CC - Item 6B - Consideration of Options Relating to the Active Military Duty of Council Member Ly Beginning 12-30-13, Discussion and Possible Action Relating to the Status of Council Member Ly's SeatROSEMEAD CITY COUNCIL
STAFF REPORT
TO: THE HONORABLE MAYOR AND CITY COUNCIL
FROM: RACHEL L 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 NIMIT POSSIBLE APPOINTMENT PROCESS FOR AN INTERIM
COUNCILMEMBER
SUMS
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.
BACK
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 approximately 24 weeks. In a letter to the Mayor, copied to
the City Council and City staff, dated December 2, 2013 Councilmember
during his military leave. As
Councilmember Ly requests his
Council seat Council
filled City the interim appointment of Jean H
further discussed in Councilmember Ly's letter, Ms. Hall is currently on the Traffic Commission
and a long time community member. Mr. Ly states that he feels that Ms. Hall and he have a
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.
ITEM NO.
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ANALYSIS
Status of Councilmember Ly's Seat While on Active Duty
California Government 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
body or other appointing authority as the case may be may appoint an officer to
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
returns 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
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December 10, 2013
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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
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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 Attorney
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
DEPARTMENT OF THE ARMY
LONG BEACH RECRUITING COMPANY
500 PINE AVENUE, SUITE J1
LONG BEACH, CA 90802
RCW- LA -6F3
MEMORANDUM FOR RECORD
SUBJECT: Employment Verification for Steven Ly
December 1, 2013
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.shen @us.army.mil.
V�-
VICTOR SEEN
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Commanding
MAYOR:
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COUNCIL MEMBERS:
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STEVEN LY
Mayor Polly Low
City of Rosemead
8838E Valley Blvd.
Rosemead, CA 91770
December 2, 2013
Dear Mayor Low,
City of �Rqsemead
8838 E. VALLEY BOULEVARD P.O BOX 399
ROSEMEAD, CALIFORNIA 91770
TELEPBONE (626) 569 -2100
FAX (626) 307 -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, I 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 our Traffic 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 Ly
CC
William Alarcon, Mayor Pro Tern
Sandra Armenta, Councilmember
Margaret Clark, Councilmember
Jeff Allred, City Manager
Rachel Richman, City Attorney
Gloria Molleda, City Clerk