CITY OF COTATI
June 2, 2004
Minutes of the Adjourned Regular
City Council Meeting
201 W. Sierra Avenue,
Cotati, CA 94931-4217
CALL TO ORDER OF CITY COUNCIL MEETING
The meeting was called to order at
CITY COUNCIL MEETS IN CLOSED SESSION FOR THE REASON
INDICATED BELOW
Mayor Gilardi stated that Council would meet in closed
session for the reason indicated below.
RECONVENE IN OPEN SESSION OF THE CITY COUNCIL MEETING – 7:45 p.m.
The City Council
meeting was called to order in open session at
ROLL CALL
Councilmembers
present: Gilardi,
Councilmember absent: Berkemeier
Staff present: Stubbings, Dorch, Woltering, Hayes, Anna, Walter
REPORT FROM CLOSED SESSION
Mayor Gilardi stated there was nothing to report from closed session.
CITIZEN BUSINESS
George Barich said he requested, about 8 months ago, an investigation regarding video security in the new police facility. To date, he said, he understands that only former City Manager Dale Shaddox and Police Chief Stewart have been interviewed on this matter. He said there are many other people who should and could have been interviewed, but only those two have been questioned so far. He stated he has only asked for an apology in this matter and does not wish to bring a lawsuit, but he feels the City Attorney is not giving him credibility for his position. He said the City Attorney wants him to do the investigation, and that is not appropriate; it is staff’s job. He added he finds it offensive that the City Attorney suggests that he has a lot of time on his hands because he comes to all of these meetings. He asked for a letter of apology from the City to avoid his having to file a lawsuit against the City.
PUBLIC HEARINGS
1. Consider
introducing an ordinance establishing the Cotati campaign reform law
(City Attorney)
City Attorney
Walter reviewed the proposed ordinance and responded to questions from Council.
He remarked that as part of the ordinance he has made debt retirement deadlines (Pages 7-8) apply to all committees. Disclosure requirements in advertisements and mass mailings also apply to all committees. In event District Attorney declines to initiate enforcement the complaining party may initiate their own enforcement proceedings but must notify the City of such an action in order that the City may keep track of enforcement proceedings under this measure.
Walter pointed out three fundamental concepts in adopting legislation that restricts free speech: Free speech is the most important fundamental right in this country, and courts look with disfavor on local bodies attempting to abridge free speech. Historically, he stated, there have been two principal objectives of campaign financing legislation: seeking to eliminate corruption, or the appearance of corruption, by limiting contributions and limiting expenditures. The courts have found that only contributions can be controlled, he said, and that is because expenditure control does not affect corruption. Thus greater reporting requirements can be implemented for campaign contributions.
Fundamental principle #2: City Attorney Walter said the courts have looked at the question of what corruption, or appearance of corruption, would be affected by controlling contributions to ballot measure committees. The courts have found none, he said – there is no candidate to corrupt.
The third point, Walter stated, is that this Council cannot control the nature or quantity of speech disseminated by persons running for office, through legislation or otherwise. Untrue speech is allowed in free speech. If the untrue speech is malicious and injures a person, he said, it is actionable, but the threshold of proof is very high. In campaigns, he stated, people say things about candidates that are not true, and this proposed ordinance does not attempt to control untruths that may be stated in campaign materials, “hit pieces” or advertisements.
Joan Simon, 618 W. School Street, thanked City Attorney Walter for his presentation. She said she is impressed with the proposed ordinance. There will always be loopholes, she stated, and her greatest concern is disclosure, not limitations. Her thought about limitations is that a new person in town may not know many people to ask for $100. She suggested including a cost of living increase in the contribution limits.
Ms. Simon continued: On Page 4, 1.09.050, she suggested a campaign contribution limit of $250-$500. On Page 8, under 1.09.090, there is a requirement to report the total production and postage cost of the mailing. She said it is sometimes difficult to know exact amounts and suggested, instead, perhaps setting a range. On Page 10, under font sizes, she asked for a font size of 8 or 10 to facilitate reading. On Page 11, at 1.09.091, she recommended that the same disclosure language required on advertisements should also be required for websites. The noted that the California Fair Political Practices Commission requirements exclude internet advertising and websites, but unless there is a good reason for that, she would like the City ordinance to include that requirement. On Page 12, 1.09.100, she said she would like to see the reportable amount set at $50. On Page 13, Paragraph E, she asked what kind of City costs will be involved in having webmaster put reports on website. On Page 15, she stated she has concerns about the District Attorney being involved and incurring costs to the City. She said she was confused about the statute of limitations for when a citizen can sue. She remarked that she would like citizens go to small claims courts for redress.
Willard Richards,
Linell Hardy,
George Barich, Cotati, (displaying a Forrest Galt signboard) said no one knew Mr. Galt before the last election and we haven’t seen him since. He said this is part of the problem, and it is not being addressed. He said Council can advocate free speech. Malicious speech need not be tolerated, however, he said, and Councilmembers can utilize their own free speech. He said he has suggested Council do a proclamation asking citizens to react to dirty politics and hit pieces as soon as they happen. The proclamation would recommend that citizens go to the papers, to the violators and protest, rally, write letters, knock on doors and make sure victims are vindicated quickly. Regarding rights, Councilmembers have rights and citizens can meet to rally at the first sign of shenanigans in an election. He stated that the freedom to assemble and to protest is not addressed in this ordinance. More can be done, he said, if Council has the will and inclination to word a proclamation to get the citizens to rise up if something like that happens again.
Patty Minnis,
At the request of the Mayor, City Attorney Walter responded to comments made above. First, he stated Council is legally unable to control expenditures. Regarding some of the other suggestions made, specifically cost of living increases, he thought Councilmembers are in a good position to determine the need for the level of limits. Regarding the practicality of reporting actual costs of running a campaign, he said it should not be difficult. Regarding the requirement for using 6 point type, that is a State requirement; this ordinance requires 10 point font. Regarding website costs, he defers to staff. The FPPC does exclude internet dissemination of information from its regulations in terms of disclosing who might be supporting the costs of that internet campaign. It is unclear how far regulation of the internet is possible.
Walter pointed out the provision in the ordinance regarding reimbursement of the District Attorney for enforcement actions, (the first paragraph on Page 15), “The City shall reimburse the Office of the District Attorney for all expenses incurred in connection with the civil action.” This may involve significant costs, Walter stated. The ordinance will involve costs to the City, but the ordinance provides for recovery of legal costs, if the City prevails in a lawsuit. The statute of limitations for litigation that might be brought under this ordinance is controlled by State law (an action must be brought within three years of violation). Small claims court will probably not be the court selected by the District Attorney or a citizen. Regarding the question of how a violation is counted, he said Council should determine that in its amendments to the ordinance, but in the case of a mass mailing, he felt the entire mailing should be counted as one violation.
City Manager Stubbings stated that Council has been discussing upgrade to the website in many ways, including providing for placement of campaign financing reports thereon.
Vice Mayor Moore requested and received clarification of the term “large out of town contributor.” She would like a policy that the Fair Campaign pledge must be the one provided by the State. City Attorney Walter responded regarding the State fair campaign pledge and said he will look into whether the City can require that if a pledge is to be signed it must be that one and no other. Councilmember Orchard said she felt it would be good for Council to have a policy encouraging use of the State pledge while acknowledging that free speech cannot be controlled.
At the request of Council, City Attorney Walter provided a definition of “Independent Expenditure Committee.” Such a committee is not controlled by a candidate, he said. Courts have found that there is no justification for regulating contributions to such committees (IECs). However, the ordinance does require certain disclosures in mass mailings and advertisements from IECs and requires additional report to be filed on the Friday prior to the election.
Vice Mayor Moore asked if it would be legal, as an example, for her to support a candidate and make copies of an advertisement at her own expense. Walter responded that if she has no coordination or direction from a candidate, and spends more than $500 she must disclose according to the ordinance. If the candidate reimbursed her, it would be a contribution to the campaign expenditure committee and they would have to report it.
Mayor Gilardi addressed the question of voluntary expenditure limits. She agreed that does give an unfair advantage to incumbents. Regarding committees, she said she did not think they would adhere to a voluntary expenditure limit. She thought it might be a good idea to do a proclamation encouraging everyone to become familiar with the rules and regulations and play a clean, fair game. She said she would like to see such proclamations from other cities, if they exist.
Councilmember Orchard said she agrees with City Attorney Walter’s comments about attempting to control the content of campaign websites and e-mail. She said it is an evolving area and wouldn’t want to adopt an ordinance on that at this point.
Council discussion took place regarding the definition of “large out of town contributor.” Orchard wondered if the existing definition is really what they are after – if a relative out of state contributing $250 is of concern. Kurvers said she thinks that is of interest to voters, and they can decide if it matters. Orchard said a smaller contribution from a developer might be of more interest than larger ones from family members. Gilardi – only the city and state, not the actual address, of out of town contributor may be listed.
City Attorney Walter summarized direction from Council regarding amendments to the ordinance and included additional recommendations as well, as follows:
1. All italicized and bolded materials in the draft ordinance will not be included.
2. On Page 1, paragraph B, second line from the bottom, the words “support” and “oppose” should be plurals.
3. Insert $350.00 in the two spaces under subsection 1.09.050 on pages 4 and 5.
4. On Page 8, insert $350.00 in the three blanks under subsection 1.09.080.
5. On Page 9, under paragraph 2, sixth line, following the word “contributors,” insert “(i.e., city and state)”.
6. On Page 12, insert $50.00 in the three blanks under subsection 1.09.100.
7. On Page 13, insert $350.00 in the blank under 1.09.100(C) at the top of the page.
It was moved by Kurvers, seconded by Orchard, to introduce Ordinance No. 756 Establishing the Cotati Campaign Reform Law, with amendments as enumerated by the City Attorney above.
Yes: 4 No: 0 Absent: 1 (Berkemeier)
The meeting was
recessed at
REGULAR AGENDA
2. Receive
and file Clerk’s Certificate to Initiative Petition and consider and possibly take action to either: (a) adopt the ordinance;
(b) submit the ordinance to the voters; or (c) order a report pursuant /to
California Elections Code Section 9212 on the effect of the proposed initiative
measure (City Manager)
City Manager Stubbings outlined the options available to the City Council upon receiving and filing the Clerk’s Certificate to Initiative Petition and responded to questions from Council.
Public comment:
Michelle Berman,
Cotati resident, thanked Council for the process followed in the previous item,
saying she enjoyed the discussion. She
went on to say, regarding the Lowe’s project, there is no guarantee the impact
of Lowe’s on Cotati’s downtown. She said
it would be a great thing if all the community members were included in the
discussion about what should go into the property on
Linell Hardy, 8171 Arthur Street, referring to an article in today’s Press Democrat newspaper, said 60,000 square feet is not an unreasonable limitation and “the sky’s the limit” is not the way to go.
George Barich said he concurs with the two previous speakers and asked Council to adopt the initiative ordinance tonight. Council’s doing so will say to the citizens that the City Council wants to reunify the City and will probably result in reelection of those running for reelection. He feels the best use for that property is small retail; big-box uses are usually located farther away from downtowns. There are some instances where big-box is best located near the downtown, he stated, but that is not the case in Cotati. He said that smaller retail would add to revenues for the City, not take away from it. He concluded by saying the only reason not to approve the ordinance is that Council is spending beyond its means and is hoping for a quick turnaround from this project.
Jan Kravitz, Cotati resident for 32 years, advocated placing the measure on the ballot and letting the people decide the issue.
Joan Simon,
David Ergo, 101 Ross Street, #14, said he wants to talk about the right of the City Council to dictate how a piece of property is developed. He said he was one of the developers of the Cohousing project. Initially, the developers of the project did not want commercial uses in the project but were told by the City that they must include commercial in the plans. They did not like it, but the commercial aspect has turned out to be a very good addition to the downtown, he said. He thanked Council for that direction.
Anne Wallace Rock, 35 Page Street, said she does not like big boxes and she voted for Measure B. She did not like being defeated but she has accepted it. She said she does not like the matter being brought back, and if it comes to a vote it will pass this time.
Adrienne Lauby,
Patty Minnis, 8158 Olaf Street, said Measure B passed by 34 votes, and the people who voted for it felt it was for the financial support of Cotati. Monahan could do better than Lowe’s, she stated, and the citizens of Cotati do not want it. She concluded that Council should represent the community, and not just vote the way they want.
Yvonne Van Dyke, Cotati, said she is in favor of the Lowe’s going in – she thinks it is a great store, a good location, and does not feel it will hurt the businesses downtown. She said she does not think it is true that people voted for Measure B because they were afraid, but because they thought Lowe’s was a good idea. Finally, she stated that Councilmembers were voted into office to make decisions and do what is best for Cotati, and she supports Councilmembers doing just that.
John Rock,
Vice Mayor Moore said she would recommend that Council call for a report on the initiative. She said she has a lot of questions about portions of the initiative ordinance.
Councilmember Kurvers said she has concerns about how the initiative ordinance would affect other properties near the Lowe’s property. She addressed blanket statements made by some people. The area to the north of the Lowe’s property is a large industrial area containing a number of successful businesses, she stated, and she doesn’t identify Cotati by those large businesses but by other characteristics of Cotati out of its rich history. She pointed out that this property has been zoned commercial for 25 years. Numerous developments have been proposed for it, but this proposal has been subjected to intense work over a period of time to result in a project to attract sales tax. The downtown has businesses that do not produce sales tax, and she does not want to create another downtown, as this initiative would do. She said she would support ordering a report.
Mayor Gilardi said that Prue Draper, at her book signing recently, remarked that Cotatians have never agreed about anything at any time. She said she would like a report.
It was moved by Orchard, seconded by Kurvers, to receive and file Clerk’s Certificate to Initiative Petition and, further, to order a report pursuant to California Elections Code Section 9212 on the effect of the proposed initiative measure.
Yes: 4 No: 0 Absent: 1 (Berkemeier)
ADJOURNMENT
The meeting was
adjourned at
Respectfully submitted,
______________________________
Deputy City Clerk
* * *
PURSUANT TO CALIFORNIA GOVERNMENT CODE SECTION 54950.5
ET SEQ,
THE CITY COUNCIL WILL MEET IN CLOSED SESSION. MORE SPECIFIC INFORMATION REGARDING THE
GROUNDS FOR THIS CLOSED SESSION MEETING IS PROVIDED BELOW.
CONFERENCE
WITH LEGAL COUNSEL – EXISTING LITIGATION
(Subdivision (a) of Section
54956.9)
Michelle Berman et al vs. City of Cotati