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HomeMy WebLinkAboutCOUNCIL - AGENDA ITEM - 12/08/2020 - POSSIBLE CHARTER AMENDMENTSDATE: STAFF: December 8, 2020 Delynn Coldiron, City Clerk Kelly DiMartino, Deputy City Manager Rita Knoll, Chief Deputy City Clerk Lawrence Pollack, Budget Director Teresa Roche, Chief Human Resources Officer Carrie Daggett, City Attorney Ryan Malarky, Legal WORK SESSION ITEM City Council SUBJECT FOR DISCUSSION Possible Charter Amendments. EXECUTIVE SUMMARY The purpose of this item is to discuss Charter amendments Council may be interested in submitting to the voters at the April 6, 2021 election. GENERAL DIRECTION SOUGHT AND SPECIFIC QUESTIONS TO BE ANSWERED 1. What amendments, if any, would Councilmembers like staff to bring forward for formal consideration? 2. What additional information is needed in order for staff to bring Charter amendments of interest to Council forward for Council consideration on January 5, 2021? BACKGROUND / DISCUSSION The next Regular election to be conducted by the City of Fort Collins will be held on April 6, 2021. This presents an opportunity to bring forward proposed Charter amendments for voter consideration. Council must adopt an ordinance to refer any such changes to the voters on second reading no later than the second Co uncil meeting in January (January 19). The potential Charter amendments outlined below for discussion include election - related charter amendments discussed by the City Council Election Code Committee, as well as other election, Council vacancy, finance and organization-related Charter amendments suggested by staff to update the Charter to adapt to and allow evolving practices. To summarize, the following Charter amendments are described below: Election-Related Amendments 1. Amending Article II, Section 4 to conform with Article II, Section 1(d) to reflect the selection of Mayor Pro Tem does not occur until after the recount period has expired. 2. Amending Article VIII, Section 4(a) to eliminate the requirement that the affidavit of circulator contain a statement of the number of signers on that section of the petition. 3. Amending Article VIII, Section 5 to correct the reference to Municipal Judge in describing the Board of Elections. 4. Amending Article VIII, Section 8 regarding participation in elections by City employees, public service corporations or any other person having an interest in or intending to apply for a franchise or contract with the City, and political parties to allow Council to adopt restrictions in the City Code or to revise the Charter the restrictions. December 8, 2020 Page 2 5. Amending Article VIII, Section 9 regarding Corrupt Practices if a modification of the consequences for criminal conviction for an offense at an election is desired. Vacancy Appointment 6. Amending Article II, Section 18 to update the process for filling vacancies to address timing and options, if a process change is desired. Finance-Related Charter Amendments 7. Amending Article II, Section 17 regarding publication of annual audit summary to allow additional time. 8. Amending Article V, Section 9 regarding supplemental appropriations to clarify revenues that may be appropriated. 9. Amending Article V, Section 11 regarding lapsed appropriations to allow a Council decision regarding lapsing of certain funds and to allow appropriations of private grants and donations to be nonlapsing. Organization-Related Charter Amendments 10. Amending Article II, Section 5 Regarding Powers and Article IV, Section 2 Regarding Administrative Branch to allow Council to delegate organizational structure decisions to the City Manager. 11. Amending Article II, Section 5(b), Regarding Essential Administrative Functions and Services to add telecommunication facilities and services and transit services as essential functions. 12. Amending Article IV, Section 3 Regarding Residency Requirements to allow Council to determine and delegate to the City Manager authority to determine when residency should be required. 13. Amending Article XIII, Definitions, to conform to the changes proposed regarding organizational structure. Explanation of Amendments Presented for Discussion: Election-Related Charter Amendments: In 2015, Council formed an ad hoc committee to review, discuss and recommend changes to the election process and to review and propose needed updates to City Code and Charter regardin g elections and other related matters. In 2017, Council made the ad hoc committee a standing committee of the Council (the Election Code Committee or ECC) for the purpose of identifying and evaluating ideas for improvements to City election laws and practices and anticipating adjustments that may be needed to adapt to a rapidly changing legal and technological environment. Mayor Troxell and Councilmembers Pignataro and Summers are the current members of the ECC. Councilmember Pignataro serves as the Chair. The ECC met regularly for much of 2020 and staff presented several Charter changes to the ECC for discussion. Some items suggested by staff to address inconsistencies within the Charter or update specified processes. In addition, staff provided background on some Charter provisions that had been the subject of discussion during and since the April 2019 municipal election. The ECC requested that staff bring these items forward to the full Council for discussion. 1. Amending Article II, Section 4 to conf orm with Article II, Section 1(d) to reflect the selection of Mayor Pro Tem does not occur until after the recount period has expired. This item concerns a proposed amendment to City Charter Article II, Section 4, which governs when the Council must elect the Mayor Pro Tem following an election. This proposed amendment is to align Section 4 with City Charter Article II, Section 1(d), which was amended in 2017 to read that the Mayor and Council members shall take their oaths of office at the first regular or special Council meeting that occurs after the final certification of the election and after the time for recount expires. December 8, 2020 Page 3 The proposed amendment would revise the language in Section 4 to mirror the language of Section 1(d), meaning the Council would elect the Mayor Pro Tem at the first regular or special Council meeting following the final certification of election results and after the expiration of the recount period. Council may also wish to add language addressing the replacement of the Mayor Pro Te m in the event that office is vacated. 2. Amending Article VIII, Section 4(a) to eliminate the requirement that the affidavit of circulator contain a statement of the number of signers on that section of the petition. This item concerns a proposed amendment to City Charter Article VIII, Section 4(a), which establishes requirements for the circulation of a nominating petition. Section 4(a) currently requires that the circulator of the petition provide a signed statement that states the number of signers in a particular section of a petition and that each signature was made in the circulator’s presence by the actual person whose signature it is. This requirement regarding the number of signers is similar to a requirement that had previously existed in Article VIII, Section 4(b). It stated that if a petition is found to be signed by more persons than the number of signatures the circulator certified, the last signatures in excess of the number certified must be disregarded. The provision in subparagraph (b) was removed in 2015, but the corresponding provision in subparagraph (a) was overlooked. The proposed amendment removes a remaining reference to the circulator having to certify the number of signers of a petition, which is unnecessary and serves no practical purpose after the 2015 amendment. 3. Amending Article VIII, Section 5 to correct the reference to Municipal Judge in describing the Board of Elections (not presented to the Election Code Committee). This is a clean-up item that would update the reference in Section 5, describing the Board of Elections, to “Chief Judge” rather than “Municipal Judge.” 4. Amending Article VIII, Section 8 regarding participation in elections by City employees, public service corporations or any other person having an interest in or intending to apply for a franchise or contract with the City, and political parties to allow Council to adopt restrictions in the City Code or to revise the Charter restrictions. This item concerns a proposed amendment to City Charter Article VIII, Sec . 8 which establishes limitations on participation in City elections by City employees, public service corporations or any other person having an interest in, or intending to apply for, a franchise or contract with the City. In particular, Section 8 place s limits on whether those parties may make direct contributions and indirect expenditures in support of, or in opposition to, candidates for City office. Article VIII, Section 8 states, in relevant part: . . . No political party or city employee, directly or indirectly, and no public service corporation, nor any other person, firm or corporation, owning, interested in, or intending to apply for any franchise or contract with the city shall contribute or expend any money or other valuable thing, directly or indirectly, to assist in the election or defeat of any candidate. The application of Section 8 to City employees was the matter of some discussion during and after the 2019 election. Since the adoption of Section 8 in approximately 1980, there have als o been developments in the law that may impact Section 8’s restrictions on who may contribute or expend money or things of value, directly or indirectly, to assist in the election or defeat of a Council candidate. Council could remove Section 8 from th e Charter and adopt an ordinance to replace it with provisions in City Code. Placing these restrictions in City Code would allow the City Attorney’s Office to craft restrictions taking into consideration changes in the law since Section 8’s original adoption in 1980. Placing the restrictions in the City December 8, 2020 Page 4 Code would also make it easier to amend the restrictions in light of what is a relatively active area of the law. Alternatively, Council may want to consider asking the voters to approve an amendment to t his provision that modifies the specific prohibitions to more closely track legal developments concerning restrictions on campaign contributions. 5. Amending Article VIII, Section 9 regarding Corrupt Practices if a modification of the consequences for crimin al conviction for an offense at an election is desired. This item concerns the corrupt practices language in City Charter Article VIII, Section 9, which states: Any person who violates at a city election any state law, provision of this Charter or ordinance of the city shall, upon conviction thereof, be disqualified from holding any city position or employment for two (2) years, or any elective office for four (4) years. The substantial penalties in Section 9 were brought to Council’s attention during a campaign finance enforcement action arising from the April 2019 election. The Election Code Committee discussed these penalties in light of potential amendments it was addressing regarding the campaign finance violation framework as a whole. In particular, the Committee sent to Council proposed amendments to Chapter 7 of City Code to make the majority of campaign finance violations noncriminal. Council made these amendments by adopting Ordinance No. 109, 2020, on September 15, 2020. Now that the majority of campaign finance violations are civil, rather than criminal, if a person is found liable for such a violation no conviction is entered. Convictions only occur in criminal enforcement actions. Because most violations would no longer result in a conviction, most violations would not trigger the penalties in Section 9, which only applies in the event of a “conviction.” This means that the likelihood of Section 9’s substantial penalties being at issue are greatly reduced, which may address the concerns previously raised by Council and the Committee. With the majority of violations not being subject to Section 9, an amendment may not be required. However, if Council desires to make changes, possible amendments could include: A. removing Section 9 entirely; B. amending the language to clarify what is meant by “at a city election;” or C. amending the language to change the types of offenses that would trigger the penalties of Section 9. An additional item that Council may wish to discuss is whether Counc il is satisfied with the process for filling Council vacancies: 6. Amending Article II, Section 18 to update the process for filling vacancies to address timing and options, if a process change is desired. When a vacancy occurs near the beginning of a City election year (which is commonly caused by a Councilmember’s election to another office), there are unique timing considerations for filling the vacancy. The Charter currently requires that any vacancy on the Council be filled within 45 days by appointm ent of the Council. If the 45-day period for filling the vacancy falls withing the 45 days prior to any regular election, and the remaining unexpired term of the Councilmember to be replaced is more than 2 years, then the vacancy is filled by the newly-constituted Council following their election, and within 45 days after the term of office begins for new Councilmembers. In order for the 45-day appointment period to run prior to the 45-day deadline prior to the election, the departing Councilmember typic ally needs to resign in a timely manner to facilitate that process. If the resignation is not effective more than ninety days before the election, the selection of a replacement becomes the responsibility of the newly seated Council after the election. December 8, 2020 Page 5 Because Council has had direct experience with this process twice in recent years, this may be an appropriate time for Council to consider the way the process works and suggest changes, if any, that may be of interest. There are a number of additional Charter amendments that are being considered in addition to the election- related ones listed above. They include: Finance Related Charter Amendments: 7. Amending Article II, Section 17 regarding publication of annual audit summary to allow additional time. This item concerns the date by which a summary of the City’s annual audit is required to be published in the Coloradoan each year. Article II, Section 17 currently reads: Section 17. - Independent annual audit. The Council shall provide for an independent audit at least annually by a certified public accountant of all books and accounts of the city, and shall publish a summary thereof once in the manner provided for publication of legal notices within five (5) months after the end of each fiscal year. It has been staff’s experience that the City’s annual audit is sometimes difficult to complete within 5 months of the end of each fiscal year. Therefore, staff is recommending that Section 17 be amended to allow the legal notice for the audit summary be published within 7 months of the end of the fiscal year instead of 5 months. This should give sufficient time for the audit to be completed each year. 8. Amending Article V, Section 9 regarding supplemental appropriations to clarify revenues that may be appropriated. This item concerns an amendment so Section 9 of Charter Article V to clarify that the City Council can make supplemental appropriations not only from the City’s estimated actual and anticipated revenues received in the fiscal year of the supplemental appropriation, such as tax and fee revenues, but also from any other kind of funds the City has received or is anticipated to receive in that fiscal year, such as grant money and proceeds from debt issuance or borrowing. Section 9 would also be am ended to clarify that the same would be true for supplemental appropriations of both revenues and other funds in reserves accumulated in prior years. To reflect these amendments, Section 9 would be revised as follows: Section 9. - Supplemental appropriations. The Council, upon recommendation of the City Manager, may make supplemental appropriations by ordinance at any time during the fiscal year; provided, however, that the total amount of such supplemental appropriations, in combination with all previous appropriations for that fiscal year, shall not exceed the then current estimate of actual and anticipated revenues and all other funds received and to be received by the city during the fiscal year. This provision shall not prevent the Council from appropriating by ordinance at any time during the fiscal year such revenues and funds for expenditure as may be available from reserves accumulated in prior years, notwithstanding that such reserves were not previously appropriated. 9. Amending Article V, Section 11 regarding lapsed appropriations to allow a Council decision regarding lapsing of certain funds and to allow appropriations of private grants and donations to be nonlapsing. Section 11 of Charter Article V currently provides that all appropriations unexpended or unencumbered at the end of a fiscal year lapse, except for two categories of appropriations that Section 11 states “shall not lapse.” The first category is appropriations for City capital projects. The second category is appropriations for fe deral and state grants. Staff is proposing that Section 11 be amended in two respects. First, that it be amended to leave to Council’s discretion and determination whether a particular appropriation for a capital project or grant should be non - December 8, 2020 Page 6 lapsing. There are times when it is better from an administrative perspective that such appropriations be non - lapsing and other times when it is beneficial for the appropriation to lapse at the end of the fiscal year. Second, that it be amended to allow addition types of grants to be non-lapsing be extended, to include not only federal and state grants, but also grants and donations the City receives from private persons and entities. This amendment addresses the fact that the City is more often receiving privat e grants and donations. To accomplish these changes, Section 11 is proposed to be amended as follows: Section 11. - Lapsed appropriations. All appropriations unexpended or unencumbered at the end of the fiscal year shall lapse to the applicable general or special fund, except that the Council may designate in an ordinance appropriations appropriating funds for capital projects and for federal, or state and private grants and donations shall not lapse that such funds shall not lapse until the completion of the capital project or until the earlier of the expiration of the federal, or state or private grant or donation or the city’s expenditure of all funds received from such grant or donation. Nothing herein shall limit the ability of the Council to terminate a capital project or a federal, or state or private grant or donation at any time prior to completion of the project or prior to expiration of or the city’s expenditure of all funds from the grant or donation. Organization-Related Charter Amendments: 10. Amending Article II, Section 5 Regarding Powers and Article IV, Section 2 Regarding Administrative Branch to allow Council to delegate organizational structure decisions to the City Manager. This item concerns the process for establishing the City organizational structure. Currently changes to the City’s organizational structure must be adopted by Ordinance. This amendment would authorize City Council to delegate the authority to establish, change, consolidate or abolish administrative offices, service areas or agencies to the City Manager, so long as the administrative functions and public services established by the Charter are not abolished in any such reorganization. The amendment would not require Council to delegate this responsibility but would provide the ability for them to do so in support of a more agile administrative process. With the exponential rate of change, adaptive and resilient organizations are critical to meet the demands of an evolving community. 11. Amending Article II, Section 5(b), Regarding Essential Administrative Functions and Services to add telecommunication facilities and services and transit services as essential functions. This item adds to the list of essential administrative functions and services in Section 5(b) a new i tem (9) telecommunication facilities and services and a new item (10) transit services. The current list of essential services that the City must provide is as follows: (1) fire suppression and prevention; (2) police services; (3) finance and recordkeeping; (4) electric utility services; (5) water supply and wastewater services; (6) street maintenance; (7) storm drainage; (8) planning and zoning. 12. Amending Article IV, Section 3 Regarding Residency Requirements to allow Council to determine and delegate to the City Manager authority to determine when residency should be required. This item removes the specific designations for residency requirements, and instead authorizes City Council to establish residency requirements by ordinance, or to delegat e this authority to the City Manager. December 8, 2020 Page 7 A critical component for attracting and retaining competitive and diverse talent to serve the community is the selective use of alternative work models, including remote working. While residency requirements will st ill exist for certain positions, allowing the ability to adapt to changing conditions is important and is tied to allowing more flexibility in the structure of the City organization. 13. Amending Article XIII, Definitions, to conform to the changes proposed regarding organizational structure. This item is a companion change to changes in Article II, Section 5 regarding powers and Article IV, Section 2 regarding administrative branch in that it expands the definition of “Service area" to mean a major city administrative unit designated as a service area by the City Council by ordinance or by the City Manager as such authority is delegated by the City Council. Next Steps: Based on the concerns and interests identified during the Work Session discussion, staff will bring forward ordinances placing proposed Charter changes on the April ballot for Council’s consideration at the January 5, 2021, regular Council meeting.