HomeMy WebLinkAboutCity Attorney LetterCITY OF NEWPORT BEACH
OFFICE OF THE CITY ATTORNEY
DATE: February 2, 2010
TO: Honorable Chair and Charter
Update Commission
FROM: Office of th - ' ttorney
Dav' ity Attorney
MATTER: Charter Update Matters 2009/10;
A09-00673
RE: Orientation on Legal Issues
Please allow the Office of the City Attorney to weigh in briefly on your orientation
through this memorandum.
1. Nature of Assignment.
Your role is defined by the Council resolution that created the Commission. That role is
summarized by the City Clerk's "Attachment A" presented to you along with the Revised
List of Issues marked as "Attachment B" in your staff materials.
As you know, you are free to recommend that additional issues be addressed, but the
City Council has to approve the addition of issues to the Commission's work program. If
possible, we would recommend you address any additional issues that you may wish to
address within the first two meetings of the Commission so that we can obtain Council
approval and work them into the schedule.
2. Brown Act "Legislative Body."
The Commission is a "legislative body" under the state open meetings law, the Ralph M.
Brown Act (the "Act"). As such, the Commission must comply with the Act. Staff will
assist in achieving compliance. Most important to the Commission and individual
Commissioners are the following:
• Open and Public: All Commission business, unless subject to an exception of
the Act, must be open and public. (Government Code section 54953(a); Council
Policy A-6.)
• "Meeting": The business of the Commission can only be conducted in noticed
and public "meetings." You may not meet privately with a quorum or more of
Commissioners to address the business of the Commission outside of the
context of an open and noticed public meeting.
Orientation on Legal Issues
February 2, 2010
Page: 2
• Agenda Requirement: Subject to limited exceptions for "emergencies" the
Commission may only address issues that fall within its published agenda.
(Government Code section 54954.2(a).)
3. Political Reform Act — Conflicts of interest.
When performing the business of the Commission you are a "public official" and may
not use that position in "making, participating in or in any way attempting . . . to
influence a governmental decision in which [you] know or have reason to know [you]
have a financial interest." (See Cal. Gov't Code § 87100. See also 2 Cal. Code
Regs. §§ 18700, 18702 - 18702.4.)
4. Public Records Concerns.
All of the records of the Commission are "public" unless they fall within limited
exceptions, including some emails. As such, treat the records you receive and generate
carefully. A good rule is to not say anything in an email or document that you do not
want to see on the front page of the Daily Pilot. For the most part the City Clerk and
other City staff will be responsible for maintaining public records and addressing public
records issues, but you need to be sensitive to the issue.
5. Charter Cities.
The City of Newport Beach is, as you know, a Charter City recognized under the
California Constitution. It is, therefore, unique in many ways from other governmental
agencies commonly dealt with.
To begin with, cities are fundamentally different than counties under California law.
Counties are in effect state agents and have no authority independent of their delegated
power from the state. Cities are not local subdivisions of the state, but are instead
instruments of local self-government. (Cal.Const. Art. VI, § 2; Government Code §§
56000, et seq.) While cities may assist the state in providing services, they are not
creatures of the state and they are insulated from the state under Article IV section 16 of
the Constitution' which prohibits the state from enacting local or special legislation
where the general laws could be applicable.
There are two classes of cities within California, "general laws "cities and charter cities.
General laws cities derive their powers from the Constitution and from the "general laws
of the state, such as the Government Code, Public Contract Code, and other laws.
Charter cities such as Newport Beach base their powers directly on the Constitution and
their Charters, as opposed to the "general laws" of the state. As such, charter cities are
much greater autonomy from the state than do general laws cities.
Section 3(a) of Article XI of the Constitution authorizes the adoption of a city charter and
provides that a charter has the force and effect of state law. In addition, charter cities
are affirmatively granted "home rule" over "municipal affairs" by Constitution Art. XI, §
All references are to California law and its Constitution since the form and power of cities are for the
states to regulate and not the federal government.
Orientation on Legal Issues
February 2, 2010
Page: 3
5(a). Such "home rule" is established by the adoption of a charter that in effect acts as
the supreme law of the City, akin to being its own individual constitution. While the
concept of a "municipal affair" lacks certain definition under the law, it is clear that the
City has the power to provide for creation and operation of a police force, construct the
governing structure of the City, conduct elections of municipal officers, and to establish
the roles and number of municipal officers and employees through the adoption of its
charter.
As a result, the Charter is a critical document to the governance of the City. Great care
must be given to the consideration of amending it. We thank you for taking on this
important task and we are honored to have a role in providing you assistance in your
efforts. Please feel free to contact me or my office at anytime if you have any questions
or concerns that we can assist you with in this effort.
[A09-00673] — Charter Update Commission from DRH re Orientation