HomeMy WebLinkAbout60- Council Office C17 OF SAN BERNARDI, 3 - REQUE ,T FOR COUNCIL AC', ON
From: Councilman Jack Reilly i✓ I�.' ' 0VH$.uUjd0: Legislative Review Committee Report
Dept: Council Office f :
Date: February 22 , 19 8 8
Synopsis of Previous Council action:
Recommended motion:
1 . That minutes of Legislative Review Committee meeting held
February 18 , 1988 be received and filed.
Signature
j
Contact person: Phil Arvizo Phone: 384-5208
Supporting data attached: YeS Ward: N/A
FUNDING REQUIREMENTS: Amount: N/A
Source: (ACCT. NO.)
(ACCT. DESCRIPTION)
Finance:
Council Notes:
LEGISLATIVE REVIEW COMMITTEE
February 18, 1988
ATTENDEES:
Councilman Jack Reilly - Chairman
Councilman Michael Maudsley
Councilman Tom Minor
James Penman - City Attorney
John Wilson - Deputy City Attorney
Ray Schweitzer - City Administrator
Jim Richardson - Depty. City Admin. for Development
Phil Arvizo - Council Executive Assistant
Richard Bennecke - Mayor ' s Executive Assistant
Capt. Wayne Harp
The Sun - Pat McGreevey
1. GENERAL VEHICLE USAGE REPORT - The Committee recom-
mended approval of the resolution presented. The Department
Director ' s letter was also recommended for approval.
The Police Automobile Policy was provided in response to
a query by Councilwoman Estrada at the February 5, 1988 mid-
year budget review. Copy of resolution and reports are
attached.
2 . CITY 'S DEMOLITION POLICY - Item continued to second
meeting in May. Building and Safety, City Attorney and
Community Development staff will coordinate on an all-inclu-
sive ordinance.
3 . PROHIBITION OF SOLICITATION OF ABSENTEE BALLOTS -
Councilmen Reilly and Minor recommended status quo after
reviewing the opinion of the City Attorney' s office and the
presentation made by the City Clerk . Councilman Maudsley
voted for prohibiting solicitation. Attorney information
attached.
4. COMMISSION APPOINTMENT PROCEDURES - The Committee
recommended adoption of the present policy. The form that is
signed by Commissioners would include the language "under
penalty of perjury" .
5 . CLOSED SESSION POLICIES - Item continued.
6 . ORDINANCE TO LIMIT CAMPAIGN CONTRIBUTIONS - Item
continued.
7. LEVEL PATHS OF TRAVEL ACROSS DRIVEWAYS - The Com-
mittee tabled this item. The City is requiring all new
construction to meet the guidelines previously recommended by
the Commission of Disabled Persons.
PENDING ITEMS - The legal opinion on crossing guards was
stricken from the list.
Meeting adjourned.
�e spe fully su knitted,
s
uncilman Ja ZReilly
Chairman
Legislative Review Committee
JR:ej
Attch.
DRAFT #3
1 RESOLUTION NO.
2
3 RESOLUTION OF THE CITY OF SAN BERNARDINO ESTABLISHING A POLICY
4 FOR THE ASSIGNMENT AND USE OF CITY OWNED VEHICLES.
5 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
6 SAN BERNARDINO AS FOLLOWS:
7 SECTION 1. Recitals
8 A. The City owns, maintains and operates a fleet of
9 vehicles to meet the transportation needs of employees in the
10 Performance of their duties.
11 B. The City desires that the operation and use of
12 vehicles be as efficient as possible.
13 C. There are benefits to be derived by allowing City
14 owned vehicles to be driven home by designated employees in
15 certain instances.
16 D. A monthly vehicle reimbursement allowance may be
17 mutually beneficial to the City and the employee in certain
18 instances,
19 E. Policies regarding the authorized use and assignment
20 of City vehicles shall be established.
21 SECTION 2 . Policy and Implementation
22 A. Take home use of a City vehicle or a monthly vehicle
23 reimbursement allowance of $300 per month be granted to
24 Department Heads, Deputy City Administrators and the City
25 Administrator as an item of compensation perquisite to the
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1 position and responsibilities of the position they hold.
2 B. Certain new City employees may be granted the take
3 home use of a City vehicle or a vehicle reimbursement allowance
4 as a condition of employment. This will be approved by the
5 Mayor and confirmed by Council at the time of initial
6 appointment.
7 C. The City Administrator shall establish an
8 administrative policy outlining the criteria, limitations and
9 procedures for the take home use of City vehicles and the
10 granting of an automobile allowance in lieu of a City vehicle.
11 D. City owned vehicles are for the use of City
12 employees only and use shall not be granted or extended
13 relatives, unauthorized volunteers, or others who are not City
14 employees.
15 E. City vehicles are intended for official City
16 business and there shall be no personal use by employees of
17 City owned vehicles other than commuter/incidental trips as
18 specifically defined by the City Administrator.
19 F. The City Administrator shall be responsible for
20 implementing this resolution. The failure to follow written
21 administrative guidelines on the part of any City employee may
22 be cause for disciplinary action.
23 I HEREBY CERTIFY that the forgoing resolution was duly
24 adopted by the Mayor and Common Council of the City of San
25 Bernardino at a meeting thereof, held on the
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x� 3
I day of 19_, by the following vote, to
2 wit:
3 AYES:
4
5 NAYES:
6 ABSENT:
7
8 City Clerk
9
10 The foregoing is hereby approved this day of
11 , 1987 .
12
13
14 Mayor of the City of San Bernardino
15
16 Approved as to form and legal content.
17
18
19 City Attorney
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DRAFT #4
CITY OF SAN BERNARDINO
DEPARTMENT DIRECTOR LETTER
Number 22
February 15, 1988
SUBJECT: Usage of City Vehicles
I. Purpose:
The purpose of this Department Director letter (DDL) is
to provide City policy guidelines for the take home of
City vehicles by employees, exclusive of the City
Administrator, based on emergency response and/or other
operational needs.
II. Authority:
Regular take-home authorization shall be recommended by
the department head for approval by the City
Administrator. This DDL is prepared to implement policy
direction by resolution of the Mayor and Common Council.
III. Responsibility:
A. Department Head
Each department must submit annually written
justification for and changes to take-home vehicles
to the City Administrator for approval . The
department head shall insure that every employee
whose duties require him/her to operate an
automobile on City business has a valid California
driver's license. Failure to comply with the
procedures and guidelines of this DDL may be cause
for disciplinary action as initiated by the
Department Head or City Administrator.
B. Employee
A City vehicle taken home shall be adequately
protected against loss or damage. The employee
shall accept full responsibility for fines incurred
as a result of any driving, parking or traffic
violations. Only the employee or another City
employee may operate a City-owned vehicle. Family
members or friends and volunteers not approved for
City service by the City Administrator are excluded
from operating City vehicles.
C-apartment Director Letter No.
=ake Home of City Vehicles
February 15, 1988
Page 2
!V. Policy and Procedure:
City-owned motor vehicles may be taken home by employee
on either a regular (permanent) or temporary basis in
accordance with the following criteria which will be
used as guidelines for take-home authorization.
A. General
1. Take home use of a vehicle shall be based on
City operational needs and assigned to those
departments and City employees that have
demonstrated a continuing need for them.
2 . Department Heads, Deputy City Administrators
and the City Administrator be provided either
an allowance of $300 per month or a vehicle
for regular take home use. This is considered
as a portion of their compensation package.
3 . Certain public safety personnel and those
responding to emergencies are provided City
vehicles which have specific equipment. Such
take home assignments are regarded as a
requirement of their job and shall be
identified by the department head to the City
Administrator.
B. Regular Take-Home Authorization
1. The regular or permanent assignment of City-
owned vehicles for take-home use is based on
the following criteria:
a) Employee is regularly and frequently
subject to call for emergency response,
and has specific expertise and must
respond with a specially-equipped
vehicle; or
b) Employee provides regular and frequent
off duty supervision, where no
subordinate has been designated to act;
or
C) An employee who, on an average of 50% of
normal work week, is required to begin or
end his daily activities at other than
his permanent work station.
Department Director Letter No.
Take Home of City Vehicles
February 15, 1988
Page 3
d) Attendance at frequent evening and/or
morning meetings and does regular field
work.
2 . In Town/Out of Town Use:
a) A City vehicle shall not regularly be
taken home beyond a 13 mile radius from
the permanent work station of the
employee without the expressed written
authorization of the Department Head.
b) Regular take home and commuter use by
non-resident City employee beyond the
limitation noted above requires a monthly
payment to the City based on a 11 1/2
cent per mile charge unless exempted by
the Dep[artmetn Head in writing to the
City Administrator.
C) There shall be no personal use of City-
owned vehicles other than commuter usage
and incidental trips unless the employees
public safety personnel is on an "on
call" status and is in possession of a
beeper or a City frequency radio equipped
vehicle.
C. Temporary Take-Home Authorization
1. Temporary take-home authorization of a City
vehicle may be approved by and at the
discretion of the department head.
2 . Reimbursement to the City for the take home
usage beyond the 13 mile radius previously
noted shall not apply to a temporary
assignment.
VI. Auto Allowance/Reimbursements/Payments
1. Automobile Allowance
a) An automobile allowance is provided to cover
the business expenses of operating a privately
owned vehicle on City business. Except for
long distance travel beyond Southern
California, the $300 monthly allowance will be
the complete reimbursement.
b) Employees receiving the $300 per month auto
Department Director Letter No.
Take Home of City Vehicles
February 15, 1988
Page 4
allowance shall carry liability insurance
covering their business use and a copy of the
policy shall be provided to the Office of Risk
Management.
C) Certain additional employees, as negotiated,
or new employees may receive an automobile
allowance less than $300 per month.
2 . Reimbursements/Payments
a) When a City vehicle is not available for use
by City emloyees on official business, the
department head can authorize a mileage
reimbursement at 25 cents per mile for use of
an employee' s personal vehicle on City
business.
b. ) The non-resident employee having take home use
of a City vehicle will make a monthly payment
for this benefit. An example of this payment
would be: 36 miles total travel less 26 miles
of in-City travel for an average of 21. 5 work
days at 11 1/2 cents equals $24 . 73 paid per
month to the City by the non-resident City
employee. This condition does not apply to
public safety/emergency personnel on call.
Recommended by: Approved by:
,JAMES C. RICHARDSON, RAYMOND D. SCHWEITZER,
Deputy City Administrator - City Administrator
Development Services
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C I T Y O _ S A N B E R N A R D I N O
INTEROFFICE MEMORANDUM
8802-1309
TO: Raymond D. Schweitzer, City Administrator
FROM: James C. Richardson, Deputy City Administrator -
Development Services
SUBJECT: Police Automobile Policy
DATE: February 17, 1988 (7353)
COPIES: Mayor and Common Council;
Don Burnett, Police Chief;
Bob Torbitt, Fleet Manager
Dean Meech, Purchasing Agent;
Jim Robbins, Deputy City Administrator -
Administrative Services
----------------------------------------------------
At the February 5, 1988 , mid-year budget review with the
Mayor and Common Council, a question arose as to the
purchasing policies for police vehicles. As we subsequently
discussed, this matter was reviewed by the Legislative Review
Committee (LRC) of the Common Council . Attached is a copy of
my 8/6/87 staff report, the 9/10/87 LRC minutes and excerpts
of the 9/21/87 minutes of the Common Council meeting
receiving the report and recommending the status quo.
To briefly summarize and update, police vehicles are acquired
once a year and kept in stock throughout the year. These
vehicles are released based on need. The police package is
bid once a year and this practice lends to economies of
scale. There will be fewer replacements (15) ordered for
this year as compared to 25 new sedans acquired last year.
There are surplus vehicles at the City yard that are pending
sale. It is possible that some of these vehicles could be
used to establish an administrative pool at City Hall as
outlined in the Central Garage audit.
The current practice works well and has been adopted as
previously outlined. If more information is needed on this
subject, please advise.
ES C. RICHARDSON,
Deputy City Administrator -
Development Services
mtb
Attachments (3)
v
CITY O F SAN BERNARDINO 0. ,
INTEROFFICE MEMORANDUM �4�AI/k
8708-1301 .;� • Chi.
TO: Raymond D. Schweitzer, City Administrator
FROM: James C. Richardson, Deputy City Administrator
Development
SUBJECT: Automobile Policy
DATE: August 6, 1987 (7157)
COPIES : Dean Meech, Purchasing Agent; Bob Torbitt, Fleet
Manager; Donald J. Burnett, Chief of Police
-------------------------------------------------------------
Background•
On July 13 , 1987, you asked that I review our purchasing
procedures with regard to patrol cars for the Police
Department. Attached are two memorandums from the Police
Department outlining take home City vehicles (6/26/87) and
automobile purchasing (7/22/87) . Upon receipt of your
7/13/87 memorandum, I talked briefly by phone with Purchasing
and Central garage personnel about the inventory of patrol
cars and scheduled a meeting to review this matter. On July
29 , 1987, I met with Dean Meech and Bob Torbitt on this
subject. Additionally, I reviewed the Hughes, Heiss &
Associates report concerning the size and usage of the Police
fleet (pages 8, 71, 77 and 114) .
Current Practice:
It is appropriate to outline the current practices regarding
purchasing and maintaining the inventory for the Police
Department fleet. The facts for information purposes are as
follows:
1. There are 116 vehicles assigned to the Police Department
including 93 sedans.
2 . The Patrol Division has the largest inventory with 55
vehicles, 53 of which are sedans.
3 . There are currently 28 new vehicles available for
assignment.
4 . In April, 1987, the purchase of 25 new Chrysler sedans
were authorized, based on the State contract
specifications.
' INTEROFFICE MEMORAN` ,M: 8708-1301
Automobile Policy
August 5 , 1987
Page 2
5 . The State contract bid includes certain standards and
various options from which each jurisdiction can choose.
6 . A Chrysler product was authorized at a cost savings of
$18 , 000 which maintains consistency rather than take the
GM product awarded on a State-wide basis.
7 . The "police package" is bid once a year for certain
"build out" dates so manufacturers can achieve an
economy of scale for production.
8 . Extra vehicles are on inventory as back-ups for
replacements due to wrecks and crashes during the year.
9 . The large current "stockpile" includes extras since
there have been fewer crashes during the past year.
10. The replacement cycle for patrol vehicles is more
frequent for patrol cars which have an average annual
usage of 24 , 207 miles.
11 . The average number of new patrol sedans purchased per
year was 18 or 45. 5% of the fleet for the past five
budget years ( 1982-83 to 1986-87) .
12 . There are 24 vehicles assigned for take home use in the
Police Department.
Analysis•
Based on a review of the background information and current
departmental practices, I would offer the following comments
as an analysis on the Police fleet, inventory and usage:
a. There are approximately 20 surplus police vehicles
at the City yard awaiting disposal which may make
the inventory at the Central Garage appear larger
than is actually the case.
b. Each new police vehicle requires certain peripheral
equipment such as light bars which may delay
placing a vehicle on-line if that equipment is not
available.
C. Acquiring several vehicle brands, depending upon
bidding procedures, can result in extra expense for
extra parts, inventory and storage.
r
INTEROFFICE MEMORAI IM: 8708-130
Automobile Policy
August 5, 1987
Page 3
d. The purchse schedule for new patrol sedans has
varied from 27 . 8% to 66 . 7% during the past five
years and a more even acquisition schedule may be
more efficient .
e. To purchase "police package" vehicle more than once
a year would result in having to buy vehicle on an
as available basis at a potentially higher cost.
f. The practice of keeping several new "police
package" vehicles available for assignment is a
good practice which avoids cutting back on service .
g. The take home assignment for 24 vehicles cuts down
on the number of police cars available for 24 hour-
a-day patrol activities.
h. Mileage generally exceeds 70, 000 when declared
surplus to the department, based on "Vehicle
Condition Report" prepared by the Fleet Manager.
i . As outlined in page 77 of the Hughes-Heiss report,
some Police patrol sedans are underutilized.
Conclusions:
This report has reviewed information from various sources as
to the utilization of the Police fleet as well as the
original questions on purchasing procedures. As a result of
this review, I would like to offer the following conclusions
as to the automobile policy for the Police Department:
(First) The number or vehicles assigned for take home should
be scrutinized with an eye of reducing the number of such
assignments.
(Second) Continue the practice on a once-a-year order of
"police-package" vehicles to include a few extra or reserve
vehicles for replacing wrecked vehicles throughout the year.
(Third) Review preventative maintenance procedures on police
vehicles to determine the potential of increasing the life-
cycle of police sedans and lessening the annual requirement
for replacement vehicles.
(Fourth) Stockpile peripheral police equipment and consider
n white on white" rather than "black and white" to reduce time
required to place new patrol vehicles in service.
(Fifth) A fewer number of new police vehicles should be
INTEROFFICE MEMORANbvM: 8708-1301
Automobile Policy
August 5 , 1987
Page 4
purchased in fiscal year 1988-89 based on past purchasing
patterns.
ES C. RICHARDSON,
Deputy City Administrator -
Development
=tb
Attachments (6)
CITY OF SAN BFRNARDINO - MEMORAN^UM
.lanes C, dichdrdson 1onald J . -�urnect
To leputy City administrator nevel opment,.-AQM1%. QEi. From Chief of uol ice
Subject autonobi le Pol icy -a' iLl �� .^.Date duly 22 , 1987
Approvec Date
I received your memo presenting tie di lemni related to the anoint. of new
patrol cars at City Yarn waiting to be out into servi:e. if I An to he
anle to keep a sufficient anount of police patrol cars availabl- to
field uniform personnel , I must he able to replace patrol cars as soon
ss they need to be replaced. 1s you know, it is not possible to go down
to the local car dealer and purchase a police package patrol vehicle.
Presently, our patrol car replacement needs are Assessed in advance so
we may purchase the ,police package cars in the nos'. cost effective
fashion. Presently, AS i linherstind it , we tie onto the State's
purchase of Highway Patrol airs . ► do not believe it is necessary for
us to buy through the State to get the best price. :;e do end up with
patrol cars , depending on the State's specifications, that have nore
amenities tnan we need. So-ie of the specifications are not even
desirable.
-1lthough we can talk about hev, we nay purchase these police package
cars , we nust contintia to purchase them in advance of their need. This
will still require that cars b? available for the line when needed which
means they wi l l be stockpi lel. As I understa^l the cycle, we wi l l
Dudyet for "V number of police package vehicles at the ')eginning of a
fiscal year which begins , of course, in July. It is licely that we will
not be involved in ordering the vehicles until r1id fiscal year.
)el ivery then can be expected sometime around '+ay near the end of the
sane fiscal year. This M-month tine frame is too lenythy to accomodate
a policy of waiting to order a vehicle when the need presents itself.
On this issue, I tnink we may be able to get much acconplished in A
meeting of Police, City Yard, Purchasing; and interested Council
persons. i lope that you decide to arrange such a neeting which can do
a lot to rrect misunderstanding and may develop A better way.
7o d J�. i u rn e
Chief of Police
cgr
cc: Capt. (lave Thomas
LEGISLATIVE REVIEW COMMITTEE
September 10 , 1987
Attendees : Councilman Michael Maudsley - Acting Chairman;
Councilman Tom Minor; Ray Schweitzer - City Administrator;
James Richardson - Deputy City Admin./Development; James
Robbins - Deputy City Admin./Administrative Services; Roger
Hardgrave - Public Works Director; John Wilson - Deputy City
Attorney; Warren Knudson - Finance Director; Chief Donald
Burnett , Lt . Dave Thomas - Police Dept . ; Dean Meech - Pur-
chasing Agent; Phil Arvizo - Council Executive Assistant;
Richard Bennecke - Mayor ' s Executive Assistant; Fred Wilson -
Assistant to City Administrator; Lionel Heller; Steven Gray;
Irving Chase; Robert Saul (SIMA) ; Ed Lievali ; Dominic Perrell
1. INSTALLMENT PLAN FOR UTILITY UNDERGROUNDING COSTS -
Item continued for further study.
2. FEES AND PROCEDURES FOR UNDERGROUNDING UTILITIES AT
911 W. HIGHLAND AVENUE - STEVEN F . GRAY, GRAY AMERICAN - See
#5 .
3 . APPEAL HEARING - REQUIREMENT OF UNDERGROUNDING UTIL-
ITIES - REQUEST FOR TEMPORARY EXEMPTION - SIMA PROJECT AT
MILL STREET AND "G" STREET - IRVING CHASE, S & A PROPERTIES -
See #5 .
4 . APPEAL HEARING - REQUIREMENT OF UNDERGROUNDING UTIL-
TIES - REQUEST FOR TEMPORARY EXEMPTION - 455 SOUTH "D" STREET
- LIONEL S. HELLER - See #5 .
5 . APPEAL - PLANNING COMMISSION'S APPROVAL OF CONDI-
TIONAL USE PERMIT NO. 87-27 - ROY F. KROLL & ASSOCIATES, INC .
- The Committee recommended that City Administrator and
Director of Public Works address the issues individually and
bring recommendation back to Council on September 21 .
6. POLICE AUTOMOBILE POLICY - The Committee received a
report (attached) and recommended the status quo.
7 . REPORT FROM CITY ADMINISTRATOR DESCRIBING POSSIBLE
ALTERNATIVES TO FUNCTIONS OF RISK MANAGEMENT DIVISION - Item
continued to allow further review by the City Attorney.
8 . GENERAL VEHICLE USAGE REPORT - Item continued.
9 . PROPOSED DEVELOPMENT PROCEDURE - Item continued.
10 . VENDING ORDINANCE - Item continued for 30 days to
allow City Clerk to review.
11. REPORT RELATIVE TO METHOD OF COLLECTION AND LEGALI-
TY OF ADDING A PENALTY CHARGE WHEN ABATEMENT COST IS PLACED
ON TAX ROLLS - Item continued to allow the Director of
Finance to review.
12 . PROPOSED REVISIONS TO MUNICIPAL CODE - REQUIREMENT
FOR CONNECTION OF DEVELOPMENTS TO CITY SEWER SYSTEM - The
Committee recommended approval with the stipulation that the
following be added : "The contractor must record any lateral
or saddle installation on the sewer main to the City Engi-
neering Department. "
13 . REVIEW OF NO SMOKING ORDINANCE - The Committee, at
the request of the San Bernardino Chamber of Commerce, con-
tinued this item.
14 . CLOSED SESSION PARTICIPATION POLICIES - Item con-
tinued.
Meeting adjourned.
Respectfully submitted .
i
Councilman Michael Maudsley
Acting Chairman
MM: jv
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LLGISLATIVS RSV19W COMMITT19 RLPORT - S8►T VISLR
1s, 1' ' wxr/
Count %*abet Maudsley, Act Chairman, Legislative
Review Coomactee, presented the report of the Legislative
Review Committee held on September 16, 1987. The follow-
ing items were discussed: (41)
1. Installment Plan for Utillt Under-
grounding Costs - Item continue for fut-
that study.
Council Member Reilly made a motion, seconded by
Council Member Pope-Ludlam, and unanimously carried, to
direct the City Ingineee and City Attorney to prepare a
revision to the existing underground utility ordinance
which would requite undergrounding within public street
right-of-ways only when certain ctitecla is present, such
as, but not limited to:
a. Minimum amount of acreage
b. Type and intensity of usage
c. Cost of undergcounding in relationship to
the cost of the project
d. Combination of above
e. Legally defensible
2. Pees and Procedures for Under toundi
utilities at N. Highland AVenue - Leven
P. Gray, Gray American - See 15.
). Appeal Hearin - requirement of Under-
groun n Ut t ea - Request for Temporary
exemption - Sias Project at Mill street and
•G' Street - Irving Chase, S 6 A Ptopec.ties
- See 1s.
4. Appeal Hearing requirements of Under:.
coun n Ut 1 t es - Re uest oc Tem orar
-*option Sout D ti
- L one
. He ler - see 8S.
S. A l - Plannln Commission's A coval
of Con eat on• Use Permit No
- Ro
V.—Kroll 6 ksoociotes, Inc. -The Committal'
recommended e—nod—t-that City Administrator and
Director of Public Works address the issues
individually and bring recommendation back
to Council on September 21.
f. Police Automobile Policy - The Commit- ✓
tee :eeiTVeW report (as attached to the
minutes) and recommended the status quo.
7.� � Admins strator Desctit
-
R2aos t at vinq to functions o
Management Division -Item cont nut to
allow further review by the City Attorney.
I. General Vehicle Usage Report - Item
contfnu-s
9. Fruo used_ D_evelopment Procedure - Item
cont
n
If. Vendin Ordinance - Item continued for
]s days to SIT r y Clerk to review.
11. Report Rolat we to Method of Collec-
tion and Legality Of n • P*nolt
Charge When Abatement Cost Is Placed on Tax
Rolla - It•■ continued o allow the rec-
'for of finance to review.
12. Proposed Revisions to Muni ci 1 Code -
�V Cement Or OnneCC On of
ere O n •
to t wet System - the Comaittee cocoa-'
me approval with the stipulation that
the following be added: "The contractor
must record any lateral or saddle installa-
tion on the sewer main to the City Ingi-
neering Department."
13. Review of No Smoking Ordinance - The
Committee,, at the request o t • an bac-
nardino Chamber of Commecce, continued this
item.
14. Closed Session Participation Policies
- Item continued.
Council Member Miller made a motion, seconded by
Council Member Maudsley and unanimously carried, that the
minutes of the Legislative Review meeting held September
ls, 1987, be received snd ,filed. .
9/21/87
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CITY OF SAN BE, .NARDING - MEMORANDUM
To JAMES F . PENMAN From JOHN F . WILSON
City Attorney Deputy City Atty
Subject Solicitation of Absentee Ballots DateFebruary 18, 1988
Approved Date
It has been the consistent view of the City Attorney's office
that the various proposals put forth for the control of the
absentee ballot process have not had support in the law. Both
statutory and case law currently require the liberal grant of
access to the ballot through this means . A copy of the latest
opinion of the City Attorney's office on this topic is attached
for your review.
L i -,
OHN F . WILSON
Deputy City Attorney
JFW:cm
Attach.
,Y
CITY OF SAN ..E. MARDIN(o — .JEMORANDUM
To JAMES F . PENMAN FrorrDENNIS A. BARLOW
City Attorney Sr .Asst .City Atty
Subject Proposal to Regulate Absentee Ballots DavAugust 14 , 1987
Approved Date
The question has been raised whether or not the City has the
authority to prohibit the paying of individuals to solicit
absentee voters .
Statutory provisions relating to absentee voters are found in
Elections Code Section 1000 et seq. , and in Elections Code
Section 1405 et seq. The provisions of Section 1405 et seq. ,
relate primarily to those absent voters who permanently cannot
come to the polls , generally for health reasons . The standard
provisions are found in Section 1000 et seq. The legislature
has concluded that such regulations should be given liberal
construction to encourage the voting process (Section 1001) .
Originally, the use of absentee ballot was limited to cases of
illness , absence from the precinct on the day of election ,
physical handicap , conflicting religious commitment , and
residing more than ten miles from the polling place (see former
Elections Code Section 1003 added by statutes of 1976 , Chapter
1275 , Section 18) . However , in 1978 , (by Chapter 77 , Section 2
of the statutes of 1978) the legislature expanded this
provision to allow an absentee ballot to be available to any
registered voter (see current Election Code Section 1003) . The
implication , once again , is to allow as many individuals as
possible the ability to exercise the franchise .
Applications for absentee ballots are included in the sample
ballot (Elections Code Section 1018) and also notices of the
availability of such ballots are to be placed at passport and
recruiting offices (Elections Code Section 1004 ) . Once the
necessary ballot application is received and verified , the
ballot is sent to the elector and the ballot is then voted and
returned to the election official . A key section in these
provisions is Elections Code Section 1013 , which reads as
follows:
"All absentee ballots cast under the
provisions of this division shall be voted
on or before the day of the election . The
absent voter shall return the ballot to the
official from whom it came by mail or in
person , or may return it to any member of a
precinct board at any polling place within
the jurisdiction . The ballot must , however ,
be received by either the official or the
precinct board before the close of the polls
on election day.
"The official shall establish procedure
to ensure the secrecy of any ballot returned
to a precinct polling place ."
This whole process has been a matter of some interest in
California since the liberalization of the absentee ballot
procedure . In 1979 , the Attorney General reviewed this area
and concluded as follows:
"The law does not limit the manner
in which applications for absentee ballots
are distributed (footnote omitted) . Thus ,
they may be distributed by anyone , including
a candidate or a member of his campaign staff ,
as long as the application meets the requirements
of Section 1006 as to its contents ." (62 Ops .Cal .
Atty.Gen . 439 , 441 . )
The Attorney General concluded that in most cases , ballots
could not be returned by an official representative of the
elector , but must be returned either by mail or by the elector
in person .
In the case of Beatie v. Davila (1982) 132 Cal .App.3d 424 , 183
Cal .Rptr . 179 , the court , at page 180 , concluded that it was
legal under the Elections Code Section 1013 to vote an absentee
ballot and return it to a third party for mailing to the
elections official . Then , in the case of Mattgl of Hernandez
(1982) 138 Cal .App.3d 578 , 138 Cal .Rptr . 45 , which originated
in the City of San Bernardino , the court concluded at page 47
that the absentee ballots may not be delivered to a third
person to personally return to the elections official , but must
be returned in person by the voter .
The Supreme Court reviewed this matter in 1986 in the case of
Wilkes v . Mouton (1986 ) 42 Cal .3d 400 , 229 Cal .Rptr . 1 . The
Court , at page 8 , disagreed with the Attorney General 's
conclusion , above cited , that the ballots may not be returned
by a third party.
It is clear that the state statutes do not restrict the
solicitation of absentee ballots by paid workers . The question
then becomes whether or not the City may do so . In the
California Constitution , Article 11 , Section 3 , power is
granted to cities to adopt charters to govern their own
affairs . In Section 5 of the same article specifically related
to city charters , the Constitution reads as follows :
" (a) It shall be competent in any city
charter to provide that the city governed
thereunder may make and enforce all ordinances
and regulations in respect to municipal affairs ,
subject only to restrictions and limitations
provided in their several charters and in respect
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to other matters they shall be subject to general
laws . City charters adopted pursuant to this
constitution shall supersede any existing charter ,
and with respect to municipal affairs shall
supersede all laws in consistence therewith .
" (b) It shall be competent in all
city charters to provide , in addition to those
provisions allowable by this Constitution , and by
the laws of this state for . . . (3) conduct of
city elections and (4) plenary authority is hereby
granted , subject only to the restrictions of this
article , to provide therein or by amendment thereto ,
the manner in which, the method by which, the times
at which, and the terms for which the several
municipal officers and employees whose compensation
is paid by the City shall be elected or appointed ,
and for their removal "
Provisions relative to elections are found in Article 2 of the
Charter of the City of San Bernardino . In pertinent part ,
Section 10 of Article 2 provides as follows:
"Said election shall be conducted in the
manner provided for by general law; provided ,
however , that the Mayor and Common Council shall
have the power , by ordinance , to provide for the
manner of holding such election ."
With specific reference to absentee ballots the City, by
ordinance , has made various regulations . These are found
primarily in Section 2 .56.001 of the San Bernardino Municipal
Code which , in pertinent part , reads as follows:
" . . . 1 . Notwithstanding the provisions of
Elections Code Section 1013 or any judicial inter-
pretation thereof , after the receipt by the voter
of an absent voter ballot , no election campaign
volunteer or worker shall handle or mail the ballot
of such absentee voter in any primary, general ,
special , or recall municipal election .
"2 . Notwithstanding the provisions of
California Elections Code Sections 1000 et seq. ,
or any judicial interpretation thereof , an
application for absentee ballot shall not be
valid unless made on a form issued to the applicant
by the San Bernardino City Clerk 's office . The
provisions of this subsection shall not apply
to requests for absentee ballots for a consolidated
election conducted under California Elections Code
Section 23300 , or for requests for absentee ballots
received from a person who is a 'non-ambulatory
person ' as that term is defined in California Health
and Safety Code Section 13131 ."
The final issue which must be determined is whether or not the
regulation of absentee ballot solicitors is a municipal affair
pursuant to the provisions of California Constitution , Article
5 , set out above .
Generally, the courts have concluded that where there is doubt
whether a regulation relates only to a municipal affair or to a
broader concern , that doubt must be resolved in favor of the
legislative authority of the state . (City of Los Angeles v.
California Dept . of Health (1976) 63 Cal .App. 3d 473 , 133
Cal .Rptr . 771 . ) A restriction of a charter city prohibiting
write-in voting in municipal general elections was determined
to impermissibly restrict the right of voters to cast ballots
for candidates of their choice and , therefore , was not allowed
under the theory of "municipal affair" (Canaan v. Abdelnour
(1985) 40 Cal .3d 703 , 221 Cal .Rptr . 468) . It has been
determined that whether a two-thirds vote or a majority vote
was needed to effect a change of name of a city was clearly a
matter of local concern and not subject to state statute.
(Coffineau v. Fong Eu (1977) 68 Cal .App.3d 138, 137 Cal .Rptr .
90 . ) A one-year residence requirement for city council
candidacy in a city charter was turned down on the basis that
it denied potential candidates equal protection of the laws and
was , therefore , not protected by the municipal affairs
umbrella . (Smith v. Evans (1974) 42 Cal .App.3d 154 , 116
Cal .Rptr . 684. ) The Attorney General has concluded that
campaign contributions and expenditures in municipal election
in excess of $200 are not "municipal affairs" within
constitutional provision and , hence , candidates for office in
such elections must file campaign statements as required by the
Elections Code , and not in accordance with local law. (35
Ops .Atty.Gen. 230 . )
It was concluded in the Socialist Party v. Uhl , 155 Cal . 776 ,
that the election of municipal officers is strictly a municipal
affair . It was also concluded in Scheafer v. Herman .
172 Cal . 338 , that the matter of election and removal of
municipal officers when provided for in the charter is a
municipal affair so the general statutes inconsistent with such
charter do not control .
It can be seen that the question of whether or not regulation
of absentee ballot solicitors is a municipal affair is a very
close question . If the result is to restrict in any
determinable way the right of the citizenry to vote in
municipal elections , the regulation would very likely be
rejected . If , however , it could not be shown that such
regulation would , in fact , limit the rights of the citizens but
would protect abuse of the process , then it would likely be
upheld .
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In addition , one other item may be looked at by the courts in
reviewing such a regulation . That would be the comparison of
such paid solicitors with those who are soliciting absentee .
ballots due to a philosophical position which is the subject of
the election. Such individuals may have more at stake than
mere money and such a situation may tend more to abuse of the
process than where solicitors are providing the services for
financial remuneration . This equal protection-type argument
may be sufficient to sway a court that the regulation has no
basis .
On balance, although as noted above it is a close question , I
would think that such a regulation would not be sustained in
court .
DENNIS A. LOW
Sr . Asst . City Attorney
DAB:ca
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