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CC - Item 2C - Minutes with Errata 12-05-050 0 MINUTES OF THE SPECIAL MEETING ROSEMEAD CITY COUNCIL December 5, 2005 Mayor Imperial called the special meeting of the Rosemead City Council to order at 7:00 pm in the Council Chambers of the City Hall, 8838 E. Valley Boulevard, Rosemead, California. Mayor Imperial led the Pledge to the Flag. Councilmember Clark delivered the Invocation. ROLL CALL OF OFFICERS: Present: Councilmembers Clark, Nunez, Tran, Mayor Pro Tern Taylor and Mayor Imperial Absent: None Before the meeting began, City Manager Crowe let audience members know that the Planning Commission meeting scheduled for that evening had been canceled and rescheduled for December 19, 2005. Councilmember Tran asked who called for the Special Meeting. Mayor Imperial responded that he, along with Mayor Pro Tern Taylor and Councilmember Clark had called the special meeting. Councilmember Tran asked legal counsel if Mayor Pro Tern Taylor was allowed to do this, since he had abstained in the voting of the Special Election Resolution adopted by the Council. Councilmember Tran also asked if the Mayor was able to call a special meeting on this topic, since there is a potential conflict of interest. City Attorney Wallin explained that the Mayor or three Councilmembers can call a special meeting and that the evening's meeting had been properly called. Councilmember Nunez asked for clarification as to why the Special Meeting was called at this time and suggested it would be prudent to wait until further information is received or action is directed by the courts. City Attorney Wallin indicated the purpose of this meeting was to determine if action is needed. He explained that a recent court decision pertaining to the Federal Voting Rights Acts applies to recall petitions. The 9th Circuit ruled that recall petitions are considered election materials and therefore need to be translated into four languages in the City of Rosemead. Given the ruling, the recall petitions circulated for the February 7, 2006 election are not in compliance. Mr. Wallin explained three options to reconcile the lack of petition translation: 1) an individual candidate can take the matter to court; 2) the Council can CC MIN: 12-05-05 Page 1 of 9 0 i rescind the election; or 3) the Council can suspend the election and seek clarification from a federal court. Councilmember Nunez clarified that the recall petitions were approved as to form by the City Attorney and the City Clerk, based on guidelines available at the time. Councilmember Nunez also asked if any court of law had informed the City Clerk, City Manager or City Attorney to stop the election. Mr. Wallin indicated that the City had not been contacted. Mayor Pro Tern Taylor asked if election materials had already been translated and printed; he advocated further information before proceeding with printing of election materials. Councilmember Clark reminded the council that they are named on the lawsuit from the Department of Justice and must act in good faith to carry out the objectives set forth by the DOJ. City Attorney Wallin clarified that Councilmembers are not named individually on the lawsuit, rather, the City Council as a whole is named. Councilmember Tran indicated the 9th Circuit ruling should not affect Rosemead's recall election, as the 9th Circuit ruling came after petition circulation began. Councilmember Nunez indicated that if candidates are unhappy with the petitions, they should file a lawsuit, as individuals. He also asked Mr. Wallin to clarify what authority the council has to rescind the election and to cite case law examples. City Attorney Wallin gave the example of Council putting forth a measure to approve the sale of bonds; in this case, the Council can rescind an election if the City Council decides not sell the bonds at a later date. ORAL COMMUNICATIONS FROM THE AUDIENCE Senate Majority Leader Gloria Romero spoke in support of the recall election and urged Councilmembers with a conflict of interest to recuse themselves. Ken Pike, residing at 9220 Steele Street, spoke against the recall, as he was recalled in 1972 because of redevelopment. Mr. Pike felt the city would save money by waiting until the next regularly scheduled election. Marlene Shinen, residing at 8447 Drayer Lane, South San Gabriel spoke in support of the recall. She referenced environmental concerns and money spent by Wal-Mart in the 2005 election. CC MIN: 12-05-05 Page 2 of 9 • 0 Councilmember Clark rebutted that she did not take any Wal-Mart money for the 2005 Election and recounted her offer to put Wal-Mart on the ballot but the opposition declined. Steven Ly, residing at 3040 Rosemead Place, spoke against the recall and urged the council to abide by the Consent Decree and referenced his mother, who was allegedly misled into signing a recall petition. He referenced new legislation requiring multi-language translations and wanted to know why the petitions weren't in the language of the people. Brian Lewin, residing at 9442 E. Ralph Street, spoke in support of the recall election citing no clear, verifiable reason to cancel the election. Mr. Lewin also recommended Councilmembers with a conflict of interest in the election recuse themselves and urged Councilmember Clark to vote to allow the election to proceed. Ed Stepanian, residing at 1813 Delta, spoke in favor of the recall. Mr. Stepanian was a petition gatherer and indicated bilingual voters who signed the petitions did so because it was their choice. Polly Low, residing at 1039 La Presa Avenue, spoke in support of the recall because SOC filed their petitions based on the rules at the time. Ms. Low felt Mayor Pro Tern Taylor and Mayor Imperial should recuse themselves due to a conflict of interest. Victor Ruiz, residing at 9703 Olney, spoke in support of the recall because he witnessed translators that walked with petition gathers. Alejandro Gandera, Rosemead resident, advocated the council should not act solely on the basis of the 9th Circuit ruling as it may or may not be valid retroactively. Mr. Gandera pointed out that in the past the Council has not complied with all rulings put forth by the 9th Circuit; he gave an example of a lawsuit he brought forth in the past against the Rosemead City Council. Mr. Gandera spoke in favor of the recall. Jim Flournoy, residing at 8655 Landisview, clarified for the record that he invited State Senator Romero and Judy Chu's office (not labor unions). Mr. Flournoy spoke in favor of the recall and felt the Mayor and Mayor Pro Tern could not call this meeting due to a conflict of interest and felt the council did not have the authority to rescind the election. Estelle Holtz, residing at 8247 Blecker Ave, South San Gabriel, spoke in support of the recall. Ms. Holtz felt that the opposition to moving forward with the election was a stall tactic from Wal-Mart. CC MIN: 12-05-05 Page 3 of 9 • 0 Larry Bevington, residing at 8372 Rush Street, spoke in favor of the recall. He referenced two other circuit courts that have found petitions to be a product of the people and therefore not subject to the same requirements cities are subjected to, citing cost and length as two factors. As a proponent of the recall, his organization (SOC) submitted recall petitions to the city, altered the formats based on instructions from City staff and circulated petitions after city approval. Mr. Bevington felt the action to rescind the election would be presumptuous. Ricky Choi, spoke as a representative of Assemblymember Judy Chu, read a written statement in favor of the recall that advocated letting the courts decide if the election should go forward. Nativo Lopez, National President of the Mexican American Political Association and the subject of the recall in the Padilla v. Lever case that the 9th Circuit ruled upon, indicated that the circumstances in his case were completely different than in the Rosemead case and recommended proceeding with the recall election. Julie Wang, residing at 1012 S. Marengo Ave., Alhambra, spoke in favor of the recall election. Ron Gay, residing at 4106 Encinita Avenue, read a statement and referred to City Attorney Wallin's memorandum and its conclusions which he feels ignores 20 years of California Election Law. Mr. Gay feels that any action will disenfranchise voters. His opinion is that "Padilla v. Lever" was a post ballot decision and that this action would be a pre ballot challenge. After citing legal opinions, Mr. Gay urged the Council not to take action. Fred Herrera, residing at 3879 Delta St., recommended the City Council guard city finances by postponing the election. John Davidson, residing at 7542 Mel Rose Ave., felt Councilmembers were being unfairly categorized as undemocratic and asked that all participants in the process respect each other. Juan Nunez, residing at 2702 Del Mar, discussed City Attorney Wallin's memo and presented information that both opposed and supported the recall in an attempt to illustrate the multi-faceted issues involved with the recall election and petitions. Todd Kunioka, residing at 8400 Wells Street, discussed the differences between Nativo Lopez's circumstances and the Rosemead situation. In addition, he spoke about the recusal of Jay Imperial and Gary Taylor due CC MIN: 12-05-05 Page 4 of 9 • • to a conflict of interest. He also mentioned that PRIDE sent out postcards to voters that wished to "remove" their signatures from the recall petition. Yuki Fukumoto, residing at 1807 Delta, spoke in support of the recall election and vowed support for it until its end. Jim Clouet, residing at 3719 Ivar, spoke in support of the recall election and reminded the council how many residents had signed the petitions. Rosie Licerio, residing at 9225 E. Steele St., spoke in opposition to the recall election. As a phone bank volunteer for Mayor Pro Tern Taylor and Mayor Imperial, she spoke to Spanish-speaking residents. Because some of the petition signers she spoke to felt misled, Ms. Licerio recommended delaying the recall election until clear language guidelines are established. Damian Nevarez, residing at 3043 Charlotte, felt that development is good for the City of Rosemead, just not at the Walnut Grove location. Mr. Nevarez referenced a City Council meeting from the past when English signs were discussed; he implied that Mayor Imperial and Mayor Pro Tern Taylor wanted English-only signs. Mayor Pro Tern Taylor asked him to refer to council minutes and set the record straight. He and Mayor Imperial supported legislation that required businesses to use at least six inch letters in English (not English only) so law enforcement personnel and the public are able to identify buildings. Councilmember Tran made a motion to adjourn the meeting, with a second by Councilmember Nunez, as they felt the council did not have all the information needed to proceed. Vote resulted: Yes: Nunez, Tran No: Clark, Imperial, Taylor Abstain: None Absent: None MATTERS FOR DISCUSSION AND ACTION A. Consideration of the Impact of the Ninth Circuit Court's Decision in Padilla V. Lever. B. Consideration of Resolution No. 2005-45: A Resolution of the City Council of the City of Rosemead, California rescinding its adoption of Resolution No. 2005-33, which called for and gave notice of the holding of a Special Municipal Election on Tuesday, February 7, 2006, for the submission of the question of the recall of certain officers and CC MIN: 12-05-05 Page 5 of 9 • 0 the election of candidates to fill the vacancy or vacancies if the recall prevails, and rescinding its adoption of Resolution No. 2005-35, which requested the Board of Supervisors of the County of Los Angeles to render specified services to the City of Rosemead relating to the conduct of a Special Municipal Election to be held on Tuesday, February 7, 2006 Mayor Pro Tern Taylor discussed his objections to the recall process which started before the petition signatures were turned in. He specifically referenced an open letter addressed to Rosemead residents in June, 27, 2005 in which it was clarified that a condition of Wal-Mart's permit prohibits gun sales (Condition 60) and that Wal-Mart will for 20 years, pay for a crossing guard to assist children crossing Rush Street. Mayor Pro Tern Taylor also mentioned that by repealing Ordinance #836, as requested by SOC, the city saved about $35,000 in special election costs. He also read an excerpt from an election letter sent out from organizers that stated the Rosemead City Council "Threw the petitions in the garbage." Councilman Taylor stated for the record that the petitions are still locked up in a safe place with the City Clerk; Councilmembers did not throw any away and residents can check with the City Clerk for verification. An audience member commented that the quote was a figure of speech. Mayor Pro Tem Taylor referenced City Council minutes from 9/27/05 in which Rose Marie Gonzalez stated she was a resident of Rosemead who circulated petitions. Ms. Gonzalez clarified her residence address was actually a mailing address and that she lives in South San Gabriel. She also indicated that she went out with people but did not carry petitions. Mayor Pro Tern Taylor said that we are going to have the court give us an order to open up the petitions. Mayor Pro Tern Taylor read out a dictionary definition of conspiracy and what makes a publication libelous per se. Based on the definitions of these words, he proceeded to recite excerpts from letters sent out from State Senator Gloria Romero, Assemblyperson Judy Chu, and Miguel Contreras that in Mayor Pro Tern Taylor's opinion were literal translation examples of the words listed above. Senator Romero advised the City Attorney to advise Mayor Pro Tern Taylor to refrain from making further comments, as his line of CC MIN: 12-05-05 Page 6 of 9 0 0 questioning showed his intent and dislike of the recall election. She recommended Councilmembers stick to the agenda. Mayor Pro Tern Taylor explained he brought forth the above examples, to illustrate informational inconsistencies which voters had to reconcile. He suggested that by having a federal judge order the opening up of the petitions, further clarification could be achieved. Councilmember Clark expressed a desire for a court to look at the issues and mentioned that previous decisions including the current case Padilla v. Lever regarding Nativo Lopez have been in Nativo Lopez's case retroactive. Councilmember Clark made a motion to add to Resolution 2005-45 in the following way: `7t is the intention of the City Council in enacting this Resolution to place the current recall election proceedings in abeyance until the validity of the recall petitions have been determined by the federal courts. The City Clerk is instructed to retain counsel and to expeditiously file an appropriate action to secure such a determination. If, in such action, it is determined that the recall election should proceed, not withstanding the inadequacy of the petitions, a new date shall be set for the recall election in progress." Mayor Pro Tern Taylor discussed the issue of the petition signatures. Councilmember Clark indicated that the signatures are a separate issue and have already been verified. Rather than delaying the process, Councilmember Clark suggested the focus should instead be on whether the 91h Circuit ruling applies to Rosemead. Mayor Pro Tern Taylor seconded the motion Councilmember Clark made. Councilmember Tran made a motion to amend Councilmember Clark's motion by suggesting the motion be approved, but without suspending the election. Councilmember Clark did not accept amendment. Mayor Pro Tern Taylor clarified that the motion stands as is and that he seconded Councilmember Clark's motion. CC MIN: 12-05-05 Page 7 of 9 0 0 Councilmember Nunez agreed that a court needs to advise the council, but suggested the election continue per Councilmember Tran's amendment. Mayor Pro Tern Taylor asked Councilmember Nuriez about September 15, 2005 California Superior Court lawsuit between the Alhambra Unified School District & John Nunez vs. Connie McCormack (LA Registrar Recorder, County Clerk) in which the plaintiffs requested a preliminary injunction to get election materials re-worded. Councilmember Nunez clarified that the plaintiffs challenged a candidate statement, but the election continued (it was never stopped). He encouraged Mayor Pro Tern Taylor or Mayor Imperial along with PRIDE to take the issue to court rather than have the City fund a suit or the council make the decision to stop the election. Councilmember Tran agreed with Councilmember Clark that the court needs to hear this case, but requested to give it 21 days. He further asked the City Attorney if Mayor Taylor had the right to vote on the issue and Mayor Imperial asked if he had the right to vote on issue. City Attorney Wallin clarified that all Councilmembers were eligible to vote on the issue and he re-read the amendment to the staff report which had been added to Section Four, resulting in Section Four and Five being renumbered to Section Five and Six on Resolution 2005-45. The motion was made by Councilmember Clark, with a second by Mayor Pro Tern Taylor as follows: "Section 4: It is the intention of the City Council in enacting this resolution to place the current recall election proceedings in abeyance until the validity of the recall petitions have been determined by the federal courts. The City Clerk is instructed to retain counsel and to expeditiously file an appropriate action to secure such a determination. If, in such action, it is determined that the recall election should proceed, not withstanding the inadequacy of the petitions, a new date shall be set for the recall election in progress." CC MIN: 12-05-05 Page 8 of 9 Vote resulted: Yes: Clark, Imperial, Taylor No: Nunez, Tran Abstain: None Absent: None Alejandro Gandera indicated he had asked to speak prior to the vote on Agenda Item B, but that he did not get a chance to. He asked the Mayor to maintain better control in future Council meetings. 3. ADJOURNMENT There being no further action to be taken, the meeting was adjourned at 10:45 pm. The next regular meeting will be held on December 13, 2005, at 8:00 p.m. Respectfully submitted: APPROVED: City Clerk MAYOR CC MIN: 12-05-05 Page 9 of 9