Title
Adopt a Resolution to Approve and Authorize the City Manager or Her Designee to Execute a Written Agreement with the Prospective Plaintiff to Extend the Safe Harbor Period Pursuant to Elections Code Section 10010
Staffreport
RECOMMENDATION
Adopt a resolution that approves and authorizes the City Manager to execute a written agreement with Prospective Plaintiff Robert Bulatao to extend the safe harbor period in consideration of Prospective Plaintiff’s requirement for the City Council to present and vote on an ordinance establishing district-based elections within the safe harbor period.
SUMMARY
The City Council adopted a resolution of intent on January 6, 2025, which would end the 90-day safe harbor period on April 7, 2025. The proposed written agreement would extend the safe harbor period to July 5, 2025. Not only would this prohibit the Prospective Plaintiff (Robert Bulatao) from filing a CVRA suit during this time, but it would maintain the cap for the amount of attorneys’ fees that Prospective Plaintiff can recover. With the extension, the City anticipates completing the requisite public hearings within the 90-day period as well as preparing and presenting an Ordinance to establish district-based elections within the safe harbor period.
As outlined under the California Voting Rights Act (“CVRA”), Elections Code Section 10010 provides a 90-day safe harbor period following a public entity’s adoption of a resolution evidencing its intent to transition to district-based elections to conduct and satisfy its public hearings requirement. During this 90-day period, a prospective plaintiff who originally submitted a written notice of a CVRA violation is prohibited from filing suit. The prospective plaintiff and the public entity may then enter into a written agreement to extend the 90-day safe harbor period, up to an additional 90 days, in order to provide additional time for the public entity conduct public outreach, encourage public participation, and receive public input.
BACKGROUND
On November 21, 2024, the City received a letter from Goldstein, Borgen, Dardarian & Ho on behalf of the prospective plaintiff, Robert Bulatao. Mr. Bulatao alleges the City violated the CVRA because its current at-large election system led to racially polarized voting that diminished the electoral power of the City’s Asian electorate. The letter concluded that the City must move to district-based elections to resolve these issues. The November 21, 2024, letter triggered a 45-day period during which Mr. Bulatao was prohibited from filing a CVRA suit.
On January 6, 2025, the City Council adopted a resolution noticing the City’s intent to move to district-based elections for the 2026 elections, and which also proposed a timeline for the City to conduct public hearings that are required by the CVRA within 180 days. The adoption of the notice of intent triggered a 90-day safe harbor period, preventing Mr. Bulatao from suing the City, and capping at $30,000 any attorneys’ fees Mr. Bulatao can recover. The 90-day safe harbor ends on April 7, 2025. Consistent with the initial 180-day timeline, the January 6, 2025 resolution also assumed that Mr. Bulatao would grant the City an additional 90-day extension allowed under the CVRA.
Prospective Plaintiff Bulatao has agreed to enter into a Written Agreement with the City for an additional 90-day extension but conditioned the extension on the City adopting an ordinance to establish district-based elections within the 90-day extension.
LEGAL ANALYSIS
The City can enter into a Written Agreement with the Prospective Plaintiff, which would allow for an additional 90-day extension of the safe harbor period, on the condition that the City Council present and vote on an ordinance moving the City to district-based elections by July 7, 2025.
If the City agrees to the Written Agreement, the safe harbor from litigation remains and the attorneys’ fees will be capped at $30,000. Conversely, if the City rejects the condition that it must adopt the ordinance by July 7, 2025, Prospective Plaintiff will withdraw the written agreement and the safe harbor will end. As such, Prospective Plaintiff will be permitted to sue and seek attorneys’ fees beyond the $30,000 cap. If this is the case, the City will not be bound by any schedule or timeline to conduct its hearings and may still opt to put the question to the voters in the 2026 primary election.
The value of the cap and the corresponding attorneys’ fees and expenses saved by the City’s lawyers defending a lawsuit, especially given the routine success of CVRA plaintiffs throughout the state and if the City presumes that it would move to district-based elections in any event, are compelling grounds for the City Council to enter into the agreement.
A. The City’s Position is Generally Consistent with the CVRA.
The City maintains that the CVRA is clear that district-based elections do not need to be established by the City until six months before the 2026 general election and that the CVRA gives the City the option to either adopt an ordinance or put the question before the City’s electorate. As such, the CVRA does not mandate that the City adopt an ordinance within the safe harbor period in order to comply with the CVRA.
As a preliminary matter, there is nothing in the Elections Code that mandates the City to adopt an ordinance to go to district-based elections within the safe harbor period. Nor is there anything in the Elections Code that prohibits the City from instead placing the issue on the ballot for its voters. Instead, the Elections Code only requires that district-based elections be “established.” (Elections Code section 10010, subdivision (e)(3)(C)(i).) The Elections Code states in relevant part:
A political subdivision and the prospective plaintiff who first sends a notice [as Prospective Plaintiff did on November 21, 2024] may enter into a written agreement to extend the time period described in subparagraph (B) [the first 90-day safe harbor] for up to an additional 90 days in order to provide additional time to conduct public outreach, encourage public participation, and receive public input. The written agreement shall include a requirement that the district boundaries be established no later than six months before the political subdivision’s next regular election to select governing board members.
The word “established” can be loosely interpreted to mean that the City must do so by adopting an ordinance for the transition to district elections within the 90-day extension period. As a condition to the Written Agreement, specifically, the ordinance must be introduced and voted on at the City’s June 16, 2025 City Council meeting. However, a closer evaluation of the statute does not mandate a specific timeline to which the City must abide related to introduction of an ordinance.
There are no other provisions in the CVRA that explicitly require the City adopt an ordinance within a specified time, let alone within the safe harbor period. As such, the City’s interpretation of the Elections Code is consistent with its position.
B. Statutory language supports the City’s view that adoption of an ordinance in contravention of the City’s charter is not mandated under the CVRA.
To potentially cure or at least justify any inconsistencies between an adopted ordinance and the City’s Charter, Government Code Section 34886 of the FAIR MAPS Act may be invoked. Government Code Section 34886 states:
Notwithstanding Section 34871 or any other law, the legislative body of a city may adopt an ordinance that requires the members of the legislative body to be elected by district or by district with an elective mayor, as described in subdivisions (a) and (c) of Section 34871, without being required to submit the ordinance to the voters for approval. An ordinance adopted pursuant to this section shall comply with the requirements and criteria of Section 21130 of the Elections Code and include a declaration that the change in the method of electing members of the legislative body is being made in furtherance of the purposes of the [CVRA]…
This is also not on point, especially when viewed in light of the corresponding authority granted under section Government Code section 34871, whereby both statutes state that the City has the discretion to (“may”) adopt either an ordinance without voter approval or place the ordinance before the electorate. Specifically, Government Code Section 34871 states:
At any municipal election, or special election held for that purpose, the legislative body may submit to the registered voters an ordinance providing for the election of members of the legislative body in any of the following ways:
(a) By districts in five, seven, or nine districts.
(b) From districts in five, seven, or nine districts.
(c) By districts in four, six, or eight districts, with an elective mayor pursuant to Article 5 (commencing with Section 34900).
(d) From districts in four, six, or eight districts, with an elective mayor pursuant to Article 5 (commencing with Section 34900).
The term “by districts” as used in this article shall mean election of members of the legislative body by voters of the district alone. The term “from districts” shall mean election of members of the legislative body who are residents of the district from which they are elected by the voters of the entire city. “Geographical area making up the district” shall in the case of elections by district mean the district, and in the case of elections from districts shall mean the entire city except with respect to the residence requirements imposed by Section 34882.
With the use of the permissive term “may,” Sections 34886 and 34871 support the City’s argument that it has discretion as to whether it first wants to adopt an ordinance or put to vote a charter amendment.
These statutes do not mandate adoption of district-based elections by ordinance, and the City’s preference to abide by its Charter and move to district-based elections only by voter approval is arguably consistent with the CVRA.
C. Next Steps and Timeline
If the Council adopts the resolution to approve and authorize the City Manager to execute the Written Agreement then the:
• Safe Harbor Period is extended for an additional 90 days, pushing the deadline to July 5, 2025;
• The Prospective Plaintiff is once again barred from filing suit during the period; and
• The City’s financial cap on the recovery of attorneys’ fees would remain.
A timeline contemplating the written agreement is provided below:
|
Date |
Action |
|
April 7, 2025 |
City Council votes to enter into a Written Agreement with Mr. Bulatao to extend the safe harbor period for an additional 90 days. Pursuant to the CVRA, the Written Agreement will include a requirement that the district boundaries will be established no later than six months before the City’s next regular election to select city councilmembers. City Attorney will consequently prepare a Written Agreement, Resolution, and Staff Report. |
|
April 17, 2025 |
The City makes available on its website a tentative schedule of the public outreach events and the public hearings pursuant to this section no later than 10 days after the City enters into Written Agreement with Mr. Bulatao. |
|
April 21, 2025 |
City will hold its First Public Hearing. The City may conduct additional outreach regarding the redistricting process and public participation prior to these two hearings. |
|
May 5, 2025 |
City will hold its Second Public Hearing. |
|
May 12, 2025 |
City to publish the draft Map (City’s existing Map) - seven days before third public hearing. If members of the City Council are elected in their districts at different times to provide for staggered terms of office, the City will also publish the potential sequence of the staggered elections. |
|
May 19, 2025 |
City will hold its Third Public Hearing. City to solicit public input regarding draft Map. |
|
June 2, 2025 |
City will hold its Fourth Public Hearing. City to solicit public input regarding draft Map. If the draft Map is revised during or after the two public hearings, it must again be publicly available seven (7) days prior to final adoption. After finalization of draft maps, the City must publish and make publicly accessible at least one draft map along with the sequence of elections if election of councilmembers is staggered. |
|
June 16, 2025 |
City Council to vote on the adoption of the final Map along with Ordinance. |
|
July 5, 2025 |
Deadline for City to hold all public hearings and community input meetings. |
FINANCIAL IMPACTS
Actions taken following approval of the Written Agreement, including but not limited to outreach efforts and coordination with legal counsel to assure compliance with applicable laws, will necessitate staff time and resources. If the City follows the prescribed process under the CVRA and the FAIR MAPS Act, its financial liability to the plaintiff’s attorneys will be capped at approximately $30,000 (subject to adjustment).
In contrast, failing to act could expose the City to substantially higher litigation costs. Litigating a CVRA claim is costly, and the City Attorney has reviewed and analyzed an extensive history of public agencies entering into past settlements where litigation commenced and/or judgments were rendered that exceeded millions of dollars in legal fees and associated costs. Notably, such judgments often mandated the public entity to transition to district-based elections anyway. Therefore, the City risks significant financial liability if it does not take timely action to transition to district-based elections.
CONCLUSION
Given the legal risks and financial implications, staff recommends that the City Council adopt a resolution to approve and authorize the City Manager to execute the Written Agreement. This approach not only maintains the City’s position for minimizing the potential legal and financial exposure but also reinforces the democratic principles outlined in both the CVRA and the City Charter. Engaging the public in this process will ensure that the new district boundaries are drawn in a manner that enhances representation and complies with all applicable legal frameworks.
ATTACHMENTS
A: Resolution
B: Notice of CVRA Violation (November 19, 2024)
C: District Maps
PREPARED BY: Kelly B. Clancy, CMC, City Clerk, City Manager’s Office