To: Honorable Mayor and Members of Town Council
From: Bob Slentz, Town Attorney
Title
Discussion/Direction: Charter Amendment Implementation
Body
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The Town Charter now provides for a Town Council consisting of a Mayor elected at-large, and six Councilmembers elected by district. The timing of the first election of the Mayor and the necessary re-districting to six Council districts is not addressed in the Charter. Consequently, it is important that the Council make concerted efforts to address the implementation of the recently voter-approved Charter change, referred to in this memorandum as a “transition plan.” This memorandum addresses potential options for adoption of a transition plan.
1. Charter Amendment. A transition plan may be advanced to the voters at a regular or special municipal election as a Council-referred Charter amendment. A voter-approved amendment will conclusively resolve the issue of the effective date of the election of the Mayor with negligible risk of legal challenge or future uncertainties. In addition to the transition plan, certain related amendments may be submitted to the voters to clarify other provisions of the Charter affected by the transition.
Attached are those suggested revisions to the Charter, as well as a transition plan enabling the election of the Mayor and two Council seats at the November 2018 regular election. Absent such special election, the earliest date for the Mayor election is pushed to the 2020 regular election. Also note that under 2-5(a) of the Charter, there is no longer the express ability of the Council at the 2018 organizational meeting to appoint a Mayor, but only a Mayor pro-tem.
The timing of a call of a 2018 special election is addressed later in this memorandum.
2. Election Commission Referral. Section 4-4 of the Charter provides for an Election Commission of five registered electors whose primary responsibility is to independently draw district boundaries when required by the Charter. In addition, the Election Commission is granted this authority:
(b) The Election Commission shall have the charge of all activities and duties required of it by this Charter and by ordinances relating to the conduct of elections in the Town. In any case where election procedure is in doubt, the Election Commission shall prescribe the procedures to be followed. (emphasis added)
May the Election Commission implement a transition plan at the request of Council under this provision?
It is the opinion of this office and Kathleen Kelly, special counsel to the Election Commission, that the Election Commission does not have the Charter power and authority to establish the date the Mayor will first be elected and undertake the necessary re-districting. Neither of these activities principally encompasses the "conduct of an election" or "election procedure" given the plain and usual meaning of those terms, or the proper construction of those terms in the context of 4-4. Put simply, the unresolved issue turns on when an election should be held, not how an election should be held.
Moreover, adoption of a transition plan by the Election Commission would result in a conflict with two other sections of the Charter. Section 2-3(a) prescribes the election of four and then three seats on the Council in successive even years, which cannot be accommodated with six Councilmember districts. Section 4-5(a) prescribes that the next re-districting is not to occur until 2021. A transition plan providing for election of a Mayor prior to 2022 would conflict with this provision. It is indisputable that the Election Commission may not by its actions, in effect amend the Charter.
3. Judicial Resolution. May the Council request that the Douglas County District Court devise a transition plan? There is a great deal of uncertainty as to whether the District Court has jurisdiction to consider Charter revisions at this time. There must be a “case or controversy” for the Court to decide a request for declaratory relief. It is not apparent that the lack of a transition plan creates a dispute, especially prior to the Council exhausting other avenues to put in place a transition plan. Judicial relief sought by the Town may be seen as a last resort rather than a first resort. Moreover, the time necessary to file and obtain a judicial ruling in 2018 would most certainly preclude proceeding with a special election in 2018. More probably, judicial resolution will come as a result of litigation initiated by interested parties challenging the Town’s action or inaction in resolving the Charter questions. Should the Council desire to further explore this alternative additional legal research and analysis must be undertaken.
Please see the separate memorandum from the Town Clerk on the options and challenges to conducting a special election in 2018 as a coordinated election with Douglas County. If the Charter amendments submitted at the special election provide for a November 2018 Mayor election, the election must be held early in 2018 to allow sufficient time for the Election Commission to draw the new Council district boundaries, assuming the proposed amendments are approved. If this is to be pursued, the Council will need to adopt the ordinances calling the special election and referring the designated Charter amendments as early as January.
Proposed Motion
Move to direct staff to prepare draft ordinances calling for a 2018 Special Election and Referring necessary Charter amendments to such Special Election ballot for Council consideration at the December 5th Council meeting.
Attachments
Attachment A: Charter with proposed amendments