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Resolution No. 2012-124RESOLUTION NO. 2012-124 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPOINTING NEUTRAL HEARING OFFICER FOR ELECTION CONTEST FILED ON JULY 11, 2012 WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 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, 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; and WHEREAS, on June 27, 2012, the City Council of the City of Vernon adopted Ordinance No. 1197 establishing procedures for election contests filed pursuant to Chapter 3.4 of the City Charter of the City of Vernon (codified as Article XII of Chapter 2 of the Vernon Municipal Code); and WHEREAS, Section 2.90-5 of the Vernon Municipal Code provides that, "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;" and WHEREAS, on July 10, 2012, the City Council of the City of Vernon adopted Resolution No. 2012-116 establishing additional procedures for election contests filed pursuant to Chapter 3.4 of the City Charter in order to provide for fair, transparent, and expedited adjudication consistent with due process and equal protection,of the law; and WHEREAS, Section 7(a) of Resolution No. 2012-116 states that the hearing on an election contest "shall be conducted by a neutral hearing officer appointed by majority vote of the City Council members present. The hearing officer shall be (1) a member of the .State Bar of California for a minimum of fifteen years and (2) a former member of the federal or state judiciary or a former federal or state public prosecutor. The hearing officer shall be entitled to payment by the City for his or her services, including reasonable expenses. The hearing officer shall not be an officer or employee of the city and shall not have any other relationship with the city"; and WHEREAS, Section 7(b) of Resolution No. 2012-116 states: "Within seven days of the filing of a contest statement the City Council shall meet to appoint a hearing officer," and WHEREAS, on July 11, 2012 the election contest filed on June 18, 2012 was re -filed by the same City of Vernon elector in the form prescribed by Resolution No. 2012-116; and WHEREAS, the City Council of the City of Vernon desires to ensure a fair, transparent, and expedited adjudication of election contests filed with the City Council pursuant to Chapter 3.4 of the City Charter, the City Council of the City of Vernon has determined to appoint a neutral hearing officer to hear the election contest, determine all issues -2- arising in the contested election, make findings of fact and conclusions of law on each issue raised, and pronounce a recommendation that the City Council either confirm or annul the certification of the result of the June 5, 2012 Special Municipal Election for the City of Vernon City Council issued by the Los Angeles County Registrar of Voters, all in accordance with Resolution No. 2012-116, adopted by the City Council at its Special Meeting on July 10, 2012. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained.hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby appoints Hon. 'Debra Wong Yang (Ret.) as the neutral hearing officer. Ms. Yang's Biography is attached hereto as Exhibit A, and incorporated herein by this reference. SECTION 3: The Hearing Officer.is directed to provide a statement disclosing any actual or possible conflicts of interest with the parties to the election contest, other matters which could reasonably be perceived as affecting her ability to be impartial and such other matters as required by the City Council in accordance with the Conflict of Interest Guidelines and Disclosure Form for Neutral Hearing Officers, adopted in Resolution No. 2012-123 ("A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON ADOPTING CONFLICT OF INTEREST GUIDELINES AND DISCLOSURE FORM FOR NEUTRAL HEARING OFFICERS FOR ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4") of the City Council of the City of Vernon on July 17, 2012.. -3- SECTION 4: The City Clerk of the City of Vernon shall certify to the passage, approval and adoption of this resolution, and the City Clerk of the City of Vernon shall cause this resolution and the City Clerk's certification to be entered in the File of Resolutions of the Council of this City. APPROVED AND ADOPTED this 17th day of July, 2012. Name: William J. Davis Title :-,➢Q�i' / Mayor Pro-Tem ATTESf: ljard G" Yaij�6gLAhi/, C;rtV Clerk 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 Resolution, being Resolution No. 2012-124, was duly passed, approved and adopted'by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Tuesday, July 17, 2012, and thereafter was duly signed by the Mayor or Mayor Pro-Tem of the City of Vernon. Executed this (9 day of July, 2012, at Vernon, California. "Ya iCity Cler (SEAL) k -5- EXHIBIT A GIBSON DUNN Debra Won; Yang Contact: 333 South Grand Avenue Los Angeles, CA 90071-3197 Tel: 213.229.7472 dwongyang@gibsondunn.com Debra Wong Yang is a partner in Gibson, Dunn & Crutcher's Los Angeles office, where she is a member of the 2012 management and executive committees and Co -Chair of the Crisis Management Practice Group, the White Collar Investigations and Defense Practice Group and the Information Technology and Data Privacy Group. Ms. Wong Yang previously served as the United States Attorney for the Central District of California and was the first Asian -American woman to serve in that capacity. Ms. Wong Yang's practice specializes in crisis management and complex litigation matters, both criminal and civil. She served as counsel to numerous Fortune 100 companies under scrutiny, by regulatory authority whose issues received mainstream media coverage. The matters range from technology, entertainment, retail, to energy. She has litigated high - profile matters in Court and has served as counsel for one of the largest foreign telecom companies investing in the United States. In the past, she has been both a DOJ-appointed Monitor over an orthopedic manufacturing company with health care compliance and. regulatory issues and a monitor appointed by the New York state courts over a pharmaceutical dispenser. She has spearheaded matters in the crisis arena where she has overseen the legal, media, regulatory, investigatory and public reporting issues for top national companies. The recent crises she has responded to have included the following areas: healthcare, food and safety, refinery, education and NCAA, technology, entertainment, business in China, insurance and data privacy. She has also represented companies and boards in internal investigations, compliance matters, and criminal investigations. In addition, Ms. Wong Yang has provided advice on matters relating to FCPA, trade secrets, and cyber/data intrusions. She has overseen teams of attorneys conducting FCPA investigations and has reviewed FCPA compliance programs in a variety of industries. Gibson, Dunn & Crulcher LLP She currently sits as a Police Commissioner for the Los Angeles Police Department, appointed by Mayor Villaraigosa, and is active in local and national affairs. She was a former Los Angeles Superior Court Judge, and a Supervising Judge of the Hollywood Court. After becoming United States Attorney, Ms. Wong Yang sat on President Bush's Corporate Fraud Task Force and chaired the Attorney General's Advisory Committees on Cyber/Intellectual Property and on Civil Rights. She was appointed by the Attorney General to sit on the Attorney General's Advisory Committee and on the Intellectual Property Task Force. She holds a number of positions on boards and legal committees. Ms. Wong Yang has also prosecuted a number of high -profile cases. As a federal prosecutor, she handled violent crimes, white-collar crimes, international money laundering, arson and computer crimes. She has consistently been recognized over the years by Lawdragon, Chambers, Super Lawyers, Best Lawyers, National Law Journal's Top Minority Lawyers, and the Anti - Defamation League. Ms. Yang received her Juris Doctorate in IM from Boston College Law School and served as a law clerk to the Honorable Ronald S.W. Lew in the U.S. District Court for the Central District of California. She is a native of Los Angeles, and is a fourth generation Californian. Gibson, Dunn & Crulcher LLP CITY CLERK'S OFFICE INTEROFFICE MEMORANDUM DATE: July 23, 2012 TO: Mark Whitworth, City Administrator/Fire Chief FROM: Willard Yamaguchi, City Clerk I 16 RE: Resolution No. 2012-124 — A Resolution of the City Council ofthe City of Vernon Appointing Neutral Hearing Officer for Election Contest Filed on July 11, 2012 With the City Council Pursuant to Vernon City Charter Section 3.4 Transmitted herewith is a copy of Resolution No. 2012-124 referenced above, which was approved by City Council on July 17, 2012. Thank you. WY:dj Attachment c: Ana Barcia Resolution No. 2012-124 . RECEIVED JUL k2 2012 CITY CLERK'S OFFICE STAFF REPORT CITY ADMINISTRATION DATE: July 12, 2012 TO: Honorable Mayor Pro Tem and City Council FROM: Mark C. Whitworth, City Administrator M W/ r4C RE: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON APPOINTING NEUTRAL HEARING OFFICER FOR ELECTION CONTEST FILED ON JULY 11, 2012 WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4 Introduction 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 Vernon to receive and adjudicate election contests. People v. Metzker (1874) 47 Cal. 524; Carter v. Superior Court (1902) 138 Cal. 150; McGregor v. Bd. of Trustees of Town of Burlingame (1911) 159 Cal. 441. 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 27, 2012, the City Council adopted 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") to amend the Municipal Code of the City of Vemon to establish procedures by which the City Council would exercise its authority under Vernon City Charter Section 3.4. Ordinance No. 1197 provides that, "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." The City Council adopted that resolution, Resolution No. 2012-116 ("A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON ADOPTING RULES AND PROCEDURES TO GOVERN ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4"), at its Special Meeting on July 10, 2012. Section 7(a)-(c) of Resolution No. 2012-116 provides: (a) The election contest hearing provided for in Section 7 of this Resolution shall be conducted by a neutral hearing officer appointed by majority vote of the City Council members present. The hearing officer shall be (1) a member of the State Bar of California for a minimum of fifteen years and (2) a former member of the federal or state judiciary or a former federal or state public prosecutor. The hearing officer shall be entitled to payment by the City for his or her services, including reasonable expenses. The hearing officer shall not be an officer or employee of the city and shall not have any other relationship with the city. (b) Within seven days of the filing of a contest statement the City Council shall meet to appoint a hearing officer. (c) Upon appointment by the City Council, the hearing officer shall deliver to the City Clerk a statement disclosing any actual or possible conflicts of interest with the parties to the election contest, other matters which could reasonably be perceived as affecting the hearing officer's ability to be impartial, and such other matters as may be required by the City. The City Clerk promptly shall serve a copy of the disclosure statement on the parties to the election contest or on their designated counsel of record. On July 11, 2012 the election contest filed on June 18, 2012 was re -filed by the same City of Vernon elector in the form prescribed by Resolution No. 2012-116. The attached resolution provides the appointment of a hearing officer. 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 by an elector of the City 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. On June 27, 2012, the City Council adopted Ordinance No. 1197, which amended 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. Ordinance No. 1197 provides that, "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." After a duly noticed public hearing held in conjunction with the July 10, 2012 special City Council meeting, the City Council adopted Resolution No. 2012-116, which establishes the specific procedures to govern election contests in the City of Vernon, which will provide for fair, transparent, and expedited adjudication of such matters. As set forth above, Section 7 of Resolution No. 2012-116 provides for the appointment by the City Council of a neutral hearing officer within 7 days of the filing of a contest statement, disclosures by that hearing officer of any actual or possible conflicts of interest with the parties to the election contest, and an opportunity for a party to challenge the continued service of the hearing officer for cause. On July 11, 2012, an elector of the City of Vernon timely filed a contest statement in accordance with the requirements of Resolution No. 2012-116 incorporating the challenges set forth in the contest document filed on June 18, 2012 by the same elector. Contents of the Proposed Resolution The operative provisions of the resolution are the following: Section 1. This section confirms the accuracy of the recitals supporting the resolution. Section 2. This section appoints Hon. Debra Wong Yang (Ret.) as the neutral hearing officer and attaches her biographical information. Section 3. This section requires the Hearing Officer to make disclosures as provided in the RESOLUTION ADOPTING CONFLICT OF INTEREST GUIDELINES AND DISCLOSURE FORM FOR NEUTRAL HEARING OFFICERS FOR ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4, pending adoption on July 17, 2012. Authorization for City Council Action 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," which it has done with respect to election contests through the adoption Ordinance No. 1197. Ordinance No. 1197 expressly provides, "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." Resolution No. 2012-116, Section 7 requires the City Council to appoint a neutral hearing officer and disclosures by the hearing officer of matters set forth in the resolution and as may be prescribed by the City Council. Recommendation It is recommended that the City Council adopt the proposed resolution ("A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON ADOPTING CONFLICT OF INTEREST GUIDELINES AND DISCLOSURE FORM FOR NEUTRAL HEARING OFFICERS FOR ELECTION CONTESTS FILED WITH THE CITY COUNCIL PURSUANT TO VERNON CITY CHARTER SECTION 3.4").