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Home My WebLink About2018-8 - Authorizing the Issuance of Subpoenas Pursuant to City Charter Section 410, Compelling the Appearance and Testimony of Witnesses and Production of Documents Related to the City Council’s Investigation of Alleged Voter Fraud in the Unsuccessful ReRESOLUTION NO. 2018-8 WAS RECINDED REGULAR MEETING 06/26/2018 Item No. 24 RESOLUTION NO. 2018-8 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, AUTHORIZING THE ISSUANCE OF SUBPOENAS PURSUANT TO CITY CHARTER SECTION 410, COMPELLING THE APPEARANCE AND TESTIMONY OF WITNESSES AND PRODUCTION OF DOCUMENTS RELATED TO THE CITY COUNCIL'S INVESTIGATION OF ALLEGED VOTER FRAUD IN THE UNSUCCESSFUL RECALL SIGNATURE GATHERING EFFORT WHEREAS, on October 27, 2017, the recall proponents submitted 10,696 signatures to the City Clerk, which were forwarded to the Orange County Registrar of Voters ("Registrar") for verification; WHEREAS, the Registrar reviewed the signatures at a cost of $41,871 to the City and found that only 8,339 were valid, which was 106 signatures short of the required signature threshold of 8,445; WHEREAS, on January 4, 2018, a judge serving on the Orange County Superior Court issued a sealed Search Warrant and Affidavit ("Search Warrant") authorizing the Orange County District Attorney ("District Attorney") to seize the recall petitions from the Registrar; WHEREAS, a recall organizer and a recall proponent have stated that the District Attorney is investigating potential voter fraud used to gather signatures in support of the recall effort; WHEREAS, those same people have expressed their support of an investigation into this alleged criminal activity; WHEREAS, the City of Newport Beach ("City") Charter authorizes the City Council to conduct its own investigation into this alleged voter fraud; WHEREAS, City Charter Section 410 specifically authorizes the City Council to issue subpoenas compelling the attendance of witnesses, and the production of evidence; WHEREAS, the City Council finds and determines that probable cause exists that Jen Slater, Desnoo & Desnoo, PCI Consultants, Inc., Campaign Compliance Group and other witnesses may be in possession of information and/or documents relevant to the City's investigation necessitating the issuance of subpoenas to compel the attendance of witnesses, the production of relevant testimony, information and documentation that may lead to the discovery of evidence relevant to the City's investigation; and WHEREAS, the subpoenas authorized by this resolution serve a lawful purpose as they allow the City Council to investigate alleged voter fraud resulting from an unsuccessful recall effort, and provide information and assurances to the community regarding the integrity of the City's election processes. Resolution No. 2018-8 Page 2 of 3 NOW, THEREFORE, the City Council of the City of Newport Beach resolves as follows: Section 1: The City Council does hereby authorize the Mayor with the attestation of the City Clerk to issue subpoenas regarding the alleged voter fraud committed during the unsuccessful recall effort. Section 2: The City Council does hereby order that the subpoenas issued by this resolution shall be in a form approved by the City Attorney that is similar to the proposed form attached hereto. Section 3: The City Council does hereby declare that failure to comply with the subpoenas issued pursuant to this resolution shall subject the subpoenaed parties to the remedies set forth in the City Charter, or as otherwise provided by law. Section 4: The City Council does hereby authorize the Mayor, City Manager, City Attorney, and the City Clerk to take all actions necessary to issue, serve and enforce subpoenas authorized pursuant to this resolution. Said authority includes, but is not limited to, the issuance of further subpoenas to new parties and to the subpoenaed parties and their officers, employees and agents in furtherance of obtaining documents, testimony and/or information that will assist the City, its staff and attorneys in their efforts to investigate potential false or forged petition signatures. Should a witness fail to appear, answer questions, testify and/or produce the subpoenaed documents and/or evidence, the Mayor is authorized to report the witnesses' failure to abide by the subpoena to the Superior Court and seek any and all lawful remedies including a ruling holding the subpoenaed witness in contempt. Section 5: The recitals provided in this resolution are true and correct and are incorporated into the operative part of this resolution. Section 6: If any section, subsection, sentence, clause or phrase of this resolution is, for any reason, held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution, and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 7: The City Council finds the adoption of this resolution is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Resolution No. 2018-8 Page 3 of 3 Section 8: This resolution shall take effect immediately upon its adoption by the City Council, and the City Clerk shall certify the vote adopting the resolution. ADOPTED this 13th day of February, 2018. ATTEST: AL.- r"p,bw�-- Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY AT EY'S OFFICE A�— �-r Aaron C. Harp City Attorney Attachment: Subpoena Template r'D-• Mayor IN RE: EXHIBIT A SUBPOENA (Newport Beach Charter Section 410) CITY OF NEWPORT BEACH: SUBPOENA FOR APPEARANCE Date: AND PRODUCTION OF Time: BUSINESS RECORDS Place: TO: [Name] [Address] [Address] FROM: CITY OF NEWPORT BEACH [TBD] [TBD] Newport Beach City Hall Council Chambers 100 Civic Center Drive Newport Beach, CA 92660 1. On [Date], the Newport Beach City Council acting under the authority of Newport Beach Charter Section 410 adopted Resolution No. 2018- (incorporated by reference into this subpoena). [Select Option "a" or "b" below] a. YOU ARE ORDERED to appear in person and to produce true and correct copies of the records which you have in your possession described in Subsection 2(a) at the Newport Beach City Hall, Council Chambers, 100 Civic Center Drive, Newport Beach, California 92660, on [date TBD], at [time TBD] (or as soon thereafter as the matter may be heard). b. YOU ARE ORDERED to produce true and correct copies of the records which you have in your possession described in Subsection 2(a) in compliance with Subsection 2(b) below. 2. The Records to be produced are as follows: a. from to the present. b. You are not required to appear at City Hall on the date and time set forth above if, prior to [date and time of appearance in subpoena], you produce true and correct copies of the Records to City Clerk Leilani I. Brown, City of Newport Beach, 100 Civic Center Drive, Newport Beach, CA 92660. c. All copies of documents shall be accompanied by a declaration or affidavit warranting to their accuracy and completeness. A declaration of affidavit meeting the requirements of Code of Civil Procedure Section 2020.430 shall be sufficient. The City of Newport Beach will pay all reasonable documented costs associated with copying the Records. If costs exceed $200.00, please contact City Attorney Aaron C. Harp at (949) 644-3131 before copying. 3. This subpoena is issued pursuant to Newport Beach Charter Section 410 and was authorized at a regularly noticed meeting of the City of Newport Beach City Council. 4. Disobedience of this subpoena may be referred to the Superior Court for enforcement and is subject to the criminal penalties and procedures set forth in the Newport Beach Charter and as otherwise provided by law. Should you have any questions regarding this subpoena, please contact: Aaron C. Harp City Attorney City of Newport Beach 100 Civic Center Drive, Bay 2E Newport Beach, CA 92660 (949)644-3131 Date issued: [TBD] Marshall "Duffy" Duffield Mayor Ic%a 9 *1 I Leilani I. Brown City Clerk APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron C. Harp City Attorney Attachment(s): [Insert attachments, if any] STATE OF CALIFORNIA } COUNTY OF ORANGE } ss. CITY OF NEWPORT BEACH 1 I, Leilani I. Brown, City Clerk of the City of Newport Beach, California, do hereby certify that the whole number of members of the City Council is seven; the foregoing resolution, being Resolution No. 2018-8 was duly introduced before and adopted by the City Council of said City at a regular meeting of said Council held on the 131h day of February, 2018; and the same was so passed and adopted by the following vote, to wit: AYES: Council Member Kevin Muldoon, Council Member Scott Peotter, Council Member Brad Avery, Mayor Pro Tem Will O'Neill, Mayor Duffy Duffield NAYS: Council Member Jeff Herdman, Council Member Diane Dixon IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the official seal of said City this 141h day of February, 2018. Leila I. Brown City Clerk Newport Beach, California