Editor’s Note: We, like you, are a little tired of last minute complex topics tossed into an agenda dripping with staff’s obfuscation and drowned in legalese. We’ve recruited a former policy aide to provide FFFF readers with some perspective on current and emerging issues to be placed before the Fullerton City Council over the course of the next year. Our retired insider published a list of 100 topics for discussion yesterday.
This is the first post in a series to talk about policy impacting our budget and our lives. Say what you’d like about FFFF’s motives, but if we don’t break this stuff down to talk about it, who will?
With that, here’s The Fullerton Bagman with Council’s first item to resolve next year.
I’ve been involved in government for a long time. Sometimes it’s a great experience, sometimes it’s not. For those of you familiar with this blog’s coverage of The Seven Walls of Government, this is what we’ll be confronting directly.
I don’t expect anyone in Fullerton to actually scale all seven walls and affect change, but I will equip you with a bare minimum necessary to side-step staff reports and speak to the issue at hand. Council may still ignore you, but at least you won’t be dependent upon drinking from their tainted well to quench the crushing thirst of ignorance.
Going forward, I and other members of the FFFF staff will provide you with a standardized one or two page summary of a critical issue facing Fullerton, free of bureaucratic interference and gobbledygook.
Issue #1: Council Vacancy Appointment
WHAT IS THE PROBLEM?
As a result of Jesus Silva winning election as District 3’s elected representative, he must vacate his current at-large elected seat. This results in four elected officials on a body with five seats.
All decisions require a majority vote (2 of 3, 3 of 4, or 3 of 5) of Council, with some votes requiring three votes specifically. With an empty seat on Council, some issues may not get resolved because of a 2-2 split or a 2-1 split in the case of a recusal for items requiring three votes.
In the case of a split, by law, the Council’s official action is to take no action.
WHY IS IT IMPORTANT?
In the case of a critical item like the budget, a decision of “no action” means the city lacks the ability to legally appropriate funds to pay bills, causing failures of local government functions. While unlikely, not being able to pay employees, including police and fire, will have serious consequences.
More likely, but still serious, is failure to agree on an issue like a lawsuit settlement. “No action” from the Council may increase taxpayer risk, which over time increases costs.
From a symbolic perspective, in 2016 electors chose three candidates to make decisions on behalf of the city’s residents. Councilman Silva’s resignation deprives the electors of their choice, meaning tolerating a vacancy leaves Fullerton voters without a representative, which arguably undermines faith, trust, and effectiveness.
On November 6, 2018 (election day), the Fullerton City Council changed the municipal code governing the process used to fill vacancies on the Council. Prior to the change, the City Council was required to hold a special election upon notice of a vacancy. After the change, Council has an option to hold an election or to fill the vacancy through appointment on majority vote.
Councilmembers Whitaker, Fitzgerald and Zahra will vote on the item. The City Attorney will need to weigh in on the legality of Councilmember Silva appointing a replacement for himself, which has conflicting legal holdings and questionable ethical standing.
Council has four options:
- Do nothing, leave the seat vacant, and call no special election
- Appoint an interim replacement, call a special city-wide election
- Leave the seat vacant, call a special city-wide election
- Appoint a permanent replacement, hold no special election
Option 1: Potential for acute breakdown of government and escalating costs associated with inaction on serious issues. Some short term cost savings associated with salary and election costs, all potentially offset by one impactful tie vote. Highest risk case.
Option 2: Immediate prevention of potential tie vote scenario and earliest possible restoration of electorate rights, though the quality and number of candidates willing to spend time and money for an 18 month seat may be lacking. Cost previously estimated at $400,000. Some potential for “electioneering” allegations based on who the council selects to serve before holding a special election.**
Option 3: Short term exposure to tie votes, likely lasting weeks or months (possibly one budget cycle) with the earliest possible restoration of electorate rights, with the same quality of candidate concerns as Option 2. Cost estimate of $400,000 applies. No potential for “electioneering”.
Option 4: Immediate mitigation of potential tie vote, but questionable acceptance from the electorate. Quality of the candidate may be better than that derived from a special election, but this is speculative and contentious. Severe potential for “electioneering” allegations based on who the council selects and if the appointed individual intends to run for an available seat in 2020.**
** Analysis available upon request