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  • By Frank Ochoa

Op-Ed: Only Voters Should Create Incumbency

Santa Barbara’s governing document, its Charter, is at a crossroads. The City Council is considering options for ballot measures to be put before the voters this November. These measures would change the City’s framework, likely for decades to come.

One measure deals with the process for elections of City Council members and the Mayor. An important provision in that measure deals with how to fill vacancies which occur during the term of office of elected officials.

The Charter section that deals with filling vacancies is Section 503. This section is clearly outdated and obsolete. It was drafted decades ago. It only reasonably fits circumstances where city council members are elected at large. In 2015, as a result of a lawsuit under the California Voting Rights Act the city moved to electing Council members by district.

There are two ways by which a Council vacancy can be filled. They are: 1) a special election by the voters of the district, or 2) appointment by the remaining council members.

In a special election, the replacement is s/elected by the residents of the district. With districts, if the vacancy is filled by appointment, none of the appointing council members will live in the district, unless the Mayor does.

Where things stand. The Council’s Ordinance Committee recently sent a proposal drafted by the City Attorney (Proposal #2 in time) to the full Council for its consideration. The Council will also have a proposal from the District Elections Committee (Proposal #1 in time) before it. Council members are considering their options right now.

What are the proposals? How are they different? What would each mean to you as a voting resident of the City of Santa Barbara?

Santa Barbara long had citywide elections. The existing, outdated Charter provision for filling vacancies provides for the remaining city council members to appoint a replacement when a vacancy on the council occurs. Six people who came from the same geographical voting area as the person who has vacated the office -- the city at-large -- have filled the vacancy. And the appointment was largely restricted to a designated person who ran, but lost, in the last City Council election.

However, in June the city will, for the first time, fill a vacancy on the City Council by means of a special election. The Council determined in January to adopt a proposal from the District Elections Committee to allow the voters of District 3 on the Westside of Santa Barbara to elect their own replacement representative. They vested the power to create incumbency in the voters of the district instead of retaining that power in themselves.

A look at two options. Now, we turn our focus to the current proposals. The proposed Charter Amendment from the City Attorney (Proposal #2) would partially advance the use of special elections to fill vacancies. It provides that any vacancy “shall be filled by appointment by the City Council or by special election called by the City Council”.

So, the Council would, in future circumstances, have the option. It could call for a special election; or it could appoint the replacement, with no restriction other than residence in the district.

One does not need a crystal ball to predict this future.

When the Council is presented with that option, it will choose to fill the seat itself. Members will say, “We are saving the cost of a special election.” Or, “the voters elected us to make tough decisions like this.” “I’ll just go along with our City Attorney.” (Presuming that office has rendered an opinion on the panoply of issues presented.) And, “it worked in the past, so it will work this time.”

The responses will be: “Principles of democracy hold that the voters of the district should decide who represents them.” “Democracy has a cost, and this is minimal.” And, “No more smoke filled back room decisions.”

As then Mayor-Elect Cathy Murillo said at the December 5, 2017, council meeting, when consideration of the initiation of the appointment process for her soon-to-be-vacant seat was being considered, “The people in a district should pick their leader, their direct representative.”

'Power concedes nothing.' Frederick Douglass said, “Power concedes nothing without a demand. It never did and it never will.” With Proposal #2, that political truism will manifest itself each time a vacancy on council occurs in the future.

The City Council will appointa replacement for any vacancy. Unless the voters protest, there will be no special election. If there is no argument against it, Council will appoint. If there is an argument against it, Council may call for a special election. This scenario will repeat at every vacancy.

In any appointment process, just one of the six decision makers will live in the district that has the vacancy -- and then only if the Mayor happens to reside in the district. If not, the decision will be made by 6 people, none of who reside in the district whose representative is being chosen.

There is a more democratic proposal on the table. In Proposal #1, a vacancy will be filled by special election, or by an interim appointment until the district’s voters have a chance to decide on their representative at a special election. Special elections would be tied to general, already scheduled elections to minimize cost. The Council could appoint a “caretaker” representative until the election. That appointee could not run in the next election for the vacant seat she or he is appointed to fill.

A concern was voiced at the committee hearing regarding this last suggestion.

If a good person is given an interim appointment, why not allow that person to run? This discussion is akin to the one that repeatedly takes place regarding the utility and propriety of term limits. In deference to that position though, there are other measures that can be considered.

What's at stake. The crux of the issue is: Who will be given the power to create incumbency? The people of the district? Or the elected representatives who remain on council and who represent other districts?

If an interim appointment followed by a special election proposal is adopted, the new charter could contain a provision that mirrors the Long Beach City Charter.

The Long Beach Charter provides that anyone appointed to fill a vacancy shall not “be designated on any ballot or voter pamphlet as an incumbent, a member of the City Council, or other designation indicating incumbency, for purposes of the next primary and general elections for members of the City Council”.

Thus the temporary appointee can run for the office to which he or she was appointed but cannot claim incumbency in that office. Only the voters convey incumbency.

Proposal #1, with such language, would: 1) insure the primacy of a special election by the voters of a district to fill a vacancy, 2) allow Council to make an appointment to guard against a lengthy vacancy depriving the district of a voice on Council, and 3) minimize the power of Council to create incumbency in deference to the district residents’ ability to have that power.

Time is of the essence. Now is the time to have this discussion. There will, without doubt, be a vacancy on Council in January when council member Gregg Hart assumes office with the Board of Supervisors.

Will the voters of District 6 select his replacement and create a new incumbent? Or will the remaining council members, none of whom live in District 6, make that decision?

The Charter lasts for decades. Vacancies have occurred in the past. They will occur in the future. There is a better way to fill a vacancy.

Proposal #1 and Proposal #2 each have elements of special election and appointment processes within them, but they are very different. Proposal #1 will vest the power to create incumbency with the people of the district. Proposal #2 will bestow the power to create incumbency on the Council.

If you have thoughts, now is the time to make them known. The Charter proposals that the City Council will consider in the next few weeks will be formalized into a proposal for the ballot this November. If the voters enact the Charter amendments, the governing structure of the City will be substantively changed for decades to come.

Write a letter, make a phone call, let your views be known. Let your representative know upon whom you want the Charter to bestow the power to create incumbency -- the people of the district, or the Council. Either way, your view matters.

Waiting until June will be too late. The time is now. The City of Santa Barbara’s website has a phone number and an email address for your representative.

Bottom line. We reside together in a house framed by the hallowed halls of democracy. An important question is being called forth upon on our doorstep. It can define the structure of our house for decades. We can answer the call and speak now, or must forever hold our peace.

Frank Ochoa, Of Counsel to the law firm of Sanger, Swysen & Dunkle, served 14 years on the Municipal Court, followed by 18 years as a Superior Court Judge in Santa Barbara County.

(Full disclosure: Newsmakers previously editorialized on behalf of special elections, instead of city council appointments, to fill vacancy on the council).

Images: Frank Ochoa; Proposal #1 vs. Proposal #2; Mayor Cathy Murillo; Frederick Douglass; Declaration of Independence; Call or write now.

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