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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 26 27 28 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 26 27 / lllll lllllllllllllllllllllllllllllll 28 llllll lllllllllllllllllllllllllllllll 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 20 21 22 23 24 25 26 27 28 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 i i I 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 r i j i 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 y 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 2 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 . 4 0 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 5