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HomeMy WebLinkAbout1991-01-03 EC MEMO• • • .. MEMORANDUM TO: Members of the Englewood Election Commission FROM: Patricia H. Crow, City Clerk DATE: January 3, 1991 SUBJECT: TRANSMITTAL OF VARIOUS ITEMS I am enclosing several items for your information and review, the first of which is a copy of Melody's resignation as a member of the Comm i ssion. The resignation will be received officially by Council at the January 7th regular meeting. I called Melody to tell her how sorry I am that she has decided to resign. I got the impression she feels her efforts will be better spent working on other projects to which she is committed. After Cou ncil accepts the resignation, I assume they will commence seeking a new member. However, in the meantime I suggest the Election Commission members meet and elect a new chairman as soon as possible, as it may be some time before another member is appointed. Would January 22 at 4:30 p.m. be satisfactory? Lou or I will call you in a few days to confirm that date. The second item enclosed is a copy of the Elections Procedure Manual which has been drafted for your review. It has already been reviewed by the Assistant City Attorney and his suggestions have been incorporated into the enclosed document. As you may recall, December was initially proposed f or submittal of this document to City Council, however, that was not a 11 deadline 11 per se. Nevertheless, I would like to complete this and submit it to Council as soon as possible. We can discuss it at the January 22nd meeting. The third item consists of copies of the Colorado Court of Appeals' reversals of District Court Judge Watanabe's rulings regarding the City's special election/regular election which was to include questions as to the 1990 wages for police personnel (Englewood Police Benefit Association) and non-emergency personnel (Englewood Employees Association). To refresh your memory, as a result of the wage impasses with both associations, City Council called for a special election to be held on the same date as the regular municipal election, November 7, 1989. However, prior to the election date, both associations petitioned District Court to order the City not to hold the elections simultaneously. District Court ruled in favor of the petitioners, and the City was required to cancel the special election. As you will recall, we then held the special election separately on January 30, 1990. The City appealed the ruling and the results of that appeal are reflected in the enclosed reversals which state clearly that the City, as a home rule municipality, does have the right to hold a special election on the same date as a regular municipal election. It is possible, but doubtful, that the two • • • Page 2 January 3, 1990 associations will appeal this reversal to the Colorado Supreme Court. In all likelihood, the matter is put to rest by the decision of the Colorado Court of Appeals. If you have any questions about this, give me a call -or I'm sure Rick DeWitt would be happy to talk to you about it. Looking forward to seeing you on the 22nd. cc: Linda Martin, Acting Director of Finance • • December 12, 1990 Mayor Susan Van Dyke Englewood City Hall 3400 South Elati Englewood, CO 80110 Dear Mayor Van Dyke, 8 (a) I regret to inform you that, effective immediately, I am tendering my resignation as a member of the Englewood Ele~tion Commission. Thank you. Sincerely, Melody L. Kollath Securltiea offered through Kavanaugh Securities, Inc. Member of the National Association of Securities Dealers and SIPC. MELODY KOLLATH, CFP Certified Financial Planner 5601 S . Broadway Blvd . Suite 404 Littleton, CO 80121 (303) 798-0306 • DRAFT ENGLEWOOD ELECTION PROCEDURES MANUAL October 31, 1990 • • INDEX • CHAPTERS PAGE I Purpose II Definitions II I Roles A. City Clerk B. Election Commission c. County Clerk D. City Attorney's Office E. Election Judge F. Public Relations G. Secretary of State J . Other Departments IV Boundary Reappo r tionment of Council District s v District/Precinct Map VI Campaign Refo r m Act VII Nomination Petitions and Write-in Affidavits VIII Candidates IX Voter Registratio n x Absentee Voting XI Ballot Questions and Initiative and Referend um XI I Election Calendar XIII Election Vote Tab ulation • XIV Additional Election Preparation Requirements A. Legal Notices and Publications B. Required Election Supplies and Forms c. Polling Pl aces D. Election Judge Training E. Voting Equipment/System (Method of Voting) xv Distribut i on and Maintenance of Manual • • CHAPTER I PURPOSE • • -1 - • • • I. Purpose The purpose of the City of Englewood Election Procedures Manual is to describe the procedures which are followed for conducting Municipal Elections within the City. This document is generally descriptive of the procedures for such elections. Elections within the City of Englewood are governed by the provisions of the Colorado Municipal Election Code C.R.S. 31-10-101, et ~· Because this manual contains references to state statutes, city charter provisions and city ordinances, these legislative provisions are subject to being amended from time to time. Therefore, it is incumbent upon any individual relying on this Manual to ensure that no legislative acts have postdated the date contained in the distribution chapter of this Manual . -2 - • CHAPTER II DEFINITIONS • • -3 - • • • II. Definitions As used in this Election Procedures Manual, unless the context otherwise requires: A. "Clerk" means the City Clerk of the City of Englewood, Colorado, who is the Official responsible for the conduct of a municipal election or any person delegated by the City Cl erk to exercise any of these powers, duties or functions. B. "Commissioner" means any member of the Englewood Election Commission. C. "Election" means a regular municipal election. This election is held on the first Tuesday after the first Monday in the month of November of odd number years. D. "Election Judge" means any judge of an election appointed by the Englewood Election Commission who engages in the performance of election duties as required by this manual and state law. E. "Special Election" means any election conducted by the City of Englewood other than a regular municipal election . OTHER DEFINITIONS WHICH MAY BE NECESSARY FOR THIS MANUAL MAY BE FOUND IN THE COLORADO MUNICIPAL ELECTION CODE OR ENGLEWOOD CITY CHARTER AND CODE . -4 - • CHAPTER III ROLES • • -5 - • • • II I Roles This chapter provides a means of identifying the various positions, departments or other governmental agencies involved in election preparation and procedures. The roles described relate specifically to the City of Englewood and may vary from municipality to municipality. A. Clerk. It is the duty of the Clerk to supervise and conduct all aspects of an election. The Clerk is a voting member of the Election Commission pursuant to Article II, Section 11 of the Englewood Home Rule Charter. The Clerk is responsible for the planning and preparation of elections including the selection of election judges and polling places. The Clerk obtains the required election supplies and sufficient voting machines or paper ballots . B. Election Commission. The Commission is responsible for recommending District boundary changes to City Council, establishing precincts within each District, appointing election judges,and reviewing proposed state and local legislation concerning elections. The Commission provides a support role to the Clerk for election preparation and on election day. (City Charter Article II, Sections 10 and 11) C. County Clerk. The County Clerk contracts to supply voting machines to the Clerk for elections. The County Clerk provides a list of all registered voters within the City limits by precinct and supplies the Clerk with voter registration forms. D. City Attorney's Office. It is the duty of the City Attorney's staff to advise the Clerk, Commissioners, or other City officials concerning the laws pertaining to an election. In addition, the City Attorney or the -6 - • • • assigned Assistant City Attorney shall be responsible for providing legal advice both in oral and written form to the Clerk, Commissioners, or other City officials regarding such laws. On election day the City Attorney or the assigned Assistant City Attorney shall be available to the Clerk and Commissioners or other City officials as deemed necessary in order to provide timely advice to such officials on matters which may arise during the election . E. Election Judges. The Election Commission shall appoint three election judges for each precinct. For each additional voting machine, there shall be one additional election judge. C.R.S. Section 31-10 -401 through 31-10-409 governs municipal election judges. There shall be designated one Head Judge per precinct who is responsible to pick up and return election supplies to the Clerk . F. Public Relations. The Public Information Coordinator and the Clerk will work closely in the weeks just prior to an election to describe for the media and the public the preparations for election day and the City's expectation of it. G. Secretary of State. In the event a Charter amendment is adopted as a result of a vote of the general electorate, such Charter amendment shall be certified to the Colorado Secretary of State. The ordinance which placed the amendment on the ballot as well as the results of the election in that regard shall both be certified to the Secretary of State by the Clerk. A copy of the Statement and Certificate of Determination is fi 1 ed by the Cl erk with the Secretary of State after election results are canvassed pursuant to C.R.S. 31-10-1205(2) -7 - • • • J. Other Departments. Other City departments are involved with the Election process to the extent of providing support services. The Public Works Traffic Division provides for portable handicapped parking signs for polling places. The Public Works Engineering Division provides support by performing all map work required on the District/Precinct boundary maps including providing the necessary copies of the map required by the Clerk. In addition, the Public Works Engineering Division assists the Clerk by preparing Tally Boards for election results on election night. The Community Development Planning Division provides population figures to and works with the Clerk on figures required on the District boundary reapportionment process which is done every four years commencing in 1959. Redistricting shall be completed six months prior to the regular municipal election at which it is to become effective, pursuant to Charter Article III, Section 20. (Next scheduled redistricting -May 5, 1991) Code Enforcement provides support by putting polling place signs at the required time on each facility to be used as a polling place. Other departments play a part in the election process to some degree. Several City buildings are used for polling places and staff at those buildings open and close the facility for the election judges . -8 - • CHAPTER IV BOUNDARY REAPPORTIONMENT OF COUNCIL DISTRICTS • • -9 - • • • IV Boundary Reapportionment of Council Districts Article II I, Section 20 of the Englewood City Charter sets forth that the City shall be divided into four districts whose boundaries shall be established by ordinance. Districts shall be contiguous and compact and have approximately the same number of registered voters as determined by the number registered to vote at the preceding regular municipal election. Districts are further required to have approximately the same number of residents. Changes in District boundaries are enacted by ordinance adopted by the City Council after receiving the recommendation of the Election Commission. The Clerk shall assist the Commissioners in determining alternatives for District boundary reapportionments. The City Attorney shall provide legal advice as to the constitutional and other legislative or case law requirements concerning District boundary reapportionment. reapportionment are: Factors used in District boundary A. No more than 5% different i a 1 between the most and 1 east populated districts.* B. Not greater than 15% between the district with the highest number of registered voters and the district with the lowest number of registered voters. C. Compactness of district. 0. Minimal split of county precincts. E. In district boundary reapportionments, a Council Member with time remaining in the term of office should not be removed from the district for which elected to serve . -10 - • • • F . G. Redistricting a council member out of the district for which elected to serve may occur if that "seat" is up for re-election the year the District map is changed. Effective date of district map is that date in May six months prior to the regular municipal election held every four years after May 1, 1959. (Next effective date -May 5, 1991) *the most exacting criteria as mandated by case law. C.R.S. Sections 31-10-502(1), (2), and (3) set forth certain criteria for establishing district boundaries subject to City Charter provisions . -11 - • CHAPTER V DISTRICT/PRECINCT MAP • • -12 - • • • V. District/Precinct Map The Clerk, after adoption of the District Map, shall overlay each county precinct map in which the City of Englewood lies to create the City precincts. Care should be used to combine country precincts in which the same polling place is used to form a single City precinct. The Englewood Election Commission establishes the City precincts in each election based on the proposal submitted to them by the Clerk. Section C.R.S. 31-10-502 governs the establishment of precincts . -13 - • CHAPTER VI CAMPAIGN REFORM ACT • • -14 - • • • 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 ca mpaign 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 political 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. Filing an annual Campaign Statement of Contributions and Expenditures is 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 . -15 - • • • Because of the nature of these disclosure requirements, no person is allowed 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 to the candidate's campaign or the passage or defeat of an issue. Contributions or expenditures exceeding $100 must be made by check . -16 - • CHAPTER VII NOMINATION PETITIONS AND WRITE-IN AFFIDAVITS • • -17 - • • • VII Nomination Petitions and Write-in Candidates Nominations Article II, Section 15 of the Home Rule Charter of the City of Englewood sets forth the process and dates for nomination of candidates for elective office within the City . Nomination petitions may be circulated and signed beginning on the fiftieth day and ending on the thirtieth day prior to the date of the election. Candidates for district positions must have at least 50 qualified electors sign a petition for such nomination. Such electors must reside within the candidate's district. Candidates for at -large seats must have at least 50 qualified electors sign a petition for such nomination. Such electors must reside within the City limits of the City of Englewood. Qualified elector may sign only one petition for each office. A qualified elector is one who is eligible to register as follows: 1. at 1 east 18 years of age 2. citizen of the United States 3. resident of the City of Englewood for 32 days immediately preceding the election. The nomination petition beco mes a part of the election file. After the election, the nomination petition must be retained for a period of two years and open to public inspection. (C.R.S. 31-10-302(7)) Write-in Candidates Pursuant to C.R.S. 31-10-306, a governing body of a municipality may provide by ordinance that no write-in vote for any municipal office shall be counted unless an Affidavit of Intent has been filed with the Clerk prior to -18 - • • • the date of the election. The Englewood City Counci 1 has not adopted an ordinance governing Write-in Candidates. Until such ordinance is adopted, write-in votes shall be counted . -19 - • CHAPTER VI II CANDIDATES • • -20 - • • • VIII Candidates Qualifications to hold elective office in the City of Englewood are set forth in Article III, Section 23, Englewood Home Rule Charter: "No person shall be eligible for the office of Councilman unless at the time of his election he is a citizen of the United States, at least twenty-five (25) years of age, shall have been for three years immediately preceding such election a qualified elector of the City. Councilmen elected by Districts shall also be residents and qualified electors of their districts. No member of the Council shall hold any other public office or employment for which compensation is paid from any municipality." Candidates for district seats must reside within the district for which they are candidates. The at-large candidates must reside within the City limits. The Clerk will provide an information sheet to each candidate indicating the requirements for candidacy in the City of Englewood. Each candidate shall receive from the Clerk a "candidate's packet." Each candidate shall complete a card with information needed by the Clerk for communication purposes. This card also provides information to other sources requesting candidate information. The candidate's packet shall contain a current District/Precinct Map . -21 - • • • The Clerk shall establish a file for each candidate for elective office . The file should contain all r equired documents as mandated by the Campaign Reform Act. The file shall also contain the Candidate 's Qualification Affirmation Statement, a copy of the candidate's Profile, and any public announcements as found in the newspapers. The nomination petitions cannot be released to candidates until the 50th day prior to the e 1 ect ion and must be returned no 1 ater than the 30th day prior to the election. The Clerk shall provide a date schedule and nomination procedures with each petition . -22 - • CHAPTER IX VOTER REGISTRATION • • -23 - • • • X Voter Registration The City Clerk's office shall provide voter registration pursuant to C.R.S. 31-10-204 for all citizens residing in Arapahoe County. Voter registration shall be provided during regular business hours that the office of the City Clerk is open. New voter registration records shall be transmitted to Arapahoe County Election Office once a month or as requested by the County prior to elections. Deferred registrations will also be taken when appropriate. Each person taking voter registration shall be deputized by the County Clerk. Qualifications for voter registration are: 1. at least 18 years of age 2. citizen of the United States by birth or naturalization . 3. resident of the State of Colorado and of the voting precinct for 32 days preceding the date of the ensuing election, with no other residence claimed as legal residence . -24 - • CHAPTER X ABSENTEE VOTING • • -25 - • • • X Absentee Voting Electors may apply for an absentee ballot for all municipal elections. Colorado Municipal Election Code C.R.S. 31-10-1001, et ~· governs absentee voting. Applications for absentee ballots shall be available beginning on the 90th day prior to the date of the election. Absentee ballots are mailed to applicants within 72 hours after the ballots are received from the supplier. The Clerk shall designate one precinct to count all absentee ballots which are received in the Clerk's office by 5:00 p.m. on the day of the election. Absentee ballots received after the 5:00 p.m. deadline will not be counted . -26 - • • • CHAPTER XI BALLOT QUESTIONS AND INITIATIVE AND REFERENDUM -27 - • • • XI Ballot Questions and Initiative and Referendum Ba 11 ot Questions All questions which are required to be put on the ballot at an election shall be prepared by the City Attorney and approved by the City Council of the City of Englewood. Ballot questions shall be placed on the election ballot in the order in which they are approved by the City Council or by action which is taken to pl ace the question before the voters. Charter amendments may be framed and submitted to the electors through petitioning the Council, or framed and submitted to the electors by Council on its own initiative in accordance with the provisions of Article XX of the Constitution of the State of Colorado and Home Rule Charter Article II, Section 14. Ballet questions must be acted upon by the City Council in such a time frame as to allow for the introduction, final approval, and 30 days publication period prior to the publication of the Notice of Call of Election. The last date Council may introduce ballot questions shall be set by the Clerk. The Clerk will maintain a file of all ballot questions which have appeared on the Englewood ballots. Initiative and Referendum Initiative/Submission s Any proposed ordinance may be submitted to the Council by a petition signed by qualified electors of the City equal in number to the required percentages. If the petition accompanying the proposed ordinance is signed by qualified electors equal in nu mber to ten percent (10 %) of the preceding -28 - • • • gubernatorial vote in the City with a request for a special election, the Council shall either pass said ordinance without alterations within thirty days after the petition is filed, subject to the referendum, or call a special municipal election, unless a regular or special municipal election is to occur within ninety days thereafter. At such special or regular municipal election the Council shall submit said ordinance to a vote of the electors of the City. If the petition is signed by qualified electors equal in number to at least five percent (5%) of the preceding gubernatorial vote in the City, and is filed with the City Clerk at least sixty (60) days before any municipal or general state election, the Council shall pass said proposed ordinance without alterations with thirty (30) days, or shall submit same to a vote of the electors at the next regular municipal or state election. If the petition is not filed with the City Clerk at least sixty (60) days before the next regular municipal or state election, it shall be null and void . An initiated ordinance shall be published in the same manner as other ordinances. The ballot upon which such proposed ordinance is submitted shall comply the requirements set forth in Article II, Section 14 of the Englewood Home Rule Charter. If a majority of the electors voting on the question, vote in favor of it, the same shall, without further publication, become an ordinance of the City immediately. Any number of proposed ordinances may be submitted at the same election. The number of special elections shall be limited as provided in Article II, Section 14 of the Englewood Home Rule Charter. Referendum Referendum shall apply to all ordinances passed by Council, except ordinances making the tax levy, the annual appropriation ordinance, or the -29 - • • • ordering of improvements initiated by petition and to be paid for in whole or part by special assessments. If at any time within thirty (30) days after the final passage of an ordinance to which the referendum is applicable, a petition, signed by qualified electors equal in number to at least ten percent (10%) of the preceding gubernatorial vote in the City, is presented to Council protesting any ordinance going into effect, it shall reconsider such ordinance. If the ordinance is not entirely repealed, Council shall submit it to a vote of the electors of the City as provided in the Initiative and Section 14 of the Englewood Home Rule Charter, at the next regular municipal election or at a special election. Such ordinance shall then go into effect with out further publication if a majority of the electors voting thereon vote in favor of it. The Council, on its own motion, shall have the power to submit any proposed ordinance to a vote of the electors at a regular or special election as provided and limited by Charter. No provision of the Charter shall be construed as limiting the right of Council to refer to any ordinance subject to referendum. If provisions of two or more proposed ordinances adopted or approved at the same election conflict, the ordinance receiving the highest affirmative vote shall become effective. An ordinance adopted or rejected by electoral vote, under either the initiative or referendum, cannot be revised, repealed, or amended except by electoral vote; however, the Council shall have the power to submit a proposition without a petition therefor, subject to the limitations set forth in Article II, Section 14, of the Englewood Home Rule Charter . -30 - • CHAPTER XI I ELECTION CALENDAR • • -3 1 - • • • XII Election Calendar The City Clerk shall adopt a calendar of events associated with the municipal election. The calendar shall be in conformance with the time frames set forth by the Municipal Election Code C.R.S. 31-10-101, et seq. The calendar will include, but not be limited to, candidate filing dates (if applicable), absentee ballot deadlines, etc . -32 - • CHAPTER XIII ELECTION VOTE TABULATION • • -33 - • • • XII I Election Vote Tabulation The Clerk shall be responsible for the coordination of the return of election results from each precinct ensuring that each precinct has reported. As precinct results are received, data will be confirmed by authorized personnel utilizing manual and computerized equipment for check and balance. In case of a tie vote, the Election Commission shall determine by lot the person or persons who shall be elected. Upon completion of results, a Statement and Certificate of Determination shall be issued by the Clerk , duly certified by the Clerk and signed by available members of the Englewood Election Commission and the Mayor of the City. In the event the Mayor is unavailable for this duty or is a candidate for reelection, the Clerk may select a municipal election judge to sign the Statement and Certificate of Determination in place of the Mayor. Upon completion of the Statement and Certificate of Determination, a certified copy shall be transmitted to the Secretary of State. In addition, the Clerk shall arrange for publication of the document in the City's legal newspaper. C.R.S. Sections 31 -10-1201 and 31-10-1205, et seq. govern canvass of votes and requirements of Statement and Certificate of Determination . -34 - • CHAPTER XIV ADDITIONAL ELECTION PREPARATION REQUIREMENTS • • -35 - • • • XIV Additional Election Preparation Requirements This chapter provides a means of identifying more specifically election preparation and procedures. It is important to note that this chapter includes cites of state statute and details various important election preparation functions. A) Legal Notices and Publications The Clerk in conjunction with the City Attorney's office shall be responsible for drafting and having published legal notices and publications for elections. Such notices and publications shall be in conformance with the Colorado Municipal Election Code, C.R.S. 31-10-301, et seq. B) Required Election Supplies and Forms The Clerk shall ensure that sufficient election supplies are available to conduct the election. Those supplies sha 11 include, but not be limited to, a 11 forms as prescribed by the Secretary of State, supplies for the election judges, voting machines or ballots, and candidates packets. Pursuant to C.R.S. 31-10-107 all forms shall be prescribed by the Secretary of State and sha 11 be substantially foll owed by the Cl erk and election officials. C) Polling Places The Clerk shall be responsible for contracting with a sufficient number of space providers to reserve space to be utilized as polling places. Polling pl aces shall be chosen based upon a system of requesting local churches, -36 - • • • schools, and businesses to provide, for a nominal fee or as a co mm unity contribution, space to be used as a polling place. D) Election Judge Training The Clerk shall be responsible for the training of the election judges. Training shall consist of operation of the voting equipment or use of paper ballot. Training also shall i nclude the conduct of the election, use of var i ous forms, completion of the poll books and proper recording of the election results. Training shall be conducted to provide the necessary "hands -on'' experience in order to eliminate as much confusion as possible with equipment on election day . E) Voting Equipment/System (Method of Voting) The Clerk shall be responsible for contracting with Arapa hoe County to obtain sufficient electronic computer voting machines ("machines") to conduct an election. The Clerk shall be responsible for knowing all operational aspects of such machines. To thi s end, the Clerk may contract with Arapahoe County to provide training on such machines for election judges and other election officials. For a regular or special election when paper ballots are used, the Clerk shall ensure that sufficient paper ballots are available for voters . -37 - ..... t -• • CHAPTER XV DISTRIBUTION AND MAINTENANCE OF MANUAL • • -38 - ""' .. . • • • DOCUMENT IS DISTRIBUTED TO THE FOLLOWING FOR WHICH UPDATES AS DEVELOPED WILL BE SUPPLIED Mayor Members of City Council City Manager City Attorney Assistant City Manager Assistant City Attorney -Elections Financial Services Director City Cl erk Members of Englewood Election Commission Records Management (historical purposes) 1 6 1 1 1 1 1 1 4 1 This Elections Procedures Manual will be reviewed after each regular municipal election and/or after any significant revisions of or amendment to the Colorado Revised Statutes and/or Englewood City Charter or Code regarding elections. Such updates will be prepared and reviewed by the Election Commission and City Attorney, and distributed to the above list of officials. Bound copies of this Manual will not be supplemented with updates. When referring to this Manual , persons may call the Englewood City Clerk's office to ensure that no legislative acts have postdated the issue date below. ISSUE DATE: -39 - OL S EN AND BROWN .O HN R . OLSE N + A TTORNEYS AT LAW A LAW PARTNER S HIP DEN V ER OFFICE D I ANE M AC ART HU R BROWN ++ F"IRST INTERSTATE CE N TER SUITE eoo • • December 24, 1990 Patricia Crow City Clerk City of Englewood 3400 s. Elati Street Englewood, CO 80110 Re: EEA and EPBA Lawsuits --Election Conunission Dear Pat, 3333 SOUTH BANNOCK STREET E NGLEWOOD, COLORADO 80110 T ELEPHONE (303> 761 -4106 BOULDER OFFICE 4407 COOLIDGE PLACE BOULDER, COLORADO 60303 TE LEPHONE (303) 443·4212 TELEX 45605 CABLE ADDRESS (OLSEN BROWN> ALL MAIL: B OULDER OFFICE NEW YORK OFFICE SUITE eG 320 EAST ~eT H S T REET NE;W YORK , NEW YORK 10022 TELE PHONE <212J 7~9-6 0 62 Enclosed please find the two recent decisions in these cases, in which the Colorado Court of Appeals reversed the Arapahoe District Court. As you can see, Rick Dewitt's professional judgment that special elections could legally and properly be conducted on the same day as the general municipal election was affirmed by the Court of Appeals. These decisions could not have been achieved without your hard work and support when the going got rough. Thanks again for backing us up. I hope the Holidays are treating you and your family well. ·ncerely/J ()((p._ JO/ar ATTORNEYS IN GENERAL PRACTICE. WITH EMPHASIS UPON LITIGATION. + MR. OLSEN LICENSED IN COLO RADO ANO NEW YORK + + MS. BROWN LICENSED IN COLORADO. NEW YORK AND ILLINOI S . .~ COLORADO COURT OF APPEALS • No. 89CA1834 ENGLEWOOD POLICE BENEFIT ) ASSOCIATION, FRATERNAL ORDER OF ) POLICE LODGE #22, ) ) Plaintiff-Appel lee, ) ) v. ) ) CITY OF ENGLEWOOD AND ELECTION ) COMMISSON OF THE CITY OF ) ENGLEWOOD, ) ) Defendants-Appellants. ) Appeal from the District Court of Arapahoe ·county No. 89CV4029 Honorable Michael J. Watanabe, Judge DIVISION A JUDGMENT REVERSED Opinion by CHIEF JUDGE .Ney and Davidson, JJ., STERNBERG concur • Brauer, Buescher, Valentine, Goldhammer & Kelman, P.C. Thomas B. Ruescher Denver, Colorado Attorneys for Plaintiff-Appellee Rich DeWitt, City Attorney Englewood, Colorado Olsen and Brown John R. Olsen Englewood, Colorado Attorneys for Defendants-Appellants COURT OF APPEALS STAT£ OF COLORADO Opinion filed .and judgment entered on theCf)~ day o .f \'i\, RI\ , i9qo . - ·-···~'\·:~f.'¢':· ·_:: 10 i ~~·.h'~~~.;~· .•:: . · .... ·. . ... . ·' ... 1 •• . . ·":; ·~ ··!.:-,··_: .. In this appeal from the summary judgment entered in favor • of the plaintiff, Englewood Police Benefit Association (EPBA), the determinative issue on appeal is whether defendant City of Englewood (Englewood) may hold a special election on the same day as a municipal general election. The trial court held that . ' ~.· ·-• ~-,'4 Englewood's home rule charter prevented Englewood from holding .::+·;;'. the two types of elections on the same day. We reverse. ..-.. :: Englewood is a home rule city organized pursuant to Colo. Const. art. XX, §6, and operating under a charter adopted by its citizens. The EPBA is a certified employee organization subject to Englewood's charter. The EPBA and Englewood were parties to a collective bargaining agreement which was reopened for negotiations. During the negotiations the parties reached an . ' I . . . '~ . : ~ • impasse. Englewood City Charter art. XV, §137, contains an impasse .;. ~ .. . . . ~ -~~ -'.'.·· '. resolution ' provision which provides that each party to an impasse must submit an impasse statement to the Englewood Career ' . ' . ; '. Service Board (Board) setting forth that party's final offer. The Board then conducts a hearing and renders a decision on the issues in dispute. One who is dissatisfied with this decision may file a written notice of dissatisfaction with the city council. The council then has 30 days to call a special election to resolve the impasse. Englewood and the EPBA submitted impasse statements to the Board, which subsequently issued a decision. Because the EPBA • -1- ·. . . : ... : .. ~ ... .. ! . ,,~~.f ~ '· . was dissatified with a portion of the Board's decision, it filed .· ?'.ii)~': ' ~ notice of dissatisfaction with the City Council. The City Council then passed a resolution whereby the impasse resolution special election was to be held on the same day. as a general election. Claiming, among other things, that Englewood's charter did not permit the two elections to be held on the same day, the EPBA filed this action. The EPBA sought a declaration that Englewood's charter prohibited Englewood from holding a special election on the same day as a general election. The trial court granted summary judgment in favor of the EPBA. At the outset we note that Englewood conducted the special election prior to this appeal, and thus, the issue appears to be .oot. However, in our view, this case is properly reviewable because it involves a question of great public concern and is of a potentially recurring nature. See Bestway Disposal v. Public Utilities .Commission, 184 Colo. 428, 520 P.2d 1039 {1974). See also Birkenmayer v. Carter, 165 Colo. 459, 439 P.2d 991 {1968). Thus, we address the issue presented as guidance for the election officials and tribunals which review municipal election proceedings in the future·. Englewood's home rule charter is its controlling law on matters of local concern. See Conrad v. Thornton, 191 Colo. 444, 553 P.2d 822 (1976). A municipal election is a matter of local concern over which a home rule city has plenary power . • -2- ·.",', .. ·. ,•' . . . . ~ . • Colo. Const. art. XX, §6(d); Gosliner v. Denver Election 328, 552 P.2d 1010 (1976). Therefore, we must look to Englewood's charter to determine whether it permits Englewood to hold a special election on the same .day as a general election. Englewood city Charter art. II, §134, provides that: "[N)o special election shall be held within forty five (45) days before or after a general municipal or state election." (emphasis added) The trial court interpreted the phrase "before or after" as including the day of the general election and, therefore, held that Englewood could not hold the special election on the same day as the general election. We disagree. A charter provision must be interpreted according to its ~ain meaning. Glenwood Post v. Glenwood Springs, 731 P.2d 761 ~Colo. App. 1986). Clear, plain, and unambiguous provisions of a municipal charter will be applied as written. Burns v. city Council, 759 P.2d 748 (Colo. App. 1988). We find the special election provision to be clear and unambiguous. The phrase "before or after" precludes Englewood from holding a special election during the forty five days before the day of a general election, "or" during the forty five days after the day of a general election. But this phrase does not preclude Englewood from holding the two types of elections on the same day. This conclusion is consistent with the rule of construction that when "or" is used to connect two phrases, it is interpreted • -3- .•:\·.:.·f. . . \• ... ~. :).~ ~.··:: >~ f · :- ·-.... l ' .·.· ~ : . ' . ; · .... . .. as delineating two alternatives. See Denver-Chicago Trucking .co. v. Republic Drug Co.,· 134 Colo. 461, 306 P.2d 1076 (1957); Black's Law Dictionary 1246 (rev. 4th ed. 1968). Courts will construe "or" to mean "and" when necessary to carry out the plain meaning or intent of the legislature. Denver-Chicago, supra. But, here, whether the phrase is interpreted as disjunctive or conjunctive of the two 45~day periods, the result is the same in that the special election provision does not preclude Englewood from holding a special election on the same day as a general election. Additionally, Englewood city Charter art. II, §14(3) specifically enumerates three situations in which a special election may not be held on the same day as a general ~lection --when the special election issue pertains to acquiring land, merging with other cities, or issuing general obligation bonds. If Englewood had intended to prevent any special election or impasse resolution election from being held on the same day as a general election, it would have specified such exception in a similar manner. Finally, we deem it significant that in Englewood v. Save the Park Ass'n, 155 Colo.· 548, 395 P.2d 999 (1964), the supreme court dissolved a temporary injunction which the trial court had issued, and ordered Englewood to proceed with a special election on the same day as a general election. The issue in Save the Park was not whether the two types of elections could be held on • -4- .• 1:: . ·~ -: .' . ·. ···~ .... :: .. :·;,_ . :~. ·. . •'\:· . I·'" ~ .... ·,,:: .. ·-'. , ..... . . . . ~ . • llfiiJ..e same day and a different charter provision was involved; ~wever, the case exemplifies the fact that the practice is neither new nor novel. In fact, it should be encouraged to limit duplicative and wasteful election procedures. Therefore, we hold that Englewood's home rule charter does not prohibit Englewood from holding a special election concerning an impasse resolution on the same day and at the same time as a general election. We have considered the remaining contentions of error and find them to be without merit. The judgment is reversed. JUDGE NEY and JUDGE DAVIDSON concur . • -5- • ','<' ··: ~ .•· ''i·'· L ' t~r \ ' • COLORADO COURT OF APPEALS No. 89CA2015 ENGLEWOOD EMPLOYEE ASSOCIATION, ) AMERICAN FEDERATION OF STATE, ) COUNTY ·AND MUNICIPAL EMPLOYEES, ) LOCAL 303, ) ) ·p1aintiff-Appellee, ) ) v. ) ) CITY OF ENGLEWOOD AND ELECTION ) Not Selected for PubllcaUon · COMMISSON OF THE CITY OF ) ENGLEWOOD, ) ) Defendants-Appellants. ) Appeal from the District Court of Arapahoe County No. 89CV4571 Honorable James F. Macrum, Jr., Judge -ISION A ~n ion by CHIEF JUDGE STERNBERG Ney and Davidson, JJ., concur JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS Brauer, Buescher, Valentine, Goldhammer & Kelman, P.C .' Thomas B. Buescher Denver, Colorado Attorneys for Plaintiff-Appellee Rich DeWitt, City Attorney Englewood, Colorado Olsen and Brown John R. Olsen Englewood, Colorado Attorneys for Defendants-Appellants • . ' . ~ '• .. ·~ The trial court entered summary judgment in favor of the ~intiff, Englewood Employee Association, holding that the Home Rule Charter of the City of Englewood prohibited the defendants, City of Englewood and Election Commission of the City of Englewood, from holding a special election on the same day as a general municipal election. The defendants appeal. We reverse. Englewood Police Benefit Ass'n v. City of Englewood, ~- P.2d ~-(Colo. App. No. 89CA1834, December 20, 1990) decided this identical issue in favor of the defendants. The judgment is reversed and the cause is remanded for further proceedings. JUDGE NEY and JUDGE DAVIDSON concur. •• -1- • ·'' .•.·' ; .. • .• •:f ' .... -: .· ~. ~ ... · .. ~~ ~~·.;··~~·<·:· .. ' ' '.. . ~: ,.; ... _ .. \.:\.-": ... ,·. · .. ; ·. ,,,,.,.·. .... . .. .. . .