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LAW O F F I C E S OF JOSEPH W.

F L E T C H E R OPINION
To: From: Date: Re: Honorable Mayor and Members of the City ppuncil Joseph W. Fletcher, Interim City Attorne^YDecember 22, 2011 Interpretation of Municipal Code Chapter 2.20 -Appointment and Removal of Planning Commissioners

Question presented: Councilmember Kristjansson has submitted the following questionUnder 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 filling 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, within 60 days from the commencement of the vacancy, either fill the vacancy by appointment or call a special election to fill the vacancy. The special election shall be held on the next regularly established election date not

THIS 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 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 O F THIS D O C U M E N T O R T H E CONTENTS T H E R E O F MAY B E A VIOLATION OF LAW.

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less than 114 days from the call of the special election. A person appointed or elected to fill a vacancy holds office for the unexpired term of the former incumbent, [emphasis added.]" The City Council had the option under Government Code Section 36512 of calling a special election or filling the vacancy by appointment. The City Council chose the latter, and Ms. Kristjansson was appointed by the remaining City Council members on August 2, 2011. Under State law, Ms. Kristjansson will continue to serve until Mr. Twyman's former term expires in November 2012. Chapter 2.20- Establishment of Planning Commission 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 appointing City 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, including Mr. Twyman. His appointee has continued to serve after Mr. 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 by Mr. Twyman in accordance with 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 solely in the incumbent member who made the appointment, even if 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. THIS 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 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 O F THIS D O C U M E N T O R T H E CONTENTS T H E R E O F MAY B E A VIOLATION OF LAW.

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This issue is a matter of statutory interpretation. And there are two statutes to interpret; Government Code 36512 related to filling 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.) And 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 with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will 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 filling of vacancies) 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. . ."

THIS 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 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 O F THIS D O C U M E N T O R T H E CONTENTS T H E R E O F M A Y B E A V I O L A T I O N O F L A W .

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In 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 if she were elected m 2008. Ordinance No. 2009-36R Now that Ms. Kristjansson is established as a full incumbent member of 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 appointing City Council member", first in Section 2.20.030 regarding the fact that the commissioner serves "at will", and second in Section 2.20.040 regarding removal. One interpretation of the phrase " his/her appointing City Council member" could be literally only the actual individual who appointed the commissioner, even if that person is no longer in office. In interpreting the phrase, we should take guidance from 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 from office. Therefore, following the literal reading, a person no longer in office could conceivably continue to hold the right to remove a local government official from office. That would, of course be absurd and very likely 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 will" and the right of summary removal is vested in the appointing councilmember. This at-will status is placed in similar ordinances to ensure that appointive boards conform to the policy goals of the legislative body. But if this removal right were denied to a replacement councilmember, then all other commissioners would be subject to the policy oversight of their appointing councilmembers, while one commissioner would be free of such oversight. That is an outcome that 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
THIS 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 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 O F THIS D O C U M E N T O R T H E CONTENTS T H E R E O F MAY B E A VIOLATION O F LAW.

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Government Code Section 36512 by respecting Ms. Kristjansson's status as a full member of the City Council and the City Council's vesting of Planning Commission oversight in individual City Council members as articulated in Municipal Code Sections 2.20.030 and 2.20.040. Conclusion: It is important to keep in mind that Ms. Kristjansson will have to stand for election in November 2012. As with all elected officials, her record in office will be subject to elective oversight of the voters. If the voters find fault with when and how Ms. Kristjansson exercises her "will" 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-City Council member Fred Twyman. If and when she does so, the vacancy must be publicly posted by the City Clerk in accordance with Gov't Code 54974, and a replacement may not be named any sooner than 10 working days after the posting.

THIS 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 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 O F THIS D O C U M E N T O R T H E CONTENTS T H E R E O F MAY B E A VIOLATION O F LAW.