[Occupymendocino] Educate the constituents of Mendocino County

[ELLEN ROSSER]

Dear All,

    Although charter cities seem like a good idea giving more power to the
people, would Ft. Bragg, Ukiah, Point Arena, etc., all need to have their
own city public bank?    I thought the information on the legality of
public banks indicated that a public  bank is not contrary to state law, as
determined by the Supreme Court in l9l8 (I think that was the year).

Isn't that a better way to go with a Mendocino County Bank?

                  Peace and blessings,  Ellen

Foundational Aspects of Charter Cities

*What is the Constitutional Framework for Charter Cities?*

Article XI, section 3(a) of the California Constitution authorizes the
adoption of a city charter and provides such a charter has the force and
effect of state law. Article XI, section 5(a), the "home rule" provision,
affirmatively grants to charter cities supremacy over "municipal affairs."
However, the California Constitution does not define the term "municipal
affair."

*What are "Municipal Affairs?"*

The home rule provision of the California Constitution authorizes a charter
city to exercise plenary authority over municipal affairs, free from any
constraint imposed by the general law and subject only to constitutional
limitations. *See *Cal. Const. art. XI § 5(a); *Ex Parte Braun*, 141 Cal.
204, 209 (1903)*; Bishop v. City of San Jose*, 1 Cal. 3d 56, 61 (1969); *Comm.
of Seven Thousand v. Super. Ct. (City of Irvine)*, 45 Cal.3d 491 (1988).

*How Do the Courts Distinguish Between Municipal and Statewide Concerns?*

Whether a given activity is a municipal affair over which a city has
sovereignty, or a statewide concern, over which the legislature has
authority, is a legal determination for the courts to resolve. Thus, the
determination of whether a given activity is a municipal affair or
statewide concern is done on a case-by-case basis. The court's
determination will depend on the particular facts and circumstances of each
case. *See In Re Hubbard*, 62 Cal. 2d 119, 128 (1964). Keep in mind that
the concept of "municipal affairs" is a fluid one that changes over time as
local issues become statewide concerns. *See Issac v. City of Los Angeles*,
66 Cal. App. 4th 586 (1998).

*What Activities Have the Courts Classified As Municipal Affairs?*

There are some areas that the courts have consistently classified as
municipal affairs. Examples include the following:

Municipal Election Matters. *See Mackey v. Thiel*, 262 Cal. App. 2d 362
(1968). Procedures for Initiative, Referendum and Recall. *See Lawing v.
Faul*, 227 Cal.

App. 2d 23, 29 (1964).

Procedures for Adopting Ordinances. *See Brougher v. Board of Public Works*,
205 Cal. 426 (1928).

Compensation of City Officers and Employees. Cal. Const. art. XI, § 5(b); *See
Sonoma County Organization of Public Employees v. County of Sonoma*, 23
Cal. 3d 296 (1979); *but see San Leandro Police Officers Association v.
City of San Leandro*, 55 Cal. App. 3d 553 (1976) (labor relations is not a
municipal affair; Charter cities are subject to the Meyers-Milias Brown
Act. Cal. Gov’t Code § 3500.

Processes Associated with City Contracts. *See First Street Plaza Partners
v. City of Los Angeles*, 65 Cal. App. 4th 650 (1998); *but see Domar
Electric, Inc. v. Cityof Los Angeles*, 41 Cal. App. 4th 810 (1995) (state
law establishing employment policy may preempt local regulation of bidding
criteria).

Financing Public Improvements. *See City of Santa Monica v. Grubb*, 245
Cal. App. 2d 718 (1996).

Making Charitable Gifts of Public Funds for Public Purposes*. See *Cal.
Const. art. XVI, § 6; *Tevis v. City and County of San Francisco*, 43 Cal.
2d 190 (1954).

Term Limits for Council Members. *See Cawdrey v. City of Redondo Beach*, 15
Cal. App. 4th 1212 (1993); *but see *Cal. Gov't Code § 36502(b) (regulating
term limits).

Land Use and Zoning Decisions (with a few exceptions). *See Brougher v. Bd.
of Pub. Works*, 205 Cal. 426 (1928).

*What Activities Have the Courts Classified as Statewide Concerns?*

The following have consistently been classified by the courts as matters of
statewide concern:

School Systems. *Whisman v. San Francisco Unified Sch. Dist.*, 86 Cal. App.
3d 782, 789 (1978).

Traffic and Vehicle Regulation. Cal. Veh. Code § 21. Licensing of Members
of a Trade or Profession. *City and County of San*

*Francisco v. Boss*, 83 Cal. App. 2d 445 (1948). Tort Claims Against a
Governmental Entity. *Helbach v. City of Long Beach*, 50

Cal. App. 2d 242, 247 (1942).

Open and Public Meetings. Ralph M. Brown Act. Cal. Gov’t Code §§ 54951,
54953(a).

Exercise of the Power of Eminent Domain. *Wilson v Beville*, 47 Cal. 2d
852, 856 (1957).

*What is a Charter?*

A city charter is a unique document that, in many ways, acts like a
constitution for the city adopting it. It can only be adopted, amended or
repealed by a majority vote of a city's voters. The primary advantage of a
charter is that it allows greater authority for a city’s governance than
that provided by state law. For example, a city may tailor its organization
and elective offices, taking into account the unique local conditions and
needs of the community.

A charter transfers the power to adopt legislation affecting municipal
affairs from the state legislature to the city adopting it. A city
operating under a charter can acquire full control over its municipal
affairs. These affairs are unaffected by the general laws

passed by the state legislature on the same subject matters. This, in
effect, gives the local voters more control over their local government and
the affairs of the city. However, a city operating under a charter is still
subject to the general laws, as passed by the state legislature, on affairs
that are not municipal in nature, and are of statewide concern (e.g.,
California Vehicle Code).

It is the scope of the term "municipal affairs" that provides the
opportunity for uncertainty. No easy analytical test exists. The threshold
issue is whether there is a conflict between state law and a charter city
enactment. The next issue is whether the state regulation addressed an
issue of "state wide concern." Courts analyze these conflicts on a case-
by-case basis.

*What is in a Charter?*

While a city charter is not required to have any particular provisions in
it, a city will often reserve for itself the greatest amount of power it
can when it adopts a charter. To accomplish this goal, the charter must
include a declaration that it is the intention of the city to avail itself
of the full power provided by the state constitution to charter cities.
However, the city is not required to extend the breadth of its charter any
further than it wishes.

Some of the common areas that are explicitly regulated in a charter are:
The date and conduct of city elections; Regulations on the appointment of
municipal officials; The terms and payment of municipal officials;

The process for removal of municipal officials;

Form of government;

Budget adoption;

The number, pay, qualifications, and appointment of deputies, clerks, and
other employees that each municipal officer will have;

Sub-government in all or part of the city; The tenure of office for
deputies, clerks, and other employees; The process for removal of such
deputies, clerks, and other employees; and The constitution, regulation,
and government of the local police force.

A number of California cities' charters are available online. The National
Civic League also has a model charter project.

*Process Used to Adopt a Charter*

There are two ways to draft and adopt a city charter. The first is to elect
a charter commission. The commission then has the responsibility of
debating over the provisions and the drafting of the charter. The other
alternative allows the governing board of the city, on its own motion, to
draft the charter. In either case, the charter is not adopted by the city
until it is ratified by a majority vote of the city's voters.

When using the charter commission approach, the first step is to elect the
commission. The vote to elect a charter commission is called for by either
a majority vote of the city's governing body or by a petition signed by not
less than fifteen percent of the registered voters within the city. If the
formation of a charter commission is requested by a petition, the authority
in charge of the city's registration records must verify the signatures on
the petition. The expense of this verification must be paid for by the
city's governing board. If the petition is verified, the city's governing
board must call for an election in accordance with sections 1000 and 10403
of the California Elections Code. *See *Cal. Gov't Code section 34452.

Once it has been decided that a charter commission election will take
place, candidates for commissioners must be nominated. Candidates for the
office of charter commissioner are nominated either in the same manner as
officers of the city or by petition. A candidate for charter commissioner
must be a registered voter of the city. After the election of
commissioners, any vacancy on the commission will be filled by a mayoral
appointment. *See *Cal. Gov't Code section 34452.

At an election for charter commission members, the voters will vote first
on the following question: "Shall a charter commission be elected to
propose a new charter?" After voting on this question, the voters will then
vote for the charter commission candidates. If a majority of the voters
vote for the formation of a charter commission, then the top fifteen
candidates for the office of charter commissioner will be organized as the
city's charter commission. No commission will be formed if a majority of
voters vote against the election of a charter commission. *See *Cal. Gov't
Code section 34453.

Once formed, the charter commission will have the responsibility of
developing the city's charter. After a simple majority of commissioners
have decided that the proposed charter is appropriate, they file the
charter with the city's clerk in preparation for a vote by the city's
electorate. *See *Cal. Gov't Code section 34455. However, instead of
sending the whole charter at once, periodically the commission may send
portions of the charter to the city's electorate for a vote. *See *Cal.
Gov't Code section 34462*.*

After the charter (or portions of it) has been filed, it must be copied in
type greater than 10 point and either mailed to all the voters of the city
or made available to those citizens who wish to review it before the
election. The city may show the difference between existing provisions of
law and the new charter through the use of distinguished type styles, but
this is not required. *See *Cal. Gov't Code section 34456.

After the charter has been filed with the city clerk, the city's governing
board must decide whether to call a special election or to wait until the
next established municipal election to submit the charter to the voters. If
the city's governing board determines that a special election should be
held, then they must call for that special election within 14 days of the
charter being filed. The special election must be set at least 95 days
after the date from which the special election was called. *See *Cal. Gov't
Code section 34457. In any case, the charter commission must send the
charter to the voters within two years of the vote

that formed the commission. Upon the expiration of the two-year time
period, the commission is abolished. *See *Cal. Gov't Code section 34462.

The alternative to electing a charter commission is to have the city's
governing board develop and draft the charter. An election to decide on the
adoption of a charter may be called by initiative or the city council. *See
*Cal. Const. art. XI, § 3. On its own motion, the city's governing board
may propose a charter and submit it to the voters for adoption. *See *Cal.
Gov't Code section 34458. With this option, the governing board can call a
special election or allow the charter to be voted on at any established
election date, as long as that election date is at least 88 days after the
proposed charter was filed with the city clerk. *See *Cal. Gov't Code
section 34458. As a practical matter, an election may have to be called
sooner than 88 days before the election in order to meet certain notice and
ballot printing deadlines.

In either case, the majority of voters must vote in favor of the proposed
charter for it to be ratified. The charter will not go into effect until it
has been filed and accepted by the Secretary of State. *See *Cal. Gov't
Code section 34459. After a charter is approved by a majority vote of the
voters, the mayor and city clerk shall certify that the charter was
submitted to the voters of the city and that it was approved by a majority
vote. *See *Cal. Gov't Code section 34460. One copy of the approved charter
shall be filed with the County Recorder's office and one shall be kept in
the City's archive. *See *Cal. Gov't Code section 34460. A third copy of
the charter must be submitted to the Secretary of State with (1) copies of
all publications and notices in connection with the calling of the
election; (2) certified copies of any arguments for or against the charter
proposal which were mailed to the voters; (3) a certified abstract of the
vote at the election on the charter. *See *Cal. Gov't Code section 34460.

*How to Amend/Repeal a Charter*

If a citizens group, or the city's governing body, wishes to amend or
repeal a portion of the city's charter, the steps remain largely the same
as they are for drafting a charter. There are, however, two notable
exceptions. First, the petition calling for the repeal or amendment needs
only ten percent of the electorate's signatures, instead of the previous
fifteen percent. *See *Cal. Elec. Code sections 9215 and 9255. The other
notable difference has to do with the charter itself. A city charter may
establish different rules for the municipal elections process than those
laid out by the state legislature in the Elections Code. If this is the
case, the city's charter will govern the elections process used to appeal
or amend the city's charter, instead of the general laws laid out in the
Elections Code.


On Wed, Jun 5, 2013 at 11:05 PM, <agnes at mcn.org> wrote:

>      Hi Occupy,
> This is an important fact I learned at the Public Banking Conference with
> a panel of elected officials, at which Supervisor Dan Hamburg spoke and he
> took note of this. If we vote to become a charter county we can establish
> a public bank without violating the CA Constitution.Yes!!!
>
> Cheers!
> Agnes
>
>
>
> Oakland / Alameda County
>
> Kathe, did you hear S. F. County Supervisor Avalos' announcement of the
> opinion by the county counsel? Charter cities, if they establish a public
> bank, are not in violation of the CA Constitution. O... read more »
>
> Kathe Welch and Marc Armstrong contributed to this conversation.
>
>
>
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