1. Section 67 of the Charter of the City of Bakersfield prescribes that a General Municipal Election for election of members of the Council shall be held on the first Tuesday of the first Monday in November of each even-numbered year. Thus, it is necessary for the City Council to adopt a resolution calling and giving notice for the General Municipal Election of November 3, 2020 for Wards 2, 5, and 6, as well as requesting the County of Kern Board of Supervisors to consolidate the General Municipal Election with the Statewide Election.
   
   

Approval of the proposed resolution authorizes Kern County Elections to canvas the returns, provides other election services in accordance with State election laws, Section 67 of the City Charter, and authorizes the City to reimburse the County for actual costs related to services rendered.

The General Municipal Election will be held on November 3, 2020 for the following seats:

• Ward 2 – Andrae Gonzales
• Ward 5 – Bruce Freeman
• Ward 6 – Jacquie Sullivan
  
  

2. Further, on May 28, 2020, the City Clerk received the attached Irrevocable Notice of Intent to Vacate Council Seat from Councilmember Willie Rivera, Ward 1, leaving with more than six months remaining on his term (Nov. 2022).
   
   

This Resolution was scheduled to be presented to City Council at the June 10, 2020 City Council meeting. The matter was pulled by the City Attorney in order to address certain inquiries about the process. The information below is a summary of current law and how the Bakersfield City Council has historically dealt with Council vacancies.

Bakersfield is a Charter City

The California Constitution gives cities the power to become charter cities. The benefit of becoming a charter city is that charter cities have supreme authority over “municipal affairs.” In other words, a charter city’s law concerning a municipal affair will generally trump a state law governing the same topic. The City of Bakersfield is a charter city and provides the following procedure for filling city council vacancies:

Vacancies in Council Section 16

If a vacancy occurs in the Council at a time more than 6 months prior to the date of the next general election for the vacant Council seat:

1. A petition requesting a special election may be filed with the Council. Such petition must contain the signatures of qualified electors of the ward equal in number to not less than 25% of the vote cast for Councilmember candidates of that ward at the last general election. The signatures shall be verified and certified in the same manner as provided for petitions for recall elections.
   
   
   1. If the petition is valid:
      
      
      1. The Council shall call a special election to fill the vacancy, to be held not less than 90 days nor more than 180 days following the certification of the petition to the Council
         
         
   2. In the event that a valid petition requesting a special election is filed:
      
      
      1. The Council may within 2 weeks after the petition is filed, make an interim appointment to fill the vacancy, until the results of the election are certified
         
         
2. If no petition requesting a special election is filed within 4 weeks after the vacancy occurs, the Council shall:
   
   
   1. Fill the vacancy by appointment OR
      
      
   2. By special election for the remainder of the unexpired term
      
      

Government Code Section 36512

State law in Government Code 36512 provides guidance to cities on how to deal with vacancies of local officials; however, it is clear that such guidance is only applicable to charter cities that do not address vacancies in their charters. Furthermore, it is important to note that when Section 36512 was amended most recently as AB 952, the Legislature recognized that charter cities have greater autonomy over local affairs than general law cities. In fact, the Legislative intent specifically stated that: “...because the Constitution provides that properly adopted city charters shall supersede all laws inconsistent with the charter, AB 952 will only apply to charter cities whose charters do not provide a procedure for filling city council vacancies.” (Emphasis added).

Vacancy Defined

The issue boils down to whether an Irrevocable Notice of Intent to Vacate constitutes a vacancy. Our charter does not define vacancy. Our Municipal Code does not define vacancy. So, we look to State law for guidance. Under Government Code Section 1770 an office becomes vacant on the happening of certain events occurring, including:

• Death;
• Adjudication that person is physically or mentally incapacitated due to disease, illness or accident;
• Resignation;
• Removal from office; (Note: Vacancies do not apply to removals under City Charter)
• Ceasing to be a resident of the jurisdiction in which they serve;
• Absence from the state without the permission required by law beyond the period allowed by law;
• Ceasing to discharge the duties of his or her office for the period of three consecutive months, except when prevented
• Conviction of a felony or any offense involving a violation of his or her official duties;
• Refusal or neglect to file his or her required oath or bond within the time prescribed;
• The decision of a competent tribunal declaring void his or her election or appointment;
• The making of an order vacating his or her office or declaring the office vacant when the officer fails to furnish an additional or supplemental bond;
• His or her commitment to a hospital or sanitarium by a court as a drug addict, dipsomaniac, inebriate, or stimulant addict.
  
  

Since Section 1770 further states that “the letter of resignation may specify a date on which the resignation will become effective”, an argument can be made that a vacancy becomes effective simply by the Councilmember delivering a letter of resignation to the city clerk. Thus, the law leaves open for the interpretation that a vacancy can be scheduled for a future date and a City Council can act on that information in the present moment and plan for that vacancy.

Special Elections in the City of Bakersfield

In the past, when a Bakersfield City Councilmember has vacated his/her seat with more than 6 months remaining on the term, the City Council has bypassed requiring the public to file a petition requesting a special election and instead called for a special election shorty after learning of the vacancy in order to ease the process and save taxpayers money by reducing election costs. The chart below summarizes such recent scenarios:

Correspondence received

The City Clerk’s Office received 1 letter in opposition for calling the Special Election and 32 emails and 11 voicemails in support of staff’s recommendation.

Included for Council review is the City Clerk’s Election Calendar.

The filing period for Wards 2, 5, and 6 is July 13, 2020 through August 7, 2020. The nomination period will be extended to August 12, 2020, should an incumbent not file by the deadline. The elected City Councilmembers will be sworn into office on Wednesday, December 16, 2020. If this Resolution is approved tonight, the same will apply for Ward 1.

The Calendar provides information regarding filing deadlines, campaign reporting deadlines and other important dates. The Calendar is not intended as legal advice and is for general guidance only. The Calendar is available to the public through the City Clerk’s Office and on the City’s webpage.