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HomeMy WebLinkAboutagenda.council.worksession.20140429 CITY COUNCIL WORK SESSION April 29, 2014 4:00 PM, City Council Chambers MEETING AGENDA I. Type of election: Mail ballot vs. polling places II. Prospective Charter Amendments re: Council Vacancies and Board and Council Term Limits MEMORANDUM TO: Mayor and City Council FROM: Election Commission – Kathryn Koch, Bob Leatherman, David Hyman, Linda Manning RE: Changes to Election Procedures – Mail Ballot Election v. Polling Place DATE: April 24, 2014 Since the last municipal election in May 2013, the state legislature has adopted two bills that affect the way municipal elections are conducted. In 2013, the state legislature adopted H.B. 1303, which allows counties to conduct ALL mail ballots elections. It also allows counties to have vote centers rather than polling places for their elections. Because the county conducts all mail ballot elections, they no longer have permanent mail-in voters (PMIV) or keep permanent mail in voter registration lists. For the 2013 City of Aspen municipal election, Pitkin County gave the city a list of all city voters on their PMIV list and we used that to mail ballots to voters designated permanent mail-in voters. Any PMIV list Pitkin County would have will be out of date by 2015. The city is not the official registrars and has no way to keep the lists up-to-date. H.B. 14-1164 adopted mail ballot procedures for municipalities, as well as for special districts. C.R.S. 31-10-908 states “Mail ballot elections – preelection process (1) If the governing body of a municipality determines that an election is to be conducted by mail ballot, the clerk shall supervise . . . “ I take that section to read if Council adopts an ordinance incorporating 31-10- 101 et.seq., that either a mail ballot or a traditional polling place election could occur. Council will need to adopt an ordinance amending Section 9.10 et seq. of the municipal code before the end of 2014. Staff and the Election Commission have discussed these legislative changes. The type of election (mail v. polling place) is a Council decision and the choices would be: • Conduct mail ballot election • Have a polling place election and any absentee voters apply as in the past with no PMIV list The way in which C.R.S. 31-10-101 et. seq. is written if a mail ballot election were to be conducted in 2015, the petitions would start February 3, 2015. City Attorney Jim True has advised the Election Commission that he does not see any reason why the city cannot amend the P1 I. section that sets forth when petitions are picked up and then due, §31-10-909. True also stated the city’s ordinance could state that the Council can decide by Resolution at some point prior to any election whether the election will be by mail or not. PROS – • is the same type election as that carried out by the county and the fire district • PMIV voters would be served as all voters would receive a ballot in the mail CONS – • Security concerns (the election procedures adopted by the election commission have signature verification included that is stricter than most municipalities) • Petition deadlines for office will change from o 50 days before an election (March 16th) due 30 days before an election (April 5th) o 91 days before an election (February 3) due 71 days before an election (February 21) P2 I. Confidential Attorney-Client Communication - Page 1 MEMORANDUM TO: MAYOR and COUNCIL MEMBERS FROM: JAMES R. TRUE DATE: April 24, 2014 RE: Work Session on Charter Amendments ══════════════════════════════════════════════════════════════════ On Tuesday, April 29th, the Council will have a work session to address the possibility of proposing to the voters of the City of Aspen in the upcoming November election amendments to the Aspen Municipal Charter. In the past year two issues have been raised by the Mayor and Council Members that would require amendments to the Charter in order to modify current procedures and rules. These two issues concern how vacancies on City Council are filled and whether there should be term limits for members of City Boards and Commissions. In addition, in a letter to the editor, a member of the public raised the issue of term limits for the Mayor and Council. Given issues involving term limits that have arisen in the past couple of years, the Mayor has requested that this also be addressed at the upcoming work session. I will address each issue separately. I. COUNCIL VACANCIES. Following the last election, Councilman Dwayne Romero was appointed by Council to fill the seat vacated by Mayor Skadron. At the time many people questioned the method of filling this vacancy, with some suggesting that the vacancy be filled by a special election. However, the Aspen Municipal Charter states very clearly that when a single vacancy occurs other than by recall, the vacancy must be filled by appointment by the remaining Council members. A special election is not a current option. The person appointed serves until the next general municipal election, regardless of when the term of the seat that is being filled ends. Thus, if a Council Member were to resign shortly after his or her initial election, which has occurred in the past, then the seat would be up for election at the next general municipal election. The winner of that election would serve the remaining two years of the position. Under the current Charter, no one would be appointed to a position to serve more than two years, although, as is the case with Councilman Romero, it could be one month shy of two years. It should be noted that this maximum time for holding an appointed position, approximately two years, and the method of filling the vacancy, council appointment, were specifically analyzed by the Council and adopted by the electorate as a Charter amendment in 1979. The original Charter had an appointed individual serving the full term of the vacancy, which could have been up to almost four years. The change was adopted by Charter amendment in the 1979 general election, as a result of the P3 II. resignation of Marty Hershey approximately seven months after his election in 1977. The 1979 Charter amendment adopted our current procedure which allows a special election only if three or more vacancies simultaneously occur or if the vacancy was created by recall. Nonetheless, many believe now that the method of filling the vacancy is not particularly democratic, especially for an appointment to a term that could be almost two years. Thus, some, including a local paper’s editorial staff, have called for a Charter amendment that would fill a vacancy by a special election. In considering any proposal that would call for a special election, several issues must be considered. One issue is, of course, costs. A special election can cost between $10,000 and $15,000. Appointment has no financial impact. The other major issues to consider are timing and delay. These issues get a little complicated, if not downright convoluted. Given statutory requirements for calling a special election, depending on various factors, the election under most circumstances could be held between 70 and 80 days from the date of the resignation. The vacancy then would be filled anywhere from 75 to 90 days following the resignation. Due to the fact that the election code prohibits a special election from being conducted within 60 days of a general election, there are circumstances which could make this period even longer. Under the current Charter provision, the vacancy is at most 30 days. As suggested above, since certain circumstances can make consideration of the issue fairly complicated, some specific examples of what has happened in the past may help everyone wade through these issues. For instance, when Rachel Richards was elected to the County Commission in 2006, she resigned effective upon her swearing into that position, mid-January of 2007. Under any proposal for special elections, one could not have been held in that instance because of the prohibition of having a special election within 60 days of a general election. Thus, the position would have remained open for almost five months. In that instance, council appointed an individual to the position, who took office within 30 days of the resignation. Although Council did not seek an individual who would promise not to run in the upcoming general election, the individual appointed made it clear that she would not run in that election; and, in fact she did not do so. In 1991, the City found itself in the same position when Bill Tuite was elected to the County Commission. However, he decided not to resign from City Council because he did not want the Council to fill his position, feeling that it would give the appointed person an unfair advantage in the election. He served in both positions for that five month period. When Judge DeVilbiss passed away in September of 2008, there were approximately 9 months left in his term, the election being 8 months away. Again, as required, Council appointed someone to fill the vacancy. In that instance, no effort was made to consider someone who would not run for election. Jackie Kasabach was appointed and did run in the May, 2009 IRV election. However, she lost the election. It is interesting to note in this situation that there is both delay and redundancy that would result in almost any special election proposal. It was too late to get a City Council election on the November, 2008 County run election. Thus, since there is a prohibition against conducting a special election within 60 days of a general election, the election could not have taken place until January of 2009, with the general election coming in May of 2009. Any candidate who ran in January would P4 II. have had to run again in May. The vacancy would have lasted for four or five months, similar to the delay required in the Tuite and Richards situations. When Dwayne Romero resigned in 2009, there were approximately 4 months left in his term and approximately 3 months until the next general election. Again, a special election would have been prohibited. An individual was appointed to fill the seat within the 30 day requirement. An effort was made to appoint someone who would commit that he or she would not run in the next election. Ruth Krueger was appointed and did not run for Council but did run for Mayor. The longer the delay in seating a council member through an election would be, the more important it is to consider whether the Council wishes to work with less than five members. Thus, the Council must consider not only whether it wishes to present to the electorate the question of whether to have a special election, but also whether it wants the opportunity to appoint someone during the interim, an appointment process that would be as it is today. As noted above an appointed individual would most likely only serve between 45 and 60 days depending on how long the appointment process took; but, the individual could serve as long as four months. Under any scenario in which a person were appointed pending the next election, the question will come up as to whether Council can insist that the person appointed not run in the next election. Council could never formally require that an individual not exercise his or her right to run in the upcoming election, without some specific prohibition in the Charter. I have taken the liberty of drafting Charter language that would provide for a special election. The time frames need to be decided by Council, if it wishes to pursue this amendment. The new Charter language that I proposed is as follows: Section 3.8. Vacancies. An elected officer shall continue to hold his office until his successor is duly qualified. An elective office shall become vacant whenever any officer is recalled, dies, becomes incapacitated, resigns, or ceases to be a resident of the City, or is convicted of a felony. In the event of any vacancy in an elective office, the position shall be filled by an election of the voters of the City of Aspen. Such election shall take place at the next general election of the City of Aspen or any previously scheduled state or county election, if such vacancy occurs more than sixty days prior to the election. If no City general election, or special state or county election is scheduled to take place within one hundred and eighty (180) days of the date of the creation of the vacancy or if the vacancy occurs within sixty days of the date of the next election, the remaining members of the council shall, at the next regular meeting of the council following the creation of the vacancy, call a special election to fill such vacancy. During the period from the creation of the vacancy to the next available election in which the vacancy can be filled, the remaining council members may choose to appoint a replacement council member or mayor to serve until the election fills the vacant term or may choose to leave the position open until the election fills the vacancy. Provided, further that the city council may, by ordinance, adopt special procedures for the election of the successor to a recalled councilmember or the mayor, such election to be held simultaneously with the recall election. There certainly may be other ways to address these issues but this is the method that I have publically proposed. P5 II. II. TERM LIMITS FOR BOARDS AND COMMISSIONS This issue is a lot simpler. The Charter presently states in Sec. 8.2: There shall be no limitation on the number of terms a member may serve on any permanent board or commission. The policies surrounding term limits for boards and commissions have been discussed by Council to some extent already. The discussion has been consistent with all term limit discussions and I will not attempt to reiterate those discussions and issues here. If Council wishes to pursue term limits for boards and commissions, the only additional questions I see are whether the term limits should apply to all boards and commissions or just specific ones, and whether a term limit applies across all boards or is it applicable to one particular board at a time. For instance, with regard to the former question, does P&Z or HPC need a term limit, while the Board of Adjustment does not? With regard to the latter question, if someone has served his or her maximum on P&Z, can he or she be immediately appointed to the HPC? If the Council decides to place before the voters a question of whether to establish term limits for boards and commissions, I suggest that Council choose between the following alternatives: Alternative One: The number of consecutive terms an individual may serve on any City permanent board or commission shall be limited to ___. Terms are considered consecutive unless they are at least ____ years apart. Alternative Two: The number of consecutive terms an individual may serve on any particular permanent board or commission shall be limited to ___. Terms are considered consecutive unless they are at least ____ years apart. This limitation shall apply to each specific board or commission separately. Therefore, a person term limited on one board or commission may serve immediately thereafter on another board or commission. Obviously, if Council wishes to go forward with any term limit proposal, you must decide the number of terms to which an individual should be limited and the number of years between consecutive terms. Also, if Council is inclined to apply the term limits to specific boards and commissions, those could be set forth in either alternative. P6 II. III. TERMS LIMITS FOR COUNCIL AND MAYOR The Aspen City Charter does not contain term limits for the City’s elected officials. Term limits for all non-judicial elected offices, including those within a home rule municipality, are set forth in art. XVIII, §11 of the State’s Constitution. Specifically, that section states: (1) In order to broaden the opportunities for public service and to assure that elected officials of governments are responsive to the citizens of those governments, no nonjudicial elected official of any county, city and county, city, town, school district, service authority, or any other political subdivision of the State of Colorado, no member of the state board of education, and no elected member of the governing board of a state institution of higher education shall serve more than two consecutive terms in office, except that with respect to terms of office which are two years or shorter in duration, no such elected official shall serve more than three consecutive terms in office. This limitation on the number of terms shall apply to terms of office beginning on or after January 1, 1995. For purposes of this Section 11, terms are considered consecutive unless they are at least four years apart. (2) The voters of any such political subdivision may lengthen, shorten or eliminate the limitations on terms of office imposed by this Section 11. The voters of the state may lengthen, shorten, or eliminate the limitations on terms of office for the state board of education or the governing board of a state institution of higher education imposed by this Section 11. (3) The provisions of this Section 11 shall apply to every home rule county, home rule city and county, home rule city and home rule town, notwithstanding any provision of Article XX, or Sections 16 and 17 of Article XIV, of the Colorado Constitution. The issue of term limits for Council and Mayor that has recently arisen does not concern the limits set forth in this constitutional provision. No one of whom I am aware has suggested eliminating the limits or changing the specific terms set forth therein. Instead, the issue concerns the ability of a term limited mayor to run for council and vice versa. John Worcester and I, as well as attorneys for the Colorado Municipal League and a number of other jurisdictions have concluded that the positions of mayor and council are distinct. Thus, an individual term limited as a council member could run for mayor and mayor run for council. Thus, theoretically, an individual could serve indefinitely in one capacity or the other. No Colorado Court has addressed this issue and supporters of term limits believe that this is inappropriate if not just incorrect. If Council wishes to have the voters address this issue, there is perhaps a simple solution. That solution would involve placing a limit on the total number of consecutive years in both offices. For instance, if the total consecutive limit were 14 years, then a person could serve as a council member for two terms (8 years), then three terms as Mayor (6 years) for a total of 14 years. The order of service would not matter. After 14 years, the individual would have to stand down for four years. P7 II. Certainly the total could be different, 12 years, 10 years, whatever Council chose to present to the electorate. However, different maximums can create slightly different problems. For instance, if 12 years is the maximum, a council person who served two terms on council, would be limited to two terms as Mayor. This would not be particularly difficult. However, if someone served three terms as Mayor and chose to run for council, is that person limited to one term on council? Would that person be allowed to run for Council for a second term but forced to resign half way into the term? The permutations are probably myriad. I would suggest that the simplest solution would be a reliance on a maximum of 14 years. This also raises the question of whether Council should address partial terms. The most recent opinion of a Colorado Attorney General is that partial terms to which an individual is appointed do not count toward the limitation. Again, no Colorado Court has opined on the issue. If a total limit is being proposed, it may make sense to address the partial term issue as well. If Council wishes to address this further, we can do so at the meeting. Finally, it must be noted that a change in the Charter can only have prospective effect. That is that it must only apply going forward. For instance, the Mayor now has one term as mayor. Although he may run for two more terms, this term and his other one and one-half terms as council would not count toward the 14 year limitation. If Council wishes to pursue Charter amendments, specific ballot language based on these discussions will be presented to Council for formal adoption at an appropriate meeting during the summer. A final decision would be required by the end of August in order to get on the ballot in November. P8 II.