Santa Barbara is poised for a political – and possibly a legal – scuffle over the ways and means of filling the District 3 city council seat for the final two years of Cathy Murillo’s term when she takes over as mayor.
City Attorney Ariel Calonne has advised the council that the proper procedure is for them to appoint Cathy’s successor, consistent with the traditional process outlined in the charter.
However, plaintiffs in the legal action that forced the city in 2015 to adopt the current system of district elections note that the decades-old charter section applied to citywide - not district elections. They argue that their settlement agreement with City Hall requires a special election to be held to allow the new representative to be picked by the residents of District 3 – not City Hall pols.
“The (settlement agreement) could not be more clear,” Jacqueline Inda and Sebastian Aldana, two of the plaintiffs in the original district election litigation wrote to Calonne and Mayor Helene Schneider days after the Nov. 7 election.
“All members of the City Council must be elected by residents of their respective districts; there is no provision for appointment of a vacancy on the City Council in the Notice of Entry of Judgment,” the letter said. “Therefore we assert that a special election must be called in the 3rd City Council District.”
The matter will be on the council agenda Dec. 5, Calonne said in an email, adding that the opinion he issued back in March, calling for an appointment, still stands.
We hear that the district election advocates, invoking both the settlement and California’s Voting Rights Act, are preparing to seek a court injunction to block any effort for an appointive process, should the council move that way.
Three key questions:
1-What, historically, is the process for filling a vacancy?
Wading deep into the weeds:. The City Charter is quite clear about the process by which the council seat of a member who is elected mayor is to be filled.
Quite clear and possibly irrelevant.
The first paragraph of Section 503 of the charter reads as follows:
“A vacancy on the City Council, occurring as the result of the election of a member of the City Council to the office of Mayor, shall be filled by appointment by the City Council, within thirty (30) days of the election, of the unelected candidate who received the highest number of votes for election to the City Council at said election. Said person shall serve the remaining term of the City Councilmember who was elected to the office of Mayor.”
Two problems here:
There was no election in District 3 in the Nov. 7 balloting at which Cathy, in the middle of a four-year term, was elected SB’s new mayor. Ergo: there is no “unelected candidate who received the highest number of votes.”
In his March 14 memo to council, outlining the issues should one of their members win the mayoral race, Calonne further cited, well, paragraph two of Section 503.
“A vacancy on the City Council, or in the Office of Mayor, from whatever cause arising other than expiration of term or the election of a member of the City Council to the Office of Mayor, shall be filled by appointment by the City Council within thirty (30) days of the occurrence of such vacancy unless it occurs less than one hundred (100) days before a general municipal election, in which case the office shall remain vacant until the election. In the event there is no unelected City Council candidate at the election at which a member of the City Council is elected Mayor, the City Council vacancy shall be filled as provided in this paragraph. The person appointed shall serve until the next general municipal election at which time any unexpired term shall be filled by election…." (Emphasis Calonne).
And so, concluded August Ariel: “(T)he City Attorney is of the opinion that the resulting Council vacancy would be filled by Council appointment for the remainder of the vacant council seat term.”
But wait - not so fast, say district election plaintiffs.
2-Why shouldn’t council appoint?
It’s a brave new world: The relevant charter section, last updated in 1982, clearly pertains to the at-large election system, making no allowance for district elections.
Recall that the city council accepted the district system, rather than going to court to fight against adoption, in large part because many other jurisdictions previously were forced to change after unsuccessfully defending cases brought by community advocates under the California Voting Rights Act.
The Act was passed to ensure, among other things, that minority groups have a chance to achieve levels of representation closer to their proportion of the population.
Inda and Aldana, two of the plaintiffs in the Santa Barbara case, now are represented by retired Superior Court Judge Frank Ochoa (ace legal beagle Barry Cappello, their lawyer two years ago, told us via email he is not involved in the current dispute).
In a telephone interview, Judge Ochoa outlined two legal issues:
a) As a long term matter, the council has not moved to prepare a proposed charter amendment for the ballot that would adapt the city’s governing document to district elections – even though they had months to take such action prior to the November election, and despite Calonne’s March memo recommending they do so.
b) In the short term, the question of what to do about Murillo’s seat is key because, in population terms, the 3rd is the highest minority-majority district in the city, and thus crucial to the goal of increasing representation of under-represented minorities.
Now working as a professional mediator, Ochoa said he wants to assist district election advocates in having a “dialogue” with city officials “to find a quick and profitable process for creating a road map” to update the charter and to fill the vacancy."
“The most democratic way to do that,” he said of the latter issue, “is an election.”
3) Who will decide?
Times are a’changin: Of course, officially, there will be no vacancy to fill until Cathy is sworn in on Jan. 9, when two new members – Kristen Sneddon and Eric Friedman -- will join newly re-elected incumbent Gregg Hart, Jason Dominguez, Randy Rowse (who himself originally was appointed to his at-large seat) and Cathy at City Hall.
Although the incumbent council certainly can set forth a pathway to fill the seat – most likely by appointment - the new council can toss their decision, regardless of what it is.
A couple more complications: The council also in the process of moving the city’s odd-year municipal elections to even-years, which will require extending by one year the terms of several members. And, of course, there is also the strong likelihood that Hart will run next year for the Board of Supervisors seat to be left open by the pending retirement of Janet Wolf, which would result in yet another vacant seat.
Bottom line: One high-ranking city official put it to Newsmakers this way: “It’s clear as mud.”
Images: Jacqueline Inda (SB Independent); Deep in the weeds (motleymoose.com); Ariel Calonne (Noozhawk); Frank Ochoa (Noozhawk); Cathy Murillo.