CV Council Fumbles Appointment to Citizens' Oversight Committee
The Chula Vista City Council has voted twice on the appointment of a community member to serve on an important sales tax oversight committee, but now both votes are raising concerns over their legality.
The Council first voted on the nomination of Jesse Navarro to serve on the Citizens' Oversight Committee on May 16th after Mayor John McCann made a motion for his appointment.
Navarro, a retired police officer and former community liaison for the District Attorney’s office, was nominated by the Chula Vista Chamber of Commerce to fill a position on the Committee designated to be a member of the Chamber. Navarro is a member of the Chamber’s Board of Directors and a co-founder of the San Diego Hispanic Chamber of Commerce.
The 11-member Citizens' Oversight Committee was created by Measure A, a permanent half-cent sales tax increase passed by Chula Vista voters in 2018 to fund police and fire services. The Committee is responsible for reviewing and reporting on Measure A annual accounting and spending plans and the City's compliance with those plans.
McCann’s motion to approve Navarro’s nomination was seconded by Councilman Alonso Gonzalez. When the Council voted, McCann and Gonzalez voted “YES”, Councilmembers Jose Preciado and Andrea Cardenas voted “NO”, and Councilwoman Carolina Chavez voted to “Abstain” without making any public comments about her abstention, making the vote 2-2-1.
After the vote, McCann announced that the motion had failed, and the Council moved on to other agenda items.
But, at the next Council meeting the following week, Councilman Jose Preciado addressed "some confusion" over the vote to appoint Navarro and requested that the item be put on the agenda of "a future meeting so we can clarify the vote." Preciado suggested that he was informed that there were some issues with the vote to appoint Navarro sometime after the May 16th meeting.
The City's Interim City Attorney then explained during the public meeting that, under the City's Municipal Code, a Councilmember must announce the reason for their abstention at the time of the vote, and if they fail to do so, the vote is to be recorded as an affirmative vote.
"When a member of the Council votes to 'abstain,' he must audibly state his reason for abstaining, and in the event he fails to make any such statement, his silence shall be recorded as an affirmative vote, although he may have designated his vote by the use of the amber light," the Municipal Code reads. The amber light on the voting screen indicates an abstention vote.
The City's Code of Ethics for members of the Council also details the limitations of using an abstention to avoid voting.
"Recusal or abstention is appropriate when a good faith determination has been made by the City official that such action is required. However, elected officials subject to this chapter are reminded that they are elected to conduct the public’s business and should not abstain or recuse themselves without cause," the Code of Ethics reads.
The City Attorney did not intervene during or after the vote on May 16th to explain the voting requirements to Chavez who was recently elected In November 2022 and took office last December.
Chavez's abstention vote, therefore, was counted as a YES vote and changed the outcome of the motion to appoint Navarro to be 3-2.
The City Attorney confirmed that the motion "had three affirmative votes so the motion did pass for the appointment of Mr. Navarro."
Preciado then requested that an item be put on a future agenda "so that it can be rescinded and then the item agendized so that it can be considered properly." All of the Councilmembers agreed to have the item put on a future agenda.
An item was included in the agenda of the following meeting on June 6th under Preciado's "Member Comments" at the end of the meeting.
The item was listed as "Consideration of Potential Rescission of the City Council Action Taken to Appoint Jesse Navarro to the Measure A Citizens' Oversight Committee" and the description was "The City Council took action on May 16, 2023 to appoint Jesse Navarro to the Measure A Citizens’ Oversight Committee. At the City Council meeting on May 23, 2023, a consensus of the City Council directed staff to agendize potential rescission of that action at this meeting."
The item confirmed that Navarro had been duly appointed.
At the June 6th meeting, Preciado raised the issue of Navarro's appointment and argued that he believed the person nominated by the Chamber of Commerce should represent a "brick and mortar" business. Navarro, who, along with his wife, Maria, owned a restaurant for years, was nominated by the Chula Vista Chamber of Commerce Board to represent the business interests of the City on the Committee.
Preciado made a motion to rescind Navarro's appointment and the motion was seconded by Councilwoman Andrea Cardenas. After Councilmembers discussed the issue and nine members of the public spoke in favor of Navarro, the Council voted four to one for the motion, with Councilmembers Preciado, Cardenas, Chavez, and Gonzalez voting "YES", and only Mayor McCann voting "NO".
Councilman Alonso Gonzalez changed his vote from having supported Navarro's appointment at the May 16th meeting to rescinding the previous action, and Councilwoman Carolina Chavez changed her vote from an abstention to voting for the rescission.
The City's Municipal Code Section 2.04.570 (B) states that "A motion to rescind (repeal, cancel, nullify) prior Council action on a main motion shall be in order at any meeting of the Council. The effect of rescinding prior Council action shall operate prospectively only and not retroactively to the date of the original action. That is, it shall not operate to adversely affect intervening legal rights which create an estoppel situation."
The Code specifically states that an action to rescind only operates "prospectively" meaning going forward, not "retroactively" to completely erase a prior action, but also states that it cannot adversely affect intervening legal rights.
Another section of the Code allows for "reconsideration" to completely undo a prior action but it must take place during the same meeting where a previous vote was taken.
Two lawyers who reviewed the issue agree that a motion to rescind should not be used to remove a member who has already been appointed, but, instead, the member would have to be removed from the position.
The City's Code allows for the removal of a member of a board or commission but only for cause, including missing more than 50% of a group's meetings in a year, conduct that interferes with the board or commission’s ability to conduct business, failure to attend training sessions mandated by the City, violation of any City policies or regulations that are the subject of mandatory training sessions, or violation of the City’s code of ethics.
It does not appear that Navarro violated any of the items which would constitute cause for removal.
This week, Navarro sent a letter to McCann and all of the Councilmembers outlining his concerns with the process and asserting that he was duly appointed to the Citizens' Oversight Committee with three votes.
"As such, I was therefore officially appointed to the position on the Citizens' Oversight Committee with three affirmative votes of the City Council. The City Clerk should have sworn me in as provided in the Municipal Code at either the May 16th or May 23rd meeting, but she made no effort to do so," Navarro wrote.
Navarro also contested the use of a motion to rescind his appointment as a proper way to attempt to remove him two weeks after the first vote.
"The motion to rescind my appointment, therefore, appears to be improper in that it sought to undo the appointment retrospectively, which is not allowed under the Municipal Code," Navarro wrote. "I believe that I have been duly appointed to the Citizens' Oversight Committee for a four-year term and expect that the City Clerk will administer the oath of office at the next meeting of the City Council."
The City Clerk is required to administer the oath of office to new appointees, and the Municipal Code requires that "newly appointed Members must take the oath of office before they may participate or vote as a Member of the Board or Commission to which they have been appointed."
That language makes it clear that the vote of the City Council constitutes an appointment but taking the oath of office is still required before the member can participate in the work of the committee.
The Chula Vista City Council's next regularly scheduled meeting will be Tuesday, June 13, at 5:00 p.m.
No items related to appointments to the Citizens' Oversight Committee are on the agenda for the upcoming meeting.