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HomeMy WebLinkAboutMINUTES - 11091993 - 1.64 1. 64A THE BOARD OR SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on _November 9, 1993 by the following vote: AYES: Supervisors Powers, Bishop, McPeak, Torlakson NOES: None ABSENT: Supervisor Smith ABSTAIN: None a SUBJECT: Filling the Vacancy on the North Richmond Municipal Advisory Council (MAC) The Board received the report of Victor J. Westman, County Counsel, dated November 3, 1993, on the vacation of a Municipal Advisory Council Office by a trial court felony conviction pertinent to the nomination of Joe McCoy to the vacant position on the North Richmond MAC. Linda Fullerton, attorney for Mr. McCoy, requested a hearing before the Board of Supervisors on the issues of the vacation of his seat and nomination for reelection. Mr. McCoy requested consideration of his appointment to the MAC. Board members being in agreement, IT IS ORDERED that the matter is REFERRED to County Counsel for further review and subsequent report to the Board on the status of the appointment of Mr. McCoy. I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of th3 Board of Supervisors on the date shown. ATTESTED: PHIL BATCHELOR,clerk of the Boara of Supervisors and County Administrator cc: County Counsel Ijy �=��� �� -- ,Depury Supervisor Powers 'TO: BOARD OF SUPERVISORS Contra FROM: Supervisor Tom Powers Costa _ s County DATE: November 9, 1993 `rte rT'9 COUN'� SUBJECT: Appointments to the North Richmond Municipal Advisory Council In Lieu of Election SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION Recommendation: Appoint in lieu of election the following members to the North Richmond Municipal Advisory Council: Four Year Terms Expiring November 30, 1997: Henry Clark/ Dorothy Olden 1323 Battery St. 317 Verde Ave. Richmond, CA 94801 Richmond,CA 94801 Robert Coleman Ted Wooten 1832-4th Street 540 Silver Ave. Richmond,CA 94801 Richmond,CA 94801 Two Year Terms Expiring November 30, 1995: Joseph Barrett f Jessie Slocum Willie Spears r 312 Grove Ave. 1551 -4th Street 1820 2nd Street Richmond,CA 94801 Richmond,CA 94801 Richmond,CA 94801 Background: California Elections Codes Section 23520 requires the Board of Supervisors to appoint to office persons in those districts where there is no election contest and no petition requesting an election has been filed. The Board shall appoint those persons that have filed nomination papers and shall appoint any person to the office who is qualified for those offices where nomination paper has been filed. CONTINUED ON ATTACHMENT: YES SIGNATURE: RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE (S): ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS / I HEREBY CERTIFY THAT THIS IS A TRUE X UNANIMOUS(ABSENT +'" ) AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN. CC: District I ATTESTED ' '^�� 2, / j E 3 Appointees Via Dist. I PHIL BATCHELOR,CLERK OF THE BOARD OF John Gregory SUPERVISORS AND COUNTY ADMINISTRATOR BY DEPUTY M382 (10188) i 1. 64A THE BOARD OR SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Order on November 9, 1993 by the following vote: AYES: Supervisors Powers, Bishop, McPeak, Torlakson NOES: None ABSENT: Supervisor Smith ABSTAIN: None SUBJECT: Filling the Vacancy on the North Richmond Municipal Advisory Council (MAC) ' The Board received the report of Victor J. Westman, County Counsel, dated November 3, 1993, on the vacation of a Municipal Advisory Council Office by a trial court felony conviction pertinent to the nomination of Joe McCoy to the vacant position on the North Richmond MAC. Linda Fullerton, attorney for Mr. McCoy, requested a hearing before the Board of Supervisors on this issues of the vacation of his seat and nomination for reelection. 1 Mr. McCoy requested consideration of his appointment to the MAC. Board members being in agreement, IT IS ORDERED that the matter is REFERRED to County Counsel for further review and subsequent report to the Board on the status of the appointment of Mr. McCoy. I hereby certify that this is a true and correct copy of II an action taken and entered on the minutes of tn,3 Board of Supervisors on the date shown. ATTESTED: Q. /'?" PHIL BATCHELOR,Clerk of the Boaro a of Supervisors and County Administrator cc: County Counsel Supervisor Powers Deaur,, COUNTY COUNSEL'S OFFICE CONTRA COSTA COUNTY MARTINEZ, CALIFORNIA Dace: November 3, 1993 To: Board of Supervisors r From: Victor J. Westman, County Counsels, Re: Vacation of Municipal Advisory Council Office By Trial Court Felony Conviction INTRODUCTION AND SUMMARY: A question has been presented whether a person serving on a municipal advisory council holds public office and is subject to the statutory provisions concerning office vacation upon felony conviction. We conclude that a person serving on a municipal advisory council holds public office and is subject to the statutory provisions vacating public office upon that person's trial court conviction of a felony. DISCUSSION. First, we must consider whether membership on a municipal advisory council is a public office. The California courts have generally defined public office as follows : . But so far as definition has been attempted, a public office is said to be the right, authority, and duty, created and conferred by law--the tenure of which is not transient, occasional, "or incidental--by which for a given period an individual is invested with power to perform a public function for public benefit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . One of the prime requisites is that the office be created by the Constitution or authorized by some statute. And it is essential that the incumbent be clothed with a part of the sovereignty of the state to be exercised in the interest of the public . " (People ex rel. Chapman v. Rapsey ( 1940 ) 16 Cal . 2d 636', 639-640 . ) For example, Contra Costa County municipal advisory councils are created by resolutions adopted by the Board of Supervisors pursuant to Government Code section 31010 . Accordingly, municipal advisory councils are state statutory bodies . They have both advisory and Board of Supervisors 2 November 3, 1993 representational powers under the statute and under the Board' s resolutions . Based upon the foregoing, we conclude that the statutory members of County municipal advisory council hold public office . Second, California Government Code section 1770 provides , in pertinent part, as follows : "1770 . An office becomes vacant on the happening of any of the following events before the expiration of the term: * * * * * * * * * * * * * * * * * (h) His or her conviction of a felony or of any offense involving a violation of his or her official duties . An officer shall be deemed to have been convicted under this subdivision when trial court judgment is entered. For the purposes of this subdivision, 'trial court judgment' means a judgment by the trial court either sentencing the officer or otherwise upholding and implementing the plea, verdict, or finding. . . . " The California Court of Appeal has reviewed the provisions of Government Code section 1770, subsection (h) and found that the section is not ambiguous . The court indicated that the literal language of the statute indicates either of two types of trial court conviction trigger vacancy from office, specifically felony convictions and convictions for offenses involving a violation of official duties . Finally, the court stated there is no requirement that a felony of the first type involve a violation of official duties . (Lubin v. Wilson ( 1991 4th Dist. ) 232 CAM 1422 . ) Finally, it should be noted that Government Code section 1770 . 1 provides that the vacation from office occasioned by a conviction as provided in subdivision (h) of section 1770 "is neither stayed by the initiation of an appeal from the conviction, nor set aside by the successful prosecuting of an appeal from the conviction by the person suffering the conviction" . If this office may be of any further assistance, please advise. VJW:df cc: Phil Batchelor, County Administrator Attn: John Gregory I LINDA FULLERTON Attorney at Law 124 A Washington Avenue • Point Richmond, California 94801 Phone (415) 232-4000 • FAX (415) 237-2898 To: Board of Supervisors From: Linda Fullerton, Attorney for Joe McCoy Re: Appointment to North Richmond Municipal Advisory Council Date: November 8, 1993 INTRODUCTION Joe McCoy has been a member of the Municipal Advisory Council (MAC) since it was created in September 1992 . In October, 1993, five weeks before his term on the MAC was to expire, Mr. McCoy pleaded guilty to a drug possession charge filed against him concerning an arrest that occurred over one year ago, in July 1992 . Mr. McCoy accepted a plea bargain so that he could continue his schooling, work and volunteer activities, including his participation on the MAC. In August, 1993, Mr. McCoy submitted his nomination for reelection to the MAC. In September, Mr. McCoy contacted 'Contra Costa County Registration and Elections and was informed that, because his seat was uncontested, there would be no election. On. November .6, Mr. McCoy learned from a reporter at the West County Times that, because of his conviction, his seat was vacated and that Supervisor Powers is not recommending him for reappointment. Mr. McCoy was at no time notified by the MAC, the Board, or any other county or city official, that his seat was 1 going to be vacated. The vacation of Mr. McCoy's position is based on the County Counsel's interpretation of Government Code section 1770, which provides for office vacation when the incumbent is convicted of a felony. Mr. McCoy requests a hearing before the Board on the issues of the vacation of his seat and nomination for reelection. He further requests that the Board confirm his nomination to the MAC for the reasons set forth below. DISCUSSION 1. A seat on the MAC is not an 11offiae" within the meaning of the Government Code. Under California case law, an individual is not a public officer unless he exercises the "sovereignty of the state. " Chapman v. Rapsey (1940) 16 Cal.2d 636, 639-640. "Sovereignty" is defined as the supreme political power, authority or status of a person in the state whom citizens habitually obey. " Schaefer v. Sup. Ct. (1952) 113 C.A.2d 428, 432. County Counsel suggested in his November 3 memo that, because the MAC has advisory and representative powers, its members are public officers. This conclusion, however, is erroneous. Unless a body has independent powers, its members are not "public officers. " For example, a superintendent of a school district was found not to be a public officer because he did not exercise power independent of the school board. Main v. Claremont Unified School District (1958) 161 C.A. 2d 189, 204. Similarly, the MAC operates in a purely advisory capacity to the Board of Supervisors and does not have any independent sovereign powers. As stated in the 1992 2 Board Resolution creating the MAC, the "Board is the final decision-making authority with respect to issues concerning the North Richmond community and . . . the Council shall serve solely in an advisory capacity" [emphasis added] . (A copy of the Resolution is attached) . The MAC serves as a liaison between the community and the Board to facilitate citizen participation in the political process (A description of MAC functions is attached) . The description makes no mention of any sovereign powers. Because Mr. McCoy is not a public officer under the Government Code, the vacation of his office pursuant to this statute was in error. 2. There are no legitimate grounds for denying Mr. McCoy application for membership in the MAC. The Constitution and By Laws of the MAC specify the grounds upon which a member's seat may be vacated. The grounds are limited to two consecutive unexcused absences from meetings or failure to fulfill one's duties for a three month period. In addition, the Constitution states that vacation by the Board may occur "per recommendation of the Council. " (See Article VI, copy attached) . Mr. McCoy was not absent from two consecutive meetings and performed all of his duties as a member of the MAC. Moreover, the MAC did not recommend to the Board that Mr. McCoy's seat be vacated. Far from being the kind of person who should be kept off the MAC, Mr. McCoy is exactly the type of community resident best suited to serve on the MAC. In addition to his lifetime of experience living in Richmond, Mr. McCoy is an outreach worker and 3 role model for Richmond youth. He brings to the MAC firsthand knowledge of and insights into the issues confronting his community and provides a voice to hundreds of voiceless, at-risk youth. CONCLUSION Joe McCoy's seat on the MAC was vacated, without notice, based on an erroneous interpretation of the Government Code. Because Mr. McCoy is not a "public officer" under the law, his office may not be vacated on the basis of a criminal conviction. There do not exist any legitimate grounds for vacating Mr. McCoy's seat or for rejecting his nomination for reelection to the MAC. Therefore, the Board should confirm his nomination and appoint him to serve again on the MAC. 4 MUNICIPAL ADVISORY COUNCIL FUNCTIONS As provided by State law, a municipal advisory council is established by a Board of Supervisors "to advise the board on such matters which relate to that area as may be designated by the board concerning services which are or may be provided to the area by the county or other local governmental agencies, including but not limited to advice on matters of public health, safety, welfare, public works , and planning. Unless the board of supervisors specifically provides to the contrary, a municipal advisory council may represent the community to any state, county, city, special district, or school district, agency or commission, or any other organization on any matter concerning the community. " Essentially, a municipal advisory council provides a forum for community residents to discuss and formulate recommendations on matters related to the provision of local government services to their community. The Board of Supervisors determines the specific matters for which the council will serve in an advisory capacity. Typical functions of a municipal advisory council include: 1 . Advise the Board of Sunervisors on those local government services as designated by the Board. 2 . Review and report to the Board on the feasibility of reorganizing existing special districts in order to increase service delivery efficiency_ 3 . Represent the community before the Local Agency Formation Commission on proposed boundary changes affecting the community. 4. Represent the community before the County Planning Commission, Area Planning Commissions or the Zoning Administrator on land use and other planning matters affecting the community. 5 . Provide input and reports to the Board, County staff or any County hearing body on issues of concern to the community. -6 . Serve as a liaison between the community and the County Supervisor representing that area. 2 . 7 . Facilitate citizen participation . in the formation of local opinion on public problems . 8. Train community leaders in local government. 9 . Stimulate civic participation and volunteer services . 10 . Provide the community a sense of -identity. 11. Assume the duties of advisory or governing body for existing special districts . 12. Settle community conflict. 13 .' Answer citizen complaints . municipal advisory councils are to function without any financial or ongoing staff support from the county. Council meetings are to be held at least monthly at an established time and place and meetings must be conducted in accordance with the Brown Act. TEL Dec 18 02 1 _ • :gyp iii , ilii P • '� .O1 CONSTITUTION AND BYT.AWS OF THE NORTH RICHMOND MUNICIPAL ADVISORY COUNCIL ARTICLE I..NAME SECTION I. The name, of this organization shall .be the. "North Richmond Municipal Advisory Council". (hereafter•referred to as•"NIL MAC.')$ SECTION 11. NR MAC as used herein shall mean a consortium of active community groups combined for the general interest of the residents of North Richmond. ARTICLE II..OBJECTIVES SECTION I. To further the±interests,a4d well,being.of the residents of North Richmond through active participation in the tpoIltical processes of Contra Costa County, SECTIONIi. (A).Tof maintain;liaison with the..Contra Costa County Board of • Supervisors and other County agencies to insure that all concerned agencies are at. all times fully cognizant of the needs and-dcsires of-the residents of North Richmond. (B.). To keep the residents;of-,.North-Richmond.informed of pending. actions of the Contra Costa County Board. .of.,.Supervisors., the Local ,Agency' Formation Commission and other public agencies which will have a direct bearing on the general welfare of the residents;:of,North.Richmond. : (C). To improve the service rendered by County agencies by the establishment of common meeting grounds to discuss;problems and exchange Ideas. (D). To seek the,active,,participation,.of esu individual citizens andlor. groups to work on projects of'.,mutual.banefit: - 1 - TEL Dec 1Q, 02 13 :41 No .004 P .02 ARTICLE III. COUNCIL MEMBER ELECTIONS SECTION I. The officers of the North Richmond MAC shall be: President, Vice-President and Secretary. SECTION II. Terms of office will be staggered so as.to create continuity. In the first election five members will be elected to serve a two year term and six members will be elected to serve a four year term. This will be accomplished by the six members receiving the largest number `of votes -serving. the longer terms. Each subsequent election will be for a four year term of office.. flection expenses for Statements of, Qualification must be paid by the candidate. 'The first election of members shall be held in conjunedbn' with the general election,'of Contra Costa County and is expected to occur in or around November, .1993. SECTION III. �Eddh, tiem�er o the�K4ouhcxl shall, cit}!t1ie, iy`me o£ s�her" i`on. bo'>:a resident �Pror,have.a°business intoro`atin North`Riehmond. The Councal's a`i1 �iaa'insist of`11�'m'e"uibers. SECTION IV. Upon the death or resignation of-amember of the Council, the vacancy may be . filled for the balance of the unexpired term through a recommendation by the`remainfng Council members to the Supervisors.,of Contra Costa for-appointment. All officers shall,be responsible for the duties of their respective offices. Any officer or Council member may be're-elected Por additional terms ARTICLE.IV_ COMMITTEES'. , SECTION 1. The President shall be an ex-offioici member of all Committees. The President shall appoint all committees subject to Couneil:approval. SECTION II. All committee chairpersons shmll give a reportsof activities at each regular Council meeting. Reports maybe submitted..in writing. ARTICLE V:'MEETINGS SECTION J. •M Meetings of the NR AC'shall b6licid on'the'second and fourth Thursday of each month or at the call`of the PreiWcleiit ' In?'the abscrice of the President or in any emergency, any member of the Council may call a meeting. (Meetings will be in strict compliance with the provisions of the Ralph M. Brown Act.) All meetings shall be open to the public and public comments are welcomed. A quorum of the Council shall be required to take any official Council'action. - 2 - TEL Dec 18 02 13 :42 NiD .004 P .03 ,} ARTICLE VI. COUNCIL FUNCTIONS AND RESPONSIBILITIES THE COUNCIL: (1) Shall -be composed of the President, Vice President, Secretary and Council Members; (2) Shall carry out the management and official business of the NR MAC in'accordance with the NR MAC'Bylaws; (3) Shall hold regularly scheduled meetings as provided for in the Constitution and.Bylaws; (4) Shall act in the best interest of the NR MAC between meetings; Shall make recommendations to the Contra Costa County Board of Supervisors to fill Council vacancies by appointment between elections; and (5) Shall make decisions in all matters not covered by these Bylaws. Members of the Council who havo•two, (2)- consecutive unexcused absences from meetings or who have not fulfilled the duties bf their office for a three month period may be declared inactive by.the Council and-the office may be declared vacant. If so declared by Council action, the Contra Costa�County Board of Supervisors vacant position per recommendation from the Council. -A quorum to transact business of the NR MAC shall consist of a majority of the Council: The members shall comply fully with the Board of Supervisors' special recommended policy on Conflict of Interest. THE PRESIDENT: (a) Acts as chairman of the Council; (b) Serves as ex-officio member of all NR MAC committees; (c) . ..Appoints committee chairpersons with Council approval; (d) Is responsible for coordinating all liaison and actions with the Contra Costa County Board of Supervisors; and (e) Is responsible for providing liaison between the NR MAC and all other governmental agencies. THE VICE-PRESIDENT: Presides in the absence of the President. - 3 ^ E TEL : Dec 18 02 13 : 42 PIo . 004 P . 04 '.CITE SECRETARY: (a) Is responsible for the minutes of all regular meetings and any special Council meetings of the NR MAC; and (b) .Is responsible for the preparation of all correspondence and maintains all files of the NR MAC. ARTICLE-.-VII. FUNDING Funding for the NR MAC may be obtained by solicitations from corporations, small businesses, service organizations, Foundations and.private citizens. Funds may also be raised by sponsoring social events in the community. Checks written shall have three:(3) authorized signatures and two (2) signatures required. The authorized signatures shall. be. the Treasurer's and two other signatures authorized by the.Council. Said Council members may be bonded at the NR MAC's expense. A Treasurer shall be selected at the point where funds are available for allocation by the MAC membership. ARTICLE VIII. AMENDMENTS The. Constitutioxi and Bylaws..may be. amended-by a majority vote of the Council members provided all:.proposed amendments shall-be provided to members of the Council not less than seven (7) days prior.to the.next regularly scheduled meeting. PASSED AND ADOPTED BY THE lV it mEns OF THE NORTH RICHMOND MUNICIPAL ADVISORY COUNCIL ON BY THE FOLLOWING VOTE,,;TO WIT:,,:t-1.. AYES: NOES: ABSTENTIONS: ABSENT: We, .the undersigned, certify that the foregoing was introduced, passed and adopted by the-NOrth Richmand Municipal;Advisory.Council on PRESIDENT SECRETARY - 4 - THE BOARD OF SUPERVISORS OF CONTRA COSTA COUNTY, CALIFORNIA Adopted this Resolution on by the following vote: AYES: NOES: ABSENT: ABSTAIN: SUBJECT: In the Matter of Creation of ) an Appointed North Richmond ) RESOLUTION NO. 92/ Municipal Advisory council IT IS HEREBY RESOLVED by the Board that: 1. Creation of an Appointed North Richmond Municipal Advisory Council Pursuant to the authority granted by Section 31010 of the California Government Code, an appointed North Richmond Municipal Advisory Council (NRMAC) is hereby created. 2. Membership The council shall consist of eleven ( 11) members, who shall be residents of the North Richmond community. The boundaries of the North Richmond community shall be those of the legal description of the boundaries of the North Richmond community as depicted by document and map references recorded in the Contra Costa County Assessor' s Office. 3. Term of Office The Council members shall serve an appointed one ( 1) year term, with the initial election to be held to coincide with the November 1993 general election. 4. Council Duties and Powers The Council shall advise the Board on: a. Services which are or may be provided to the North Richmond community by the County or other local governmental agencies. Such services ,-nclude, but are not limited to, public health, safety, welfare, public works and planning. b. The feasibility of organizing the existing special districts serving the North Richmond community in order to more efficiently provide public services such as, but not limited to, water, sewer, fire, parks recreation, and infrastructure improvements. The Council may: a. Represent the North Richmond community before the Local Agency Formation Commission on proposed boundary changes affecting the community. -2- b. Represent the North Richmond community before the County Planning Commission( s) and the Zoning Administrator on land use and other planning matters affecting the community. In this regard, the Council shall cooperate with other planning advisory bodies in the North Richmond County area in order to avoid duplication and delay in the planning process. C. Provide input and reports to the Board, County staff or any County hearing body on issues of concern to the North Richmond community. It is understood that. the Board is the final decision-making authority with respect to issues concerning the North Richmond community and that the Council shall serve solely in an advisory capacity.. •Ekcept as specified above, the Council may not represent the North Richmond community to any State, County, city, special district or school district, agency or commission, or any other organization on any matter concerning the community. 5 . Compensation The Council members shall serve without compensation of any kind and the Board shall not provide funds for the payment of Council meeting stipends or reimbursement of Council members' expenses. 6 . Staff and Financial Support The Board shall provide no ongoing professional or clerical staff support to the Council or provide funds to pay for any of the Council' s operating costs. However, County staff will provide the Council with information and reports on matters of interest to the Council. 7 . Council Establishment Not Subject to Vote The issue of establishment of an elected Council shall not be an election item submitted to the voters of the North Richmond community. 8. Council Operation Within the parameters of this Resolution, the Council may organize itself and operate as it determines but shall hold regular meetings at least monthly at an established time and place. The Council meeting shall be conducted in accordance with the provisions of the "Brown Act" (Government Code Sections 54950 ff. ) including the pre-meeting posting of meeting calendar notices. In addition, tie Council shall fully comply with the Board of Supervisors ' policy concerning conflict of interest and open meetings" (Resolution No. 82/574 and the Political Reform Act (Government Code Sections 81000 ff. ) as applicable. I -3- PASSED AND ADOPTED on May 5 , 1992 , by unanimous vote of the Board members present. I hereby certify that the foregoing is a true and correct copy of a resolution entered on the minutes of the Board of Supervisors on the date aforesaid. Witness my hand and the Seal of the Board of Supervisors affixed this 5th day of May, 1952 . PHIL BATCHELOR, Clerk of the Board of Supervisors and County Administrator By Deputy Clerk Orig. Dept. : County Administrator cc: Richmond City Manager North Richmond Neighborhood House GMEDA Community Development Redevelopment Agency County Counsel LAFCO