapter 2, Article XII of the Vernon City Code Establishing procedures for Election Contests at its duly noticed special meeting of June 25, 2012. 2. The City Council instruct that the City Attorney draft a resolution for its consideration prescribing additional procedures for the adjudication of election contests.