COUNTY OF SAN MATEO

Inter-Departmental Correspondence

2010 Charter Review Committee

DATE:

June 23, 2010

BOARD MEETING DATE:

June 29, 2010

SPECIAL NOTICE/HEARING:

None

VOTE REQUIRED:

Majority

TO:

Honorable Board of Supervisors

FROM:

Sean Foote, Chair, 2010 Charter Review Committee

Melanie Hildebrand, Vice Chair, 2010 Charter Review Committee

SUBJECT:

Report and Recommendations of the 2010 Charter Review Committee

RECOMMENDATION:

Accept the report and recommendations of the 2010 Charter Review Committee and direct County Counsel to prepare an ordinance calling an election on November 2, 2010 on a measure or measures to amend the San Mateo County Charter.

DISCUSSION:

The 2010 Charter Review Committee is pleased to provide this report and its recommendations for amendments to the San Mateo County Charter, for consideration by the Board of Supervisors.

Establishment of the Charter Review Committee and Charge to Committee

Pursuant to section 801 of the Charter, on November 10, 2009, the Board established the 2010 Charter Review Committee. As constituted by the Board, the Committee was to consist of 17 members to be selected by Board members and designated organizations, representing a broad range of interests. Ultimately, the Committee consisted of 16 members, with the Youth Commission choosing not to select an individual to serve. The members of the Committee are listed in Attachment A to this report.

The Board charged the Committee to “submit to the Board [of Supervisors], no later than June 30, 2010, such recommendations, consistent with the State Constitution and other provisions of State Law, which in its opinion are appropriate.” Specifically, the Board directed that the Committee “address the recommendations regarding Board member elections and filling of Board vacancies, issued by the 2008-2009 Grand Jury in its report entitled ‘Appointment vs. Election: How Should the Vacated Board of Supervisors Seats be Filled?’, and its June 30, 2009 advisory letter recommending that the Charter Review Committee consider changing the method of electing members of the Board of Supervisors from the current ‘at large’ system to a ‘by district’ system, and should further consider consolidation and reorganization of departments and other organization improvements requiring a Charter amendment.” (Board of Supervisors Resolution no. 070497, dated November 10, 2009.)

Community Outreach and Participation

The Committee met 13 times from January 13, 2010 to June 23, 2010. In an effort to ensure adequate outreach to all parts of the County, the Committee met in Half Moon Bay, San Mateo, Menlo Park, Daly City and South San Francisco. All other meetings of the Committee were held at the County Government Center in Redwood City. A “Charter Review” webpage was set up on the County’s website. Through this site, the public had access to the Committee’s meeting schedule, agendas and materials, and videos of the meetings. It also provided e-mail access for the public to submit written comments and materials, all of which were presented to the Committee at its meetings.

Charter Review Committee meetings were well-attended by the Committee membership, with most meetings attended by 13 or more members. The Committee considered over 600 pages of written materials gathered by Staff and submitted by the public during the course of its deliberations. The Committee heard from 12 invited speakers, and received testimony from more than 75 members of the public on the issues being considered.

Topics Considered by the Charter Review Committee

The first work of the Committee was to identify issues that it wished to consider in depth, and an initial list of 15 topics was narrowed down to five topics with accompanying subtopics through a vote of Committee members. The five topics which the Committee decided to focus its energies on were:

a.

Board of Supervisors elections (subtopics: (1) at large versus by district; (2) process for drawing district boundaries)

b.

Filling vacancies on the Board of Supervisors (subtopics: (1) process for filling vacancies; (2) rules and restrictions on appointees)

c.

County structure (subtopics: (1) combining/splitting elective offices and/or departments; (2) election or appointment of county officers not required by State Constitution to be elected; (3) charter-based qualifications for elected/appointed officers)

d.

Overall county election process (subtopics: (1) campaign financing restrictions and reform; (2) instant runoff election for county offices)

e.

Periodic supervisory review of Boards and Commissions (no subtopics)

Subsequently, the Committee and Staff developed an understanding that the following topics were outside the scope of what the County Charter may legally address:

Ÿ

Topic a.(2) (Process for Drawing District Boundaries)

Ÿ

Topic c.(3) (Charter-Based Qualifications for Elected/Appointed Officers)

Ÿ

Topic d.(Overall county election process).

Of the initial list of 15 topics, nine were subsumed by topics and subtopics listed above. The following six topics were not further pursued given limitations on time and the lower indication of interest relative to the other topics explored in depth:

Ÿ

Board of Supervisors' oversight of investment policy/indebtedness

Ÿ

Setting of Board of Supervisors’ salaries

Ÿ

Board of Supervisors’ oversight of other elected County officials

Ÿ

Methods of ensuring accountability of elected County officials

Ÿ

Private Defender Program

Ÿ

Citizens' participation in hiring process for department heads

Recommended Charter Amendments

Pursuant to the Board’s resolution, all Committee action on final recommendations to the Board required nine affirmative votes. Substantive discussion and debate occurred with respect to each topic area considered by the Committee, which is summarized in the next section of this report. After considering information presented both orally and in writing, the Committee, by a majority vote, approved the following recommendations for amendments to the San Mateo County Charter, for consideration by your Board, to be placed on the November 2, 2010 election ballot:

1.

A Charter amendment to change the system of electing members of the Board of Supervisors to a district system. The Committee believes that voters should have the opportunity to either change to a district system or affirm the current at large system. A proposed version of the Charter amendment, prepared by County Counsel, is attached as Attachment B.

2.

A Charter amendment to change the manner of filling a vacancy on the Board of Supervisors to provide that:

Ÿ

Any vacancy occurring in the first 2 years, 9 ½ months of a term must be filled by election.

Ÿ

Any vacancy occurring in the last 1 year, 2 ½ months of a term can be filled by election, appointment, or left vacant.

Ÿ

A resignation must be in writing and becomes irrevocable upon receipt, allowing the process of filling the vacancy to commence even if a future effective date of resignation is specified.

Ÿ

A vacancy filled in the first two years of a term will count as a full term for term limit purposes.

Ÿ

The vacancy may be filled through an “all-mailed ballot” special election, at the option of the Board of Supervisors.

A proposed version of the Charter amendment, prepared by County Counsel, is attached as Attachment C.

3.

A Charter amendment to add to the existing section of the Charter which addresses the filling of vacancies in other County elected offices, language to provide that:

Ÿ

A resignation must be in writing and becomes irrevocable upon receipt, allowing the process of filling the vacancy to commence even if a future effective date of resignation is specified.

Ÿ

The vacancy may be filled through an “all-mailed ballot” special election, at the option of the Board of Supervisors.

A proposed version of the Charter amendment, prepared by County Counsel, is attached as Attachment D.

4.

A Charter amendment that designates the offices of Treasurer-Tax Collector and Auditor-Controller, which are currently designated as elected, as appointed offices. These offices would be appointed by the County Manager and would report to the County Manager. Further, these offices shall not be combined. The change would be effective the end of the term which expires in January 2015. A proposed version of the Charter amendment, prepared by County Counsel, is attached as Attachment E.

5.

A Charter amendment to require the Board, at intervals of no more than 8 years, to review existing boards and commissions to determine which boards and commissions should be continued and which should be eliminated. A proposed version of the Charter amendment, prepared by County Counsel, is attached as Attachment F.

The Committee further recommends that each of the Charter amendments be placed on the November 2, 2010 election ballot as separate measures.

Discussion of Recommendations

Following is a discussion, in summary form, of the proceedings before the Committee with regard to the potential Charter amendments considered by the Committee. While the final decision with respect to each represents the final decision of the Committee as a whole, the Committee acknowledges there were dissenting votes on most of the issues and further acknowledges and respects that individual Committee members may wish to further explain their dissenting votes outside of the confines of this report.

1.

At Large v. District Elections.

As noted, the Board specifically directed the Committee to address the 2008-2009 Grand Jury advisory letter, dated June 30, 2009, recommending that the Committee consider changing the method of electing members of the Board of Supervisors from the current “at large” system to a “by district” system. Starting with its initial meeting on January 13, 2010, the Committee heard significant public comment at each of its meetings, culminating in a vote on April 21, 2010 on the question of whether the current system of electing members of the Board of Supervisors on an “at large” basis should be retained, or a measure be placed on the ballot to change the system to election “by district”. The Committee spent the better part of three meetings receiving information and deliberating. Invited speakers on this topic included: Warren Slocum, Assessor County Clerk Recorder; Stephen A. Chessin, President, Californians for Electoral Reform; Mike Nevin, former member of the Board of Supervisors; Jo Chamberlain, former candidate for the Board of Supervisors; and John Ward, former member of the Board of Supervisors.

Public input and discussion focused predominantly on the question of whether the current system should be maintained or changed to a district system. Debate centered on the competing advantages and disadvantages of the “at large” versus “district” methods of electing Board members. The arguments in favor of each, as presented to the Committee, are:

At Large.

Ÿ

County voters elect all five Board members, resulting in more accountability to all voters, not just voters in the District.

Ÿ

A large portion of the business that comes before the Board of Supervisors affects the entire County, not just individual districts.

Ÿ

An at large election attracts candidates who have an established track record of public service.

Ÿ

The County and its residents have been well-served by the current at-large system.

Ÿ

The voters have twice rejected proposals to change to a system of election “by district” (1978, 1980).

By District.

Ÿ

District elections will result in an increase in minority voice in Board elections, and may increase voter turnout.

Ÿ

Lower campaign costs of district elections will increase the universe of potential candidates leading to more competitive elections.

Ÿ

District elections will lower election costs for the County when a special election is held.

Ÿ

There will be greater accessibility and accountability by the Board of Supervisors to District voters.

Ÿ

San Mateo County will no longer be the only remaining county to elect Supervisors using an at large system.

Substantial information was also submitted, testimony taken, and Committee discussion pursued on whether consideration should be given to the adoption by the County of alternative voting systems, including “cumulative,” “proportional”, and “ranked choice”, voting. While interest in these voting systems was high, input from County Counsel indicating significant legal concerns regarding the ability of the County to implement such alternative voting systems through a charter amendment ended consideration of this alternative.

Additionally, testimony was offered concerning whether the current “at large” system of electing members of the Board violates the California Voting Rights Act (CVRA). The Committee was advised by County Counsel that the Board had received a letter from the Lawyers Committee for Civil Rights, threatening litigation under the CVRA, and was provided a copy of the letter and the response sent by County Counsel. As matters of litigation are within the purview of the Board of Supervisors and not the Committee, the Committee chose not to discuss or debate the merits of a potential legal challenge to the existing system of electing Board members.

At the conclusion of debate, the Committee voted 11 to 4, with one member declining to state a preference, in favor of retaining the current “at large” method of electing Board members. On a separate vote, the Committee voted 14 to 2 in favor of recommending that a measure be placed on the November 2, 2010 ballot. These two apparently inconsistent votes describe the opinions of the Committee. A majority of the Committee members were personally persuaded by the arguments in favor of “at large” voting. However, a substantial majority were also persuaded that there was enough energy and public debate of the issue that the voters of the County should be allowed to select the method of electing their representatives to the Board. The outcome of the public vote would either institute election “by district” (through a majority “yes” vote) or confirm the current “at large” system (through a majority “no” vote).

While not a formal recommendation regarding the Charter, members of the Committee urge the Board to consider a separate study of: (1) public financing of elections in San Mateo County, (2) the use of ranked choice, proportional voting and/or cumulative voting, and (3) instant run-off voting.

2.

In-Term Board Vacancies.

The Board also directed the Committee to address the recommendations regarding the filling of Board vacancies, issued by the 2008-2009 Grand Jury in its report on the filling of such vacancies. The Committee dedicated some or most of five meetings and the Committee’s only subcommittee to the technically complex issue of how in-term vacancies on the Board should be filled. The Committee identified the following issues of concern with the current system of filling vacancies, which provides the Board with the discretion to fill such a vacancy by appointment or election:

Ÿ

• Appointment denies the electorate the opportunity to elect the representative of its choice.

Ÿ

• Elections to fill vacated seats are considerably more expensive than filling by appointment, possibly at the expense of other vital County services.

Ÿ

• Filling a seat by election results in an extended period of time during which there is no Board member representing the district.

Ÿ

• An appointed Board member obtains the advantage of running at the next election as an incumbent without having been “tested” in an election.

Ÿ

• The remainder of the term served by the individual appointed or elected is not counted for purposes of term limits, resulting in the possibility that a Board member filling a vacancy might serve 15+ consecutive years.

Ÿ

• Currently, there is no mechanism to accept a written resignation, so that the process for filling a vacancy is delayed until the effective date of the vacancy.

Ÿ

• Filling a vacancy by election in the final year of a term may lead to voter confusion, as voters may have to vote on filling the vacancy at the same election as voters elect for the next term.

After receipt of considerable testimony, written information, and Committee deliberation, general consensus was reached that the Charter should be amended to (1) require elections to fill a seat during the first three years of a term, (2) provide that the remaining term should count as a full term for term limit purposes if more than two years remained on the term as of the date of vacancy, and (3) provide a mechanism to ensure that the process for filling a vacancy could be commenced and completed if a resignation is submitted with a delayed effective date.

A subcommittee was formed to develop possible alternatives, with a focus on the final year of a term, for review by the full Committee. The subcommittee presented two alternatives to the Committee at the meeting of May 8, 2010. At its meeting of June 2, 2010, the Committee voted 10 to 4 to adopt a slightly modified version of one of the alternatives that would accomplish the following:

Ÿ

• Require vacancies that occur during the first 2 years, 9 ½ months of a term (i.e., on or before October 15 of the third year of a term) to be filled by election held between 102 and 131 days, and allow a mail ballot option for conduct of the election. The slightly unusual 2 years and 9 ½ months was selected to reduce the possibility of the special election for the vacancy to conflict with the regular election for the seat.

Ÿ

• For vacancies that occur in the last 1 year, 2 ½ months of a term (i.e., after October 15 of the third year of a term), allow the vacancy to be filled by election or appointment, or to be left vacant, at the option of the Board.

Ÿ

• Provide that if there are two or more years left in the term as of the date of the election to fill the vacancy, the remainder of the term will count as a full term for term limit purposes, and that if there are less than two years left in the term as of the date of the election or appointment to fill the vacancy, the remainder of the term will not count as a term for term limit purposes.

Ÿ

• Provide that any letter of resignation delivered to the Clerk of the Board of Supervisors shall be irrevocable when delivered, whether the resignation is immediate or effective at a date in the future, thus allowing the process of appointment or election to begin immediately upon receipt of the resignation letter and without waiting until the effective date of the resignation.

Ÿ

• Provide the option of an “all-mailed ballot” special election to reduce cost and potentially increase turnout.

The Committee notes that the Grand Jury recommended consideration of a “provisional appointment” (i.e., an appointment with a commitment by the appointee not to run for the vacated seat at the election for the next term) as a way of removing the advantage of incumbency. During early discussions of the vacancy issue, there was substantial support for consideration of such a provision. County Counsel advised that there was a significant question as to whether such a commitment could be legally enforced. Instead, the Committee looked at alternatives that would minimize the instances in which an appointee to fill a vacancy might gain the advantage of incumbency, by minimizing the period for which the appointment option would be available.

The alternative from the subcommittee that was rejected addressed this issue by delaying appointments until after the filing deadline for the election of the seat, and then appointing an individual that has not filed to be a candidate for the position. The Committee determined that this alternative was too complex, and might prove confusing to voters. County Counsel advised that the County has significantly more leeway to determine requirements for appointees than it does for candidates for election.

3.

In-Term Vacancies for Other Elected Officials.

The Committee also considered whether to recommend that the Charter be amended to bring the process for filling vacancies for other elective officers, currently set forth in Charter Section 415, in line with amendments proposed for Charter Section 203, relating to the filling of vacancies on the Board of Supervisors, discussed in section 2, above.

The Committee first noted that, currently, the two sections set forth a nearly identical process. The Committee further recognized, however, that different considerations might argue in favor of retaining the current process for elected officials other than members of the Board. These considerations include the fact that there is only one person filling each of these positions, in contrast to five members of the Board, thereby making it more imperative that the position be filled expeditiously, and by appointment, if appropriate; and the fact that the departments led by these officials are operational, as opposed to policymaking, charged with specific statutory duties requiring that there be a clearly designated person in charge at all times .

After discussion and deliberation, the Committee voted 11 to 0 to retain the current process for filling vacancies in elected offices other than the Board of Supervisors, but to add provisions providing for a written, revocable letter of resignation, and giving the Board of Supervisors the option of filling the vacancy through an “all-mailed ballot” election, identical to the provisions recommended in the case of Board member vacancies.

4.

Organizational Changes.

The Committee considered, and took action on, proposed organizational changes involving four County officials: the Auditor-Controller, Treasurer-Tax Collector, Coroner and Chief Probation Officer.

A.

Auditor-Controller and Treasurer-Tax Collector.

The Committee considered two possible organizational changes affecting these two positions:

Ÿ

Whether the two positions should be consolidated into a single Chief Financial Officer position; and

Ÿ

Whether the two positions (or the single consolidated Chief Financial Officer) should be appointed instead of elected.

The Committee originally determined to take this particular issue up under the general direction given by the Board of Supervisors to consider organization improvements. Later, it also received the report of the 2009-2010 Grand Jury, entitled “Charter Amendment Changing the San Mateo County Controller and Treasurer-Tax Collector Elected Offices to an Appointed Chief Financial Officer”, dated April 20, 2010, which the Committee considered in its deliberations.

The Committee received invited testimony from Tom Huening, Auditor-Controller; Lee Buffington, Treasurer-Tax Collector; John Guthrie, the appointed Chief Financial Officer of Santa Clara County; David Boesch, County Manager; and John Maltbie, former County Manager. The Committee also heard from a number of public speakers on the subject. Issues considered and debated by the Committee included:

Ÿ

Whether there is need for elected independence.

Ÿ

• Accountability of the office holder and to whom.

Ÿ

Effect on checks and balances of combining the two offices.

Ÿ

• Ability to have a person with technical expertise in finance.

Ÿ

• Cohesiveness and integration of the offices within the County management structure.

The Committee, by a vote of 9 to 6, approved a recommendation for a Charter amendment that would keep the offices of Auditor-Controller and Treasurer-Tax Collector separate, but would provide that the offices would be appointed offices, appointed by the County Manager, with the change from elected to appointed status becoming effective at the conclusion of the term that ends in January 2015.

The vote to make the positions appointed and also to combine them into a County Chief Financial Officer, as mentioned by the Grand Jury, failed 7 to 8.

B.

Coroner.

The Committee considered whether the elected Coroner position should be consolidated with the Sheriff, and whether the position (if not consolidated) should be appointed rather than elected.

The Committee received invited testimony from the Robert Foucrault, Coroner, as well as Mr. Boesch and Mr. Maltbie. Issues considered and debated by the Committee included:

Ÿ

Potential for conflicts that could occur in regards to investigations of deaths occurring at the jail or the Medical Center.

Ÿ

Need for independence, and the economies to be realized by consolidation.

Two motions with regard to the position failed to garner the required nine votes, and as a result, no recommendation is being forwarded to change the status of the Coroner.

While there was no formal recommendation regarding this position, members of the Committee would like the Board to separately study and consider whether state legislation should be sponsored that would strengthen the qualifications for the office of the Coroner.

C.

Chief Probation Officer.

The Committee considered whether an appointment process for the Chief Probation Officer should be added to the Charter that would authorize the County to make the ultimate selection rather than the current process in which the Superior Court makes the selection. Invited speakers included Stuart Forrest, Chief Probation Officer; Mr. Boesch; Mr. Maltbie and Honorable Robert Foiles, San Mateo Superior Court Judge. Issues considered and debated by the Committee included:

Ÿ

The Chief Probation Officer serves three different entities: County Manager for day to day issues; Board of Supervisors for budget and policy issues; and the Judges of the Court.

Ÿ

The Chief Probation Officer is hired by the Court but is paid by the County and is a County employee. No other non-Court employees are hired by and under the supervision of the Court.

Ÿ

Probation Officers are intertwined with the Court. The Court has to rely on the independent assessments made by the Probation Officers in making decisions regarding release and sentencing.

Ÿ

The close working relationship between the Chief Probation Officer and the Court has contributed to the declining incarceration rate in the County while the rest of the State is facing increasing incarceration rates.

Ÿ

While the Court makes the final hiring decision, the process used to select at least the last two Chief Probation Officers was collaborative and included input from County management.

The Committee, by a vote of 10 to 3, with one member expressing no position, decided not to make a recommendation that the Charter be amended to provide for appointment by the County rather than the Court. The Committee recognizes the difficulty presented by having an official appointed by one entity, but having the official’s budget controlled by another, and appreciates that the comprehensive duties and responsibilities of the Chief Probation Officer involve activities that impact both Court and County programs. The Committee believes that the important role that the Chief Probation Officer exercises as an “officer of the court” weighs in favor of maintaining the current process for appointment of the Chief Probation Officer, which is the process provided under general law.

Because of the important functions served by the Chief Probation Officer on behalf of both the Courts and the County, the Committee believes that the County should have an important role in the selection process, ongoing assessment of performance, and any decision to terminate a Chief Probation Officer, and encourages both the County and the Courts to work together to ensure the County has such a role.

5.

Periodic Review of Boards and Commissions

The last topic considered by the Committee was Charter section 414 which addresses boards and commissions. Section 414 provides that County boards and commissions are those required by law and those established by ordinance. Currently, there are over 40 boards and commissions, some of which are mandated by state or federal law and others which are not. The staff support and budget needed to assist all of these boards and commissions can be substantial. The Committee considered whether the Charter should be amended to mandate that the Board of Supervisors periodically review the existing board and commissions to determine which, if any, should be eliminated.

The Committee, by a vote of 14 to 0, approved a recommendation for a Charter amendment to require review of boards and commissions at intervals of no more than eight years, for the purpose of determining whether any such boards and commissions should be dissolved.

FISCAL IMPACT:

There is no fiscal impact in accepting the report.