HomeMy WebLinkAboutMemo Feb 21, 2012 Attch 2(Page 156 of 181)
Attachment 2
Mayor
Ron Morrison
Council Members
Alejandro Sotelo-Solis
Louis Nali' Idad
Mona Rios
Rosalie Zarate
Office of the City Attorney
MEMORANDUM
City Attorney
Claudia Gacitua Silva
Deputy City Attorney
Jennifer Knight
TO: Mayor and City Council DATE: February 21, 2012
FROM: City Attorney
SUBJECT: Appointments to Oversight Board Established Pursuant to ABx 1 26
As you are aware, the state abolished redevelopment agencies pursuant to ABx1 26. As
of February 1, 2012, redevelopment agencies ceased to exist and were replaced by successor
agencies tasked with winding down affairs and carrying out enforceable obligations. The City's
former redevelopment agency has been replaced with the entity known as the Successor Agency
to the Community Development Commission as the National City Redevelopment Agency.
ABx1 26, as part of the dissolution, requires each successor agency to "have an oversight
board composed of seven members." Health and Safety Code section 34I79(a). Two of the seven
appointments are mayoral appointments. Health and Safety Code sections 34179(a)(2) and
34179(a)(7). Council inquired as to the appointment process for the two mayoral appointments.
This memorandum addresses Council's question.
].
GENERALLY, %1'E POWER TO APPOINT
BELONGS TO THE MAYOR,
SUBJECT TO THE APPROVAL OF THE CITY COUNCIL
A. Government Code Section 40605
The City of National City is a general law city with an elected mayor. Accordingly,
appointments to boards and commissions are made by the Mayor subject to the approval of the
City Council. Government Code section 40605 specifically states:
In general law cities where the office of mayor is an elective office .. .
the mayor, with the approval of the city council, shall make all
appointments to boards, commissions, and committees unless
otherwise specifically provided by statute.
1243 National City Boulevard; National City, California 91950-4301
Tel.: (619) 336.4220 Fax: (619) 336.4327
Attachment 1
(Page 157 of 181)
The appointment process stated above applies to local and regional boards, commissions,
and committees, and applies to the oversight board created by ABx 1 26. The caveat "unless
otherwise specifically provided by statute" provides deference to state statutes specifically
addressing individual boards, commissions, and committees. This caveat does not allow a
general law city to adopt a local ordinance providing for an appointment process inr.o. si.stent
with the Government Code provision above. 81 Ops. Gal. Atty. Gen. 75 (1998).
For example, the San Diego Unified Port District was created by state statute (Harbors
and Navigation Code), and specifically addresses the appointment process for that commission.
The Harbors and Navigation Code requires commissioners to be appointed by their respective
city council, thus the state statute specific to the Port would govern over the Government Code
section discussing the appointment process for general law cities.
Additional examples of appointment to boards or commissions established at the state
level are found in the appointments to the Metropolitan Transit Development Board, the Library
Board of Trustees, the Civil Service Commission, and the County Water Authority'. These
various entity representatives are appointed pursuant to the specific process contained within the
state statute. Thus, the state statute would govern over the general rule found in Government
Code section 40605.
B. Oversight Board Appointment Process
The oversight board is composed of seven members. Those seven members are appointed
by various entities or officials. Specific to the City of National City are two mayoral
appointments to be made to the oversight board.
Health and Safety Code section 34179(a)(2) provides for "[o]ne member appointed by the
mayor for the city that formed the redevelopment agency." In addition, Health and Safety Code
section 34179(a)(7) provides for "[o]ne member representing the employees of the former
redevelopment agency appointed by the mayor ... from the recognized employee organization
representing the largest number of former redevelopment agency employees employed by the
successor agency at that time." As written, the state statute specifics the mayor to make these
appointments. Neither references the legislative body as part of the process. Unlike the
references found in the Education Code and Water Code regarding the need for consent of the
legislative body, ABx1 26 does not make such reference.
The Metropolitan Transit 1Deveiopment Board specifically requires the "City Council" to make the appointment to
the board. Public Utilities Code section 120050.2. The Library Board of Trustees are to be "appointed by the mayor,
.. with the consent of the legislative body of the municipality." Education Code section 18910. Civil service
Commission appointments are by the `legislative body." The County Water Authority requires the representatives
from each public agency to be appointed "with the consent and approval Ole legislative bodies of the public
agencies, respectively." Water Code Appendix section 45-15.
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<Page 15B of 1B1)
ABx ] 26 does not contain a reference to the legislative body consenting to the
appointment; thus, one must determine whether the reference to the mayoral appointment was
intended to fall within the general rule found in Government Code 40605 requiring approval of
the city council or within the exception of "unless otherwise specifically provided," The most
conservative and transparent process would be to have the mayoral appointments approved by
the city council. Whether such approval is required by law is a remaining question.
To answer the question, one must apply the principles of statutory construction. "When
interpreting a statute our primary task is to determine the Legislature's intent. [citation"
Freedom Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal. 4th
821, 826. The intent is determined by first looking at the "plain meaning" of the statute and
giving effect to that "plain meaning" Kimmel v. Goland (1990) 51 Cal. 3c1202, 208-209. Part of
such determination takes into account the context in which thestatute is written and reviewing
other legislation on the subject, in effort to determine the intent. California Teachers Association
v. Governing Bd. Of Rialto Unified School District (1997) 14 Cal. 4t 627, 642.
Health and Safety Code sections 34179(a)(2) and 34179(a)(7) make it clear who is to
make appointments — the mayor. What is not clear is whether the lack of reference to the
legislative body (which is referenced in other state statutes) was intended to mean that the
appointment fell within the exception to Government Code section 40605 and did not require the
approval of the respective city council. Certainly, the legislature is well versed in drafting
legislation in which.appointments are to occur by the mayor subject to the approval of a city
council. (See, footnote 2). Equally certain, "exceptions to the general rule of a statute are to be
strictly construed." City of Lafayette v. East Bay Municipal Utility District (1993) 16 Cal.App.4t
1005,1017.
Overall, while it is arguable that the appointments fall within the exception to
Government Code section 40605, it is not definitive. Exceptions are to be narrowly construed,
and generally, it is preferable to reconcile statutes with one another. If statutes cannot be
reconciled, then the more specific takes precedence over the more general statute. Collection
Bureau of Scan Jose v, Rurnsey (2000) 24 Ca1.4th 301, 310. A paramount principal in statutory
construction is to attempt to give effect to both statutes if possible. Conway v, City of Imperial
Beach (1997) 52 Cal.App.4t 78, 84. If two statutes addressing the same subject can be
harmonized, then both should be given concurrent effect. Garcia vMcCutchen (1997) 16
Ca1.4'h 469, 478.
In this instance, harmonization ofABx1 26 and the Government Code is possible. Health
and Safety Code sections 34179(a)(2) and (a)(7) specify that two appointments are made by the
mayor to the oversight board. These provisions are silent on whether legislative approval is
necessary. The lack of specificity in this regard is conducive to reconciling the provision with the
general rule for mayoral appointments found in the Government Code, First, Government Code
section 40605 is consistent with Health and Safety Code sections 34179(a)(2) and (a)(7) in that
appointments are to be made by a mayor. Second, Government Code section 40605 elaborates
where Health and Safety Code section 34179 is silent, instating "unless otherwise specifically
Page 3 of 4
(Page 159 of 181)
provided," appointments arc made by the mayor subject to approval by the city council_
Accordingly, both statutes can be given effect, based on the harmonization of the two code
sections.
C. City Council policy Number 107
City Council Policy Number 107, entitled "Appointment to Boards arid Cormissions,"
establishes the City's procedures in making appointments to City boards and [:omniissiors. The
policy applies to our local boards and commissions, thus is inapplicable to the appointments to
the oversight board.
CONCLUSION
The provisions of:ABx 1 26 dictate that the mayor makes two appointments to the
oversight board It does not specifically refer to the legislative body approving such
appointments. Thus, one could argue that council approval is not required because it falls within
the exception to Government Code section. Overall, however, the statutes can be reconciled so
that both are .given effect. ABx i 26 bets forth the appointment is to bemade the mayor and
Government Code section 40605 elaborates that all mayoral appointments are subject to approval
by the city council, unless a specific statute provides otherwise. Li harmonizing the statutes so
both are given effect, the reasonable.i texpretation of the statutes leads the mayoral appointments
-of two•menabers to the oversight board being subject to approval -by the council,