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HomeMy WebLinkAbout28 - Indemnification Agreement for Election ServicesCITY OF NEWPORT BEACH CITY COUNCIL STAFF REPORT Agenda Item No. 28 April 25, 2006 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: City Clerk's Office LaVonne M. Harkless, City Clerk 949 - 644 -3005, Iharklessa ) city. newport- beach. ca. us City Attorney's Office Robin Clauson, City Attorney 949 - 644 -3131, rclau son (cD city. newport- beach. ca. us SUBJECT: Indemnification Agreement between the County of Orange and the City of Newport Beach for Election Services Provided to the City for the Petition Submitted to the City on April 3, 2006 as it Relates to the Minority Language Provisions of the Voting Rights Act of 1965 RECOMMENDATION: Approve the Indemnification Agreement between the County of Orange and the City of Newport Beach as presented. DISCUSSION: Background: On August 18, 2005, Mr. John Buttolph, representing the proponents of an initiative petition, filed a Notice of Intent with the City Clerk's Office stating their intention to circulate a petition within the City of Newport Beach for the purpose of submitting to the voters a proposed amendment to the municipal code. The amendment, if approved, would add Chapter 3.25 to Title 3 of the NBMC and its purpose would be to give voters the right to approve all forms of public borrowing to finance construction of public improvements. The City Clerk immediately forwarded the Notice of Intent to the City Attorney and requested that the City Attorney prepare the ballot title and summary. The title and summary were prepared in the manner and time period allowed by the State Elections Code. Subsequent to the return of the ballot title and summary to the proponents, on September 16, 2005, the proponents submitted a second Notice of Intent to the City Clerk's office. This Notice of Intent included the withdrawal of the Notice of Intent and initiative previously filed on August 18, 2005, and replaced it with the one dated September 16, 2005. The City Clerk immediately forwarded the Notice of Indemnification Agreement April 25, 2006 Page 2 Intent to the City Attorney's office and requested that the City Attorney prepare a new ballot title and summary based on the new initiative. The title and summary were prepared in the manner and time period allowed by the State Elections Code and it was returned to the proponents. On October 6, 2005, as prescribed by the Elections Code, the proponents published the Notice of Intent, ballot title and summary in The Daily Pilot, and filed the proof of publication with the City Clerk on October 7, 2005. The publication set in motion the timeframe in which the proponents had to circulate the petition (180 days from the date of publication). On Monday, April 3, 2006, Mr. John Buttolph filed the petition with the City Clerk's office. At that time the City Clerk, as the City's election official, accepted the petitions for a prima facie check, which included a determination of the number of registered voters reported by the county elections department to the Secretary of State effective on the publication date of the notice of intent, as well as a quick count of the signatures. At that time it was determined that 6,006 signatures (10% of the registered voters) would be required to place the measure on the ballot. The raw count of signatures presented was 7,411. Subsequent to the filing of the petition and prior to submitting it to the Registrar's office for signature verification, the City Clerk's office proceeded with reviewing the petition format to determine if it complied with the provisions of the Election Code. During the period of time when the City Clerk's office, in conjunction with the City Attorney's office and outside legal counsel, were reviewing the petition, it was brought to our attention by the Acting Registrar of Voters, Neal Kelley, that Orange County Counsel was in the process of reviewing recent court cases based on the Padilla v. Lever decision. In Padilla v. Lever, 429 F. 3d 910 (9t" Cir. 2005), the 9th Circuit United States Court of Appeals held that the minority language provisions of the Voting Rights Act of 1965 are applicable to recall petitions, and subsequent federal district court decisions have extended Padilla to initiative petitions. The County has filed a petition with the 9th Circuit for rehearing en banc (by the whole 9th Circuit appeals panel), however that is still pending. In the interim, County Counsel has determined that Padilla is controlling law, therefore the Registrar of Voters requires that prior to securing signatures on recall, initiative and referendum petitions, they be translated into the applicable language(s) for the jurisdiction. Pursuant to the Voting Rights Act Regulations, the County is required to translate ballot materials "that touch the voter" into Spanish, Vietnamese, Chinese and Korean, however the County does not provide the cities that contract with them for election services with the languages required in the individual jurisdictions. Based on our outside legal counsel's interpretation of the regulations utilized by the Department of Justice, in Newport Beach the ballot materials must be translated into Chinese and Spanish. During this review process, the City was advised by the Acting Registrar of Voters that based on legal advice provided by County Counsel and the fact that the petition was not Indemnification Agreement April 25, 2006 Page 3 circulated in the covered minority languages for the City, the County could not verify signatures on a petition or certify the results thereof, unless the City agreed to indemnify and hold the County harmless for challenges related to the County's election assistance and to reimburse the County for all costs incurred. After careful consideration of the rights of the registered voters who signed the petition, the legal issues, as well as the risk by continuing with the process, on Monday, April 10, 2006, 1 delivered the petition to the Registrar of Voters Office with a letter requesting that they proceed with the signature verification, pending the en bane rehearing of the Padilla case, so that if the petition contains the required number of signatures to qualify for the ballot, an election may be held in the event that Padilla is no longer controlling law. On Thursday, April 13, 2006, 1 attended a meeting of the Orange County City Clerks Voters Rights Act Committee, which is comprised of city clerks from Orange County and staff from the Registrars office. This committee has been meeting since February to work on issues dealing with the Voting Rights Act. One of the agenda items at this meeting was an update on the Padilla v. Lever case by Neal Kelley and Ann Fletcher, County Counsel. At this meeting it was explained that the rehearing has not yet been granted, however they are hopeful it will be heard within the next 30 to 60 days. In light of the fact that the rehearing en bane is still pending, County Counsel is still working out their position on this matter, and the signatures have been presented to the Registrar of Voters for signature verification, we are recommending that the City Council approve the indemnification agreement as presented (copy attached). Approving the indemnification agreement at this time will allow the City to obtain the certification results from the County and proceed with the election process in the event that Padilla is reheard and determined not to be controlling law. Since this issue is evolving on a daily basis, staff and legal counsel will be prepared to update this report at the Council meeting with any new information that has been obtained after the time this report was written and distributed to Council. Environmental Review: N/A Submitted by: LaVonne M. Harkless, City Clerk Attachment: Indemnification Agreement Robin Clauson, City Attorney INDEMNIFICATION AGREEMENT This Indemnification Agreement is made and entered into between the County of Orange, a political subdivision of the State of California ( "County ") and the City of Newport Beach, a municipal corporation ( "City ") RECITALS WHEREAS, in Padilla v. Lever, 429 F.3d 910 (9`h Cir. 2005), the 9`h Circuit United States Court of Appeals held that the minority language provisions of the Voting Rights Act of 1965 are applicable to recall petitions; and WHEREAS, subsequent federal district court decisions have extended Padilla to initiative petitions; and WHEREAS, in Padilla, County's petition for rehearing en bane is pending; and WHEREAS, on April 10, 2006, City requested that the County Registrar of Voters verify signatures on an initiative petition entitled: "Debt Initiative" (the "Petition "); and WHEREAS, the Petition was not circulated in the covered minority language for the City; and WHEREAS, the County Registrar of Voters is agreeable to verifying signatures and certifying its examination of signatures on the Petition, and if requested by City, taking steps to prepare for an election, so that an election may be held in the event that Padilla is no longer controlling law, so long as City agrees to indemnify and hold the County harmless for challenges relating to the County's elections assistance and reimburse County for all costs incurred thereby. Pagel of 3 AGREEMENT THEREFORE, for good and valuable consideration, receipt of which is acknowledged, County and the City agree as follows: I. City agrees to indemnify and hold County, its elected and appointed officials, including but not limited to the Acting Registrar of Voters, and County's officers, staff, employees, and agents, harmless from any claims, demands or liability of any kind or nature arising from or related to the Registrar of Voter's actions taken in connection with the Petition on the ground that such petition was not circulated in the covered minority languages, including but not limited to signature verification and certification of the Petition and any other election activities in connection with such petition undertaken by County Registrar of Voters. 2. City shall reimburse County all costs incurred related to County's signature verification and certification and any other election activities in connection with the Petition undertaken by County Registrar of Voters. Dated: Signed and certified that a copy of this document has been delivered to the Chairman of the Board Attest: Darlene J. Bloom Clerk of the Board of Supervisors Orange County, California County of Orange, a political subdivision of the State of California By: Bill Campbell Chairman of its Board of Supervisors Page 2 of 3 Dated: ATTEST: By: City Clerk APPROVED AS TO FORM: COUNTY COUNSEL In Ann E. Fletcher, Senior Deputy Dated: Um City Attorney Dated: City of Newport Beach 0 Page 3 of 3 INDEMNIFICATION AGREEMENT This Indemnification Agreement is made and entered into between the County of Orange, a political subdivision of the State of California ( "County") and the City of Newport Beach, a municipal corporation ( "City "). RECITALS WHEREAS, in Padilla v. Lever, 429 F.3d 910 09 ,Cir: 2005), the 9`� Circuit United States Court of Appeals held that the minority language provisions of the Voting Rights Act of 1965 are applicable to recall petitions; and WHEREAS, subsequent federal district court.decisions have eztendedPadilla to initiative petitions; and WHEREAS, in Padilla County's petition for rehearing eri bhnc has been granted and until rehearing and decision, Padilla, may not be cited, - and WHEREAS, on' April 10,'2006, City requested that the County Registrar of Voters verify signatures on an initiative petition entitled: Debt Initiative" (the "Petition"); and WHEREAS, the Petition was nq irculated in the covered minority language for the City; and VU $,, ,the Comity- Registrar of Voters is agreeable to verifying signatures and certifying its examination of signatures on the Petition, and if requested by City, taking steps to prepare for an election, so that an election may be held in the event that Padilla is no longer controlling law, so long as City agrees to indemnify and hold the County harmless for challenges relating to the County's elections assistance and reimburse County for all costs incurred thereby. Page 1 of 3 THEREFORE, for good and valuable consideration, receipt of which is acknowledged, County and the City agree as follows: 1. City agrees to indemnify and hold County, its elected and appointed officials, including but not limited to the Acting Registrar of Voters, and County's officers, staff, employees, and agents, harmless from any costs incurred, claims, demands or liability of any kind or nature arising from or related to the Registrar of Voter's actions taken in connection with the Petition, including but not limited to signature verification and certification of the Petition and any other election activities in connection with such petition undertaken by County Registrar, of Voters, on the ground that such petition was not circulated in the covered minority lanp-uaees.; i ekiding ba4 not imite' to Dated: Signed and certified that a copy of this document has been delivered to the Chairman of the Board Attest: 5• staff of Voters County of Orange, a political subdivision of the State of California By: Bill Campbell Chairman of its Board of Supervisors Page 2 of 3 JOHN E. BUTTOLPH ESQ. 5020 Campus Drive Newport Beach, CA 92660 April 25, 2005 Robin Clauson City Attorney City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 Tel. 949 - 955 -2033 Fax. 949 - 955 -2036 BY FAX, EMAIL, AND FIRST CLASS MAIL RE: Indemnification Agreement between the County of Orange and the City of Newport Beach for Election Services Provided to the City for the Petition Submitted to the City on April 3, 2006 as it Relates to the Minority Language Provisions of the Voting Rights Act of 1965 (Council Meeting 4/25/06 Agenda Item No. 28) Dear Ms. Clauson, I am writing in support of the joint recommendation from the City Attorney and City Clerk to approve the proposed Indemnification Agreement between the County and the City with respect to the initiative petition signed by more than 7000 Newport Beach residents to amend the Municipal Code to give voters the right to approve all forms of borrowing to finance construction of public improvements. We began circulating our Petition on or about October 7, 2005. On November 23, 2005 the 9`h Circuit Court of Appeals applied the federal Voter Rights Act of 1965 to recall petitions in the Padilla decision, and according to your Staff Report, "subsequent federal court decisions extended Padilla to initiative petitions." Our Petition was in circulation well before the Padilla decision was entered or extended to cover initiative petitions. Certainly no one of us contemplated that the courts would require initiative petitions circulating in the City of Newport Beach to be translated into Chinese and Spanish — as the City's outside legal counsel suggests. At this point, the 91h Circuit has agreed to reconsider Padilla en banc, and we are cautiously optimistic that the Court will follow the 10`h and 11`h Circuits and not apply the minority language provisions of the Voter Rights Act to initiatives. In the interim, we urge the City Council to approve the Indemnification Agreement. Alternatively, we request you designate the City Clerk to verify the signatures as provided by law, obviating the indemnification and substantial cost of the Registrar's involvement. HOd38 iNOdM3N 30 A110 )Q310 ),113 3H1 30 3313.40 Very truly yours, to. Zfd SZ WV 90. JOHN EARL BUTTOLPH JEBms 03AI3038