Menifee City Attorney Joseph Fletcher’s legal analysis about the replacement of Planning...

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L A W O F F I C E S O F J O S E P H W. F L E T C H E R

O P I N I O N

From:

T o: Honorable Mayor and Members of the City ppuncil

Joseph W. Fletcher, Interim City Attorne^Y-Date: December 22, 2011

Re: Interpretation of Municipal Code Chapter 2.20 -Appointment and

Removal of Planning Commissioners

Question presented: Councilmember Kristjansson has submitted the following question-

Under Section 2.20.040 of the Menifee Municipal Code, may an appointed City

Council member remove a planning commissioner appointed by her predecessor

in office?

Brief Answer: Yes.

When a person is appointed to the City Council, he or she holds the same powers

as an elected member and therefore may exercise the rights of removal of the

planning commissioner appointed by their predecessor in accordance with Section

2.20.040 of the Municipal Code.

Discussion:

Factual Setting

Appointment of Sue Kristjansson to City Council

Councilmember Kristjansson was appointed to the City Council to complete the

unexpired term of Fred Twyman, who passed away unexpectedly. The fi l l ing of vacancies on

city councils is addressed in Cahfomia Government Code Section 36512 as follows:

"36512.(b) I f a vacancy occurs in an elective office provided for in this chapter,

the council shall, with in 60 days from the commencement of the vacancy, either

f i l l the vacancy by appointment or call a special election to f i l l the vacancy. The

special election shall be held on the next regularly established election date not

T H I S D O C U M E N T IS C O N F I D E N T I A L AND S U B J E C T T O T H E A T T O R N E Y C L I E N T A N D / O R

A T T O R N E Y W O R K P R O D U C T P R I V I L E G E S . D I S C L O S U R E OF T H I S D O C U M E N T OR T H E

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Opinion Re Chapter 2.20

December 22, 2011

less than 114 days from the call of the special election. A person appointed or

elected to f i l l a vacancy holds office for the unexpired term of the formerincumbent, [emphasis added.]"

The City Council had the option under Government Code Section 36512 of calling a

special election or f i l l ing the vacancy by appointment. The City Council chose the latter, and

Ms. Kristjansson was appointed by the remainingCity Council members on August 2, 2011.

Under State law, Ms. Kristjansson w i l l continue to serve unt i l M r. Twyman's former term expires

in November 2012.

Chapter 2.20- Establishment o f PlanningCommission

In May 2009, the Menifee City Council adopted Ordinance No. 2009-36' enacting

Chapter 2.20 of the Menifee Municipal Code establishing the City's Planning Commission.Section 2.20.020 empowers each member of the City Council " in his/her absolute discretion" to

appoint one planning commissioner.

Section 2.20.030 provides that "[e]ach Planning Commissioner shall serve at the pleasure

of his/her appointingCity Council member, for the same term as that Council member ...".

After adoption of Chapter 2.20, the members of the City Council each made appointments in

accordance therewith, includingM r. Twyman. His appointee has continued to serve after M r.

Twyman's passing.

Planning Commissioners may be removed as set forth in Section 2.20.040:

"2.20.040 Removal

(a) A Planning Commissioner may be removed by his/her appointing

Council member or by majority vote of the City Council."

The issue presented regarding Ms. Kristjansson is whether the fact that she was appointed

rather than elected to the City Council affects her ability to remove the planning commissioner

appointed byM r. Twyman in accordance w i t h Section 2.20.040.

Legal Analysis

The central question is whether in using the phrase "... may be removed by his/her

appointing Council member..." the City Council intended that the removal right be vested solelyin the incumbent member who made the appointment, even i f that individual were no longer in

office.

' Ordinance 2009-36 was repealed and readopted as Ordinance 2009-36R in November 2009 to eliminate the

positions of alternate planning commissioners. No other changes were made.



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December 22, 2011

This issue is a matter of statutory interpretation. And there are two statutes to interpret;

Government Code § 36512 related to f i l l ing vacancies on the City Council, and Municipal Code

§ 2.20.040 related to removal of commissioners.

Standards for Interpretation-Rules of Construction

In interpreting a statute or ordinance, the California Supreme Court, in People v.

Woodhead {\9%1) 43 Cal. 3d 1002, 1008 has directed that:

"... the objective of statutory interpretation is to ascertain and effectuate

legislative intent." {People v. Overslreet (1986) 42 Cal.3d S9l; People ex rel.

Younger v. Superior Court (1976) 16 Cal.3d 30.) In detennining intent, we look

first to the words themselves (Overstreet, supra, 42 Cal. 3d at p. 895; Younger,

supra, 16 Cal.3d at p. 40.) When the language is clear and unambiguous, there is

no need for construction. ( Overstreet, supra, 42 Cal.3d at p. 895,- People v.

Belled (1979) 24 Cal.3d 879, 884.)

A n d in DeYoung v. City of San Diego, (1983) 147 Cal. App. 3d 11 , the Court of Appeals stated

that, in ascertaining the legislative intent:

"....the provision must be given a reasonable and coinmon sense interpretation

consistent w i t h the apparent purpose and intention o f the lawmakers, practical

rather than technical in nature, which upon application w i l l result in wise policy

rather than mischief or absurdity, [emphasis added.] {United Business Com. v.

City of San Diego (1979) 91 Cal.App.3d 156, 170 ; City of Costa Mesa v.

McKenzie (1973) 30 Cal.App.3d 763, 770.)

Government Code § 36512

The threshold question is whether, as a replacement incumbent, Councilmember

Kristjansson should be treated any differently than the individual originally elected to the seat

she now holds.

The last sentence of Government Code Section36512 (b), quoted above, states that Ms.

Kristjansson " . . . holds office for the unexpired term of the fonner incumbent." There is no

other discussion in the surrounding provisions of the Government Code (addressing f i l l i n g ofvacancies) that contains any limitations on the powers of the replacement incumbent, whether

elected or appointed. As the Supreme Court stated in Woodhead, " In determining intent, we

look first to the words themselves. . ."

T H I S D O C U M E N T IS C O N F I D E N T I A L AND S U B J E C T TO T H E A T T O R N E Y C L I E N T A N D / O R


C O N T E N T S T H E R E O F M A Y B E A V I O L A T I O N OF L A W .



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December 22,2011

I n the absence of any terms such as "acting" to modify the status of Ms. Kristjansson,

Section 36512 should be read as conferring upon the appointee (or elected replacement for that

matter) all of the same powers of that particular seat on the City Council, as i f she were elected

m 2008.

Ordinance No. 2009-36R

Now that Ms. Kristjansson is established as a f u l l incumbent member o f the City Council,

we must turn our analysis to the language of Ordinance No. 2009-36R and its delegation of the

power of appointment and removal to individual members of the City Council. In two instances

the City Council uses the phrase: " his/her appointingCity Council member", first in Section

2.20.030 regarding the fact that the commissioner serves "at w i l l " , and second in Section

2.20.040 regarding removal.

One interpretation of the phrase " his/her appointingCity Council member" could be

l i teral ly only the actual individual who appointed the commissioner, even i f that person is no

longer in office. In interpreting the phrase, we should take guidance f rom the DeYoung case,

above. There, the Court uses terms such as "reasonable and common sense", "practical" and

"wise policy" to describe the preferred outcomes, so as to avoid interpretations that create

"mischief or absurdity".

While the facts in this case are that the appointing person in question is no longer alive, in

another setting, the person may have resigned or been removed f rom office. Therefore,

f o l l ow i n g the literal reading, a person no longer inoffice could conceivably continue to hold the

right to remove a local government off icial from office. That would, of course be absurd andvery l ikely to lead to mischief And even i f the section were read to allow only removal by a

majority of the City Council, it would create inconsistent standards where no such outcome was

ever articulated by the City Council at the outset.

Even applying the interpretation only in situations where the incumbent has passed away,

another absurdity would be created. Section 2.20.030 states that commissioners serve "at w i l l "

and the right of summary removal is vested in the appointing councilmember. This a t -w i l l status

isplaced in similar ordinances to ensure that appointiveboards conform to the policy goals of the

legislative body. But i f this removal right were denied to a replacement councilmember, then all

other commissioners would be subject to the policy oversight o f their appointing

councilmembers, while one commissioner would be free of such oversight. That is an outcomethat the City Council expressly sought to remedy when it created this commission structure.

Clearly, the reasonable, common sense and practical interpretation of "his/her appointing

City Council member" is to treat the replacement officeholder as the appointing Council member

for purposes of removal. This resuh harmonizes the intent of the Legislature articulated in






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December 22, 2011

Government Code Section 36512 by respecting Ms. Kristjansson's status as a f u l l member of the

City Council and the City Council's vesting of Planning Commission oversight in individual CityCouncil members as articulated in Municipal Code Sections 2.20.030 and 2.20.040.

Conclusion:

I t is important to keep in mind that Ms. Kristjansson w i l l have to stand for election in

November 2012. As w i t h all elected officials, her record in office w i l l be subject to elective

oversight of the voters. I f the voters find fault wi t h when and how Ms. Kristjansson exercises

her " w i l l " regarding the Planning Commission, they have the option of not returning her to

office.

Based on the foregoing analysis, it is my opinion that Councilmember Kristjansson has

the right under Section 2.20.040 to remove the planning commissioner appointed by late-CityCouncil member Fred Twyman. I f and when she does so, the vacancy must be publicly posted

by the City Clerk in accordancewi th Gov't Code §54974, and a replacement may not be named

any sooner than 10 working days after the posting.

TH I S D O C UM E N T IS C O N F I D E N T I A L AND S U B J E C T TO T H E A T T O R N E Y C L I E N T AND /OR

A T T O R N E Y W O R K P R O D U C T P R I V I L E G E S . D I S C L O S U R E OFT H I S D O C UM E N T OR T H E


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