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Date: To: From: Subject: August 21, 2012 El Cerrito City Council Cheryl Morse, City Clerk AGENDA BILL Agenda Item No. 7(8) November 6, 2012 General Municipal Election- Consideration ofF acts with Option to Appoint Council Members In Lieu of Election ACTION REQUESTED Staff requests that the City Council review the Certification of Facts and cop.sider taking action to either: 1) Adopt a resolution appointing nominees Jan Bridges, Mark·.:Friedman and Greg Lyman to elected offices effective the first City Council meeting in December 2012; or 2) Elect to hold the November 6, 2012 General Municipal Election as called. BACKGROUND On June 5, 2012, the City Council ordered and called a General Municipal Election to fill three City Council Seats; Requested and Consented to Consolidation of the Municipal Election to be held on November 6, 2012; requested the services of the Contra Costa County Registrar of Voters; provided for Notice of Election and set specifications of the Election Order. The terms of Mayor Jones, Mayor Pro Tern Lyman and Councilmember Cheng will expire this year. Before the City Council this evening is a certification of facts and options to consider resulting from three candidates qualifying for three open seats on the City Council at the close of the extended nomination period. Staff recommends that the City Council make a determination as to whether it wishes to make appointments or proceed with the scheduled election. ANALYSIS The nomination period for the General Municipal Election commenced on July 16, 2012. Since fewer incumbents pulled and filed nomination papers than there will be seats open, the nomination period was extended for non-incumbents only to August 15, 2012 pursuant to Elections Code Section 10225. By August 15th, three individuals had pulled nomination papers for candidacy; one incumbent and two individuals who also happen to be former Councilmembers. These individuals, filed nomination papers and associated paperwork, and qualified for the ballot. The candidates who filed nomination papers by the deadline and who have qualified for placement on the ballot are: Councilmember Greg Lyman and former Councilmembers Mark Friedman and Jan Bridges. Three seats are up for election this year. Therefore, the number of persons nominated is equivalent to the number of expiring terms. ---PAGE BREAK--- Agenda Item No. 7(8) As relevant to the facts here, Section 10229 of the Elections Code provides that, if, by 83rd day before the election, an incumbent fails to file pursuant to Section 10225, for any office or offices that are to be elected at large, and the number of persons who have been nominated for those offices does not exceed the number to be filled at that election, the City Elections Official must submit a certificate of these facts to the governing body of the city. The City Elections Official must also inform the governing body that it may, at a regular or special meeting held before the municipal election, adopt one of the following courses of action: 1) Appoint to the office the person who has been nominated; 2) Appoint to the office any eligible elector if no one has been nominated; or 3) Hold the election, if either no one, or only "one person" has been nominated.1 The Code further directs the City Elections Official to publish a notice of facts in the newspaper prior to Council action. The Certification of Facts (Attachment 1) was submitted to the City Council on August 15, 2012 and posted on the City's website and at City Hall, the Community Center and Library. On August 16, the notice, in substantially the same form, was pul)lisped in the West County Times. , f As required by Section 10229, the Certificate of Facts informed the City Council that it may adopt one of the following courses of action: 1) Appoint to the office the person who has been nominated; 2) Appoint to the office any eligible elector if no one has been nominated; or 3) Hold the election, if either no one, or only one person has been nominated. Because option 2 is not applicable, the City Council may consider either option 1 or 3: 1. Adopt a resolution (Attachment 2) to appoint to the offices the persons who have been nominated; or 3. Hold the election, if either no one or only one person has been nominated. If the City Council chooses to make the appointments, the nominees shall qualify and take office and serve exactly as if elected at a municipal election for the office. Appointed Councilmembers would take the Oath of Office, be formally seated and begin their term in office at the first City Council meeting in December. If the City Council makes appointments in-lieu of the election prior to August 23, the City Clerk will be prevented from accepting filings for any write-in candidacy, since the appointments will in tum cancel the election. It is important to note that the write-in candidate process is not automatic and that write-in candidates must qualify by filing required nomination papers during a specified period in order for ballots to be counted. If the Council does not make any appointments by August 23, 2012 (the 75th day before the election), then the election will go forward. 1 City staff takes the position that the "one person" can be interpreted to include the circumstances where there is no more than one candidate per open seat. Page 2 ---PAGE BREAK--- Agenda Item No. 7(8) FINANCIAL CONSIDERATIONS Municipal election costs are determined by the number of registered voters, the Registrar of Voters costs for services, and the City's costs for publishing, translations and other associated election costs. Staff estimates a savings of approximately $22,000 to the City if appointments of Councilmembers are made in-lieu of the election and the municipal candidate election is cancelled. There is a $300 fee charged by the Contra Costa County Registrar of Voters to cover the costs of preparation and set up work and for checking signatures on the nomination petitions. LEGAL CONSIDERATIONS The City Attorney has reviewed this report and resolution and concurs with the alternatives presented. Scott Hanin, City Manager Attachments: 1. Certification ofF acts 2. Proposed Resolution Page 3 ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 1 CITY CLERK'S NOTICE AND CERTIFICATION THAT THERE ARE NOT MORE CANDIDATES THAN OFFICES TO BE ELECTED I, CHERYL MORSE, CITY CLERK OF THE CITY EL CERRITO, COUNTY OF CONTRA COSTA, DO HEREBY GIVE NOTICE AND CERTIFY that pursuant to Section 10229 of the Elections Code of the State of California, to the following facts relating to the General Municipal Election to be held on Tuesday, November 6, 2012: As of the close of the extended nominations period on Wednesday, August 15, 2012, there are not more candidates than offices to be elected. The persons so nominated are: Jan Bridges Mark Friedman Greg Lyman That Section 10229 of the Elections Code allows one of the following course's of action to be taken by the City Council, when applicable: 1. Appoint to the office the persons. who have been nominated. 2. Appoint to the office any eligible voter if no one has been nominated. 3. Hold the election if either no one or only one person has been nominated. A notice of these facts will be published on August 16, 2012 in the West County Times, a Newspaper of general circulation, in the City of El Cerrito pursuant to Section 6061 of the California Government Code. On August 21, 2012, the City Council will meet at 7:00p.m. to either make the appointments or direct an election to be held. The persons appointed, if any, shall qualify and take office and serve exactly as if elected at a municipal election for the office. If, by the 75th day before the municipal election, no person has been appointed to the offices pursuant to or above, the election shall be held. If the City Council makes an appointment pursuant to Section 10229 of the Elections Code, the City Clerk shall not accept for filing any statement of write-in-candidacy which is submitted after the appointment is made. CHERYL MORSE, City Clerk ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 RESOLUTION NO. 2012–XX RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EL CERRITO PROVIDING FOR THE APPOINTMENT OF JAN BRIDGES, MARK FRIEDMAN AND GREG LYMAN TO THE EL CERRITO CITY COUNCIL FOR FOUR YEAR TERMS IN LIEU OF ELECTION AND CANCELLING THE NOVEMBER 6, 2012 MUNICIPAL CANDIDATE ELECTION WHEREAS, pursuant to Government Code 36503 of the State of California, a general municipal election shall be held on a date prescribed by Section 1301 of the Elections Code and elective city offices shall be filled by the city electorate at a general municipal election. City officers holding elective city office shall hold office for their prescribed terms from the date of the installation of officers following adoption by the Council of the official canvass of their election and until their successors are elected and qualified; and WHEREAS, on June 5, 2012, the City Council of the City of El Cerrito called a general municipal election to be held in the City of El Cerrito on Tuesday, November 6, 2012 for the purpose of filling three expiring terms on the City Council; and WHEREAS, pursuant to Section 10224 of the Elections Code of the State of California, August 10, 2012 was the last day for candidates to file nomination papers and on this date only one of three incumbents and one candidate who is not an incumbent filed by this deadline; and WHEREAS, Section 10225 of the Elections Code extends the nomination period five days for non-incumbents only if an incumbent fails to file by the August 10, 2012 nomination deadline; and WHEREAS, by Wednesday, August 15, 2012 one additional candidate filed nomination papers by the extended nomination period deadline; and WHEREAS, as of the close of the extended nomination period on Wednesday, August 15, 2012; there were not more candidates than offices to be elected and therefore Section 10229(a) of the Elections Code allows one of the following courses of action to be taken by the City Council: 1. Appoint to the office the persons who have been nominated. 2. Appoint to the office any eligible voter if no one has been nominated. 3. Hold the election if either no one or only one person has been nominated; and WHEREAS, pursuant to Section 10229 of the Elections Code, a notice, herein attached and incorporated by reference as Exhibit A, was published on August 16, 2012, in the West County Times, certifying these facts and the courses available to the legislative body; and WHEREAS, pursuant to Section 10229 of the Elections Code, if the City Council makes appointments to all open positions on or before the 75th day before the election (August 23, 2012), the election will be cancelled; and WHEREAS, appointments in lieu of an election will result in a cost savings of approximately $22,000 to the City’s general fund; and ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 WHEREAS, pursuant to Section 10229 of the Elections Code, once appointments are made, the elections official shall not accept for filing any statement of write-in candidacy that is submitted; and WHEREAS, this resolution provides for the appointment of the three nominees to the three open positions. NOW THEREFORE, BE IT RESOLVED by the City Council of the City of El Cerrito that it hereby determines, declares and orders as follows: Section 1. That the above recitations are true and correct. Section 2. That pursuant to California Elections Code Section 10229 the following action is taken: The following persons are appointed to the offices to which they were nominated: NAME OFFICE TERM Jan Bridges City Councilmember 4 year term Mark Friedman City Councilmember 4 year term Greg Lyman City Councilmember 4 year term Section 3. That pursuant to Elections Code Section 10229, the general municipal election scheduled to be held on Tuesday, November 6, 2012, is cancelled due to the fact that there are no more than three nominees who chose to run for office for the three open seats and the City Council has made the above appointments. Section 4. The persons appointed shall qualify and take office and serve exactly as if elected at a general municipal election for the office. Section 5. That the City Clerk shall certify to the passage and adoption of this resolution and so notify the Contra Costa County Registrar of Voters of the City Council’s action prior to August 23, 2012 and enter the Council’s action into the official minutes and into the book of original resolutions. I CERTIFY that at a regular meeting on August 21, 2012 the El Cerrito City Council passed this resolution by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ABSTAIN: COUNCILMEMBERS: ---PAGE BREAK--- Agenda Item No. 7(B) Attachment 2 IN WITNESS of this action, I sign this document and affix the corporate seal of the City of El Cerrito on August 2012. Cheryl Morse, City Clerk APPROVED: William C. Jones, III Mayor