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CC - Item 5A - Consideration of a Temporary Interim Appointment to The City CouncilROSEMEAD CITY COUNCIL STAFF REPORT TO: THE HONORABLE MAYOR AND CITY COUNCIL FROM: JEFF ALLRED, CITY MANAGER DATE: JANUARY 14, 2014 SUBJECT: CONSIDERATION OF A TEMPORARY INTERIM APPOINTMENT TO THE CITY COUNCIL SUMMARY The City Council will consider an interim appointment to the City Council to temporarily fill Council Member Steven Ly's seat due to his military service leave of absence. On December 30, 2013, City Council Member Ly reported to active duty in the United States Army Reserves for a period of approximately 24 weeks. Prior to reporting for duty, Council Member Ly recommended that the City Council appoint Traffic Commissioner Jean Hall on a temporary basis to serve in his place during his absence. At its December 10, 2013 meeting, after considering several options relating to the subject City Council seat, the City Council directed staff to place the interim appointment of Jean Hall on the January 14 City. Council meeting agenda for consideration. Recommendation: City Council direction is requested. BACKGROUND On December 1, 2013, Steven Ly was ordered to active duty in the U.S. Army Reserve for mandatory training for approximately 24 weeks effective on December 30, 2013 (Attachment A). On December 2, 2013, City Council Member Ly submitted a letter to the Mayor, which recommended the appointment of Traffic Commissioner Jean Hall to fill his seat on a temporary basis during his military leave of absence (Attachment B.) At its last regular meeting of December 10, 2013, the City Council considered several options relative to the subject City Council seat and directed staff to place the matter of Jean Hall's temporary interim appointment on the agenda for its January 14, 2014 meeting for consideration. On December 19, 2013, Traffic Commissioner Jean Hall submitted a letter to the Mayor (Attachment C), which expressed interest in serving on the City Council on a temporary interim basis. In the event that the City Council takes action to appoint Jean Hall as a temporary City ITEM NO. SN City Council Meeting January 14, 2014 Page 2 of 2 Council Member in Mr. Ly's absence, Ms. Hall may take the Oath of Office and sit as a member of the City Council. LEGAL REVIEW This staff report has been reviewed by the City Attorney. Also, as a matter of record, the December 10, 2013 staff report to the City Council on options relating to the active the military duty of Council Member Ly and possible appointment process for an interim appointment (Attachment D) was prepared by the City Attorney. PUBLIC NOTICE PROCESS This item has been noticed through the regular agenda notification process. Attachments: A- 12/1/13 order to report U.S. Army Reserves active duty B- 12/2/13 letter from Steven Ly C- 12/19/13 letter from Jean Hall D- 12/10/13 staff report to City Council DEPARTMENT OF THE ARMY LONG BEACH RECRUITING COMPANY 500 PINE AVENUE, SUITE J1 LONG BEACH, CA 90802 December 1, 2013 MEMORANDUM FOR RECORD SUBJECT: Employment Verification for Steven Ly 1. The purpose of this memorandum is to document that Steven Ly is a member of the United States Army Reserve. 2. Steven Ly will be ordered to active duty by the Army Reserve on December 30, 2013 in order to complete mandatory initial entry training. Steven should be in training for approximately 24 weeks unless there are unforeseen circumstances. 3. The point of contact is the undersigned at 562- 983 -3104 (office) or victor.sben@us.army.mil. VSO VICTOR SBEN CPT, FI Commanding MAYOR . y Pout IDW MAYOR PILO TEM: WIWW AWE M COUNCIL MEMBERS: SMDM ARMM;r4 MAROAREr CLARK STEVEN LY Mayor Polly Low City of Rosemead 8838 -E Valley Blvd. Rosemead, CA 91770 December 2, 2013 Dear Mayor Low, City of &semead 8878 E. VALLEY BOULEVARD P.O BOX 399 ROSEMEAD, CAUPORN IA 91770 TELEPHONE (626) 569 -2100 FAX (626)107-9218 As you may know, I made the decision a while back to join the United States Army (Reserve). As part of joining the service, I am required to complete certain trainings. Two of the trainings will begin back -to -back on December 30th and their completion set for the end of May tentatively. During this time, I will be physically out of the state and will be without phone or internet access. Due to these limitations, I will be unable to fully exercise my duties as a Councilman of the City of Rosemead, requiring me to exercise sections 1690 and 1691 of the California Military and Veterans Code, which states: 1690. Any elected officer of the State who is called to serve with the armed forces of the United States has a right to return to and to re -enter upon his office after the termination of his active service with the armed forces if the term for which he is elected has not expired, 1691. Upon his return and re -entry or his return to the office he shall have all of the rights and privileges in, connected with, or arising out of, the office which he would have enjoyed if he had not been absent. During my absence, the council will be operating with four members, instead of the usual five. As matters and work of the people are important to our city, 1 hope the council will choose to fill my vacancy temporarily as allowed by state law in section 1692 of the California Military and Veterans Code: 1692. Any vacancy created by such absence may be filled by a temporary appointment, as provided by law, for a term not to extend beyond the time of the return and re -entry to the office by such absent person or beyond the term for which he is elected. It is my recommendation that the council appoint Jean Hall to serve in my place during my absence. Ms. Hall is a long -time resident of Rosemead who has raised her family here since before the city's incorporation. She is also a strong community leader, working with vital Rosemead organizations such as the Dinsmoor Heritage House and Museum and the Rosemead Chamber of Commerce. She also has policy development experience, serving as a commissioner on ourTraffic Commission, including a couple of stints as the Chair. I also find Ms. Hall to be a deliberative, inclusive, and warm person who matches my vision and the vision of my colleagues as to the direction of our city. I hope to return to my duty to the city as soon as I can and during my absence I will keep the city in my prayers and wish you all much success. Respectfully, Steven I Ly CC William Alarcon, Mayor Pro Tem Sandra Armenta, Councilmember Margaret Clark, Councilmember Jeff Allred, City Manager Rachel Richman, City Attorney Gloria Molleda, City Clerk MAYOR: POESY Low MAYOR PROTEM: W ILLLAM ALARCON COUNCIL MEMBERS_ SANDRA ARMENTA MARGARET CLARK STEVENLY December 19, 2013 Hon. Polly Low Mayor, City of Rosemead 8838 E Valley Blvd. Rosemead, CA 91770 Dear Mayor Low, City of Ipsemead 8,938 E. VALLEY BOULEVARD P.O BOX 399 ROSEMEAD, CALIFORNIA 91770 1 ELFPHONE (626) 569 -2100 FAX (626) 307 -92 L8 It is my understanding that the council will consider appointing me to fill Councilmember Ly's seat while he is at active duty training with the US Army Reserves. I am humbled and honored by the consideration and will fulfill that role to the best of my abilities if appointed. I have lived in Rosemead for a long time, raising all my children here. My husband and I, as well as our children, have also been involved in the community. I am proud to call Rosemead my home and if asked to serve on the council, I will do so as my civic duty. I have a good understanding of how our city functions, having worked with the staff and Council with my role on the Traffic Commission and on the Board of the Dinsmore Heritage House and Museum. I see the great progress our city is making over the last five years and would love the opportunity to help continue that direction. Thank you again for your consideration and I promise to serve my community proudly, whatever the capacity. Sincerely, , Jean Hall Traffic Commissioner CC: William Alarcon, Mayor Pro Tern Sandra Armenta, Councilmember Margaret Clark, Councilmember Steven Ly, Councilmember Jeff Allred, City Manager Rachel Richman, City Attorney Gloria Molleda, City Clerk ROSEMEAD CITY COUNCIL STAFF REPORT TO THE HONORABLE MAYOR AND CITY COUNCIL FROM: A F CHEL R CHMAN, CITY ATTORNEY DATE: DECEMBER 10, 2013 SUBJECT: CONSIDERATION OF OPTIONS RELATING TO THE ACTIVE MILITARY DUTY OF COUNCILMEMBER LY BEGINNING ON DECEMBER 30, 2013 — DISCUSSION AND POSSIBLE ACTION RELATING TO THE STATUS OF NOT LIMITED COUNCILMEMBER O POSSIBLE APPOINTMENT PROCESS FOR AN INTERIM COUNCILMEMBER SUMMARY Councilmember Steven Ly has been ordered by the United States Army Reserve to report to active duty for training starting on December 30, 2013. (Attachment A) In response to the Army's Order, dated December 1, 2013, this item has been placed on the December 10th City Council Agenda to permit appropriate Council consideration and action. BACKU Councilmember Ly has joined the United States Army (Reserve). In that capacity, Mr. Ly is required to complete certain training courses. His training has been ordered to begin on December 30th and will continue for apt weeks. In a letter to the Mayor, copied to the City Council and City staff, dated D o ntment of Jean Hall during e his mil tary eaves As Council seat be filled by the interim app further discussed in Councilmember Ly's letter, Ms. Hall is currently on the Traffic Commission . Mr. Ly states that he feels that Ms. Hall and he have a and a long time community member similar vision as to the direction of the City. He also states his intent to return to his Council seat upon the conclusion of active duty. (Attachment B) Councilmember Ly's order to active duty involves both legal and practical questions including Councilmember Ly's rights regarding his Council position and salary and benefits while on active duty and his rights to his seat upon his return. The other issues relate to what the Council is permitted to do as it relates to his absent seat on the Council and its possible options. City Council Meeting December 10, 2013 Page 2 of 4 ANALYSIS Status of Councilmember Ly's Seat While on Active Duty California Govemment Code §36513 provides the general rule for addressing Council vacancies. That section provides: "If a city Councilmember is absent without permission from all regular city council meetings for 60 days consecutively from the last regular meeting he or she attended, his or her office becomes vacant and shall be filled as any other vacancy." (Emphasis added.) In the present case though, there is an exception to the vacancy rules that applies to those councilmembers that are called to serve our Country for military duty. Such absences are not considered vacancies that require the permission of the Council. California Military and Veterans Code §395.8 applies to °any officer, elective or otherwise, who leaves or shall have left the service of any city in order to enter upon active service with the armed forces of the United States." Further, the Military and Veterans Code provides that when a councilmember is absent due to military service, the seat shall not be considered vacant. The council may, however, temporarily appoint a councilmember in the absence of the elected official. The temporary replacement has the same powers and duties as the elected official. Section 395.8 in relevant part provides "The office from which such officer absents himself to enter upon active service with the armed forces shall not be considered to be vacant but the legislative temporarily replace any such officer so absenting himself to enter upon active service with the armed forces. Such temporary officers shall have all of the powers and duties of the office to which he may be temporarily appointed and shall hold said office until the expiration of the term thereof or until the officer retums from service with the armed forces, whichever event first occurs." (Emphasis added.) Therefore, because Councilmember Ly is absent due to military service, the Council cannot treat his absence as a vacancy,and upon Councilmember Ly's return; he shall be reinstated to his elected position for any of his unexpired term. The Council maintains discretion, however, to appoint a temporary replacement. Councilmember Ly's Salary and Benefits during Active Military Leave There are both Federal and State law protections which address the salary and benefit rights of those on military leave. The Uniformed Services Employment and Reemployment Rights Act of 1994 ( "USERRA ") is the federal law that establishes certain rights and benefits for employees who are performing military service. Although USERRA does not specifically speak to elected officials, the protections and policy behind USERRA would appear to include councilmembers. Under USERRA, Councilmember Ly is generally entitled to all rights and benefits similar to what one would receive if on a furlough or a leave of absence. In addition, under the California City Council Meeting December 10, 2013 Page 3 of 4 Military and Veterans Code, Councilmember Ly is entitled to 30 days of continued salary and benefits after commencing active military duty. Councilmember Ly has indicated that he does not require City health care benefits during his military service period. He will be entitled to 30 days of salary. Lastly, upon his return, he will also be permitted to receive all benefits that he currently is receiving as a sitting Councilmember as allowed by law. Council Options for Councilmember Ly's Seat during His Active Duty As discussed, the Council has the right, but not the obligation, as the City's legislative body, to appoint an interim replacement. If the Council elects to move forward on appointing an interim replacement for Councilmember Ly, the Council may consider the following procedural options, as well as any other procedural options that the Council may develop and approve: 1. Council could appoint a Council subcommittee to search, and make recommendations for an appointment; or 2. Council could receive applications during an open application period, interview all eligible candidates subject to the Brown Act, and make an appointment from those candidates; or 3. Council could consider the recommendation of Councilmember Ly to appoint Jean Hall; or 4 Council could take no action to initiate a process for appointment. Again, the Council may in its discretion elect to choose one of these options, a combination of these options, another procedure or method suggested by the Council. FISCAL IMPACT The City contribution for Councilmember Ly's salary and benefits is fully budgeted. Accordingly, there is no projected budget impact as a direct result of Councilmember Ly's military leave. Further there will be savings due to the non - payment of salary to Councilmember Ly after 30 days as well as the savings from his waiver of health benefits for the term of his active duty. In the event the Council elects to appoint an interim replacement for Councilmember Ly's seat, the individual in that office would be entitled to salary and certain benefits while serving as an interim Councilmember. There could be an additional budgetary cost if the interim Councilmember elects to enroll in medical, dental and vision coverage through the City or if the appointee is a member of the Public Employees' Retirement System (PERS). Therefore the savings described above would not necessarily occur. City Council Meeting December 10, 2013 Page 4 of 4 1. City Council vote to formally accept Councilmember Ly's December 1, 2013 Order to Active Duty commencing on December 30, 2013 and determine that Councilmember Ly's seat is not "vacant" during the period of his active military service, pursuant to California Military and Veterans Code §395.8 and that Councilmember Ly is entitled to the legal rights set out in California Military and Veterans Code §395.8 and USERRA where applicable. 2. The City Council make a determination as to whether to appoint an interim replacement to Councilmember Ly's seat. 3. If the City Council decides not to appoint an interim replacement for Councilmember Ly at this time, no further action is required of the Council. Consideration of an appointment could still be made at a later time during the term of Councilmember Ly's military service. 4. If the City Council decides to appoint an interim replacement for Councilmember Ly, then the recommended action is for the Council to direct staff as to the appointment process it desires and permit final consideration of an appointment at a future Council meeting consistent with Council's process direction. The Council is not making a decision as to an actual appointment but only as to what the appointment process will be for consideration and possible action at an upcoming meeting. Prepared by: Rachel H. Richman, City Attomey Attachments Attachment A -- Councilmember Ly's Notice of Active Military Duty Attachment B — Letter from Councilmember Ly regarding military leave and recommendation for appointment of Jean Hall