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Under Section 54954.5 (c), Conference with legal counsel — anticipated
litigation — under significant exposure to litigation pursuant to subdivision
(b) of Section 54956.9: one case
The matter I wish to discuss before the Mayor and Council relates to a
proposed petition initiated by three proponents to place a Charter
amendment on the November 2010 ballot amending the Charter so that the
City Attorney, City Treasurer, and City Clerk are appointed.
The proponents, Rev. Raymond Turner, Dr. Ernie Garcia, and Marion
Vassilakos, filed a request to circulate a petition last week; however, upon a
careful review of their documents, I returned it to them as I found at least
one flaw. Elections Code Section 9202 requires that a Notice of Intent to
Circulate Petition must first be filed and there is specific language that must
be used and their documents did not include this language.
If the proponents choose to resubmit their request, as I have been led to
believe they will as early as tomorrow, then I would like to request that the
Mayor and Council authorize me to obtain outside legal counsel for the
purpose of preparing the ballot title and summary.
My reasons for requesting such authorization is that the Elections Code
requires that once the proponents file the Notice of Intent and a request to
have a ballot title and summary prepared, I must then submit it to the City
Attorney to prepare a ballot title and summary. Elections Code Section 9203
states that "The ballot title may differ from any other title of the proposed
measure and shall express in 500 words or less the purpose of the
proposed measure. In providing the ballot title, the city attorney shall give
a true and impartial statement of the purpose of the proposed measure in
such language that the ballot title shall neither be an argument, nor be
likely to create prejudice,for or against the proposed measure."
In yesterday's Sun newspaper, a Point of View article was submitted by Mr.
Penman wherein he clearly states his opposition to the measure if, in fact, it
is resubmitted. To quote Mr. Penman, he states in the article, "I
understand that some of the mayor's supporters are now working on a
charter amendment to take away the people's right to elect their city
attorney, treasurer and city clerk. Such an effort will continue to divide
our city and impede its progress ... The public is perfectly capable of
electing its own officials..."
It is my belief that the statements made by Mr. Penman clearly show his
opposition to the proposed measure and therefore I believe there is a conflict
in that his office would not be able to provide an impartial title and summary
as required by the Elections Code.
Section 241 of the City Charter provides that "Upon the recommendation,
and with the written consent, of the City Attorneys the Mayor and Common
Council shall have the power and authority to employ and engage such
legal counsel and services and other assistants, as may be necessary and
proper for the interest and benefit of the City and the inhabitants thereof."
Since this article arose after the posting of the agenda, I feel compelled to
bring this matter to your attention during this closed session as there is an
urgency to provide legal counsel if the proponents decide to re-file their
documents this week.
12/7/09
Rachel G. Clark
City Clerk
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