HomeMy WebLinkAbout1991-03-26 EC MEMOTO: Roger Fraser, City Manager
Rick DeWitt, City Attorney
FROM: Jo Lay, Chairman, Englewood Election Commission
DATE: March 26, 1991
SUBJECT: CHARTER REVISIONS PROPOSED BY THE ELECTION COMMISSION
Recently the Election Commission was advised that now would be an appropriate
time to submit recommendations for Charter revisions which would then be
reviewed by City Council for inclusion as ballot questions for the November 5,
1991, regular municipal election.
The Election Commission has met and recommends the following revisions:
1. Based on previous legal opinions issued by the City Attorney that it
is unconstitutional to limit any election to "tax paying electors,"
the Election Commission recommends that the Charter be amended in
the following sections:
Section 6 (Detachment) -change to ''registered elector"
Section 121 (City Owned Utilities) -change to ''registered elector"
Section 134 (Franchise -Extention of Territory) -change to
"registered elector"
2. There are several sections of the Charter that refer to "qualified
electors." To better conform to Colorado Municipal Election Law,
many of them should be amended to read "registered electors."
Section 34 (Recall) -change to "registered electors"
Section 42 (Ordinances -Disposition) -change to "registered
electors"
Section 45 )
Section 46 ) (Initiative and Referendum) -change all references
Section 47 ) to "registered electors"
Section 48 )
Section 104 (G 0 Bonds) -change to ''registered electors"
Section 137:6 (Impasse Resolution) -change to "registered electors"
Section 138:5 (refers to effective date of charter amendment
approved 3/24/81) -change to "registered electors"
Page 2
March 26, 1991
3. Section 15 -Nominations for Elective Municipal Office
This section conflicts with State election laws in that, by Charter,
nomination petitions may be circulated and signed by qualified
electors; State law, 31-10-302, stipulates that only registered
electors can circulate and sign nomination petitions. Section 15 of
the Charter also states, "Petitions shall be circulated and filed in
accordance with Colorado Municipal Election Laws." Currently
nomination petitions are not circulated in accordance with State
law. The Election Commission strongly recommends this section be
changed to require that nomination petitions be circulated and
signed by "registered electors."
4. Section 23 -Qualification of Council Members
Section 69 -Municipal Judge Qualifications
These sections both conflict with State election laws in that
Section 31-10-301 stipulates that office holders must be registered
electors. The Charter currently reads that candidates for Council
and Municipal Judge need only be qualified electors. It is the
consensus of the Election Commission these two sections should be
amended to read "registered electors."
Additional sections of the Charter which refer to "qualified electors" and
"qualified tax paying electors," are:
Section 7 -Definitions
Section 11 -Election Commission members' qualification
Section 13 -Registration of voters
Section 56 -Planning and Zoning Commission members' qualifictions
Section 59 -Board of Adjustment and Appeals members' qualifictions
Section 61 -Water and Sewer Board members' qualifications.
It may be that Council will prefer that these sections remain as written, and
the Election Commission makes no specific recommendation in this regard.
The Commission is aware that as a Home Rule City the Charter can differ from
State election laws. However, these recommended changes would alleviate
confusion and make the election process easier to administer.
cc: Members of Englewood City Council
.....
D R A F T
MEMORANDUM
TO: Roger Fraser, City Manager
Rick DeWitt, City Attorney
FROM: Jo Lay, Chairman, Englewood Election Commission
DATE: date to be inserted when approved for transmittal
SUBJECT: CHARTER REVISIONS PROPOSED BY THE ELECTION COMMISSION
Recently the Election Commission was advised that now would be an appropriate
time to submit recommendations for Charter revisions which would then be
reviewed by City Council for inclusion as ballot questions for the November 5 ,
1991, regular municipal election.
The Election Commission has met and recommends the following revisions:
1.
2.
Based on previous legal opinions issued by the City Attorney that it
is unconstitutional to limit any election to "tax paying electors,"
the Election Commission recommends that the Charter be amended in
the following sections: _ J_ Rftr Section 16 (Detachment) -substitute "e 1 ector"
Section,2/(City owned utilities) -substitue ''elector"
Section 134 (Franchise -extention of territory) -substitute
"elector"
There are several sections of the Charter that refer to "qualified
electors." To better conform to Colorado Municipal Election Law,
many of them should be amended to read "-el eet.ors:-1!;:;:.o l= "registered
electors."
Section 34 (Recall) -change to "registered electors"
Section 42 (Ordinances -Disposition) -~s tit11t.G. "electors"
Section 45 )
Section 46 ) (Initiative and Referendum) -change all references
Section 47 ) to "registered electors"
Section 48 )
Section 104 (G 0 Bonds) -change to "registered electors"
Section 137:6 (Impasse Resolution) -substitute "electors"
Section 138:5 (refers to effective date of charter amendment
approved 3/24/81) -change to "electors"
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Page 2
date
Additional sections of the Charter which refer to "qualified electors" and
"qualified tax paying electors, 11 are: o/PvJ
/Section 11 -Election Commission members' qua 1 ifi cation ~ · V
tion 13 -Registration of voters
Section 23 -ualification of Council Member ~
//Section 56 -Planning and Zoning Commission members' qualifictions
Section 59 -Board of Adjustment and Appeals members' qualifictions
/Section 61 -Water and Sewer Board members' qualifications
Section 69 -Municipal Judge Qualificati ~
It may be that Council will prefer that these sections remain as written, and
the Election Commission makes no specific recommendation in this regard. It
should be noted, however, that Sections 23 and 69 conflict with State election
laws in that Section 31-10-301 stipulates that office holders must be
registered voters. This would apply to Council Members and the Municipal
Judge .
Section 15 also conflicts with State law in that, by Charter, nomination
petitions may be circulated and signed by qualified electors; State law,
31-10-302, stipulates only registered electors can circulate and sign
nomination petitions. Having this changed to conform to State law would
certainly make verification of petitions less time consuming.
The Commission is aware that as a Home Rule City the Charter can differ from
State election laws. However, these recommended changes would alleviate
confusion and make the election process easier to administer.
cc: Members of Englewood City Council 0 rl
* * * * * ~~ ~~
Notes to Commission Members -Other changes we might wish to look at for j .
rev1s1on are Section 14, Special Elections (Charter conflicts with~
and Section 20, Districts (variances between districts which affect
reapportionment).
OPINION
MEMO
TO: Patricia Crow,. City Clerk
Rick DeWitt, City Attorney
DATE: March 28, 1983
RE: Special Election --Public Service Company
You have requested an opinion on several topics. The topics are
as follow:
1. Can we require that only "tax-payers" vote?
No. An extensive opinion on ~his subject was issued May 12,
1907.
2. Is it possible to limit the number of polling places
for the special election to four, situating one in each District
instead of each precinct?
Yes. Pursuant to Section 11 of the Home Rule Charter, which also
adopts the Colorado Municipal Election Law, the Englewood
Election Commission can establish precincts and appoint election
judges and clerks for each precinct. CRS 31-10-502:
Establishing Precincts, has certain time and boundary constraints
that you should follow.
3. If we are required to "man" the 16 precincts, do you
foresee a legal problem with having only two judges at each
precinct if that becomes a necessity?
Yes. Pursuant to Colorado Election Laws, CRS 31-10-402 (which
has been adopted in Section 11 of the Englewood Horne Rule
Charter), 11 ••• shall appoint for each municipal election precinct
at least three judges of election .•• 11
I trust this is responsive to your questi~o~n~-.....
bb
cc: City Council
Andy Mccown, City Manager
. . . ..>::s.-_,.-Rick~itt --·····-
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City of Englewood
MEMO
TO: Andy Mccown, City Manager
Gary Higbee, Director of Finance....,......
Pat Crow, City Clerk
FROM: Jack Olsen, City Attorney
DATE: May 12, 1987
RE: Taxpaying Electors.
3400 5 . Elati Street
Englewood, Colorado 80110
Phone (303) 761-1140
I understand that you have made further inquiry of Nancy
Reid, Esq., regarding whether the upcoming franchise elections
(if any) should be limited to 11 taxpayin.g 11 electors only.
Apparently, one or more of .you believes that we must so
limit the election.
Please recall that I can only give you my best legal
opinion, but the decision must rest with you.
The issue is not a new one, and if I can detail some of the
history of court decisions, it may be helpful. Most of this
discussion is stolen from legal sources:·
Prior to 1970 the Colorado Constitution provided that no
city, town, or school district could contract any debt without
the approving vote of the qualified taxpaying electors. A number
of statutes were adopted which contained these same taxpaying
requirements, and some home rule charters contained similar
provisions.
In 1969 the United States Supreme Court extended the 11 one
_man-vote" rule to an election for municipal revenue bonds and
held that a statute which limited the franchise to property
taxpayers was unconstitutional because it violated the equal
protection clause of the Fourteenth Amendment. Reynolds v. Sims,
377 U.S. 533 (1969); Cipri~no v. City of Houma, 395 U.S. 701
(1969) •
The United States Supreme Court also made the same ruling in
connection with a school board election, Kramer v. Union Free
School District, 395 U.S. 621; and extended its reach to general
obligation bonds. Phoenix v. Kolodziejski, 399 U.S. 204.
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By Colorado constitutional amendment adopted in 1970,
effective January 1, 1972, sections 6,7,8 and 9 of Article XI of
the Colorado Constitution were repealed and a new section 6 was
enacted which provided that except as may be otherwise provided
by a home rule charter, no debt of any political subdivision
shall be created unless the question of incurring the same be
submitted to and approved by a majority of the qualified
taxpaying electors voting thereon, as the term "qualified
taxpaying elector" shall be defined by statute.
Where a school district proceeded with a bond election
before the 1970 statute was adopted, and permitted all qualified
electors to vote, regardless of whether or not they had paid a
tax, the Colorado Supreme Court upheld the election, but it threw
out the taxpaying requirement --seyering it from the statute
completely --saying that such a requirement of "taxpaying" was
unconstitutional. Pike v. School District No. 11, 172 Colo. 413
(.197 0) .
Said the Colorado Supreme Court:
11 \·~e hold: that only the word 'taxpaying' at all
places in which it appears in [the statute in
question] 1969 Perm. Supp., C.R.S. 1963, 123-38-21
causes the unconstitutionality; that at all places in
the section the word 'taxpaying' is severable; and
that the section is to be read as if the word did not
appear therein.
This decision is to be applied prospectively
only to elections held after the date this opinion
becomes final and to those elections held prior to
such date that are challenged within the time
permitted by law. [emphasis added.] Pike, 474 P2d
at 165. · ~~
In the meantime, the Colorado Revised Statutes were amended
to remove the taxpaying requirement in the authorization of bonds
for counties [C.R.S. 1973 ('77 R.V.), Section 30-26-301], for
municipalities [C.R.S. 1973 ('77 R.V.), Section 31-15-302] and
for school districts [C.R.S. 1973 ('77 R.V.), Section 22-42-102.
The Colorado Supreme Court has stated that there are some
situations where a "taxpaying" requirement is constitutionar:-
Chesser v. Buchanan, Colo., 568 P2d 39 (1977). In this case, the
"taxpaying" elector requirement of the Moffat Tunnel Improvement
District was upheld, but the Colorado Supreme Court specifically
noted that this was an "exception," because:
1. the improvement district was of relatively limited
authority and purpose and
2. the improvement district had a disproportionate effect
on landowners within the district.
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The Colorado Supreme Court relied, in this reasoning, upon
the United States Supreme Court cases of Salyer Land Co. v. Twate
water District, 410 U.S .. 719 (1973), and Associated Enterprises,
Inc. v. Toltec Watershed Improvement District, 410 U.S. 743
(1973).
In the instant case, we are talking about two possible
special election issues: (a) a · Public Service Company franchise,
and (b) a cable television franchise.
The former (PSCo.) does not affect only taxpayers. It
affects everyone --homeowners, home renters, transients, hotel
.guests, citizens in businesses, children, all non-taxpayers, etc.
Indeed, there is not a single human being who would not be
affected by the franchise electio~ on the PSCo. issue:-Thus,
limiting said election only to those persons who pay taxes would
be a violation of the equal protection clause of the United
.States Constitution. Every person excluded from the election
because he or she was not a 11 t~xpaying" elector, would be able to
sue Englewood to have the election overturned.
Similarly, the cable television issue is one that cuts
across the entire population and is not confined to taxpayers
only. You do not need to be a taxpayer at all to hook up cable
television.
These special election issues patently do not fall within
the Moffat Tunnel exceptions.
We cannot and should not preclude non-taxpaying electors
from the next election. As I recall, we briefed Pat Crow on the
one-man-one-vote concept prior to March 19, 1987, but she wanted
or needed sornethi?g in writing for her file to confirm what our
opinion was. I think perhaps Gary had required this of her, but
I'm not sure. ·
Please feel free to come up, and we can show you all of
these cases in the law library and leave you to read them at your
leisure. I would be very pleased to discuss this further, if you
wish.
Thank you.
JRO/nf
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CHAPTER VI
CAMPAIGN REFORM ACT
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VI Campaign Reform Act
The Colorado Campaign Reform Act (the "Act") C.R.S. 1-45-101, et~· sets
forth certain requirements for candidates to provide disclosure. Disclosure
must be in the form of a written statement which must include information as
to campaign contributions and campaign expenditures . Individuals who become a
candidate for a City elective office are required to file an affidavit within
ten days from the time of becoming a candidate, that they are familiar with
the provisions of the Act.
Political committees supporting or opposing candidates or issues are also
required to file a statement of organization pursuant to the Act.
Contributions received by candidates or polit i cal committees are required
to be deposited in a financial institution with a separate account for
purposes of providing a record of transactions. The campaign treasurer is
required to file reports of all contributions received and all the
expenditures made by, or on behalf of, a candidate or a political committee.
These reports are required to be filed eleven days before and thirty days
after any regular municipal election . Under these provisions, filings of
these reports are required to be complete as of five days prior to the filing
date.
In addition to all requirements of the Campaign Reform Act, the City of
Englewood has determined that:
A. No candidate or elected official of Englewood shall accept a monetary
contribution of any kind from a person or political committee not
residing in Englewood.
B. No candidate or elected official of Englewood shall accept Political
Action Committee (PAC) money from businesses or any other type of
organization, association or chamber of commerce which does not
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maintain an office or place of business within the City of Englewood
notwithstanding the existence of its customer base, membership or
affiliation with Englewood citizen(s) and/or business(es).
C. Acceptance of any type of resource, financial or otherwise, from any
citizen group whose membership includes citizens who do not reside or
who do not have a physical presence within the City of Englewood
shall constitute a violation of the law.
D. Acceptance of any type of resource, from any business, association or
chamber of commerce which does not maintain an office or place of
business within the City of Englewood shall constitute a violation of
the law.
E. Violation constitutes a penalty assessment equal to the amount of the
unlawful contribution up to jurisdictional limits of the municipal
courts lawful ability to impose.
F. Any citizen shall have standing to request the City Attorney to bring
a complaint on behalf of the City for violations of the Englewood
Municipal Code 1985 §1-5-2 as provided in §l-7A-1, Englewood
Municipal Code 1985.
G. Nothing in the referenced Code prov1s1on shall prevent any
organization, association, citizen, business or group from endorsing
or supporting any candidate as long as no money or other contribution
is given directly to the candidate or his campaign organization
except by individual residents and businesses located within the City
limits of Englewood.
Based on the foregoing requirements set forth in §1-5-2--12, Englewood
Municipal Code 1985, all contributions shall be listed separately (not lumped
together), when disclosure is made.
Filing an annual Campaign Statement of Contributions and Expenditures i s
required for any candidate whose Campaign Statement of Contributions and
Expenditures does not balance to -0-when the December report is filed with
the Clerk following the election.
Because of the nature of these disclosure requirements, no person is
a 11 owed to make any cash contributions exceeding $100 to a candidate or
political committee. In addition, candidates and political committees are
required to not make any cash expenditures exceeding $100 for purposes related
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to the candidate's campaign or the passage or defeat of an issue.
Contributions or expenditures exceeding $100 must be made by check.
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