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HomeMy WebLinkAbout1988-07-05; City Council; Info; APPOINTMENT OF CITIZENS TO CARLSBAD'S BOARDS AND COMMISSIONSfi 1' -4 - CI) OF CARLSBAD - AGENQ BILL A 4 I 4' rc AB# ldfo DEP TITLE: MTG. 7 15 188 CITV DEPT. CM CIT) APPOINTMENT OF CITIZENS TO CARLSBAD'S BOARDS AND COMMISSIONS RECOMMENDED ACTION: Hear item; no further action required. ITEM EXPLANATION: Recently, questions have been raised concerning the procedure of appointi citizens to Carlsbad's boards and commissions. The attached letter from City Attorney to the Mayor and City Council serves to clarify the appoint] procedure. EXHIBIT: 1. Letter, and attachments (5), to the Mayor and City Council from the ( Attorney, dated June 27, 1988. oz Y f= 0 2 z 0 F 0 q d 0 2 3 0 0 .. a. .. e e i >' June 27, 1988 TO : Mayor and City Council FROM : City Attorney LAW APPLICABLE TO THE APPOINTMENT OF CITIZENS TO CARLSBAD'S BOARDS AND COMMISSIONS This memorandum is to discuss the law that governs the c Council's appointment of citizens to Carlsbad's boards commissions. Prior to 1975 there was no state law which regulated appointmer In that year, the Brown Act was amended to change the establis practice of discussing a citizen's qualifications in closed sess by limiting the '@personnelt@ exception to employees. The cour may recall the difficulty they experienced in discussing qualifications of competing candidates in public. The only ot applicable state law is Chapter 11 of the Brown Act which ,'.=--enacted in 1976 (California Government Code Sections 54970 .. . :. -. -.seq.) . A copy is attached as Exhibit A. ' - : . i . .. . . -. . .. .L -c: -, i: . T .. , . .. ..-- ''7 . chapter 11 is a notice provision. The legislative findings . :, ... 2:: that the general public has lacked access to information about ,-- ".T"L.> .. . . .," "__" "-' . ". .::,''"':l .. . .. . .. - .- A,.'"&. opportunity to serve, It e e e thereby denying most citizens . . ..~ <.- . ... xnterest groups an opportunity to nominate . . .I@ (Section 5497 -/,., . . .-. .. " . . -.., - ..-.,;)_ ." r- . _,-. .. " . .~.. . The legislative solution to this @@problemtt was to require c .^>... .. .. '.. councils, before the end of each year, to prepare a list .. . .. possible appointments for the coming year to all the Cityls boa and commissions, 'I. . .which are amointed by the leaislative bod (Section 54972). The list must be made available to members of public for a reasonable fee not exceeding the actual cost (Sect 54973). Our City Clerk goes a little further in order to be s that we are fully complying not only with the letter of the law the legislature's intent by publishing this list in the newspaF These statutes are directory and not mandatory. A failure compile the list would not affect the validity of any appointn the City Council might make. The only provision of Chapter which limits the Council's appointment power is Section 54974 wh requires unscheduled vacancies to be posted in the Clerk's off vacancy. The City Council's may not fill such a vacancy until least ten days after the notice is posted. There is no other st law that regulates appointments which are traditionally handlec California as a matter of policy and politics as the City Cour considers appropriate. not earlier than 20 days before nor later than 20 days after E .1 e e I? What little state law there is applies to council appointmen The situation in a general law city with a directed elected ma is different. Section 40605 of the Government Code provides, It.. .The mayor, with the approval of the City boards, commissions and committees unless otherwise specifically provided by statute." Council, shall make all appointments to The legislative history of this section makes clear that purpose of the law was to give a directed elected mayor additio powers over and above those shared by other members of the counc Although the City Clerk includes all vacancies on her list Chapter 11 requirements may not apply to the Mayor's appointmen The question of the power of the mayor in regard to appointme vis-a-vis that of the council has been raised in Carlsbad in past in connection with a vacancy on the Planning Commission. that regard, attached * is an opinion dated November 15, 1 addressing this subject (Exhibit B). Prior to 1976 the mayor made planning commission appointments along with all of the ot appointments in the City. The opinion concluded that if the C Council wished to make appointments to the planning commission could by an amendment to the municipal code do that since Sect 65150 of the Government Code provided that members of the plann commission should be appointed by the city council. The Cour did in fact amend that section of the code. After 1976 the ma continued to make most of the appointments to boards, commissi and committees however, the Planning Commission was handled determined appropriate by majority vote of the City Council. The opinion also discussed the appointing power for other boa and commissions. The Council acted in response to the opinior amend the municipal code to give all available appointn authority to the Council. Appointment procedures were clarif for the personnel board to recognize the Mayor's authority to n that appointment and the municipal code section regarding Housing Commission was amended to allow appointment by the C Council. The opinion concluded with comments on the way in which the C Council had acted "...pursuant to an informal understanding 01 unwritten policy." The opinion suggested that the Council mj wish to consider a more formal approach in the form of a writ council policy. Samples from the City of San Diego and Citl Vista were attached as a beginning point for the Council. The ( Council took no further action in response to the opinion continued to act without any written ordinance or policy. inquiry at the last meeting of the San Diego County City Attornc Association indicates that most of the cities continue to ope] Council had been making its appointments by recognizing that 2 ,- 0 0 e- like Carlsbad with only a few having a written policy. Attac as Exhibit C is an additional example from El Cajon. A question was raised at a recent council meeting if appointment to the Planning Commission of an individual who had submitted an application was legally appropriate. At that ti I advised the council, that in my opinion there was no 1~ limitation on the Council's ability to make that appointn describing the existing application procedure as tgfolklore,tt 1 was not intended as a facetious remark but rather the 1 characterization I knew of the situation. There is no state 1 no ordinance, no written policy and no consistently appl unwritten policy governing the way in which the City Council mt appointments. In most cases, appointments are the responsibil of our directly elected mayor and are handled in accord with mayor's discretion. In many cities with directly elected ma] appointments are made strictly on the basis of political patron& There is no formal application process relating to any particL vacancy. The City Clerk's office uses an application form wl: is available to members of the public. It has been her practicc placing vacancies on the agenda to include any applicati previously on file or which have been received up until council meeting. There is no date to stop taking applications no closing date. Applications once submitted are kept on fi The 88folklorett often results in the mayor's making a l'nominati to the Council by announcing his intention to appoint a particl: individual giving the Council and the public a week or two to re and to possibly interview the individual, That, however, is always the case. In some situations, the mayor has simply made appointment or reappointed an incumbent. Sometimes his nominati have come from those that have applied and in some cases they f not. The application process was used by our mayors to make process more open to members of the public but there is no I legal requirement. The City Council makes Planning Commiss appointments. The process for that has varied and its histor1 posted the most recent vacancy and that satisfied all applict legal requirements. If individuals are concerned about the Cit appointment procedure, their concern is a matter of policy and legality. The mayor, by memorandum of June 21, 1988 has asked the City C1 some questions regarding the appointment process (Exhibit D) . has replied in a memorandum dated June 22, 1988. She confirms understanding that the process is essentially an informal applied on an ad hoc basis (Exhibit E). There was one question in the Mayor's memorandum which she did answer and that had to do with what happens in the event o ttdeadlocktt. The council in the exercise of its "advice consent" role may decline to approve the mayorls appointment. similar to that for the Mayor's appointments. The City C1 3 ." 0 e i . that case no appointment can be made and it is up to the mayor submit a different name. It is possible, as happens at the st or national level, that the appointing authority will continue submit nominees until one is confirmed by the legislative bc There is no legal limit or constraint on that process which essentially a political and policy exercise within the discret of the elected city officials. It is, therefore, possible fc vacancy to go unfilled for an extensive period of time in absence of an acceptable compromise between the mayor and counc Council appointments such as the Planning Commission, takes tk and it is possible for the seat to remain open as a result of failure of the Council to agree. On one occasion, I can recall Council each nominated an individual and then each Council per was allowed to vote for two people with the Council having "agn that the person with the highest number of votes would then appointed. Each council member's first choice reflected nomination they had made. After the vote for the respective sec choices had been tabulated one individual had more votes t anyone else and the Council then made the decision to appoint 1 In another instance, the Council had made a number of nominatj and narrowed them down by voting for one or two with an info1 agreement to eliminate those receiving the least number of vc until the field had been narrowed down to two or one. A "deadlc would mean the vacancy would continue until the Council was eit able to change its mind, arrive at a compromise or find some ot way of resolving the conflict. Please let me know if you need any further information or advj \i VINCENT Fe BIONDO, JR, City Attorney rlnh attachments 4 L - i 1 Title 5 &on. Henderson of Ed. (1978) 144 375. applicabiUfsT ence, or other If any person, ational origin, agency as de- 3.1981, C. 96% P Div. 2 LISTS OF LOCAL APPOINTIVE OFFICES !$ 54 may be required by the federal government as a condition to participation. (Added by Stats.1965, C. 753, P- 2175. s I, eff. June 29,1965.) 142 U.S.C.A. $ 2701 et seq. Library References seq. Municipal Corporations -5i et seq. C.J.S. Municipal Corporations 8 Chapter 11 OPEN LISTS OF LOCAL APPOINTIVE OFFICE See. 54970. Legislative findings and declaration. 54971. Legislative body; local agency. 54972. Appointments list ; preparation ; contents. 54973. Availability to public; fee. 54974. Unscheduled vacancy: special notice; acting basis; fin; pointment. 54975. APpOiIltRleIltS Of public and alternate members of local a formation commission; special vacancy notice. 54976. Renumbered. 54977 to 54979. Repealed. Chapter 11, add-ed as Chapter 10 by Stats.1976, c. 238 p. 453, 0 1, was renumbered Chupter 11 and amended ba Stats.1979, c. 373, p. 1320, 5 166. Another Chapter 11, “Municipal Services and Func tions,” added by Stats.1978, c. 960, p. 2961, 0 1, was renumc bered Chapter 12 and amended by Stats.1980, c. 676, p. 1929 4 131. Another Chapter 11, Antipmerty Program, Participa tim, added by Stats.1965, c. 753, p. 2175, 0 1, editoriaEl?/ clus sifW as Chapter 9.5, was renumbered Chapter 10 aru m@dkd by Stats.1979, c. 373, p. 1320, Q 165. See 0 54965 ante. 8 54970. Legislative findings and deckation (a) The Legislature finds and declares that a vast and la untapped reservoir of talent exists among the citizenry of the of California, and that rich and varied segments of this great hi resource are, all too frequently, not aware of the many opportu Which exist to participate in and serve on local regulatory and 2 QrY boards, commissions, and committees. 609 I:” I - CITIES, COUNTIES, ETC. Title 5 (b) The Legislature further finds and declares that the general public of this state has traditionally been denied access to informa- tion regarding vacancies which occur on such boards, commissions, and committees, thereby denying most citizens and interest groups the opportunity to nominate for consideration by the respective ap- pointive powers persons whose particular strengths, backgrounds, ex- perience, perspective, and talents might contribute significantly to effi- cient and representative policy development and administration in lo- cal government. (c) The Legislature further finds and declares that the respec- tive local appointive powers have been denied access to a talent re- source hitherto untapped. (d) The Legislature further finds and declares that all citizens of the state, regardless of their place of residence should have equal access to specific and current information about the many Iocal regu- lating and advisory boards, commissions, and committees and equal opportunity to be informed of vacancies which shall occur thereon, so that they may pursue the opportunity to participate in and contribute to the operations of local government by serving on such boards, commissions, and committees. (e) It is therefore the intent of the Legislature that this chapter shall apply to all cities and all counties throughout California, includ- ing charter cities and charter counties. (Added by Stats.1976, c. 238, p. 453, $ 1.) Historical Note provided: Section 2 of Stats.19’76, c. 238, ‘p. 453, Former 8 54970, relating to district boundaries, was added by Stats.1957, c. “This act shall be known and may be 135’2, p. 2715, 9 1, and was repealed by Act of 1975.” cited as the Maddy Loeal Appointive List Stats.1965, c. 2043, p. 4736, 8 34. See, now, generally, I 5sooO et seq. Library References Counties -62. Municipal Corporations -128. C.J.S. Counties 5 101. C.J.S. Xunicipal Corporations 3 468 et seq. § 54971. Legislative body; I& agency As used in this chapter: (a) “Legislative body” means the board of supervisors or its chairman in the case of the county, or the city council or the mayor in the case of a city. (b) “Local agency” means a county or city, whether chartered or general law. (Added by Stats.1976, c. 238, p. 453, 0 1.) 610 LISTS OF LOCAL APPOINTIVE OFFICES 9 54973 Historical Note Former $ 54971, relating to district Stats.1965, c. 2043, p. 4736, $ 34. See, boundaries, was added by Stats.1957. c. now, generally, 9 56OOO et seq. 1382, p. 2715, 3 1, and was repealed by Library References Counties e38. C.J.S.Counties 3 14. Municipal Corporations e128, C.J.S. Nunicipal Corporations 4 468 et seq. § 54972. Appointmentslist; preparation; contents On or before December 31 of each year, each legislative body shall prepare an appointments list of all regular and ongoing boards, commissions, and committees which are appointed by the legislative body of the local agency. The appointees' list shall contain the fol- lowing information: (a) A list of all appointive terms which will expire during the next calendar year, with the name of the incumbent appointee, the date of appointment, the date the term expires, and the necessary qualifications for the position. (b) A list of all boards, commissions, and committees whose members serve at the pleasure of the legislative body, and the neces- sary qualifications for each position. (Added by Stats.1976, c. 238, p. 453, 0 1.) Historical Note Former 3 5-1952, relating to district Stats.lW, c. 2043, p. 4736, 8 34. See, boundaries, was added by Stats.1957, c. now, generally, $ 56ooO et sep, 1382, p, 2715, ! 1, and wag repealed by § 54973. Availabfity to public; fee public for a reasonable fee which shall not exceed actual cost. (Added by Stats.1976, c. 238, p. 453, 0 1.) The appointments list shall be made available to members of the Historical Note Former 0 54973, relating to correction and was repealed by State.1965, c. 2043, and relocation of district boundaries, was p. 4%. 9 34. See, now, generally, 9 added by Stats.1957, c. 1382, p. 2715, 8 1, 36000 et seq. Library References Counties -43. C.J.S. Counties 5 17. Municipal Corporations e149 (1). C.J.S. Municipal Corporations 9 495 et seq. 611 " .. " '2.. . a .. ,.,.-~~.:~~,~:.~~:~.. '.. ' > 5 .xt, : - " I. y~,:;-;;.,.; -.. . -. .. -. .- - "'+ c , .. . . . . .. . . *".e, I ._ -.. , .. .; f . . . . . .. - _- . ..:.. w c *3L TERNMENT CODE GOVERNMEN? ,e of coverage: notice i meering relating to oppasie tion of the Tuoiumne River , of the Tuotumne River as t invalid. 67 Ops.Atty.Gm. er t invalid. 67 Ops.Atty.Grn. tion of the Tuolumne River eking disclosure from city. (Gov. C. 5 6250 et ~4.1 of uate rate increase city grant- entitled to costs and reason- bringing writ of mandate ior Coun of State of Cal. COUR of appeal for review. C.A.3d 762. injunction; prerequi- .tion for the purpose of y of a local agency in ction. Nothing in this r correcn'ng an action ? CODE 6 54974 (Added by Stats.1986, C. 641, 6 9. A court may awa pursuant to Section violated * * * this become a personal 1 such action and the court finds that the action was us and totally lacking in merit. (Amended by Stats.1986, c. 641, Q 10.) 1986 Legislation The 1986 amendment authorized costs and fes in Notes of Decisions ! 2. Attorney few ive body prohibited 1 to have been taken in : Except as eXpreSSlY a horked by this chapter, no closed session may be held by any legislative interested person shall and clearly describe the body of any local agen . The written demand (Added by Stats.1987, d c. 1320, 6 6.) 3 days of receipt of the inform the demanding party in writing of its r takes no action within ct the challenged action. 311 commence to run the 4 54974. Unscheduled vacancy; special notice; acting basis; final appointment * receipt of the written le 3Way period to cure @ Whenever an unscheduled vacancy occurs in any board, commission, or committee for which the date the challenged the legislative body has the appointing power, whether due to resignation, death, termination, or to commence the action other Causes, a special vacancy notice shall be posted in the office of the clerk of the local agency, :tion. and in other places as directed by the legislative body not earlier than 20 days before or not later the following conditions than 20 days after the vacancy occurs. Final appointment to the board, commission, or committee shall not be made by the legislative body for at least 10 working days afkr the posting of the notice 53, 54954.2, and 54956. in the clerk's office. on&, or other evidences @ Notwithstanding subdivision (a), the legislative body may, if it fiids that an emergency exists, fill the unscheduled vacancy immediately. A person appointed to fill & vacancy shall serve only on an acting basis until the final appointment is made pursuant to this section. )tract let by competitive (Amended by Stats.1985, c. 985, 0 14.5.) dittons by amendme Asterisks 9 indicate deletions by amendment 145 CHAPTER 11. OPEN LISTS OF LOCAL APPOINTIVE OFFICES " ~-...:. .. .. .. . ' . .. . -.. .. . ;. . ._ .. . :.. ... %. .. c 0 c CITY OF CAWLSBAD 1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008 (714) 729.1 181 VI:<L‘L?dT F. BIOFJDO JR. CITY A’I”iL?,!J8 November 15, 1976 ‘1’0 THE HONORABLE YAYOR AND CITY COUTJCIL OF THE CITY OF CARLSBAD, CALIFORNIA The City Council has requested an opinion on the law which governs the appointment of members to the Planning Commiss: and to the other City boards, committees and commissions. The Council was particularly interested in the authority o! making of such appointments. the Mayor vis-a-vis that of the Council in regards to the PLANNING CO-WIISSION The provisions for a Planning Commission are contained in Chapter 2.24 of the Carlsbad Municipal Code. In particula Section 2.24.020 provides in pertinent part that, “The Planning Commission shall consist’of seven members to be appointed by the Mayor with the approval of the Council... This section adopts the essence of the same procedures tha exist at the state or federal levels where appointments ar made by the executive, subject to the advice and consent o the legislative body. In the absence of action to nominat by the executive, no appointment is possible. The legisle body has no independent authority to make appointments. I function is limited to the declining to confirm the appoir ment made by the executive. It has been held that power i a Mayor to appoint with the approval of the Council does r confer power on the Council to appoint or elect upon rejec the Mayor’s choice. (McQuillin Nun. Corp. 3rd Ed., 5 12.; citing cases from West Virginia and Pennsylvania). It ha: also been held that no reason need be given to the appoint officer for the refusal of the Council to confirm, althouc the law does require the use of good faith in refusing to confirm. Upon failure of confirmation, the appointing of’ must submit, with convenient dispatch, another nomination (Id. 5 12.87). It appears then, under the provisions of ’ Municipal Code, appointments to the Planning Commission a made by the Mayor and are effective when approved by a ma vote of the City Council. I MI 9. $1 0 0 Zlayor and City Council -2- Kovernber 15, 1 The qucstion then becornes whether or not the City Council adopt an Lli;t>:lii:qent to the ‘iunicipal Code to provide that appointments i:o the Planning Conmission be made in some ot way such as, by majority vote of the Council. That questi cannot be answered without analyzing the effect of the fac that the citizens of Carlsbad have, pursuant to Article 5 (cormencing with S 34900) of Chapter 7 of Part 1 Division of Title 4 of the California Goverment Code, chosen to dil elect their Mayor. A Nayor in a general law city is by 1; n:ember of the City Council with all the duties and powers member of the City Council (Government Code S 34903). Pr: 1971, aside from presiding at Council meetings and tradit. ceremonial duties, an elected Flayor had no more power or ity than any other member of the Council. The only diffe between an elected Mayor and one appointed by the Council the means of his selection for office. In 1971 the Legis added S 40605 to the Government Code which provides: “In general law cities where the office of Mayor is an elective office pursuant to Article 5 (commencing with 5 34900) of Chapter 7 of Part 1 of Division 2 of Title 4, the Mayor, with the approval of the City Council, shall make all appointments to boards, commissions, and committee: unless otherwise specifically provided by statute.’ Section 40605 is identical in its terms to 5 2.24.020 of Municipal Code discussed above and would appear to COIltai same broad grant of authority to an elected Mayor to makl appointments to all City boards, committees and cornissic There are, however, a number of cities with elected Mayo where some other method of appointment is used. I was ni able to locate any cases construing 5 40605, or any Atto General’s opinions, or other authority on the question. order to seek guidance’as to its interpretation, I conta League of California Cities in regards to any legislativ history that might be available in connection with its e ment. The Legal Counsel of the League of California Cities re: by forwarding copies of three letters regarding the enac of the section. The materials do not relate to the off: proceedings of the Legislature or any of its committees, they would not constitute legislative history in a lega: and would not be admissible in a Court proceedings invo an interpretation of the statute. HOW~V~~, in the abse any other authority, they can be of assistance to an at .. -. 8 0 *# Mayor and City Council -3- ?;ovcnbcr 15 , : in interpreting a statute. The first letter is from Ass( Bob Kood, who proposed the neasure, seeking advice from i J,cilt;uc on how best to proceed with legisla,tion which wou: 'I.. .strenghtcn the hand of the Mayor of general law titi( where the Mayor is designated in some fashion by the votc in flaking appointments to the various City boards, commii <lnd conmissions." The second letter from Don Benninghovcr Assenblyrnan Wood's proposed legislation to the League Bo; Directors. The third letter from Richard Carpenter, ther Executive Director and General Counsel of the League, rel that the League's Board of Directors approved the propose legislation to, "...author.ize directly elected Mayors of general law cities to make appointments to City boards, ( and comissions.n The legislative history of the sectior conclusive but it does indicate, an intent on the part 01 assemblyman who introduced the bill, to give a directly E Xayor additional powers over and above those shared by tt members of the Council. In view of the legislative histc the plain meaning of the words of the statute, and in the of any authority to the contrary, it is my opinion that t statute means what it says and that is, that the Mayor mz appointments and that the Council's role is limited to ac or rejecting such appointments, The above opinion is subject to one important qualificati that is thephrasein 5 40605 which gives the appointment to the-Mayor, "...unless otherwise specifically provided Statute." If the word "statute" can be construed broadly to include a local ordinance, then it would be possible f City Council to pass an ordinance that all appointments be made upon the majority vote of the City Council. If t "statute" refers to state law, the City Council would not to pass such an ordinance unless authority for it could b elsewhere in the state law. A leading authority on municipal law states that: "While the term 'ordinance' has been used in variou senses, the term is generally used, in this country to designate a local law of a municipal corporation Certainly an ordinance is a local law or rule presc by a municipal government for application within it jurisdiction. Indeed an ordinance has been said to in a broad sense a statute. Strictly speaking, how ordinances are not, in the constitutional sense, pu laws, but are merely local regulations or by-laws, operating in a particular locality.'' (McQuillin Mu Corp. 3rd Ed. S 15.01). relating to the corporate affairs of the municipali .. ' tn @ @ 14.lyor and City Council - 4- TJovmbcr 15, 19 quillin's in's view has been carried forward in the statutor: fr;iInc:v.ork of California vihich begins with the provisions ( ~rti.cle 11, 5 7 of the California Constitution, which enpl ,I county or city to make and enforce within its limits a1 local police, sanitary and other ordinances and regulatio: not in conflict with general laws. On the other hand, thc 1.egislative power of the people of the state is vested by 'The Legislature, in carrying out this power, acts by#mean statutes, which are laws of general application. (Calif0 Constitution, Article 4, S 8). It has been held that the Charter of the City of Los Angeles is a "statute" within 1 Code 5 1622 regarding oral contracts. Frick v. City of LI 115 Cal. 512, 47 P. 250 (1896). However, the general rull to be tF.at the term 'Istatute" is a legal term of art, whil to the written enactments of the State Legislature (Code 1 Procedure § 1897). In my opinion, the term "statute" in refers to acts of the State Legislature and not to City 0: Therefore, the City Council may not amend S 2.24.020 to c: the Mayor's S 40605 appointment authority unless that act. be taken pursuant to some other provision of state law. :ire must now determine whether or not there is any state 1; would give the Council the authority to adopt an ordinanct Thange the method of appointing Planning Commissi-ons. Thc to that question lies in the laws which provide for a Pla~ Commission. Government Code § 65100 requires that the Cii .Touncil, by ordinance, establish a planning agency. Such Article 4, § 1 of the Constitution in the California Legi .. .. rnay be a Planning Department, a Planning Commission, or tl '. *,. . legislative body itself, or any combination thereof. Tht -. *&,_I . :::; ;,* *c , . Commission the City's planning agency for most purposes. .4r; >.:<$$.%,.. *-<?,,>..;- . ;.-:. * Commissioners because there wouldn't be any Commission. i ,g4.- ::+.?&:,;--<. Government Code S 65150 which provides for the compositioi . <- ., " - ->..., of Carlsbad has, by ordinance, elected to make the Plannil Se possible for the City Council to assume those function! .. ' .. *>;; I : . ~ >?... . . '.,@,,:. .--?:?. ,,?-, .; -; Vt. -.c_ 3- ,:. :..?: Such an action would solve the problem of who appoints P1; . .. ,. ' the Council isn't ready to take that step, we are left wii Planning Commission as follows: "When a County or City Planning Commission is createc the organization thereof, the number of members thert their terms of office and the method of their appoini and removal, shall be as provided by local ordinance provided, however, that each County or city Planning Commission shall have at least five (5), and not mort nine (9) , members. 'I (emphasis added) . 1s previously discussed, Government Code S 40605 provides the Mayor makes appointments with the approval of Council .I , . 'i& "CTT ,....>. .. I . &~;~:..;. '. . .dP4 :: .. . 'I a @ Mayor and City Council -5- PJovenber 15, 1s unless, "...otherwise specifically provided by statute." Government Code S 65150 is without question a statute and contains a specific grant of authority to a City to provic by ordinance, for the method of appointment and removal 01 Planning Comnissioners. It is my opinion that the Legis: has, by virtue of S 65150, in fact otherwise specifically provided by statute for the appointment of Planning Commir ers. Therefore, if the City Council desires to make appo: to the Planning Commission it will be necessary to amend Section 2.24.020 of the Xunicipal Code to so provide and ! would provide the authority for such action. APPOINTPENT OF BOARDS, CObfi-tITTEES APJD CO"XI~~I~1J~ The City Council's request for an opinion was primarily d: to the Planning Commission but it seemed to me to be advi: to also discuss the status of appointments to other City I committees and commissions. Pursuant to 5 40605, as disci above in this opinion, the Mayor would have the power to ? all these appointments unless state law authority can be : to the contrary. The discussion which follows draws on Mr. Lilley's report, as updated by the City Manager's off and focuses primarily on the bodies created by ordinance. Library Board of Trustees: The Library Board of Trustees established by Chapter 2.16 of the Carlsbad Municipal Cod( an advisory body to the Council on Library. affairs. Sect. 2.16.005 provides that the Board shall be, "...appointed 1 the Mayor, ... with the consent of the legislative body of municipality." There is no state law authority for any C' in the method of appointment. Park and Recreation Commission: The Park and Recreation CI is established pursuant to Chapter 2.36 of the Carlsbad M Code as an advisory body on park and recreation matters. Section 2.36.020 provides that its members are appointed the Mayor with the approval of the Council. There is no law authority for any change in the method of appointment this commission. Traffic Safety Commission: The Traffic Safety Commission established by Chapter 2.28 of the Carlsbad Municipal Cod an advisory body to the City Council on traffic matters. Section 2.28.030 provides that members of this Commission are appointed by the Xayor with the consent of the City C There is no state law authority for any change in the met of appointment of members to this Commission. .. 0 . " I Yayor and City Council -6- Sovember 15, 15 "" Personnel Board: The Personnel Board is established pursl Chapter 2.44 of the Carlshad Municipal Code. The Board ht dvises the City Manager and hears appeals rs and advises the city Council. Section ; that the members of the Personnel Board are appo: ncil. Section 2.44.026 establishes a prqei such appointments. When a vacancy occurs, tbe es and solicits nominations from each recoc ization. The Manager then meets with fhe e1 d attempts to reach an agreement 0n.a lis. s fcr each vacancy for submittal to the C Council. The Ciky Council must appoint from the.,agreed 1 the event no agredqent is reached, all nominatidns made b: the Yanager and the'kmployees' groups, not eliminated by ' % list. There are no stah law provisions regarding the ap] to this Board. However:,k,he Municipal Code does provide ( appointment procedure that"'-i,s at variance' with the power ( Mayor to make appointments pbrsuant to ,Government Code 5 In the event of a conflict of ~qhis tyge, the state law mu; prevail. It is my opinion then> notwithstanding the prov of the Municipal Code, appointments. to the Personnel Boar1 be made by the Mayor, with the con&e.nt of the Council, an1 Municipal Code should be amended accordingly. The presen. appointment procedure .for this Board was the result of th( acceptance by the Mayor and the Council of a compromise p' developed through negotiations between City Management anc Employees' associations. The ordinance should not be cha! without consulting with the employees' associations. How( I think that changes are required to bring it'..into accord Section 40605. If the Mayor and Council wish to maintain the methqd of a: ment currently in the Code, it is my reconmendation'..>.that adopted as a Council policy. The Mayor could agree, 3s a of that policy,e'to appoint the individual produced by khe nomination process. In effect, the Mayor would agree th, a portion ,d his nomination responsibilities to the City and ernplg9ees' groups in accord with the current process. Advisory and Appeals Board: The Advisory and Appeals Boar Code to hear certain appeals of decisions of the Director Building and Housing pursuant to the Building Code. Sect 18.36.020 provides that members of this Board are appoint the Mayor, with the approval of the Council. There is no law authority for any change in the method of appointment this Board. 4%& agreement, is submittq to the Council who must appoint f: */ established pursuant to Chapter 18.36 of the Carlsbad Mun I. ’3 II) 4B Flayor and City Council -7- Novcmber 15, 1976 Housing . . -. - - ”” Commission: The Housing Commission is established pursLlant to Chapter 2.40 of the Carlshad Nunicipal Code. : The Conmission Section 2.40.0 Flayor, with co members of the which is over California Hea by ordinance. VI Building Authority: The Building Authority is a creation joint powers agreement between the City of Carlsbad and t? County of San Diego. Section 3 (b) of that agreement pro\ that members to this Authority are appointed by the City ( subject to the approval of the Board of Supervisors. In I opinion, the provisions of the agreement can be interpretc avoid any conflict with the Mayor’s power under Governmen, Code S 40605. I am satisfied that the appointment by the with confirmation of the City Council, would constitute a: appointment by the City pursuant to S 3 (b) which, in any must be confirmed by the. Board of Supervisors. Carlsbad Parking Authority: The Parking Authority exists to the Parking Law of 1949 and was activated by City COUn Resolution No. 1264. Pursuant to Streets and Highways Ca appointments of members to the Parking Authority are made !layor with the approval of the City Council. Joint Advisory Committee - Encina: The Joint Advisory CC for Encina also exists pursuant to a joint powers agreeme Section 17.2 of that agreement provides that the City is represented on the Committee by two individuals appointee the governing body. Again, I believe, the same interprel I discussed in regards to the Building Authority can app: :* 0 e '8 Mayor and City Council -a- Xovember 15, 1 Committee and that appointment by the Mayor, with confirma by the City Council, constitutes appointment by the govern body for purposes of the agreement. Other Boards, Committees and Commissions: There are a num other bodies created, primarily by resolution, which advis City Council. The najority of the resolutions provide for appointment by the Mayor, with the approval of the Council is consistent with state law. There are s,everal that do n Unless the Council directs otherwise, it-is not my intenti analyze each of these advisory bodies in detail. None of are creatures of or reflect state law, and are solely crea of the City Council. In that case, the method of their aF mcnts would be controlled by S 40605 regardless of any otI- provisions to the contrary. I think it is sufficient for Council to be aware of this fact and as appointments to ar these bodies are before the Council, the City Manager can, the same time, present any necessary corrections to the resolutions or other records of.the City in regards to the method of appointment. -__ APPOINTMENT OF CITY COUNCIL MEMBERS This opinion has not discussed the matter of appointments boards, committees and commissions where the City must be represented by a member of the City Council. The Council traditionally handled these appointments by proceeding as committee of the whole to make nominations after which a t is taken. Unless the Mayor or City Council desire furthel on this matter, I am satisfied that the Council may contir make these appointments as they have in the past. APPOINTMENTS POLICY The Council is aware of the recent amendments to the Brow1 which have complicated the cities' appointment procedure. have responded to the change by proceeding to make appoini pursuant to an informal understanding of an unwritten pol: The Council'may wish to consider a more formal approach wl I recommend take the form of a written Council policy. I1 regard, I have attached copies of the policies of the Cit] San Diego and the City of Vista as a beginning point for * Council's consideration of the matter. If the Council de to give this aspect of the problem any further considerat office can obtain additional information and will offer a necessary assistance in developing a policy for Carlsbad. .. 0 .t Mayor and City Council -9- November 15, 19 CONCLUSION " As stated previously there are cities, some in this Count with elected Mayors where, despite s 40605, all appointme are made by majority vote of the City Council. Consideri the variance in practice among cities, and in the absence any case authority, I must admit that the matter admits t some doubt. However, I am satisfied that.the Legislature intend to give elected Mayors additional power by the ena of S 40605 and it is my advice that we follow the ?lain m of that section. VINCENT F. BIONDO, JR. City Attorney VFB/mla Attachment . .- " - ~. 'a =- 'i 0 CI1 Y or ZJ.~{ I.O ,,G, t:~l.t~ c,. CO\I[<C'IL r-'oI-lcy. .; I'cv. "_" .. ""_"""" --__ ;L,U JCC7 """.""_"" _." JI:r]-;;*; - -. k - - GL1r.Y - . . . . " - . " . . - ~i~~~1~~!:~~~ For!, FLtcLyCT: ;aJTn CO:,':;CII, :ti'?(] 2 t.;'r:.!F:N'rS 00'3- 13 . - -. " . - " - - - . - . - - . " . -. . .""" ."""" ""_____.""_- - . - __ -. . . - . . "_ -. - - -. I I'i.::IIOsF: - .- . . . - _. - - I It is the i:~~c1~t~c;:~ of t?le City Counc'S.1 to cst~LI.j.sS~a unifon:l proccd 8 >?oi,l~tn~nt 2nd CD;I~~.IT~~~O:I of i~~~~,~)c~s of coc';zlL;S1Cns, ~OZL-~S, comi I t, -. auti~~ori:i.es; c:ist.l-icts and co~nc5.1 s;. YQ!,TCY t;'Ilcn a vaczncy occurs on a. cozzzission or zdvisory EKI?~ to which the .P. TZR~LI~I oE the vzcancy withia ri reasonz-;>ie pericxi ~Ztcr ~112 vac'lllcy oc re.ques?: m:s:!intcs for his conslderztion in making an zppointz.cnt to fj vac~.ncy. SLter due considerztion of sclch noarnecs, &lye I.!ayor- shall c placed on the next zvzila'r:le Keferral Lgcnda of a. rqplarly sc?ledulcc ncetlng docket rhe matter of revitk. by the Rules Ct.rnittee of the Col appoini-cc 'ne has selected to fill the vxancy. The kles Com,,lttze .: and Lxke a recoxziendation tc the full Coancil as to confirmaLion OI ' app3intc-e. The appointee shall, if a ruajoriq of tke Xules Comittec "- PVJC:T of ali>OinLDent, the ?:LYO~ shall no';ify each r-czber of L~IC CO~~C t ' requcst, appar before the Co:mittee, I When-a vscancy occ;Irs or is expcctcd to occur on a conissioiz or rdv to 1:hich the Cit-y Counci-1 112s the pmet of appoint-nt, the city CI.C notify each mm3rr of the Council ?q- ncaorendurn of sclch vacancy or e vaczncy 2nd rcqzest all Council ncsbcrs to sGSIi1Lt zaes to the &yor crndi.dates, togekher with any infornation in support of such candida the vacancy no latcr thza 30 days after said cotiffcation, .Alter du ation of all suggested czndidzrrcs thc Yzyor shall mcm-elid a nonine the charge contained in Charter Scctioll &2 to "take into consiSer2ti and gcczrzphical are2 so tSat the nercbership of such comissions, bc tees or pnels shall reflect tke entire cCtmnity." The Hayor shal: City Council, by eemarzndurn, of the nominee recoAmm6ed to fill the earlier than one week after the issuance of his aezorandurn the Kay01 to be ylzced on the nest availajie Referral Agenda a€ a regularly st Council meeting t5e matter of discussion by the Rules CoEdtree of 1 If, during thc one week period after the Nayor's mormdum notifyir of the nominee is sent, a Council nemSer wishes to hawe considered i th,e Council member may do so by notifying the Nayor in writing. Thc cause to be pl.ixced on the next avnilab3.L Referral Aged2 of a regul Council ceeting the matter of discussion by the k~les Comnittcc of nomincc(s). "hr. Ru2es Comittec shall. consider all such nominces a ncndnticm to the full Council as to an appoinknt to fill the v I I Adopccd by Rcsolution No. 205rr53 4/27/72 hcndcd by !:csolu::ion KO. 207141 1!2/73 hvcndcd by RcsoLution' No. 215960 5/12/76 'I ** -e a. 17 ca~ .a _' I * .. . i 2 'I 3 4 5 6 7 8 ,9 10 11 12 13 14 15 16 17 18 19 i 20 21 .. 22 0. 23 24 25 26 27 28 29 50 31 32 r 0 ! I i I I 1 I I I I i WSOLIJ'I'ION KO. 7 6- /lj A IlFSO:,UTION OF Ti!€ CT'I'Y COUNCIL 013 I'IIE CITY CALIi.'O!C<IA, CK?:~>'L'IXG .?\X APPO:[i;T~I?;t<:TS COI.:;*IT.'1'1 CITY C0ii:U'CIL I.)!D Pi?OV.tDING FOR ITS DUTIES AN "."_ AYD PROCEDUPSS FOR CGXDUCT OF ITS BLTSTN ~__"- The City Council of the City of Vista, Calif ' resolvcs as follows : Section 1. There is hereby created. a comit Council conposed of two (2) members of the City Cou by the City Council and known as the "Appointments Section 2. The duties of the Appointments C include the following: (a) The preparation and recommendation Council .approval of public announcement bull cribing positions on boards, commissions and the City of Vista which are subject to the a power 05 the City Council, describing requir appointment, desirable qualifications, dutie : .. appropriate information. (b) The Committee shall establish time and evaluate applications, interview candida recomnendations to the City Council with reg positions on boards, commissions and committ . subject to the appointment power of the Citl .. (c) Preparation and approval of applic for such positions. Section 3. The Committee may call upon the and appropriate department heads to consult with ar the performance of its duties. Section 4- The appointment procedure nttacl marked Exhibit A, and incorporated herein as if sei is hereby approved and shall govern the City Counc: 1rnenc.s Committee in the matter of appointments to br l I I1 7 I. “ 1 ~ L 1 2 3 4 5 6 7 8 ‘9 .I 0 li 12 13 14 15 16 17 18 19 a 20 21 22 23 24 25 26 27 . -. 28 29 30 31 32 I@ m ~nct coiisnittccs subject to tllc appointr:lcnt po;dcr of PIiSSED r”..XD A!)3iTED by the City Council of tl Califo;:nid, at ~l recju1a.r meeting thereof held OII ti ( 1976, by ,the followi.ng roll c; AYES : COL$!CIJ1.:EN : IlOES : COUlICIL!.iEN : ABSE!JT: CObi?CIUJZN : LLOYD D. TRACY, I.iak ATTEST : “ JEAN BROOKS, City Clerk . . .. . APPROVED AS TO FORM @e:sg..bL& AUG A? 1976 PAUL 8. PRESSMAN . . . . . -. - - - ,, . CITY ATTORNEY -2- -. ,'I . . . _< L .. 0 f CITY OF VISTA - ;"e - CITY CO!JNCII; APPOIF;Tl4ZNT PROCEDURE ""_~ ""_ 1, The PAppoinfments Cornittee shall cause publicatj wide dissernination of public announcement bulletins descr anticipated vaca.ncics at least 45 days before such vacanc bulletin shall set forth a time for the closing of filinc least 20 days after the first announcement of the availat the position. ljo person shall be consiGertd for appointr; has not completed and filed with the City Clerk an applic form approved by the Appointments Committee by the closir 2. After the closing of filing, the Appointments Cc shall review and evaluate all applications and shall intc applicants which it deems most worthy of consideration. Appointments Committee shall take"into consideration the which applicants meet the requirements established by thc and have desirable qualifications for the position, as WE considering the existing make-up of the board, commissior committee to which they are applying to insure that broac tion of differing views is secured. 3. Upon completion of its review, evaluation and ir .of candidates, the Appointments Committee shall forward x to each member of the City Council seeking ccraents thz2-E 4. Each member of the City Council shall forward tc Appointments Committee his or her comments on the Comrnitt recommendation forthwith. Any member of the City Council after transmittal of the Committee's recommendations shal to have agreed with the Appointments Committee's' recomer: 5, After the lapse of said one week period, the APE Committee shall arrive at its final recommendations to tk Council, and forward same to the City Clerk for placement agenda of the next regular Council meeting. fail to communicate with the Appointments Committee withi .. 6. At the next regular Council meeting, the City Cc make appointments in accordance with the Appointments Con recommendations, or if not satisfied with same, it can tk interview other candidates, appoint other'persons from an applicants, refer the matter back to the Appointments COR further study and report, or take any other appropriate E it deems wise. 7. After appointment, the Appointments Committee sk letters to be sent to the unsuccessful applicants express appreciation for their interest. , EXHIBIT A .. CITY COMMISSION ADOPTED 6-75 PURPOSE To establish a procedure to serve as a guide in making appointments to City Commissions. BACKGROUND From time to time vacancies occur on various City Commissions due to expiration of regular appointments and resignations. These advisory commissions provide valuable input in the de- cison making process and are created partly to provide great- er public participation. This policy was developed to expand the opportunity for community members to sene, POLICY A11 interested individuals shall be given an opportunity to submit applications for vacancies on City Commissions. Incum- bent Connnissioners will not automatically be reappointed but ' will also be required to submit applications for the impending vacancy. An exception to the above policy will be when the incumbent Commissioner was appointed to fill an unexpired term and the Commissioner has served for less than one year in that position. In this case the Council may reappoint the Incumbent without considering other applicants. When Commission vacancies occur the following procedure shall be followed: .. 1. A public announcement of the. vacancy shall -be made. Interested individuals will be invited to submit applications for the vacancy on a form provided by the City. 2. Applications will be reviewed by the entire City Council-and selected applicants will be invited to be interviewed by the entire City Council. EXH - -. ./) 1 0 e June 21, 1988 TO : CITY CLERK FROM: Mayor Bud Lewis May I please have a response from you outlining the City's policy and procedures in accepting applications for appointment to various Boards and Commissions. I would like clarification on the timing of appointment situation for the vacancy on the Planning Commission. Is there a policy on the time to submit applications? Is there a policy when the situation of a deadlock on applicants is reach, how are other applications solicited/accepted for consideration? Who determines and authorizes publishing "vacancy notices" in the newspaper? Thank you for your help in clarifying the above information for me, and for any other information you feel is pertinent. subflitting such applications, Le, the recent /' 4 ,' // ; & ;*24/ J2447 'CLAUDE A. a~~~ll LEWIS Mayor cc: City Manager E)( - .$ I) m ., 9 5 r June 22, 1988 TO : MAYOR LEWIS FROM: City Clerk APPLICATIONS FOR APPOINTMENT TO BOARDS, COmISSIONS AND CWITTEES In response to your memo dated June 21, 1988 inquiring about the City's pr and procedures concerning appl ications , I hope the following i nforrnation assist. I will address each of your questions separately. Quest ion: Is there a po7icy on the time to submit applications? Answer: There is no written policy concerning applications. In the f citizens with no application on file have been appointed to sc Our current practice is as follows: Applications for appointn to all boards, commissions and committees are accepted in the Clerk's Office on every business day. It. does not matter whe there is a vacancy or not. Applications are accepted; distrib to Council Members; placed in the file; then attached to agenda b when a vacancy occurs on that board, commission or committee. Question: Who determines and authorizes pub7 ishing vacancy not ices in newspaper? Answer: The Government Code has specific regulations which must be fol1 concerning vacancies which occur on city boards, commissions committees. Every year, the City Clerk's Office prepares a list of all vacan which will occur on all boards, commissions and committees for calendar year. In accordance with provisions of the Government C that list is published. The Clerk's Office makes the determina on which newspapers to use for that publication. To assist Cou in their efforts of reaching a high number of citizens, we gener publish this list in the Blade Tribune, La Costan and Carl Journal. Additionally, advertisements requesting applications are place the newspapers prior to the term expiration in an attempt to gene citizen interest. When an unscheduled vacancy occurs on a board, commission committee (such as the recent Planning Commission vacancy) different section of the Government Code regulates our actions. these instances, the Government Code has specific requirem concerning timing of when the appointments can be made, and it requires public posting of the vacancy. 0 s ? rll * ; 4 I Once again, to assist Council in their efforts of encouraging cit participation, we advertise a Notice Inviting Applications r2 than posting the notice in our office where it would not be : These ads are placed in the B1 ade Tribune, La Costan and Car' Journal. In all instances, a deadline is set for receipt of applicat This deadline is merely an aid for us in preparation of the ac, bills. All applications received prior to the deadline distributed to Council and then attached to the agenda bill Council consideration. Applications received after the dead1 in( still distributed to Council; however, deadlines do not allow L attach copies of those applications to the agenda bill. This not mean that Council cannot consider those applications. Dead1 are merely used to assist us in preparation of the agenda bill I hope this provides the information that you need. If not, please let me E City m"p%"!kz?7 Clerk dP c: City Manager c crl @ 4y I.,<.* /- A b June 27, 1988 TO : Mayor and City Council FROM : City Attorney LAW APPLICABLE TO TEE APPOINTMENT OF CITIZENS TO CARLSBAD'S BOARDS AND COMMISSIONS This memorandum is to discuss the law that governs the c Council's appointment of citizens to Carlsbad's boards commissions. Prior to 1975 there was no state law which regulated appointmer In that year, the Brown Act was amended to change the establis by limiting the "personnel" exception to employees. The Cour may recall the difficulty they experienced in discussing qualifications of competing candidates in public. The only ot applicable state law is Chapter 11 of the Brown Act which enacted in 1976 (California Government Code Sections 54970 practice of discussing a citizen's qualifications in closed sess ... . .. . seq.). A copy is attached as Exhibit A. :- ., I <-. '.. ..::.. ... Chapter 11 is a notice provision. The legislative findings ,_^ : .I -,"khat the general public has lacked access to information about .. <. . ..<..: : opportunity to serve, 'I.. .thereby denying most citizens I .. . .. -- - .. ., ".. ~ . .. . .. ..~~ .. . -. ._" .. -> . . .. -. -I r interest groups an opportunity to nominate . . .I' (Section 5497 - . ., . " The legislative solution to this ltprobleml' was to require c .. councils, before the end of each year, to prepare a list " . . ". . possible appointments for the coming year to all the City's boa and commissions, @I.. .which are axmointed bv the lesislative bod (Section 54972). The list must be made available to members of public for a reasonable fee not exceeding the actual cost (Sect 54973). Our City Clerk goes a little further in order to be I that we are fully complying not only with the letter of the law the legislature's intent by publishing this list in the newspar These statutes are directory and not mandatory. A failure compile the list would not affect the validity of any appointn the City Council might make. The only provision of Chapter which limits the Council's appointment power is Section 54974 wk requires unscheduled vacancies to be posted in the Clerk's ofi not earlier than 20 days before nor later than 20 days after E vacancy. The City Council's may not fill such a vacancy until least ten days after the notice is posted. There is no other st law that regulates appointments which are traditionally handlec California as a matter of policy and politics as the City COUI considers appropriate. e m P What little state law there is applies to council appointmen The situation in a general law city with a directed elected ma is different. Section 40605 of the Government Code provides, II .. .The mayor, with the approval of the City Council, shall make all appointments to boards, commissions and committees unless otherwise specifically provided by statute.I1 The legislative history of this section makes clear that purpose of the law was to give a directed elected mayor additic Although the City Clerk includes all vacancies on her list Chapter 11 requirements may not apply to the Mayor's appointmer The question of the power of the mayor in regard to appointme vis-a-vis that of the council has been raised in Carlsbad in past in connection with a vacancy on the Planning Commission. that regard, attached A is an opinion dated November 15, 1 addressing this subject (Exhibit B). Prior to 1976 the mayor made planning commission appointments along with all of the ot appointments in the City. The opinion concluded that if the C Council wished to make appointments to the planning commissior could by an amendment to the municipal code do that since Sect 65150 of the Government Code provided that members of the planr commission should be appointed by the city council. The Cour did in fact amend that section of the code. After 1976 the mz continued to make most of the appointments to boards, commissj and committees however, the Planning Commission was handled determined appropriate by majority vote of the City Council. The opinion also discussed the appointing power for other boz and commissions. The Council acted in response to the opinior amend the municipal code to give all available appointn authority to the Council.. Appointment procedures were claril for the personnel board to recognize the Mayor's authority to n that appointment and the municipal code section regarding Housing Commission was amended to allow appointment by the ( Council. The opinion concluded with comments on the way in which the ( Council had been making its appointments by recognizing that Council had acted '#...pursuant to an informal understanding oj unwritten po1icy.I' The opinion suggested that the Council mj wish to consider a more formal approach in the form of a wril council policy. Samples from the City of San Diego and Citl Vista were attached as a beginning point for the Council. The ( Council took no further action in response to the opinion continued to act without any written ordinance or policy. inquiry at the last meeting of the San Diego County City Attornc Association indicates that most of the cities continue to ope] powers over and above those shared by other members of the counc 2 0 m like Carlsbad with only a few having a written policy, Attac as Exhibit C is an additional example from El Cajon. A question was raised at a recent council meeting if appointment to the Planning Commission of an individual who had submitted an application was legally appropriate. At that ti limitation on the Council's ability to make that appointn describing the existing application procedure as "folklore. W 7 was not intended as a facetious remark but rather the 1 characterization I knew of the situation. There is no state 1 no ordinance, no written policy and no consistently appl unwritten policy governing the way in which the City Council mz appointments. In most cases, appointments are the responsibil of our directly elected mayor and are handled in accord with mayor's discretion. In many cities with directly elected mal appointments are made strictly on the basis of political patron: There is no formal application process relating to any partict vacancy. The City Clerk's office uses an application form wk is available to members of the public. It has been her practice placing vacancies on the agenda to include any applicatj previously on file or which have been received up until council meeting. There is no date to stop taking applications no closing date. Applications once submitted are kept on fj The l'folklore*' often results in the mayor's making a "nominatj to the Council by announcing his intention to appoint a particc individual giving the Council and the public a week or two to rc and to possibly interview the individual. That, however, is always the case. In some situations, the mayor has simply made appointment or reappointed an incumbent. Sometimes his nominati have come from those that have applied and in some cases they k not. The application process was used by our mayors to make process more open to members of the public but there is no E legal requirement. The City Council makes Planning Commiss appointments. The process for that has varied and its historq similar to that for the Mayor's appointments. The City C1 posted the most recent vacancy and that satisfied all applice legal requirements. If individuals are concerned about the Cit appointment procedure, their concern is a matter of policy and legality. The mayor, by memorandum of June 21, 1988 has asked the City C1 some questions regarding the appointment process (Exhibit D). has replied in a memorandum dated June 22, 1988. She confirms understanding that the process is essentially an informal applied on an ad hoc basis (Exhibit E). There was one question in the Mayor's memorandum which she did answer and that had to do with what happens in the event a ''deadlock". The council in the exercise of its "advice consent" role may decline to approve the mayor's appointment. I advised the council, that in my opinion there was no 16 3 0 m that case no appointment can be made and it is up to the mayor submit a different name, It is possible, as happens at the st or national level, that the appointing authority will continue submit nominees until one is confirmed by the legislative bc There is no legal limit or constraint on that process which essentially a political and policy exercise within the discret of the elected city officials. It is, therefore, possible fo vacancy to go unfilled for an extensive period of time in absence of an acceptable compromise between the mayor and counc Council appointments such as the Planning Commission, takes th and it is possible for the seat to remain open as a result of failure of the Council to agree. On one occasion, I can recall Council each nominated an individual and then each Council per was allowed to vote for two people with the Council having 'lagre that the person with the highest number of votes would then appointed. Each council member's first choice reflected nomination they had made. After the vote for the respective sec choices had been tabulated one individual had more votes t anyone else and the Council then made the decision to appoint k In another instance, the Council had made a number of nominatj and narrowed them down by voting for one or two with an infor agreement to eliminate those receiving the least number of vc until the field had been narrowed down to two or one. A "deadlc would mean the vacancy would continue until the Council was eit able to change its mind, arrive at a compromise or find some ot way of resolving the conflict. Please let me know if you need any further information or advj /I VINCENT F, BIONDO, JR. City Attorney rmh attachments 4 .I - 7 I \ Title 5 I Div. 2 LISTS OF LOCAL APPOINTIVE OFFICES 9 54 ction. Benderson of Ed. (1978) 144 375. applicability ence, or other ,f any person, I I may be required by the federal government as a condition to participation. (Added by Stats.1965, c. 753, p. 2175, !j 1, eff. June 29, 1965.) 142 U.S.C.A. 0 2701 et seq. 1 Library References Municipal Corporations @XI7 et seq. C.J.S. Municipal Corporations $ seq. ationil origin, agency as de- l Chapter 11 OPEN LISTS OF LOCAL APPOINTIVE OFFICE 54970. Legislative findings and declaration. 54971. Legislative body; local agency. 54972. Appointments list; preparation; contents. 54973. Availability to public ; fee. 54974. Unscheduled vacancy; special notice : acting basis ; fin; pointment. 54975. Appointments of public and alternate members of local a formation commission; special vacancy notice. 54976. Renumbered. 54977 to 54979. Repealed. Chapter 11, added as Chapter 10 by Stats.1976, c. 238 p. 453, 8 1, was renumbered Chapter 11 and amended b3 Stats.1979, c. 373, p. 1320, 5 166. AWtM chdpkr 11, “Municipal ~er~ices and Func, bered Chapter 12 and amended by Stats.1980, c. 676, p. 1929 Another Chupter 11 , Antipoverty Program, Participa tion, added by Stats.1965, c. 753, p. 8275, 0 1, editorially clas. sifM as Chapter 9.5, was renumbered Chapter 10 am ammded by Stats.1979, c. 373, p. 1320, f 165. see 0 54965 t-7 added by StatS.1978, C. 960, p. 2961, 8 1, W~S rm~m. 3 54970. Legislative findings and declaration (a) The Legislature finds and declares that a vast and la untapped reservoir of talent exists among the citizenry of the of California, and that rich and varied segments of this great hl resource are, all too frequently, not aware of the many opportu Which exist to participate in and serve on local regulatory and z OrY boards, commIss1ons, and commlttees. 609 § 54970 CITIES, COUNTIES, ETC. Title 5 (b) The Legislature further finds and declares that the general public of this state has traditionally been denied access to informa- tion regarding vacancies which occur on such boards, commissions, and committees, thereby denying most citizens and interest groups the opportunity to nominate for consideration by the respective ap- pointive powers persons whose particular strengths, backgrounds, ex- perience, perspective, and talents might contribute significantly to effi- cient and representative policy development and administration in lo- cal government. (c) The Legislature further finds and declares that the respec- tive local appointive powers have been denied access to a talent re- source hitherto untapped. (d) The Legislature further finds and declares that all citizens of the state, regardless of their place of residence should have equal access to specific and current information about the many local regu- lating and advisory boards, commissions, and committees and equal opportunity to be informed of vacancies which shall occur thereon, so that they may pursue the opportunity to participate in and contribute to the operations of local government by serving on such boards, commissions, and committees. (e) It is therefore the intent of the Legislature that this chapter shall apply to all cities and all counties throughout California, includ- ing charter cities and charter counties. (Added by Stats.1976, c. 238, p. 453,s 1.) Historical Note Section 2 of Stats.19’76, c. 238, p. 453. Former 3 2970, relating to district provided : boundaries, was ndded by Stats.1957, C. “This act shall be known and may be 1%2, p. 2715. 5 1, and was repealed by cited as rile Maddy Locnl Appointive List Stats.1965, c. 2043, p. 4736, 5 34. See, Act of 1975.” now, generally, 3 560oO et seq. Library References Counties -62. Municipal Corporations -128. C.J.S. Counties $ 101. C.J.S. ,Municipal Corporations 0 468 et seq. § 54971. Legislative my; I& agency As used in this chapter: (a) “Legislative body” means the board of supervisors or its chairman in the case of the county, or the city council or the mayor in the case of a city. (b) “Local agency” means a county or city, whether chartered or general law. (Added by Stats.1976, c. 238, p. 453, 0 1.) 610 TI Tr Div. z LISTS OF LOCAL APPOINTIVE OFFICES 8 54973 Historical Note Former Q 54971, relating to district Stats.1965, c. 2043, p. 4736, 3 34. See, boundaries, was added by Stats.1957, c. now, generally, 3 56000 et seq. 1382, p. 2715, i 1, and was repealed by Library References Counties ~2~38. C.J.S.Counties 8 74. Municipal Corporations -128. C.J.S. Municipal Corporations $ 468 et seq. Q 54972. Appointments list; preparation; contents On or before December 31 of each year, each legislative body shall prepare an appointments list of all regular and ongoing boards, commissions, and committees which are appointed by the legislative body of the local agency. The appointees’ list shall contain the fol- lowing information: (a) A list of all appointive terms which will expire during the date of appointment, the date the term expires, and the necessary qualifications for the position. (b) A list of all boards, commissions, and committees whose members serve at the pleasure of the legislative body, and the neces- sary qualifications for each position. (Added by Stats.1976, c. 238, p. 453, 0 1.) next calendar year, with the name of the incumbent appointee, the Historical Note Former 5 51972, relating to district Stats.1965, c. 2043, p. 4736. Q 34. See, boundaries, was added by Stats.1957, c. now, generally, 5 5t?QOO et seq. 1382, p. 2713, Q 1, and was repealed by § 54973. Availability to public; fee public for a reasonable fee which shall not exceed actual cost. (Added by Stats.1976, c. 238, p. 453, 0 1.) The appointments list shall be made available to members of the Historical Note Former 3 34973, relating to correction and was repealed by Stats.1965, c. 2043. and relocation of district boundaries, was p. 4136, 5 34. See, now, generally, 8 added by Stats.1957, c. 1382, p. 2715, 3 1, 56000 et seq. Library References Counties -43. C.J.S. Counties 5 77. Municipal Corporations -149(1). C.J.S. Municipai Corporations 5 495 et seq. 611 1: ‘ II -- I__ I_” - _. ..- . ....., __ ~ERNMENT CODE GOVERNMEN T CODE m )e of coverage: notice meeting relating to opposi- tion of the Tuoiumne River of the Tuolumne River as invalid. 67 0ps.Atty.Gen. er t invalid. 67 Ops.Atty.Gen, tion of the Tuolumne River eking disclosure from city, (Gov. C. 8 6250 et scq.) of uate rate increase city grant- entitled to costs and reason- bringing writ of mandate ior Court of State of Cal. court of appeal for review. C.A.3d 162. injunction; prerequi- I :tion for the purpose of j y of a local agency in ction. Nothing in this ; r correcting an action ; interested person shall I to have been taken in and clearly describe the 3 days of receipt of the I inform the demanding party in writing of its I takes no action within ct the challenged action, all commence to run the i receipt of the written le 3IMay period to cure the date the challenged to commence the action :tion. the following conditions 53, 54954.2, and 54956. ‘onds, or other evidences rtract let by competitive lditions by amendm ! L. The written demand subsequent action to cure or corn or admissible as evidence of a viola by Stats.1987, c. 1327, 9 2.) 4 54960.5. Costs and attorney fees (Amended by Stats.1986, c. 641, 9 10.) 1986 Legislation fees under that act. Co Dist.1983) 195 Cai.Rptr. v. Stirling (App. 4 agency”. Notes of Decisions 2. Attorney fees CHAPTER 11. OPEN LISTS OF LOCAL APPOINTIVE OFFICES ” 8 54974. Unscheduled vacancy: special notice: acting basis: final appointment (aJ Whenever an unscheduled vacancy occurs in any board, commission, or committee for which the legislative body has the appointing power, whether due to resignation, death, termination, or other causes, a special vacancy notice shall be posted in the office of the clerk of the local agency, and in other places as directed by the legislative body not earlier than 20 days before or not later than 20 days after the va&cy occurs. Final appointment to the board, commission, or committee shall not be made by the legislative body for at least 10 working days after the posting of the notice in the clerk’s office. (bJ Notwithstanding subdivision (a), the legislative body may, if it finds that an emergency exists, fill the unscheduled vacancy immediately. A person appointed to fill @ vacancy shall serve only on an acting basis until the fial appointment is made pursuant to this section. (Amended by Stats.1985, c. 985, 4 14.5.) Asterisks indicate deletions by amendment 145 I -mu .. .. , e 0 CITY OF CARLSBAD 1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008 (714) 729-1 181 VI:bCLXT F. RIO!4DO JA. CITY A'iTCGt4EY Novenber 15, 1976 '1'0 rXE HONOQABLE NAYOR AND CITY C0U:JCIL . OF THE CITY OF CARLSBAD, CALIFOXNIA The City Council has requested an opinion on the law whicl governs the appointment of members to the Planning Cornmiss and to the other City boards, committees and commissions. The Council was particularly interested in the authority ( the Mayor vis-a-vis that of the Council in regards to the making of such appointments. PLANNING CO-WIISSION The provisions for a Planning Commission are contained in Chapter 2.24 of the Carlsbad Municipal Code. In particul Section 2.24.020 provides in pertinent part that, "The Planning Commission shall consist of seven members to be appointed by the Mayor with the approval of the Council.. This section adopts the essence of the same procedures tk exist at the state or federal levels where appointments a made by the executive, subject to the advice and consent the legislative body. In the absence of action to nomina by the executive, no appointment is possible. The legis1 body has no independent authority to make appointments. function is limited to the declining to confirm the appo: ment made by the executiye. It has been held that power a Mayor to appoint with the approval of the Council does confer power on the Council to appoint or elect upon rejc the Mayor's choice. (McQuillin Nun. Corp. 3rd Ed., S 12 citing cases from West Virginia and Pennsylvania). It h also been held that no reason need be given to the W?oi officer for the refusal of the Council to confirm, altho the law does require the use of good faith in refusing t confirm. Upon failure of confirmation, the appointing 0 must submit, with convenient dispatch, another nominatio (Id. $3 12-87). It appears then, under the provisions of Municipal Code, appointments to the Planning Commission made by the Mayor and are effective when approved by a n vote of the City Council. E * m Xayor and City Council - 2- November I! The question then becomes whether or not the City Count ac?,opt an a:cncirnent to the “Tunicipal Code to provide thi nppointncnts to the Planning CoaniSSiOn be made in somc way such as, by majority vote of the Council. That qut cannot be answered without analyzing the effect of the that the citizens of Carlsbad have, pursuant to Articlc (cormencing with S 34900) of Chapter 7 of Part 1 Divis of Title 4 of the California Government Code,choscn to elect their Mayor. A Flayor in a general law city is b: rrember of the City Council with all the duties and pow member of the City Council (Government Code S 34903). 1971, aside from presiding at Council meetings and trac ceremonial duties, an elected Nayor had no more power 1 ity than any other member of the Council. The only di the means of his selection for office. In 1971 the Lec added S 40605 to the Government Code which provides: between an elected Mayor and one appointed by the Counl ”In general law cities where the office of Mayor is an elective office pursuant to Article 5 (commencing with S 34900) of Chapter 7 of Part 1 of Division 2 of Title 4, the Mayor, with the approval of the City Council, shall make all appointments to boards, commissions, and committc unless otherwise specifically provided by statutc Section 40605 is identical in its terms to S 2.24.020 t Municipal Code discussed above and would appear to con. same broad grant of authority to an elected Mayor to rn‘ appointments to all City boards, committees and commis. There are, however, a number of cities with elected Ma: where some other method of appointment is used. I was General‘s opinions, or other authority on the question order to seek guidance’as to its interpretation, I con League of California Cities in regards to any legislat history that might be available in connection with its ment. The Legal Counsel of the League of California Cities r by forwarding copies of three letters regarding the en of the section. The materials do not relate to the of proceedings of the Legislature or any of its committee they would not constitute legislative history in a leg and would not be admissible in a Court proceedings inv an interpretation of the statute. However, in the abs any other authority, they can be of assistance to an a able to locate any cases construing S 40605, or an? At e m Mayor and City Council - 3- PTovernber 15, 1 in interpreting a Statute. The first letter is from Assc Bob ~ood, who proposed the neasure, seeking advice from t J,,cac;uc on how best to proceed with legisla,tion which woul "... strenghtcn the hand of the Mayor of general law citic where the Mayor is designated in some fashion by the vote in making appointments to the various City boards, commit and conmissions." The second letter from.Don Benninghovcr Assenblyman Wood's proposed legislation to the League Bo; Directors. The third letter from Richard Carpenter, ther Executive Director and General Counsel of the League, rei that the League's Board of Directors approved the propose legislation to, "...authorize directly elected Mayors of general law cities to make appointments to City boards, ( and comissions." The legislative history of the sectior conclusive but it does indicate, an intent on the part ol assemblyman who introduced the bill, to give a directly < Mayor additional powers over and above those shared by tl members of the Council. In view of the legislative histc the plain meaning of the words of the statute, and in thf of any authority to the contrary, it is my opinion that 1 statute means what it says and that is, that the Mayor mi appointments and that the Council's role is limited to a( or rejecting such appointments. The above opinion is subject to one important qualificat: that is thephrasein S 40605 which gives the appointment to the -Mayor, 'I.. .unless otherwise specifically provided to include a local ordinance, then it would be possible : City Council to pass an ordinance that all appointments be made upon the majority vote of the City Council. If ' "statute" refers tostate law, the City Council would not to pass such an ordinance unless authority for it could I elsewhere in the state law. A leading authority on municipal law states that: Statute. 'I If the word "statute" can be construed broadl: "While the term 'ordinance' has been used in vario senses, the term is generally used, in this countr to designate a local law of a municipal corporati0 relating to the corporate affairs of the municipal Certainly an ordinance is a local law or rule pres by a municipal government for application within i jurisdiction. Indeed an ordinance has been said t in a broad sense a statute. Strictly speaking, ho ordinances are not, in the constitutional sense, p laws, but are merely local regulations or by-laws, operating in a particular locality." (McQuillin M Corp. 3rd Ed. S 15.01). * 0 f4.lyor and City Council -4- PJovcmbcr 15, 13' :.jcQui.11in's view has been carried forward in the statutor] fr,;mc:<ork of California which begins with the provisions ( /?rti.cle 11, S 7 of the California Constitution, which enpc ,I county or city to make and enforce within its limits al' local police, sanitary and other ordinances and regulatio not in conflict with general laws. On the other hand, thl 1.cgislative power of the people of the state is vested by Article 4, S 1 of the Constitution in the California Legi 'The Legislature, in carrying out this power, acts by mean statutes, which are laws of general application. (Calif0 Constitution, Article 4, S; 8). It has been held that the Charter of the City of Los Angeles is a "statute" within Code S 1622 regarding oral contracts. Frick v. City of L 115 Cal. 512, 47 P. 250 (1896). However, the general rul to be tkat the term "statute" is a legal term of art, whi to the written enactments of the State Legislature (Code Procedure S 1897). In my opinion, the term "statute" in refers to acts of the State Legislature and not to City c Therefore, the City Council may not amend 5 2.24.020 to c the Mayor's S 40605 appointment authority unless that act he taken pursuant to some other provision of state law. We must now determine whether or not there is any state 1 Thange the method of appointing Planning Commissions. Tt to that question lies in the laws which provide for a Pla Commission. Government Code § 65100 requires that the Ci Touncil, by ordinance, establish a planning agency. Suck would give the Council the authority to adopt an ordinanc ,' .. rnay be a Planning Department, a Planning Commission, or t '. *.. . legislative body itself, or any combination thereof. TI .1 ' Zommission the City's planning agency for most purposes. . <- ..e - of Carlsbad has, by ordinance, elected to make the Planni Se possible for the City Council to assume those functior Commissioners because there wouldn't be any Commission. the Council isn't ready to take that step, we are left W: Government Code S 65150 which provides for the compositic 2lanning Commission as follows: ' .- . *.. ::. ,. *.*j I* '. ,+ r- ., ';..sf ' ; ..+-:. , *. +$$&%A<. id 'A .,: ,;$ p+* Such an action would solve the problem of who appoints PI 'When a County or City Planning Commission is creatc the organization thereof, the number of members the: their terms of office and the method of their appoi: and removal, shall be as provided by local ordinancl provided, however, that each County or city Planninl Commission shall have at least five (S), and not mo nine (9) , members. 'I (emphasis added) . 1s previously discussed, Government Code S 40605 provide '... the Mayor makes appointments with the approval of Counci '>..+ , &G,&*. .. , . ai:>::Y'7, 1) m Mayor and City Council -5- FJovernber 15, 19 unless, I*. . .otherwise specifically provided by statute." Government Code S 65150 is without question a StatUte 2nd contains a specific grant of authority to a City to provid by ordinance, for the rnethod of appointment' and removal of Planning Commissioners. It is my opinion that the Legis1 has, by virtue of S 65150, in fact otherwise specifically provided by statute for the appointment of Planning Cornmis ers. Therefore, if the City Council desires to make appoi to the Planning Commission it will be necessary to amend Section 2.24.020 of the Yunicipal Code to so provide and 4 would provide the authority for such action. APPOINTPENT OF BOARDS, C0MI"lITTEES AEJD CO.WIISSIOr?S The City Council's request for an opinion was primarily di to the Planning Commission but it seemed to me to be advis to also discuss the status of appointments to other City 1 committees and commissions. Pursuant to s 40605, as disc1 above in this opinion, the Mayor would have the power to I all these appointments unless state law authority can be : to the contrary. The discussion which follows draws on Mr. Lilley's report, as updated by the City Manager's off and focuses primarily on the bodies created by ordinance. Library Board of Trustees: The Library Board of Trustees established by Chapter 2.16 of the Carlsbad Municipal Codt an advisory body to the Council on Library affairs. Sect: 2.16.005 provides that the Board shall be, "...appointed 1 the Mayor, ... with the consent of the legislative body of . municipality." There is no state law authority for any c in the method of appointment. Park and Recreation Commission: The Park and Recreation C is established pursuant to Chapter 2.36 of the Carlsbad p? Code as an advisory body on park and recreation matters. Section 2.36.020 provides that its members are appointed the Mayor with the approval of the Council. There is no law authority for any change in the method of appointment this commission. Traffic Safety Commission: The Traffic Safety Commission established by Chapter 2.28 of the Carlsbad Municipal Coe an advisory body to the City Council on traffic matters. Section 2.28.030 provides that members of this Commissior are appointed by the Xayor with the consent of the City ( There is no state law authority for any change in the me1 of appointment of members to this Commission. * a ?layor and City Council -6- November 15, 19 " Personnel - Board: The Personnel Board is established pursc Chapter 2.44 of the Carlshad Municipal Code. The Board hc 1 matters and advises the City Council. Section 2 that the members of the Personnel Board are appoj Council. Section 2.44.026 establishes a pro,e'E ch appointnents. When a vacancy occurs, tiie s and solicits nominations from each &COG ation. The Manager then meets with ,fhe en nd attempts to reach an agreement oq'a lis1 Council. The Ciky Council must appoint from the,.agreed 1: the event no agre&qFnt is reached, all nominatidns made b! the Nanager and thekmployees' groups, not eliminated by 1 agreement, is submitt+ to the Council who mu'st appoint fl '*% list. There are no stah law provisions regarding the apl to this Board. HoweveE, the Municipal Code does provide i appointment procedure that'".is at variance with the power ( Mayor to make appointments pbrsuant to Government Code 5 In the event of a conflict of '<his tyge, the state law mu prevail. It is my opinion then,\.,notwithstanding the prov of the Municipal Code, appointments.to the Personnel Boar1 be made by the Mayor, with the conknt of the Council, an llunicipal Code should be amended accordingly. The presen appointment procedure for this Board was the result of th acceptance by the Mayor and the Council of a compromise p developed through negotiations between Ci.ty Management an1 Employees' associations. The ordinance should not be cha without consulting with the employees ' associations, HOU I think that changes are required to bring it',..into accord Section 40605. If the Yayor and Council wish to maintain the metbqd of a ment currently in the Code, it is my recornmendation":qhat adopted as a Council policy. The Mayor could agree,'qs a of that policy,r to appoint the individual produced by '+e nomination prdcess. In effect, the Mayor would agree t& a portion pf his nomination responsibilities to the City and empl&ees' groups in accord with the current process I Advisory and Appeals Board: The Advisory and Appeals Boa] established pursuant to Chapter 18.36 of the Carlsbad Mu] Code to hear certain appeals of decisions of the Directo! Building and Housing pursuant to the Building Code. SeC. 18.36.020 provides that members of this Board are appoin' law authority for any chanqe in the method of appointmen this Board. dvises the City Manager and hears appeals s for each vacancy for submittal to the C: 4.r \ ,A the Mayor, with the approval of the Council. There is nc (I) m. Mayor and City Council -7- Xovtnbcr 15, 1976 Housing Commission: The Housing Commission is established pursuant to Chapter 2.40 of the Carlsbad Municipal Code. '1 ecall that the membership of this Commission ord with recent amendments to the state 1; . """ "- an advisory body to the City Council. Fayor, with conf 'I.. .the number of rnem hereof, their terms of their appointment and rem shall be as provided by ordinance. " and the method of an amendmer Building Authority: The Building Authority is a creation joint powers agreement between the City of Carlsbad and tl County of San Diego. Section 3 (b) of that agreement pro' that members to this Authority are appointed by the City 1 subject to the approval of the Board of Supervisors. In : opinion, the provisions of the agreement can be interpret avoid any conflict with the Mayor's power under Governmen Code S 40605. I am satisfied that the appointment by the with confi-mation of the City Council, would constitute a appointment by the City pursuant to S 3 (b) which, in any must be confirmed by the Board of Supervisors. Carlsbad Parking Authority: The Parking Authority exists to the Parking Law of 1949 and was activated by City Cour Resolution No. 1264, Pursuant to Streets and Highways C( appointments of members to the Parking Authority are madc .Flayor with the approval of the City Council. Joint Advisory Committee - Encina: The Joint Advisory CC for Encina also exists pursuant to a joint powers agreem Section 17.2 of that agreement provides that the City is represented on the Committee by two individuals appointe the governing body. Again, I believe, the same interpre I discussed in regards to the Building Authority can app w m Mayor and City Council -8- November 15, l! Committee and that appointment by the Mayor, with confirma by the City Council, constitutes appointment by the govern body for purposes of the agreement. Other Boards, Committees and Commissions: There are a num other bodies created, primarily by resolution, which advis City Council. The majority of the resolutions provide for appointment by the Mayor, with the approval of the Council is consistent with state law. There are s.evera1 that do r Unless the Council directs otherwise, it is not my intenti analyze each of these advisory bodies in detail. .None of are creatures of or reflect state law, and are solely creE of the City Council. In that case, the method of their aF mcnts would be controlled by S 40605 regardless of any ot? provisions to the contrary. I think it is sufficient for Council to be aware of this fact and as appointments to ar the same time, present any necessary corrections to the resolutions or other records of the City in regards to thc method of appointment. "P these bodies are before the Council, the City Managa can! APPOINTMENT OF CITY COUNCIL M2MBERS This opinion has not discussed the matter of appointments boards, committees and commissions where the City must be represented by a member of the City Council. The Council traditionally handled these appointments by proceeding as committee of the whole to make nominations after which.a is taken. Unless the Mayor or City Council desire furthe on this matter, I am satisfied that the Council may conti make these appointments as they have in the past. APPOINTMENTS POLICY The Council is aware of the recent amendments to the Brot which have complicated the cities' appointment procedure, have responded to the change by proceeding to make appoir pursuant to an informal understanding of an unwritten pol The Council'may wish to consider a more formal approach I I recommend take the form of a written Council policy. : regard, I have attached copies of the policies of the Ci; San Diego and the City of Vista as a beginning point for Council's consideration of the matter. If the Council d to give this aspect of the problem any further considera office can obtain additional information and will offer necessary assistance in developing a policy for Carlsbad @ a Mayor and City Council - I .9- November 15, 19 CONCLUSION " As stated previously there are cities, some in this Count: with elected Mayors where, despite S 40605, all appointme: are made by majority vote of the City Council. Consideri. the variance in practice among cities, and in the absence any case authority, I must admit that the matter admits ti some doubt. However, I am satisfied that.the Legislature intend to give elected Mayors additional power by the ena of S 40605 and it is my advice that we follow the plain mi of that section. VINCENT F. BIONDO, JR. . .. City Attorney VFB/mla Attachment " -' i clr CO~IKCIL rJol-Icyb 0, 1'C.v. CI1 Y VT ;r,rr 1.11 "G. CAI.11 <*I' I " _. .. "__"_""" --- 5I.,!JJCCl " ""."_"" -." r .-.-,-. I .;, ~, I o1.Ic.y fiU'.'.ll1:R ".. ". .. ." -.-..- 'p{;()Z,:,TJ!:i:; FuIt ~~~fbL~O~, ia.[:p CO:,';;CT1, ;2i'i'i3!'.;'~:.!T:N'TS 009- 13 1 5/1 . - . - .--. - - - . -. - - . ". -. _" "."" ."""" """"__""."- --.--.-"" " ."" y'i.:i:KlzE - - . -.. " " ~t j.s the j.:~tt~xt~uc:~ of tile C~L? ~ounc'j.1 to c5td1Ii.~%~ uniforr:l proccdl appo;.~?t~~.:cnt 2nd conixr-;=atio:1 of ;nd,crs of cor.xi.;sicns, bozrds, comi axCl>oriPFts; dist.3-icts and council S. -. YfJLI-CY tlllcn a \*.ac~.ncy occcrs OIL a cozxission or advisory tm?y to wfiich the .I: PU.JC~ of zpi>ointccnt, thc ?:r+yor shall nozifjr each r-r.&er of rhc Count randm of the \'tcailcy with1.n 3. reasozejie pcrioci ;:Ctclr ti1-c: vac;':llcy 02 request zoxi.nccs for his consj-derztion in mkinz an appoint~.cnt to ff vaczncy. ALter due considcrztion of stich noxTneeS, tT:e I-kyor- shall ( placer! ox the next: a-dzilz-?:le Reicrral PAenda of a rqplarly sclledulec ncctlne, docket the matter of re.vim by the Rules C2mittee of the Col appointee 'ne has selected to fill the vacancy, TIle hfes Com,ittze.: and mke a recozzzndation fc tho, full Cozncil as to coafirrnztion oE 1 appsintee. The appoixtec shzll, if a niajoriq of the Rules Comittt "- ' request, sppmr before the Comittee, When- 3 v~cancy occars or is expected to occur c.n a comission or edv to vhich the City Council has the pwer of appointEnt, the City Clc notify each m;.m3tr of the Council bl- ncaorendun of suck vacancy or e vacxcy 2nd reqzest all Council ncsbers to si;br:.?tt zaes to the Nayor ca-didates, toge:her with zny information in support of such candide the vacancy 30 later thm 20 days after said cotiffcation, fFfter dr: at ion of all suggested cadidates thc &yor shall Ecm-erid a norninc the charge contsked in C'nartcr Sectioc 42 to "take into considtrzt. and gcoSrzFhical area so tht, the mtrc5ership of such comlssions, bc tee; or panels shall reflect tke entire ccmnity." The Mayor shal' City Council, by cezDrzndua, of the noainee recornseed to fill the earlier than one week after the issuance of his xearzndum the ?layo. to be placed on the nest availzbie Referral Agenda 5€ a reguiarly s Council meeting t5e matter of discussion by the Rules Comitrec of If, during thc one week period af ttr the Playor's raez~orandum natifyi of the nominee is sent, a council member wishes to hme considered cause to bc pl.zced on the next availablk Referral (rgendz of a rep! Council ceeting the matter of discussion by thc Rules Cornittee of nomincc(s). Thc Rules Cornittee shall. considcr a21 such noninces : , the Council member may do so by notifying the Nayor in writing. Th i ncndntion to the full Council as to an appoinent to fill the 1 1 Adopccd by Resolution No. 205rt53 4/27/72 hcndcd by EcsoluLion KO. 207141 1/2/73 h.ncndcd by 1;csol.ution' KO. 2159GO 5/12/76 I I I n I? rot .. . P , m < 3.1 wsoI,rj'rIoN KO. 7G- 1~3 2 3 e 5 1 I I A w;so;,unoN OF THE CITY COIJNCIL 01.' THE CITY I CALIi.'O!C<IA, CF<?;?\'rI!<G AN AF"OIi;T>I!.t~'l'S cO~~S.lI'i''~~ CI'i'Y COU3CIL I.i!D PROV.tDING FOR ITS DUTlES I?Nl AYD PROCEDUPXS FOR CGNDUCT OF ITS BUSTN I i ""- "_" I I The City Council of the City of Vista, Calif I 6 resolvcs as follows: I 7 Section 1. There is hsreby created a cormit 8 by the City Council and known as the "Appointments 9 Council composed of two (2) nembers of the City COU 10 include the following: 11 Section 2. The duties of the Appointments C .=i (a) The preparation and recommendation 13 Council .approval of public announcement bull 14 15 cribing positions on boards, commissions and the City of Vista which are subject to the a b - 16 '1 power of the City Council, describing requir appointment, desirable qualifications, dutie l7 I 18 : .. appropriate information. 19 and evaluate applications, interview candid? 20 (b) The Committee shall establish time -. 21 22 0. 23 24 25 recommendations to the City Council with res positions on boards, commissions and committ . subject to the appointment power of the Cit) .. (c) Preparation and approval of applic for such positions. 26 28 and appropriate department heads to consult with a1 27 Section 3. The Committee may call upon the Section 4- The appointment procedure attacl 29 the performance of its duties. SO marked Exhibit A, and incorporated herein as if se' 31 lis hereby approved and shall govern the City Counc I 32 men,-.s Committee in the matter of appointments to b I *. -. 1 2 3 4 5 6 7 8 .9 10 11 12 13 . . -. 14 15 16 17 L 18 19 20 21 22 23 24 .. 25 26 27 28 29 31) 31 32 * m 11 2nd co;;znittccs zubjcct to tl~c appointment powcr of 1 i PASSED 1".. .I<D A!)3i'Tk:D by the City Council of ttl California, at il rccjulsr meeting thcrcof held 0x1 th < 1976, by ,the followi-ng roll ca AYES : COL!CI.TI.:EN : ?lOES : COUI.ICIL!,iEN : ABSENT: COUigCIUEEN : LLOYD D. TRACY, May ATTEST : 3 JEAN BROOKS, City Clerk . , .. . 1 1 APPROVED AS TO FORM 1 C. @.E.-&& _". AUG A 1976 PAUL BI PRESSMAN * . . CITY ATTORNEY -2- *. w i --m , =LA VL 1 A"_'& CITY CO!JNCIL APPOINT;4ENT PROCEDURE ""_~"" 1, The 7.ppointnents Conmittee shall cause publicati wide dissemination of public announcement bulletins dcscr anticipated vaca.ncies at least 45 days before such vacanc '. bulletin shall set forth a tixe for the closing of filing least 20 days after the first announcement of the availat the position. Iu'o person shall be consic2ered for appointr; has not completed and filed with the city Clerk an applic form approved by the Appointients Committee by the closir 2. After the closing of filing, the Appointments Cc shall review and evaluate all applications and shall intc applicants which it deems most wor-thy of. consideration. which applicants meet the requirements established by the and have desirable qualifications for the position, as WE considering the existing make-up of the board, commissior committee to which they are applying to insure that broac tion of differing views is secured. . ~ . __. Appointments Committee shall take-into consideration the 3. Upon completion of its review, evaluation and ir -of candidates, the Appointments Committee shall forward x to e.?ch menber of ths City Council seeking ccrments there 4. Each member of the City Council shall forward tc recommendation forthwith. Any member of the City Council fail to communicate with the Appointments Committee withj after transmittal of the Committee's recommendations shal to have agreed with the Appointments Committee's'recommer L Appointments Committee his or her comments on the Committ 5. After the lapse of said one week period, the APE Committee shall arrive at its final recommendations to tk agenda of the next regular Council meeting. .. Council, and forward same to the City Clerk for placement .. 6. At the next regular Council meeting, the City CC make appointments in accordance with the Appointments Cor recommendations, or if not satisfied with same, it can tl interview other candidates, appoint other 'persons from x applicants, refer the matter back to the Appointments Cor further study and report, or take any other appropriate i e it deems wise. 7, After appointment, the Appointments Committee SI letters to be sent to the unsuccessful applicants expres: appreciation for their interest. EXHIBIT A , .. (. . CITY OF EL CAJON CITY COUNCIL POLICY ADOPTED 6-75 t I 1 PURPOSE To establish a procedure to serve as a guide in making appointments to City Commissions. *I BACKGROUND From time to time vacancies occur on various City Commissions due to expiration of regular appointments and resignations. These advisory commissions provide valuable input in the de- cison making process and are created partly to provide great- er public participation. This policy was developed to expand the opportunity for community members to serve. I POLICY 1 All interested individuals shall be given an opportunity to submit applications for vacancies on City Commissions. Incum- bent Commissioners will not automatically be reappointed but ' will also be required to submit applications for the impending vacancy. An exception to the above policy will be when the incumbent Commissioner was appointed to fill an unexpired term and the Commissioner has served for less than one year in that position. In this case the Council may reappoint the Incumbent without considering other applicants. When Commission vacancies occur the following procedure shall be followed: 1. A public announcement of the. vacancy shall -be made. Interested individuals will be invited to submit applications for the vacancy on a form provided by the City. 2. Applications will be reviewed by the entire City Council and selected applicants will be invited to be interviewed by the entire City Council. I , €XI w 0 June 21, 1988 TO : CITY CLERK FROM: Mayor Bud Lewis May I please have a response from you outlining the City's policy and procedures in accepting applications for appointment to various Boards and Commissions. I would like clarification on the timing of submitting such applications, i.e. the recent appointment situation for the vacancy on the Planning Commission. Is there a policy on the time to submit applications? Is there a policy when the situation of a deadlock on applicants is reach, how are other applications solicited/accepted for consideration? Who determines and authorizes publishing "vacancy notices" in the newspaper? Thank you for your help in clarifying the above information for me, and for any other information you feel is pertinent. J // 4 // ,' fvy i ,.*4/ Aj5447 CLAUDE A. s~~~ll LEWIS Mayor cc: City Manager E) * m ’. June 22, 1988 TO : MAYOR LEWIS FROM: City Clerk APPLICATIONS FOR APPOINTMENT TO BOARDS, COmISSIONS AND COmITTEES In response to your memo dated June 21, 1988 inquiring about the City’s PI and procedures concerning applications, I hope the following information assist. I will address each of your questions separately. Question: Is there a policy on the time to submit applications? Answer: There is no written policy concerning applications. In the citizens with no application on file have been appointed to s Our current practice is as follows: Applications for appoint! to all boards, commissions and committees are accepted in the Clerk’s Office on every business day. It does not matter wh there is a vacancy or not. Appl ications are accepted; distri to Council Members; placed in the file; then attached to agenda when a vacancy occurs on that board, commission or committee. Question: Who determines and authorizes pub7 ishing vacancy notices il newspaper? Answer : The Government Code has specific regulations which must be fol concerning vacancies which occur on city boards, commission, committees. Every year, the City C1 erk’s Office prepares a 1 i st of a1 1 vaca which will occur on a1 1 boards, commissions and committees for calendar year. In accordance with provisions of the Government that list is published. The Clerk’s Office makes the determin on which newspapers to use for that publication. To assist Ca in their efforts of reaching a high number of citizens, we gene publish this list in the Blade Tribune, La Costan and Car Journal. Additionally, advertisements requesting applications are plac the newspapers prior to the term expiration in an attempt to ger citizen interest. When an unscheduled vacancy occurs on a board, commissic committee (such as the recent P1 anning Commission vacanc: different section of the Government Code regulates our action! these instances, the Government Code has specific requirc concerning timing of when the appointments can be made, and il requires public posting of the vacancy. E I * m Once again, to assist Council in their efforts of encouraging cit participation, we advertise a Notice Inviting Applications ra These ads are placed in the Blade Tribune, La Costan and Carl Journal. In all instances, a deadl ine is set for receipt of appl icati This deadline is merely an aid for us in preparation of the a< bills. All applications received prior to the deadline distributed to Council and then attached to the agenda bill Council consideration. Applications received after the deadl in1 still distributed to Council; however, deadlines do not allow I attach copies of those applications to the agenda bill. This not mean that Council cannot consider those applications. Dead' are merely used to assist us in preparation of the agenda bil' I hope this provides the information that you need. If not, please let me I than posting the notice in our office where it would not be s City dfii"%2-7 Clerk dP c: City Manager