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Home My WebLink About1989-11-17 EC MEMOMEMORANDUM TO: Rick DeWitt, City Attorney FROM: Patricia H. Crow, City Clerk DATE: November 17, 1989 SUBJECT: REQUEST TO MEET WITH ELECTION COMMISSION Sometime before the recent election, you mentioned to me that you would like to meet with the Election Commission. You did not specify what you wished to discuss. I have informed the Commission members of your request and they too would like the opportunity to meet with you, as they have indicated several concerns. I have checked and all the members could be available on December 1 or December 5 for a late afternoon or early evening meeting, preferably at 5:00 p.m. Please let me know if one of these dates is possible for you. cc: Margaret Freeman, Director of Financial Services I) I / 1 /c c I'- ,// l<&-0~---~ A /{(_/ ,_,/ ---I -I- ,' //._ { _ ___,, -·-·--......... ua;f- r • FROM : ---.-.., . I / ~-_'·t:vf CITY OF ENGLEW OOD ~400 So. Elati St. ~ngl ewood, Co . BO llO / . l~{t-?! 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SSOCIATIO~i, f'.....tc.erican Federation of State, Co unty and l-~~nicipal Err .ployees, Local 303, Petitio~er/Plaintiff , vs. CITY OF El'~GLE\..;-ooo and ELECTIOH COM:-1ISSI0~-1 Or TnE CITY OF E!{GLE'..;ooo, Res?ondents/Defendants. This r:-.atter carr:e for hearing on NoveT!'..ber 3, 1989 on Plaintiff's motion for summary judgir.ent and Defendants' r:,otion to dismiss. This court has reviewed the court's file, the rrotions, the verified petition, Charter and statutes . Th e Court acknowledges the stipulation fro~ the Defendants that the factual allegations contained in tr.e verified petition, except for paragraph 22 therein, are adnitted. The Court being fully advised makes the follo~ing finding s of fact, conclusion of law and order for judge~ent . 1. Plaintiff, Englewood El.iployee Association, .~.erican Federation of State , County and )~unicipal Employees, Local 303 (Local 303) is the certified err.ployee organization nder Article XV, section 137 :2(0) of the Eng l ewood Charter representing employees of the City in an appropriate bargaining unit . A copy of the Charter is Exhibit A in the record . 2. Defendant, City of Engle· .. ;ood (City), is a hor.e-rule City organized pursuant to Article XX of the Colorado Constit~tion and cperating pursuant to a charter prcperly adopted by its ci ti ze:;s . 3. TI".e Electio;i established pursuant to conducting municipal election procedure. Co'7.I:'lission of the City (Co~:-;-iission ) is §11 of the Charter and is responsible for elections and reso l ving qc.:estions of 4 . Local 303 bargaining agreer.:ent through Decer.ber 31, and tf:e City c o\·e ring the 1990. are parties t i:r..e period to a collective January 1, 1968 5. Pursuant to that agreer:'.ent, in the Spring of 1989 it was reopened for the purpose of negotiating over wages for 1990. 6. 1989 and City . t;egotiations took place during the spring and sun .. --:-.er of no agreerr.ent was reached bet\.;ee n Local 303 and tr.e 7 . The il.'p asse resolution procedure estc.blished by the Charter works as follc~s. If no agree~ent is reached by July 1, the parties are declc.red to be at irrpasse and eac~ must subnit an i~passe state~ent ~hich contains its final offer to the Engle~cod Career Ser~ice Board. The Beard then conducts a hearing on t h e iss'c.:es presented by tf:e ir:-.passe staterc.ents of the parties c.nd ~ust issue a decision by August 10. After receiving the decision, the parties hav e five (5 ) working days to see ~hether an agree~ent can be reached and if not, the decision of the Beard is co:1s idered to be f .i.na 1 and binding subject to an i:Tpa sse resolution election. If no agreer.:ent is reached '..Jit hin t•,.;enty days of the issuance of the Board's decision, a party who is dissatisfied with the Board's decision r.:ay sub~it a writ~e~ notice of dissatisfaction to the City Council . If such a written notice of dissatisfaction is filed, the Council has 30 days to call a special election to resolve the impasse. The ballot for the special election will provide the voters with three choices- the final offers of each party on the disputed iss11es and the reco;;-.::nendaticns of tf:e Career Service Board . 'The c'.!oice receiving the highest nurnber of votes is dee;;-:ed approved a ud beco~es a ~art of the collective bargaining agree~ent . 8 . Pu rs u a n t to Ch a rte r § 1 3 7 : 6 Lo ca 1 3 O 3 a n d the C it y , on June 30, 1989, notified the Career Service Board of an i;.passe i~ their negotiations and set forth their final positions . i;-ie Engle · .. ;ood Career Service Board conducted a hearing and on August 10 , 19 89 issued a decision . 9. Pursuant to Charter §137:6 , Engle·,.,;ood City Co unci l , in writing, on dissatisfaction with tf:e decision of Service Board . Local 303 advised the August 17 , 1989 of its the Engle~ood Career 10 . The administration of the City did not subnit any notice of dissatisfaction to the City Council. 1 1. G:-i Se ~·ce T'.:e r -::>, 1:;,;9 , c.t a r ec;~J l a r ;-e e ting t i-.e C i t y c c ·...:::c il p a s se d a r e s oh:t.i o:-; r:i-..::-r::o rti n g to c a ll for a s ~ec:.21 i;..pa sse resolution election pursuant to Charter § 13 7: 6. A copy of said resolution is Exhibit C in the record. 12 . The decision of Judge 'n·atanabe in civil action no . 89C\.~029 ordered the :rer..oval of the police impasse iss ue s from the r:ovei7:ber 7, 1989 general rnu~icipal electi on . A copy of Judge Watanabe's decisio~ is Exhi b it B in the Record. 2 13 . On October 18 , 1989 after learning of Judge h"atanabe' s decision in the Police Suit, Local 30 3 submitted a written request to the Cor:.rnission to have that decision applied to its i~passe resolution election. A copy of that request is Exhibit D in the record . The issue has not been resolved and therefore is before this Court for resolution . 14 . The issue raised in this la~suit concerning the propriety of conducting the Local 303 i mpas se resolution special election in conjunction ·,.;ith a Fove:r.l::er 7 , 1989 general elect.:..on , is ide ntical to tl;e issue relating to tining of the election decided by Judc;e i,.,·a tanabe. The Charter language, case la:,.; and state statutes are identical in both cases. Tr.e only diff e ren c e bet~een this case and the case de ci ded by Judge Katanabe is the identity of the Plaintiff and the issue at i~passe . case : 15 . The follo-..,;ing Charter la nguac;e is in dispute in t'.!is Section 137:6 Il~PASSZ RESOLUTIO~~ In the event the parties are unable to reach agreerrent on al 1 TL:anda t ory subjects to be ccnta i ned in the Collective Bargaining J..gr ee::-.ent on or before July 1 of the year in ~hich the parties have rret and bargained over t hese subjects, i mpa s se shall be declared ~ith each party s eparat ely s ub~itting to the Board an i mpa sse state~e~t which contains that party's fina l offer reg a rding a n y rr.andatory subject upon · .. ;hich t h e parties are at i:7passe . The Board ~a y, at its discretion , a pp oi n t or employ on e or more fact-finders to assist it. Ey Au gus t 10 , the Board sha 11 i ssc.:e ·,.;r it ten find in gs of fact and recoTi'l17'.enda tions for re so lution of the lli andator y s c bjects in dispu te . Said f i ndings and rec om i7.endations shall be served upon the Certified E~ployee Organization , the City and the Ci t y Council and shall be fina l and binding upon the parties unless , within five (5 ) worki ng days after receipt of the findin g s and recommenda tions, the part i es are able to reach a.greerc.e n t over the terr..s of ti":e r:e-..r Collective Barg ai n i ng Agreenen t . In the event the parties are able to reach said agree~e nt and have so notified Bea rd within five (5) ~orking day period , tr.e Beard 's fin d i ngs and reconrr.endations sl;all be null anj void . All fees and expe ~ses of the fact -findi:1g p ::::-c c.:;, s s , i :-. c l ~ · i :1 g t :-. e '."'.' a :-: i n ·1 , !.::-,~ L. ; o t tr. e t r a :-i s c r i ): t i o ;-i , c f a recc:rd a:--,j 3ssistance shared equally by the Organization . cf co·...:n;:;el to City aJld tr.e 202rd Certif i ed s:r:all te Eitployee If eitr.er party is diss a tisfied with t he Board's fi Jlal fi nd ings and recom.r..endations, the party or parties may s ubn it a written not ice of di s sat isfaction to City Cc unci l 3 within t~e~ty (20) calendar days of the date of issuance of the beard's finding and recom~endations . Only the provision or provisic~s submitted to the Board for i ~passe resolution, which prevision or provisions are the basis for dissatisfa ction , nay be contained in the notice to the City Counc il. hithin thirty (30 ) calendar days after receipt of this notice of dissatisfaction , t he City Council shall call a soecial ~:ection by ordinance or r esolution subnitting the matter to 3 vote of the qualified electorate of the City. The final offers of the City and Certified E~ployee organizatic;, and t.he Board's recoJ?nendaticr.s on tl-:.e issue (s) contair.ed i~ a notice of dissatis facti on shall be submitted a s a 1 tern a :. :_ v e s i n g 1 e J.', ea sure s to a vote o f the cru a l i f i e d electors o: the City. The qualified electors sha_l elect either the position of the City, the position of the Certified Ewployee Orga~ization , or the Board's recor:.r:-.enda t. :on . Tbe posit ion or reco1.,I1.enda t ior. receiving the h ig hes <:.:. nur..ber of votes sha 11 be dee;;-.ed a?proved. Sa id election s~3ll be consistent ~ith the provisions of Article III, Sectic~ 14 of tr.e City Charter . All costs and expenses of any publication or soecial election s ~3ll be borne by the City. Based upon ~hese findings the Court concludes : 1 . The po~~ion of the Septel..ber 5 , 1989 resolution C) ....,·;,ich state s that the special election shall be conjunction ;,:it:-. the Novel..ber 7, 1989 general municipal violates §§137:6 , 12 and 14 of the City Charter . (:C:xhibit r.eld in election 2. That ':.:.he language in Charter §137 :6 is clear and conc is e and not 3r.~iguo us . 3. That :-.8 ·,.;here in Charter § 13 7 : 6 does it provide for a general election but in ~any other sections of the Char t er there are provision s t~at do provide for a general nunic ipal elect ion , a special nunici?al election or a general state election . If the peop le of the City of Engle~ood ~anted to provide for a general nunicipal elec::t2.on or a ge n eral s:.ate eli:;ction in a;, ir:.passe situation such c.s this one before t he Court , it 1,.;ould have been included in Char~er §137:6 b u t it is not. 4. That ':.:.:-.e City's ar~;_;:-e :-,t t :-i at the sp e cial ele_ti o:-i ::-3~· te ~el d at t~e s ~::-e t i re aJ t~e C i t y's general ~unicipal e l ec~:.cn p ~rs~ant to t~e Charter §1~ Sp eci al Elections and CRS 31-1 0 -1 0 3 not correct . i~e relevant languag e of Charter §14 Sp e cial E 1 ect ion reads 11 ~;o Special 21 ection sha 11 be held ·..; i thin forty- f i ve (45) days before or after a genera l municipal or st a te elec ti on . Gene~~l state elect i ons may be used for subDission of city propositio:-.s, except as limited by this Charter, and shall no t te considerej as special election s for city purposes. 1-.ny .. proposal , question or proposition may be submitted at any general or specia 1 n unicipa 1 elect ion except as here i na ft er 1 i mi ted." This exception refers back to the language of Charter §137 : 6 re l ating to the special election. There is no language in §§14 or 12 of the Charter which gives any specific authority to merge an i mpas se resolution special election with a general municipal election. 5. Plaintiff has exhausted i ts administrative remedies. 6. Extraordinary relief circumstances . is called for under the THEREFORE, THE COD:K.T denies Defendants ' rr.otion to dis:niss and enters judgment in favor of the Plaintiff and against the Defendant. THE CO URT FURTHER ORDERS: 1. Defendants are enjoined from conducting the i<:!pa sse resolution special election for Plaintiff as part of or in conjunction with the November 7, 1989 general municipal election. 2. The Defendants shall hold the special election cor.sistent with the Charter and the ~unicipal Election Code . 3. Nothing in this decision is r.1eant to infer that the special election held pursuant to Judge ~ata nabe's decision in 39CV40 29 and the special election ordered in this ca~~ust be separate and apart . DATED this & day of Noverrber, 1989. 5 BY THE COURT: gacrum, Jr. Court Judge Eighteenth Judicial District CERTIFICATE OF MAILING The undersigned certifies that a true copy of the foregoing FllWINGS OF FACT CONCLUSION OF U.W AND ORDER FOR JUDGME~T has been placed in the United States mai l, postage prepaid, addressed to : this day of Thowas B . Buescher , Esq . 1563 Gaylord Street Denve r, Colorado 80206 Rick DeWitt, Esq . City of Englewood 34 00 S. Elati Street Engle~ood , Colorado 80110 -----------' 19 8 9 . 6 IV -REPORT CONCERNING PROTEST MELODY ASKED ME TO FILL YOU IN REGARDING THE MATTERS WHICH LED TO MR. HAIDON'S PROTEST REGARDING THE RESIDENCY REQUIREMENTS FOR COUNCIL MEMBERSHIP. AS YOU MAY HAVE HEARD OR READ IN THE SENTINEL, MR. HAIDON IS PROTESTING THE RESIDENCY REQUIREMENT CHANGE FROM THREE YEARS AS STATED IN THE CHARTER TO ONE YEAR. THIS PROTEST WAS DISCUSSED BY COUNCIL ON NOVEMBER 20TH AND A DECISION WAS MADE TO REQUEST A DECLARATORY (DE CLAR E T ORE) JUDGMENT FROM DISTRICT COURT CONCERNING THIS MATTER. SINCE THIS PROTEST IS A MATTER FOR COUNCIL, NOT THE COMMISSION, I THINK MELODY'S MAIN CONCERN IS TO PROVIDE YOU WITH ENOUGH INFORMATION IN CASE ANY OF OUR CITIZENS QUESTION YOU IN THIS REGARD. I WANT TO ASSURE YOU THAT THIS DECISION -TO CHANGE RESIDENCY REQUIREMENTS FROM 3 TO 1 YEAR -WAS MADE PRIOR TO ANYONE EXPRESSING INTEREST IN RUNNING FOR COUNCIL AND WAS NOT DONE TO ACCOMMODATE ANY ONE CANDIDATE OVER ANOTHER. IN MAY -MAY lST ACTUALLY, I ASKED THE CITY ATTORNEY FOR DIRECTION IN THIS MATTER AS I HAD BEEN INFORMED THAT THE 3 YEAR REQUIREMENT WAS UNCONSTITUTIONAL. MR. DEWITT ON MAY lOTH CONFIRMED THAT AND ADVISED THAT THE QUALIFICATIONS SHOULD BE CHANGED TO REFLECT RESIDENCY REQUIREMENT OF 1 YEAR. HERE'S A COPY OF BOTH MY REQUEST AND MR. DEWITT'S RESPONSE. THE ELECTION COMMISSION APPROVED THE CONTENTS OF THE COUNCIL CANDIDATE PACKET ON JUNE 14, 1989. THE FIRST PACKET LEFT OUR OFFICE ON JULY 11, 1989. ALL CANDIDATES WERE PROVIDED WITH THE SAME INFORMATION. 1 YEAR RESIDENCY REQUIREMENT, AGE REQUIREMENT OF 25, AND MUST BE QUALIFIED ELECTOR. ALSO -JUST FOR YOUR INFORMATION -IS A COPY OF HAIDON'S PROTEST, AND MY MEMO TRANSMITTING IT TO DEWITT FOR COUNCIL'S INFORMATION. III A. SPECIAL ELECTION 1) UNDERSTAND RESOLUTION WILL BE CONSIDERED BY COUNCIL MONDAY 12/4 SETTING JANUARY 30, 1990 AS DATE. BOTH ASSOCIATIONS HAVE AGREED TO THIS. DON'T KNOW IF THERE'S BEEN A DETERMINATION ABOUT THE BALLOT WORDING ON THE EPBA QUESTION. 2) NUMBER OF POLLING PLACES -SPECIAL ELECTION IN 6/88/ 4 POLLING PLACES (ONE FOR EACH DISTRICT) -PREFERENCE THIS TIME? 3) PAPER BALLOT ? SOME SAVINGS COULD BE REALIZED MACHINES $220.00 EACH