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HomeMy WebLinkAbout2004-05-12 EC MINUTESENGLEWOOD ELECTION COMMISSION May 12, 2004 1. Call to Order The meeting of the Englewood Election Commission was called to order by Chairperson Lay at 5:05 p .m. in the City Council Conference Room . 2. Roll Call Present: Members Lay, Nabholz , Ellis Absent: Members Mulhern , Johnson A quorum was present. Also present: Deputy City Clerk White Chairman Lay welcomed our new member Ann Nabholz. 3. Citizen Forum There were no visitors present. 4. Consideration (a) Proposed Charter Change regarding the election date [Article II, Section 12 , regarding election date] Chairperson Lay said that Ms . Ellis has discussed this issue at great length with Geoff Wilson, the Colorado Municipal League General Counsel. Member Ellis explained that when TABOR was approved by the voters it created an election timing problem for statutory cities and some Home Rule municipalities. TABOR provides for an election on the "first Tuesday in November of odd-numbered years." Englewood 's Charter states that "a general municipal election shall be held on the Tuesday after the first Monday in November, 1959, and biennially thereafter." In 2005 and 2011 the first Tuesday in November will not be preceded by a Monday . This means that unless we amend our Charter , the TABOR coordinated election will occur on the first Tuesday of the month and we would have to conduct our general municipal election a week later. This would definitely cause election administration problems. Chairman Lay concurred , saying it would almost be impossibility. You couldn't use the machines, because, by law , the machines can't be touched for a certain amount of time following an election. Member Ellis explained that CML supported legislation to amend the statute to define the regular election date for statutory cities, but home rule municipalities must , individually, amend their Charters . Englewood Election Commission May 12, 2004 Page2 Discussion ensued regarding the issue of trying to secure election support. It was noted that the various companies hired by counties and cities to assist in conducting elections will, more than likely, have all their resources tied up . Member Ellis advised that another problem CML has talked about is that statutory cities, and many home rule municipalities , have been coordinating their elections with their counties for several years now. CML noted that the level of expertise has dropped among clerks. There are so many new laws and it has become a very high tech process. [Clerk's note: Member Johnson entered the meeting at 5:07 p.m. and he was given an overview of the disc ussion he had missed.] Member Ellis said she considers this a "housekeeping" amendment. It is not that we are trying to get out of doing anything, she said . Member Johnson said I would definitely support recommending this to Council. He questioned the chances of having this pass. Discussion ensued. Member Ellis said this is just a timeframe conflict. We aren't saying, we aren't going to have an election, we are just saying can we please have it in accordance with State laws. Member Ellis presented a proposed amendment. This language has been approved by our City Attorney Dan Brotzman , she said. Suggested amendment: 12: Municipal elections . ·A general municipal election shall be held on the T1:1esday after the fast Mmiday in No\•ember, 1959, and bieenially thereafter dates specified in State law . Special municipal elections shall be held in accordance with the provisions of this Charter. The polling places shall be open from seven A.M. to seven P.M. elections days. Member Ellis stated that Geoff Wilson pointed out that the section of the Statutes that talks about when elections will be held is actually not part of the State election laws . The first draft of the amendment indicated that we would follow election law s. Based on that conversation we are asking that we be allowed to follow State law. Member Ellis said she also wanted to note that the legislative amendments, which cleans this up for statutory cities, amends the statute to conform to language in TABOR. Beginning in 2005 statutory cities would conduct their elections on the first Tuesday of November in odd-numbered years. What they are proposing is to just take out the 'after the first Monday'. My concern, she said, and I have talked to City Attorney Brotzman about this, is what if somebod y comes along with another initiative, with a different election date. I don 't want to keep goi ng back to the voters to amend the Charter. I don 't like amending the Charter if I can help it, she said . In response to Member Johnson, Ms . Ellis said if we state it like this, it is generic and we can follow whatever is on the books at the time . Member Elli s said we always give it a lot of thought before we ever recommend an amendment to the Charter. She noted that Chairman Lay has been on the Commission for several years and she can attest to that. Chairman Lay pointed out that the times change, legi slati o n changes, and election laws change and we have to find a way to remain in compliance. Englewood Election Commission May 12, 2004 Page3 Member Johnson said he doesn't foresee any reason why this wouldn't pass. This sounds like a pretty common sense thing, he said. One it saves money and two it saves time and confusion. Member Johnson questioned who might object to thi s amendment. Member Ellis stated that CML is very supportive and is encouraging municipalities to take this action . She said she was not aware of anyone who would object to it. Member Ellis advised that she is allowed to prepare a fact sheet. She said , to me, it is just straight forward . I am not trying to hide anything. Member Nabholz pointed out that there would be additional cost incurred by the City, if we had to conduct our own election and electors would probably not be too happy about having to vote twice, just a week apart. Chairman Lay said there is the cost to consider and when the County started conducting coordinated elections, some cities chose to opt out and conduct their own. We would get these horrible telephone calls, she said , saying what in the world is going on and people were very, very upset, and rightly so. So, she said , this is about, actually , helping our people. Member Ellis said I think it is in the best interest of our citizens . Chairman Lay agreed. MEMBER JOHNSON MOVED, AND IT WAS SECONDED, TO RECOMMEND TO CITY COUNCIL THIS PROPOSAL FOR A CHARTER CHANGE REGARDING THE ELECTION DATE. Proposed Amendment: 12: Municipal elections . A general municipal election shall be held on the T1:1eselay after the first Monelay in No\•ember, 1959, anel biennially thereafter dates specified in State law . Special municipal elections shall be held in accordance with the provisions of this Charter. The polling places shall be open from seven A.M . to seven P.M. elections days. Vote results: Ayes: Nays : Absent: Motion carried. Members Johnson, Nabholz, Ellis, Lay None Member Mulhern * * * * * Member Johnson asked if the Commission had received his resignation. They all replied that they had. He said it will be effective May 22°d . Ms. Ellis said she was very glad to have him at this meeting. 5. Discussion (a) Nomination Petition Vacancy Committee Option Member Ellis said she had met with Ann Nabholz , as she does with all new Commission members. Ms. Nabholz and I discussed this issue. Ms . Nabholz, she said, has a unique perspective as she has actually had to deal with this issue as a Council candidate . Englewood Election Commission May 12,2004 Page 4 Member Ellis talked about the form of the Council Candidate petition and noted that the vacancy committee has always been listed as optional. Ms. Ellis explained that last year (2003) she began really questioning the process and found that the statutory timeframes would , absolutely, not work . Ms. Ellis stated that she prepared a "Procedure for Withdrawal or Death of a Municipal Candidate Prior to the Election" which the Commission reviewed and approved at that time. Ms. Ellis pointed out that it is pretty complicated, but it was nice to have this procedure in effect during the last election. The Commission also approved "Qualifications for Vacancy Committee", which will remain in effect, she said, as State Statutes does not set forth any qualifications for the Vacancy Committee. Ms . Ellis passed out the previou sly approved policies . Member Ellis said that there are two ways to handle this . As a home rule municipality, Englewood could opt out of the vacancy committee provision . Ms . Nabholz has indicated she would not support that, she said . The second option would be to request that Council pass an ordinance setting different, but workable, deadlines . Member Ellis commented that , knowing that the deadlines don 't work, she does not want to wait for the issue to come up and then try to figure out how it should be handled . Even though it is rarely used, she said, it could happen. Member Ellis explained that CML agreed that this is a deadline that needs to be amended, as it does not take into consideration mail ballot election timeframes. For a coordinated election we follow the Uniform Election Code (Title 1). Title 1 refers us to the Municipal Election Code (Title 31) for the petition procedure. CML has previously pursued legislation to address discrepancies in deadlines between Title 1 and Title 31. This is a section they missed. Hopefully, the Statute will be amended, but it will not happen in time for the 2005 election . Ms. Ellis advised that Title 31 states that "if any candidate dies or withdraws from the nomination prior to twenty-three days before the day of election the vacancy may be filled by the vacancy committee." She pointed out that mail ballots are mailed out between the 25th and 15th day prior to the election. I have to certify my ballot to the County no later than 55 days before the election, she said. The deadline of twenty-three days before the day of election simply does not work . Ms. Ellis said, here again , I am not trying to get out of doing something, I am just trying to create a workable procedure, time wise . Ms. Ellis explained that the process , as set by State Statute, is if there is a vacancy committee they may fill the vacancy. If there is no vacancy committee and the candidate withdraws, the clerk notifies the first three people, who have signed the petition , of the withdrawal. State Statute says they shall be notified, it does not say they have the authority to appoint. Only the Vacancy Committee has the authority to appoint. So, if there is no Vacancy Committee, the first three people on the petition could try to find someone to run and that person would have three days to circulate a nomination petition. That petition must be filed with the clerk no later than the twentieth day before the election. Only the vacancy committee has the power to substitute a name. Member Ellis said she has talked to City Attorney Dan Brotzman and he has stated that any change to this procedure must be adopted by Council and approved by ordinance. Ms . Ellis discussed the possibility of establishing different deadlines that would set the deadline for withdrawal or death prior to the certification of the ballot. She noted she would also have to back the date up three days to allow for the petitioning process. If someone dies or withdraws after that date, there are a couple of things we could do. We could say, if they are the only one running, then the po sition would be declared vacant. Englewood Election Commission May 12, 2004 Page 5 Member Lay noted that we need to consider that they may not be the only person running for that office on the ballot. Member Ellis said I think we need to address that. One of the options could be to say , if no one else is running that position is declared vacant and Council would refer to the vacancy procedure in the Charter where they would appoint someone to fill that position . Ms. Ellis said I would like to create a procedure that would allow us to provide for the Vacancy procedure , but we need to provide for it in a timely manner. .. let's say 60 days out. I would have to look into backing into that. I am not taking thi s to Co uncil with the ballot question, she said, I am going to do this later, but I want to have this discussion right now. If we say 60 days out, let's say, then if someone dies or withdraws prior to that date, then the Vacancy Committee can name someone to be put on the ballot and I have time to put it on the ballot at that point. Member Johnson said that part I understand. I am worried about the appointment part. Ms . Ellis said then that gets into what do we do if someone dies or withdraws after the ballot is set. So , thi s is the discussion we have to have . First, do you want to try to change it by ordinance ... the date line? And if you do , then, we need to addres s the two issues. If there is somebody else running, okay, whoever is running , whoever wins , based on the remaining candidate(s), would win . But if no one else is running you could say that position wa s declared vacant and we would fall to our vacancy procedure. In the Charter we do have a vacancy provision . It allows for Council to appoint. We could revert to that. Member Johnson said I am worried about the appointment part. Discussion ensued regarding the Charter provision which allows Council to appoint to fill a vacancy. Chairman Lay said we don 't want to conflict with coordinated election dates. The only time you are going to have a problem , is if the person who wins the election has died . Then we have a problem. And that has just happened . Mr . Johnson said I know this is probably not a possibility , because I have never heard of it before in any kind of election, but can we recommend that the Charter be amended to allow a candidate to have a shadow candidate? Ms. Lay said like a Vice President? He said something along those lines, where you are running for District 1 and I'm the vice for District 1, or something like that, then I automatically step in for your position. Chairman Lay said I've never heard of that before. I think people would feel very uncomfortable about that. Because if I am voting for someone, I am voting for one person , except for President, of course . But I'm talking about this level of government. Then I think well , you know, I like him, but I don 't like him . Mr. Johnson said my concern is having appointed elected officials . It is a very bad thing . You don't want appointed elected officials. If City Council appointed a candidate and then that candidate stood for election, I'd be all for it. Chairman Lay said thi s is what you also need to know, what it costs to put on an election . That really is a big deal and you need to think about that. Ms . Ellis referred the Commission to their Charters . She read Home Rule Charter§ 28 : "An elected officer shall continue to hold his office until hi s successor is duly qualified . An elective office shall become vacant whenever any officer becomes incapacitated , or if a Councilman shall remove from or become a non -resident of the district in which he was elected during the term of his office. In case of a vacancy , the remaining Councilmen shall choose, b y majority vote and within thirty days after such vacancy occurs, a duly qualified person to fill such vacancy. He shall serve until his successor elected for the remainder of the term at the next ensuing general municipal election has been duly qualified . Englewood Election Commission May 12, 2004 Page 6 If three or more vacancies exist in the Council simultaneously, such vacancies shall be filled for the respective unexpired terms at a special election ." Mr. Johnson said so it kind of works like a Senator, if I understand this correctly. The Council member will be appointed by the Council just to fill out that year. Ms. Ellis said until the next General Municipal Election . He said that I am okay with, because that is the same process. She said do you read that the same way? He said yes, because if it is a four year term for example, and the person gets kicked out the first year, he doesn't get appointed for the rest of the three years, he is just appointed until the next election and then new candidates go for it , so that I can deal with. Ms. Ellis said my first question is do we want to pursue an ordinance that would allow us to push that 23'd date out? Mr. Johnson said think about what would happen if it went to court. Does Home Rule trump State Statutes or is it the other way around? Mr. Johnson said my concern is, let's say I am running for office and I decide to withdraw on the 55lh day , and the City statutes say I have to do it by 60 days, that way a Vacancy Committee can appoint and that way you can get it on the mail-in ballot. As the City, you tell me, well sorry, but we can't do anything for you, because the City says you have got to do it by 60 day prior to the election. Your name will just have to go off the ballot and whoever else is still on the ballot, they get to go for election. Then, I say no, the State says that I have 23 days before the election. Ms. Ellis said I don 't know what a judge would say about that. I feel like this is unworkable and I am hoping it will change. When I talked to Geoff Wilson, CML legal counsel, he makes notes of all the things that I feel are conflicting. And , this , definitely, is a conflict. I just feel like it is almost a no-brainer. I am hoping, based on our conversation, that eventually the Statutes will change. Mr. Johnson said is it possible to change the mail ballot date? She said I do not feel that is the answer. They have been working really hard, like I said, to clean up the election procedures . They thought they had cleaned up everything and here is another deadline conflict. I would say, that more than likely this will be cleaned up eventually, but I don't know when. I just don't know what I would do if somebody came in after the ballot was set. Ms. Lay said I don 't know either. This is something I need time to think about. Ms . Ellis said this is not something we have to decide today, so if you guys want to think about it, we can have another meeting. Chairman Lay said when you were talking tb Geoff, did he give you any timeframe for any part of this to be changed? Ms . Ellis said no. During the last Recall and Vacancy election I had so many of these kinds of things that came up and I was on the phone with him constantly, and as a result, a lot of the recall statutes did get changed, which is very nice. Here again, it is just giving us timeframes that we can work with. And so, one of the things we can do is add some language in there that if State Statute changes to accommodate the deadlines, we will revert to those deadlines. Some type of verbiage that indicates the City 's deadlines would then become null and void . We are only looking for a short-term solution, to get us through until the Statutes are amended . Mr. Johnson said can the City Charter throw a sunset in there? Ms . Ellis said we wouldn't be changing the Charter with this . All we would be doing is putting an ordinance in place for administrative purposes. Ms. Ellis pointed out that Mr. Redpath came up with the verbiage we used on the previously adopted procedure ... "if State Statute is amended to reflect deadlines for withdrawal that provide workable timeframes, this procedure will become null and void on the effective date of the amendment." We are only doing this short term, because I really would like to follow State Statutes. That is my preference, obviously. She said I don 't like going into an election, with known conflicts, that are just hanging out there. I don't want to be in a "wait and see" mode, hoping it won't happen. I would like to make a thoughtful decision and have a process in place, just in case. Ms. Ellis said the other part of this is the qualifications for the vacancy committee. I talked to Geoff again today , I said you know when we did this we couldn't find anything that defined vacancy Englewood Election Commission May 12, 2004 Page7 committee qualifications, not even a qualification that they be a resident of the City of Englewood. And I still can't find anything in the Statutes. In 2003 we approved Qualifications for the Vacancy Committee. But, Mr. Johnson said , the person that is elected to City Council itself would be a citizen of Englewood, right? Ms . Ellis said they would. They would still have to qualify. Ms . Ellis asked if the Commission had any problems with the Qualifications for the Vacancy Committee as approved in 2003. The Commission agreed to continue to enforce the previously approved qualifications . [Clerk '.s note: The following are the "QUALIFICATIONS FOR VACANCY COMMITTEE" as approved by the Englewood Election Commission August of 2003.] QUALIFICATIONS FOR VACANCY COMMITTEE QThe Vacancy Committee shall be comprised ofregistered electors: of the City of Englewood if the nomination petition is being circulated for an At-Large candidate OR a registered elector of the City of Englewood and the specific District for which the nomination petition is being circulated. Ms. Lay said it is funny because now I remember sitting down and discussing this with the County Clerk at the time . Mr. Johnson said who checks to be sure that they are in fact citizens of Englewood? Ms. Ellis said the City Clerk 's staff would handle the verification . So, Ms . Ellis said, what we need to decide is if we would recommend an ordinance to create a policy to allow us to adopt workable timeframes with the disclaimer : "if State Statute is amended to reflect deadlines for withdrawal that provide workable timeframes, this procedure will become null and void on the effective date of the amendment." Mr. Johnson said this looks fine , with the disclaimer , I think that would work . Ms. Ellis said I would rather have the candidate come in and I give them a nomination petition, with a clear direction as to how the Vacancy Committee piece will be handled . I would like to be able to explain the process to them and have everybody clear, up front , about what is going to happen, rather than not have a clue about what I am going to do about that 23rd day. If everyone is treated the same, everybody is on the same page, I would feel better , because I feel I could defend myself on that decision. I have been asked why I am worried about it, because it never happens. But I can 't work that way. I don't think it is fair to the candidates . Mr. Johnson asked that Ms. Ellis talk to the City Attorney to determine what trumps what. Ms. Ellis said she would. Ms. Ellis explained that the Commission would recommend the procedure to City Council and Council , if they agree, could adopt an ordinance . In this instance , this cannot be handled as an administrative Commission decision . Mr. Johnson said ordinances, if they are in conflict with constitutionality , become void. Ms. Ellis said no , I think they would have to challenge us on that, wouldn't they Jo? Ms . Lay said yes . Ms. Ellis said I am not an attorney , but as a Home Rule municipality, we do have additional powers. Englewood Election Commission May 12, 2004 Page 8 Ms . Lay said I am trying to think back and rack my brain to think where there have been problems. We had a school district one time where there was a big bru-ha-ha and they got an attorney and everything and as I remember, the school board won . I mean their election laws/procedure stood, they were the ones that won over the State election laws . But this was several years ago and I don't know about now, but it did hold. Ms Ellis said I mean I would think that someone could look at that and look at my other deadlines and see there is no way it is workable. I mean, I can't stretch it to make it work. My other option is to try to work with the other policies the Commission adopted last year. Ms . Ellis said I really want your input and comments. Chairman Lay said I really like the disclaimer. Ms. Nabholz said I think it is about the fairest thing we are going to get. Otherwi se, it is insanity. Ms . Ellis said what I need to know is if you want me to pursue this . We don 't have to take a vote today on the exact wording. I am not going to have you approve something you don 't have in your hands, I am not asking that. But do you want me to work on a procedure that would include deadlines that I think would work and bring that back to you? Ms. Nabholz said I would like that. Ms. Lay said I definitely think that if you would do that and include Mr. Redpath's disclaimer "if a State Statute is amended to reflect deadlines or withdrawals to provide workable timeframes , the procedure will become null and void on the effective date", I think that is great. That way if you come up with workable dates and we have that in there, hopefully you are covered. And, Mr. Johnson said, always try to see if we can get more than one person to run for each office. Ms. Ellis said and how do you feel about pursuing, what I hope will be a short term deadline? Mr . Johnson said you've got to do what you've got to do and with the null and void part in there it is fine. I still worry about the conflict though. I mean, hopefully, in the next couple of years while they tinker with this and fix this, no one will die during an election between the 55th and 23rd day, so that you will not have to even worry about it. Ms . Ellis said I will talk to Dan about the conflict issue, chance of lawsuit and potential outcome. Mr. Johnson said I mean as long as the Home Rule City wins over the State Statute, I say go for it. Mr . Johnson said is there a possibility that when candidates run that we can have them appoint their own vacancy committee? Ms . Ellis said they do that on their petition. They are the ones that fill it in. There are three lines and it is optional. I have to tell you that it has taken me thi s long to get a clear understanding of a Vacancy Committee. Mr. Johnson said should we make it mandatory? Ms. Ellis said State law says it is optional. Ms. Ellis said if they don 't name a Vacancy Committee, then Statutes provide that you use the first three names on the petition . I need to create an internal procedure, such as numbering the petitions, so that it will be very clear which petition I would take the names from and the candidate needs to know this up front. I would take the first three names and notify them and then they will have those three day s to get the petition in , if they want to get so meone else on the ballot. They would need 50 signatures and , I believe, they would only have three days to circulate the petition. And , here again, I may have to look at those timeframes. Mr. Johnson said they will have to get more than 50 signatures, just in case, if they are smart. Englewood Election Commission May 12, 2004 Page 9 Discussion ensued regarding the cure period and if they would be allowed to cure. Ms. Ellis read "any certificate of nomination or petition to fill a vacancy shall be filed with the Clerk not later than the 20th day before the election." Discussion ensued regarding the deadlines . So , Ms . Ellis said, there has to be several parts to this and I will be putting it together. She said I am so glad you are here to bounce this off of, because I love the different viewpoints. Candidates have enough things to be worried about. This needs to be pretty straight forward for them. Mr. Johnson said maybe include a small fact sheet with the candidates packets that says if you choose not to, since it is optional. .. if you choose not to appoint a vacancy committee, this is what could happen . Ms . Ellis said absolutely. There is an information section in their packet and along with the petition I include an instruction sheet. This , if approved, will be added to the long list that is in there already. She noted that the instruction sheet is not considered part of the petition . Ms. Ellis said I will work on a draft procedure for the Commission to review . 6. Member's Choice (a) Member Nabholz said I am excited to be on this Commission. Chairman Lay said it is nice to have you on the Commission. Ms. Ellis said it is such a nice perspective ... you are someone who has actually run for Council. (b) Ms. Ellis told Mr. Johnson that they were sorry to lose him . I hope this is going to be a good change for you, she said. Mr. Johnson said hopefully . He was asked what part of the country he was going to and he replied Texas. He said I used to be stationed down there when I was in the Air Force. Ms. Lay said through voter registration , we kind of track what states people moving to Colorado are from, and Texas and California are the two that are, by far, the biggest. 7. Transmittal of Miscellaneous Items There were none . 8. Adjournment Mr. Johnson moved to adjourn. The meetin g adjourned at 5:54 p .m. ELECTION COMMISSION Telephone Poll January 19, 2005 1. Consideration of minutes: a) May 12, 2004 Vote results: Ayes: Nays: Unable to reach: Minutes approved. 2. Consideration Members Nabholz , Ellis, Lay None Member Mulhern a) Council Nomination Petition Vacancy Committee Issues Vote results: Ayes: Nays: Unable to reach: Members Nabholz , Ellis , Lay None Member Mulhern Recommendation approved . 3. November 1, 2005 Election a) Approval of recommendat ion to Council that the City of Englewood participate in a coordinated election with Arapahoe County on November 1, 2005 Vote results: Ayes: Nays: Unable to reach : Participation approved. Members Nabholz , Ellis, Lay None Member Mulhern