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HomeMy WebLinkAboutMinutes - December 12, 2017 SMLODI CITY COUNCIL SPECIAL CITY COUNCIL MEETING CARNEGIE FORUM, 305 WEST PINE STREET TUESDAY, DECEMBER 12, 2017 A. Call to Order / Roll Call The Special City Council meeting of December 12, 2017, was called to order by Mayor Nakanishi at 7:02 a.m. Present: Council Member Chandler, Council Member Johnson, Council Member Kuehne, Mayor Pro Tempore Mounce, and Mayor Nakanishi Absent: None Also Present: City Manager Schwabauer, City Attorney Magdich, and City Clerk Ferraiolo B. Regular Calendar B-1 Adopt Resolution Expressing City Council’s Intention to Initiate Procedures for Establishing and Implementing By-District Elections for City Council Members Pursuant to Elections Code Section 10010 (CA) City Attorney Magdich provided a presentation regarding resolution of intention to initiate procedures for establishing and implementing by-district elections for City Council Members pursuant to Elections Code Section 10010. Specific topics of discussion included letter from the Mexican American Legal Defense and Education Fund (MALDEF) asserting that Lodi's at-large election system results in Latino vote dilution and prevents them from electing candidates of their choice; voluntary conversion from at-large elections to by-district elections; similar letters throughout the State of California; dozens of cities going through a similar process; explanation and description of at-large and by-district elections; and no evidence included in the letter from MALDEF. In response to Mayor Pro Tempore Mounce, Ms. Magdich explained that staff reviewed voting records from the last 10-year period that showed voters in predominantly Latino voting precincts vote differently than the City at large, which demonstrates a difference in how Latinos vote; however, it does not show that they or other minorities cannot be elected to City Council. She stated MALDEF's letter has no evidence to support this; it only states that a complaint was received. Ms. Magdich further explained that the bar for the California Voting Rights Act (CVRA) is lower than the Federal Voting Act and, if it is determined a city has racially-polarized voting, it will result in litigation and significant costs and payment of attorney fees. To date, no city in California has won a CVRA challenge. She used the City of Palmdale as an example of a city that paid $4 million to challenge the matter, only to ultimately lose and convert to district elections. In further response to Mayor Pro Tempore Mounce, Ms. Magdich stated she does not anticipate the annual cost of running elections will be different for a by-district system. Ms. Magdich continued with her presentation and covered topics including adoption of resolution of intention to start the path of converting to by-district elections; the need to contract with a demographer for mapping process and community outreach; initial 45-day safe-harbor provision that protects cities from litigation while deciding whether or not to convert; process to hold five public hearings, the first of which will be December 20, 2017, and the last on February 21, 2018, to finalize the map, outline the districts, and take action setting forth sequencing of the election; staggered process to allow current Council Members to finish out their terms; costs paid by other cities, such as Modesto and Palmdale, to unsuccessfully litigate the matter; commencement of the 90-day safe-harbor period following adoption of the resolution of intention, which allows the City to move forward with the process without exposure to litigation; potential legal expenses to be captured by MALDEF capped at $30,000 as per legislation; fiscal impact estimated at roughly $100,000, which includes costs associated with a demographer, 1 election consultant, interpretation and translation services, and outside counsel, if necessary; and associated costs charged to the City Clerk's election budget and paid for by savings from unfilled positions. Ms. Magdich confirmed that this meeting notice was published in the Lodi News- Sentinel in both English and Spanish. Council Member Kuehne suggested that, during this process, the City also consider changing to an at-large elected mayor. Ms. Magdich stated that roughly 180 cities converted to by-district elections and some elect a mayor at-large and council members from districts, while most general law cities elect a mayor among the council members from the districts. She stated staff will look into the process. Ms. Magdich further explained that the first two public hearings will be to discuss and receive input on what the district should look like, but maps will not be drawn until after the first two public hearings. The public is highly encouraged to participate in the process, and the demographer will have software available to the public to assist in drawing maps for submittal to Council. All of the maps will be scrutinized to ensure they meet legal requirements, which may result in some maps being discounted. At the third and fourth public hearings, the maps will be discussed and posted to the City's dedicated website. Council Member Johnson stated he highly supports public input for this and any process; however, he expressed concern that citizens may not participate adequately. Ms. Magdich responded that cities are mandated to conduct public outreach and seek input. All of the associated reports will be posted on the City's website; the meetings will be televised; and the demographer will perform community outreach meetings to encourage greater public participation. She added that communities of interest, geographic barriers, dividing areas, and school districts are just some of the things that will be considered when drawing the map. Mayor Pro Tempore Mounce expressed hope that the individual she believes filed the complaint with MALDEF will participate in the process. Council Member Chandler questioned the legitimacy of the motives behind the complaint and expressed hope that citizens understand Council is taking this action under duress. He stated he is opposed to changing to a by-district election system; however, this is being forced onto the City. He pointed out the lack of attendance at the meeting, despite the call for public input and participation. Ms. Magdich shared that the State was fully aware when it adopted the CVRA that this would open cities to litigation because the intent of the Bill was to force cities to move to district elections. There is a law firm in Southern California that mails these letters on a regular basis to cities and has been successful in its efforts. MALDEF sued two cities, one of which was Anaheim. Cities that changed from at-large to by-district elections experienced no change in the make-up of their councils, with the exception of Anaheim, which went from one Latino council member to two after the change to district elections. In response to Mayor Pro Tempore Mounce, Ms. Magdich stated that Ms. Mounce had the higher vote count of citizens in the precinct consisting of her neighbors and that they vote differently than the balance of the city. Based on the numbers and assuming there is a district encompassing part of the Heritage District, it is likely she would still receive a majority of the vote. Mayor Pro Tempore Mounce pointed out that currently she is the only one running in that area. Ms. Magdich stated that in drawing maps there must be a balance of population among the districts and some will have a heavy voter turnout, while others will not. The MALDEF letter states that 20.6 percent of Lodi's citizens of voting age are Latinos; however, that does not mean 20.6 percent of Latinos vote. She stated that part of this process involves working with citizens during the transition to get them more engaged in local elections and politics. In response to Council Member Johnson, Ms. Magdich stated the City of Poway received a similar letter in May 2017 and moved forward to convert to district elections, after which the former mayor brought a lawsuit against the city and the attorney general challenging that the CVRA was unconstitutional. This litigation is being funded by a conservative think tank from Virginia and is pending in the US District Court in San Diego. It is relatively early in this litigation, and no action has been taken on the motion filed by the plaintiffs to stay the CVRA, which would 2 in essence put a hold on the law until the case is decided. This entire process could take two to five years depending on the number of appeals, as well as the appetite and willingness of the Virginia firm to continue to see it through. Mayor Nakanishi stated he believes this move is wrong for Lodi and all cities because municipal government should be non-partisan, Lodi has a small population, and small groups of people living in one area would control the City. This change will obscure the vote, but the City is being forced to move in this direction under fear of litigation. He would prefer to fight this effort, but the risk is significant. Ms. Magdich stated the estimated cost of litigation is $1 million. Mayor Nakanishi stated that, if this issue moves forward, he too would like to consider a mayor representing the City at large. Ms. Magdich stated that the City of Stockton had a hybrid version, in which there were district elections in the primary election with the top two candidates running against each other in a run-off election. That election system was challenged and now Stockton has by-district elections and will soon be revisiting its map because it is under threat of challenge that the districts do not represent a balanced community. Ms. Magdich stated there is an option to take the question of by-district elections to the voters; however, the City could subject itself to a lawsuit from now until the November election. Additionally, if voters reject the by-district option, the City could still be open to litigation. She stated that cities who have gone that route were sued, even though citizens voted against the change, and were ultimately forced to convert to by- district elections using maps drawn by the court after spending a significant amount of money defending the matter. The law was changed in order to allow cities to convert to by-district elections by ordinance, along with the safe-harbor provisions, to save cities the cost of litigation. Ms. Magdich cautioned that, if the City took this question to the voters and they voted it down, it is highly likely the City will be challenged, forced to convert to by-district elections, and lose control over drawing its own map. One city had a similar issue that was compounded by the fact that the newly-elected council members could not be seated because the election to convert to by-district elections was under question. This city did not have a majority of council to make decisions and carry on with business. Mr. Schwabauer added that Lodi's election in 2018 is for three seats and it would be detrimental if the City could not seat three members of its City Council until the outcome of the election is determined. He stated that he is opposed to the by-district election system and understands why at-large elections are predominate in local governments because municipalities were not meant to be political or driven by local politics. He pointed out the difficulty in fighting a law that was created to work against municipal governments, adding the City has very little choice in this matter. Mayor Pro Tempore Mounce countered that it is political to run for office and she believes certain segments of the community control at least three members of this Council, that it has been that way for decades, and that districts will not break up that control. In any event, she agreed the City is not in the position to spend money defending this threat of litigation and she would rather spend a million dollars on resolving the homelessness issue and other matters of importance. Mayor Nakanishi stated again that this law is being forced upon the City and that citizens should be upset about it. Personally, he prefers to fight it, but as a Council Member he understands the decision must be looked at fiscally. In the scenario mentioned earlier of potentially three Council Members not being seated as a result of a failed measure to go to district elections, Mayor Nakanishi stated he would feel comfortable with the two remaining Council Members, Johnson and Mounce, continuing to run City business in the interim. Mr. Schwabauer pointed out that two Council Members do not constitute a quorum and it takes three votes to pass Council actions. Two Council Members would leave the City deadlocked. Ms. Magdich added that the City Manager's contract authority is $20,000; therefore, purchasing and contract authority above that threshold could not occur, which would leave the City stymied. Mayor Nakanishi suggested the City's ordinance could be amended to give the City Manager greater power to run the City. He summarized that he is not in favor of by-district elections, he would like citizens to make the decision on whether to move forward or not, and if the City moves in this direction, it should also consider an at-large mayor to safeguard the City. Council Member Johnson stated he is concerned there will be a lack of public participation in this 3 process, despite the City's effort to advertise hearings and provide translators at meetings, adding that the bottom line is the City's hands are tied in this matter by legal exposure. Spencer Dayton stated that, based on language discrepancies in the laws, he believes citizens' voices should be heard on this matter and it should be placed on the ballot. In response to Mayor Pro Tempore Mounce, Mr. Dayton confirmed he was suggesting the City hold a special election for citizens to vote on the matter. In response to Mayor Pro Tempore Mounce, City Clerk Ferraiolo stated the estimate from the San Joaquin Registrar of Voters for a ballot measure in 2016 was $112,000 to $114,000, and Mr. Schwabauer added the cost will also depend on whether or not it is the only item on the ballot. Mayor Pro Tempore Mounce stated she conducted an informal survey on Facebook and the overwhelming response was that no one wants district elections in Lodi. She believes the issue would fail on the ballot should it proceed to an election, but failure of the measure will not change the outcome. She stated she believes the public wants the opportunity to vote for each Council Member at large versus members from districts who will only fight for issues effecting their own district. Alex Aliferis expressed strong opposition to moving from at-large to by-district elections, stating this will be damaging for small cities such as Lodi. He pointed to Mayor Nakanishi, a Japanese- American, who ran for Council on his own merit because he is a good, strong candidate and the many Mexican-Americans who consider America their home and who live or rent on the east side but work hard to improve themselves and move into better neighborhoods. He stated he believes the letter from MALDEF is another shakedown to get money from cities. In response to Mayor Pro Tempore Mounce, Mr. Aliferis stated this is a no-win situation and the City's hands are tied. The City's resources are desperately needed to deal with the California Public Employees Retirement System crisis, as well as many other necessary services, and he understands why the City chooses not spend a million dollars defending this matter. Ms. Magdich clarified that, at this time, there is no pending lawsuit; only a threat of litigation. Council Member Kuehne made a motion, second by Council Member Johnson, to adopt Resolution No. 2017-223 expressing City Council’s intention to initiate procedures for establishing and implementing by-district elections for City Council Members pursuant to Elections Code Section 10010. VOTE: The above motion carried by the following vote: Ayes: Council Member Johnson, Council Member Kuehne, Mayor Pro Tempore Mounce, and Mayor Nakanishi Noes: Council Member Chandler Absent: None B-2 Adopt Resolution Authorizing City Manager to Execute Professional Services Agreement with National Demographic Corporation, of Glendale, for Demographic Services Regarding Transition to By-District Elections (Not to Exceed $50,000) (CA) City Attorney Magdich briefly summarized the recommendation is to contract with a demographer to handle the mapping process and public outreach for the transition to by-district elections. Mayor Nakanishi reiterated that staff also look into changing to an at-large mayor as the process moves forward. Council Member Kuehne made a motion, second by Council Member Johnson, to adopt Resolution No. 2017-224 authorizing the City Manager to execute a Professional Services Agreement with National Demographic Corporation, of Glendale, for demographic services regarding transition to by-district elections, in an amount not to exceed $50,000. 4 VOTE: The above motion carried by the following vote: Ayes: Council Member Chandler, Council Member Johnson, Council Member Kuehne, Mayor Pro Tempore Mounce, and Mayor Nakanishi Noes: None Absent: None C. Adjournment There being no further business to come before the City Council, the meeting was adjourned at 7:55 a.m. ATTEST: Jennifer M. Ferraiolo City Clerk 5