Loading...
HomeMy WebLinkAboutItem 26 - City Council Voting, Recusal for Conflicts, and Prohibiting Abstentions City Manager Office www.santa-ana.org/cm Item # 26 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report March 1, 2022 TOPIC: City Council Voting, Recusal for Conflicts, and Prohibiting Abstentions AGENDA TITLE: Ordinance Concerning City Council Voting, Recusal for Conflicts, and Prohibiting Abstentions RECOMMENDED ACTION Consider one of the following options: 1. Approve the first reading of an ordinance concerning City Council voting, recusal for conflicts, and prohibiting abstentions. 2. Provide direction to staff. DISCUSSION Introduction At the meeting on May 5, 2020, the City Council addressed an item to discuss and consider directing the City Manager to direct staff to draft a policy for the City Council’s consideration regarding abstentions on votes on items on the City Council meeting agendas. The item was reported in the minutes of the May 5, 2020 meeting as the City Council directing staff to research state law, current existing policy on City Council participation, and bring back to a future meeting for the City Council's consideration. The councilmember sponsors of this item later discussed the matter with the City Manager and City Attorney, and indicated that the matter could be added to a future City Council goal-setting meeting for consideration. At a more recent City Council meeting, Councilmember Lopez inquired about bringing forth a policy or ordinance to address voting and abstentions with the goal of addressing a way to enforce the current prohibition against abstentions on votes as set forth in Section 2-105 of the Santa Ana Municipal Code. Background Santa Ana Municipal Code (SAMC) Section 2-105, which as adopted in 1952 and amended in 1965, currently provides as follows: City Council Voting, Recusal for Conflicts and Prohibiting Abstentions March 1, 2022 Page 2 2 4 7 6 Sec. 2-105. - Voting by members. No member of the council shall abstain from any vote unless disqualified, and no disqualified member shall vote. Any disqualified member shall openly state to the presiding officer the fact and nature of such disqualification and shall not be subject to further inquiry. Where no clearly disqualifying conflict of interest appears, the matter of disqualification may, at the request of the member affected, be decided by the other members of the council. A member disqualified by conflict of interest shall request and be granted permission by the presiding officer to absent himself from the room where the council is meeting during debate and vote on the matter. Any member having a remote interest in any matter shall divulge the same to the council before voting. While violation of Section 2-105 is a misdemeanor, it is not practical to consider enforcing this provision through a criminal action against a councilmember. Further, by past practice, the City Council has not indicated a desire to strictly enforce this provision. On May 5, 2020, the City Council discussed Section 2-105 and there was a desire for staff to conduct further research and return to the City Council with recommended policy changes or considerations. During this discussion, there were some very pointed remarks about the need for all councilmembers to participate and vote, unless legally conflicted or explaining one’s reason for abstaining on a vote. Research based on voting policies in other general law and charter cities demonstrates that cities have adopted rules prohibiting abstentions and imposing rules to ensure that all who can legally vote take a vote or have an abstention serve as a concurrence or “yes” vote. Based on that research, the previous direction by the City Council, and the recent request, staff has prepared a proposed ordinance for consideration. The proposed ordinance addresses all of the following: Requires declaration of the result of votes taken. References per Section 410 of the Santa Ana City Charter that no ordinance, resolution, motion, or any item requiring a vote shall be passed, adopted, or become effective unless it receives the affirmative vote of a majority of the full membership of the City Council. Provides that no member of the City Council shall be permitted to recuse themselves from voting on an item on the City Council meeting agenda unless (1) the councilmember is legally disqualified from voting due to a conflict of interest (including a disqualification under the Political Reform Act or Government Code Section 1090 et sec].) or other legal reason (such as common law conflict of interest or bias) or (2) the councilmember is awaiting advice from the Fair Political Practices Commission (FPPC) or (3) the councilmember states that they are awaiting further information or clarification and will recuse themselves out of an abundance of caution. Prohibits participation in a vote if one has a conflict and provides that those with a conflict shall leave the dais during the consideration of the matter, provided, City Council Voting, Recusal for Conflicts and Prohibiting Abstentions March 1, 2022 Page 3 2 4 7 6 however, that if the matter is being considered on the Consent Calendar and has not been removed from Consent Calendar, the councilmember may remain on the dais and disclose the reason. Clarifies, consistent with state law, that a disqualified councilmember may speak on the matter as a private citizen, but only to the extent allowed by the Section 18702.5 of the Regulations of the FPPC, or its successor sections. Provides that if a councilmember abstains on a vote in violation of the prohibition, the abstention shall be considered concurrence in the motion and the Clerk shall record the councilmember’s abstention as a “yes” vote. States that a tie vote means no action has been taken and the item under consideration will not be placed upon a future agenda, unless by a majority vote of the City Council staff is directed to place the item on a future agenda or based on new information or changes in circumstances the City Manager places the item on a future agenda. Adoption of the proposed ordinance will modernize a law in the SAMC that was last addressed in 1965 and provide needed clarity on the issues of voting, conflicts, recusals and abstentions. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT There is no fiscal impact associated with this action. EXHIBIT(S) 1. Ordinance Submitted By: Kristine Ridge, City Manager Approved By: Kristine Ridge, City Manager Ordinance No. NS-XXX Page 1 of 4 ORDINANCE NO. NS-XXX AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SANTA ANA AMENDING SECTION 2-105 OF THE SANTA ANA MUNICIPAL CODE TO PROHIBIT ABSTENTIONS UNLESS LEGALLY REQUIRED, TO REQUIRE UNAUTHORIZED ABSTENTIONS TO BE COUNTED AND RECORDED AS A VOTE WITH THE MAJORITY, AND TO DESCRIBE THE CONFLICT DISQUALIFICATION PROCESS THE CITY COUNCIL OF THE CITY OF SANTA ANA DOES ORDAIN AS FOLLOWS: Section 1. The City Council of the City of Santa Ana hereby finds, determines, and declares as follows: A. The City of Santa Ana seeks to ensure that the Mayor and Members of the City Council, elected to carry out the business of the City, act upon all agenda items presented for consideration. B. The California Political Reform Act and regulations promulgated thereunder by the Fair Political Practices Commission require the Mayor and Councilmembers to disclose conflicts of interest, and new rules require disclosure when an elected official is absent for only a portion of a meeting where the member has a conflict on an agenda item. C. If the Mayor or a Councilmember does not have a legally disqualifying conflict of interest, he or she should not be permitted to refrain from voting on an item requiring a vote. D. Since 1952, the Santa Ana Municipal Code has stated in pertinent part that “no member of the council shall abstain from any vote unless disqualified.” However, because there is no practical way to enforce this charter provision, the City Council desires to provide that an abstention will be counted and recorded as a “yes” vote. Section 2. Pursuant to the California Environmental Quality Act ("CEQA") and the State CEQA Guidelines, the adoption of this ordinance is exempt from CEQA review pursuant to 14 California Code of Regulations section 15061(b)(3). Section 3. Section 2-105 of Article II (City Council) of Chapter 2 (Administration) of the Santa Ana Municipal Code is hereby amended to read in its entirety as follows: Ordinance No. NS-XXX Page 2 of 4 Sec. 2-105. - Voting by Members - Disqualifications and Abstentions. It is the policy of the Santa Ana City Council that all members present at a City Council meeting fully participate in the discussion of a matter and shall vote for or against an ordinance, resolution, motion, or any other item requiring a vote, unless disqualified by conflict of interest or other legal reason as provided in this section. (a) If the vote is a voice vote, the Mayor or Clerk of the Council shall declare the result and note for the record all yes votes and all no votes. The Council may also vote by roll call or electronic means visible to the public. Regardless of the manner of voting, the results reflecting all yes and no votes, and the members of the Council who cast them, shall be clearly set forth for the record. In accordance with Section 410 of the Santa Ana City Charter, except as otherwise provided elsewhere in the charter or by law, no ordinance, resolution or motion shall be passed, adopted, or become effective unless it receives the affirmative vote of a majority of the full membership of the City Council. (b) No member of the Council shall be permitted to recuse himself or herself from voting on any item on the City Council agenda requiring a vote unless: (1) The councilmember is legally disqualified from voting due to a conflict of interest (including a disqualification under the Political Reform Act or Government Code Section 1090 et seq.) or other legal reason (such as common law conflict of interest or bias); or (2) The councilmember is awaiting advice from the Fair Political Practices Commission; or (3) The councilmember states that he or she is awaiting further information or clarification and will recuse themself out of an abundance of caution. (c) If a councilmember is disqualified from voting due to a conflict, the member shall not participate in the consideration of the matter, shall not be counted for the purpose of the quorum, and shall leave the dais during the consideration of the matter; provided, however, that if the matter is being considered on the consent calendar and has not been removed from the consent calendar, the councilmember may remain on the dais and disclose the reason for disqualification. A disqualified councilmember may speak on the matter as a private citizen, but only to the extent allowed by the Section 18702.5 of the Regulations of the Fair Political Practices Commission, or its successor sections. (d) If a councilmember abstains on a vote in violation of this rule, the abstention shall be considered concurrence in the item being voted upon, and the City Clerk shall record that councilmember’s abstention as a “yes” vote. (e) A tie vote means that no action has been taken, and the item under consideration shall not be placed upon a future agenda, unless by a majority vote of the Council, city staff is directed to place the item on a future agenda, or based on new Ordinance No. NS-XXX Page 3 of 4 information or changes in circumstances, the City Manager places the item on a future agenda. Section 4. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Santa Ana hereby declares that it would have adopted this ordinance and each section, subsection, sentence, clause, phrase or portion thereof irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions be declared invalid or unconstitutional. Section 5. This Ordinance shall become effective thirty (30) days after its adoption. Section 6. The Clerk of the Council shall certify the adoption of this ordinance and shall cause the same to be published as required by law. ADOPTED this _______ day of ___________, 2022. _________________________ Vicente Sarmiento Mayor APPROVED AS TO FORM: Sonia R. Carvalho, City Attorney By:_________________________ John M. Funk Sr. Assistant City Attorney AYES: Councilmembers ______________________________________ NOES: Councilmembers _______________________________________ ABSTAIN: Councilmembers _______________________________________ NOT PRESENT: Councilmembers _______________________________________ Ordinance No. NS-XXX Page 4 of 4 CERTIFICATE OF ATTESTATION AND ORIGINALITY I, Daisy Gomez, Clerk of the Council, do hereby attest to and certify the attached Ordinance No. NS-____________ to be the original ordinance adopted by the City Council of the City of Santa Ana on _______________, and that said ordinance was published in accordance with the Charter of the City of Santa Ana. Date: ________________ ____________________________________ Clerk of the Council City of Santa Ana Voting, Recusal, and Abstentions City Manager’s Office March 1, 2022 Slide 1 City Council Policy on Voting, Recusal for Conflicts, and Prohibiting Abstentions Voting, Recusal, and Abstentions City Manager’s Office March 1, 2022 Slide 2 Background Voting, Recusal, and Abstentions City Manager’s Office March 1, 2022 Slide 3 Timeline May 5, 2020: at the request of Mayor Pro Tem Bacerra and Councilmember Penaloza, the City Council discussed and considered directing the City Manager to direct staff to prepare a policy regarding abstentions on votes on items on City Council meeting agendas. The City Council directed staff to research state law and current existing policy on City Council participation, and to bring back a policy to a future meeting for the City Council's consideration. Voting, Recusal, and Abstentions City Manager’s Office March 1, 2022 Slide 4 Existing Policy Section 2-105 of the Municipal Code provides as follows: No member of the council shall abstain from any vote unless disqualified, and no disqualified member shall vote. Any disqualified member shall openly state to the presiding officer the fact and nature of such disqualification and shall not be subject to further inquiry. Where no clearly disqualifying conflict of interest appears, the matter of disqualification may, at the request of the member affected, be decided by the other members of the council. A member disqualified by conflict of interest shall request and be granted permission by the presiding officer to absent himself from the room where the council is meeting during debate and vote on the matter. Any member having a remote interest in any matter shall divulge the same to the council before voting. Voting, Recusal, and Abstentions City Manager’s Office March 1, 2022 Slide 5 Proposed Ordinance Voting, Recusal, and Abstentions City Manager’s Office March 1, 2022 Slide 6 Requires declaration of the result of votes taken. References, per the City Charter, that any agenda item requiring a vote shall be passed, adopted, or become effective unless it receives the affirmative vote of a majority of the full membership of the City Council. Provides that no member of the City Council shall be permitted to recuse themselves from voting on an item on the City Council meeting agenda unless: 1) the councilmember is legally disqualified from voting due to a conflict of interest or other legal reason (such as common law conflict of interest or bias) 2) the councilmember is awaiting advice from the Fair Political Practices Commission (FPPC) 3) the councilmember states that they are awaiting further information or clarification and will recuse themselves out of an abundance of caution. Prohibits participation in a vote if one has a conflict and provides that those with a conflict shall leave the dais during the consideration of the matter, provided, however, that if the matter is being considered on the Consent Calendar and has not been removed from Consent Calendar, the councilmember may remain on the dais and disclose the reason. Clarifies, consistent with state law, that a disqualified councilmember may speak on the matter as a private citizen. Provides that if a councilmember abstains on a vote in violation of the prohibition, the abstention shall be considered concurrence in the motion and the Clerk shall record the councilmember’s abstention as a “ yes” vote. States that a tie vote means no action has been taken and the item under consideration will not be placed upon a future agenda, unless by a majority vote of the City or based on new information or changes in circumstances, in which the City Manager places the item on a future agenda. Voting, Recusal, and Abstentions City Manager’s Office March 1, 2022 Slide 7 Questions?