REPORT TO COUNCIL
SUBJECT
Title
Adoption of Resolutions (1) Declaring City Council At-Large Seat No. 3 Vacant; and (2) Establishing the Process and Schedule for Making an Appointment to At-Large City Council Seat No. 3
Report
BACKGROUND
Resignation
Mason Fong, who was elected to at-large Council Seat No. 3 of the City Council on November 6, 2018 and served a term to expire January 3, 2023, has submitted a letter of resignation from the Council, effective November 14, 2021 (Attachment 3).
The City will complete its transition to district-based Council elections after the November 8, 2022 Election, when at-large Seat Nos. 1, 2 and 3 will cease to exist after candidates are sworn in to represent Council Districts 1, 3 and 5.
Charter Section 606
Sunnyvale Charter Section 606 (Attachment 4) requires the City Council to declare a Council seat vacant within 30 days of the effective date of the resignation (Charter section 606(b)). Within 60 days of declaring the vacancy, the City Council must fill the vacancy by appointing someone to the vacant seat, or by calling a special election to fill the seat (Charter section 606(c)).
Sunnyvale Municipal Code Chapter 2.30
Sunnyvale Municipal Code Chapter 2.30 (Appointment Process to Fill Vacancies on the City Council) (Attachment 5) was adopted pursuant to the requirements of Charter Section 606, and specifies that if the Council chooses to fill this vacancy by appointment, it will be required to follow the provisions of Chapter 2.30, including section 2.30.030, which specifies an application period, public notice of a set application period, public interviews, public hearing on interviews, and voting on appointment.
November 22, 2021 City Council Direction
On November 22, 2021, the City Council directed staff to return with this report on the December 14, 2021 City Council meeting agenda to declare City Council At-Large Seat No. 3 vacant. In addition, the City Council directed staff to return with an appointment timeline where the City Council makes an appointment to at-large Seat No. 3 on February 3, 2022 or later (See Attachment 6 for Council meeting minutes).
EXISTING POLICY
Sunnyvale Charter Section 606 (Vacancies) (Attachment 4)
Sunnyvale Municipal Code Chapter 2.30 (Appointment Process to Fill Vacancies on the City Council) (Attachment 5)
ENVIRONMENTAL REVIEW
The action being considered does not constitute a “project” with the meaning of the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines section 15378(b)(5) in that it is a governmental organizational or administrative activity that will not result in direct or indirect changes in the environment.
DISCUSSION
Step One: Declare Vacancy and Choose to Pursue Appointment and/or Election
The first step of the vacancy process is for the City Council to adopt the attached resolution declaring the vacancy within 30 days of the resignation (Attachment 1); in this case no later than December 14, 2021.
Step Two: Appointment Timeline to Fill the Vacancy
Section 606(d) of the Charter provides that when a vacancy is filled by appointment, “the appointee shall hold office until the next General Municipal Election or Special Municipal Election consolidated with the next statewide election, whichever occurs sooner, and a successor is elected and qualified.” In this case, the next statewide election is the June 7, 2022 primary, and the deadline for calling that election is February 2, 2022.
If the Council appoints someone to fill the vacancy after February 2, 2022, the City will have missed the deadline to consolidate with the next statewide election (June 7, 2022) and an election to fill the vacancy would not be required under Charter section 606(d) because the November 2022 statewide election is the City’s general election.
Recruitment Dates and Application
The Draft Recruitment Schedule (Attachment 9) prepared for City Council’s consideration makes an appointment to Seat No. 3 on February 8, 2022. An appointment on February 8 meets the Charter section 606(c) requirement of making an appointment within 60 days of declaring the seat vacant. The candidate appointed on February 8, 2022 would serve until the vacant term ends on January 3, 2023.
Sunnyvale Municipal Code section 2.30.030(a) requires the City Council to approve an application period, interview schedule and application requirements for filling the vacancy by appointment. The schedule provides an application deadline of January 20, 2022, allowing interested candidates 37 days from the date at-large Seat No. 3 is declared vacant to complete the application (Attachment 7) and electronically file a Statement of Economic Interests (FPPC Form 700) with the City. Candidate interviews will be public and are tentatively scheduled for January 31 and February 2, 2022.
The draft application (Attachment 7) is based on the Application/Questionnaire for Candidates for Appointment as Interim Council Member included in Council Policy 7.3.15 (Appointment of Interim Councilmembers), a policy used to appoint an interim Councilmember to serve on a temporary basis when a Councilmember is called to active military service. Attachment 8 shows changes from the Interim Council Member application to align the draft application with the current language used for the Board and Commission Application and to remove reference to an interim appointment.
Sunnyvale Municipal Code section 2.30.030(b) requires the City Clerk to post information regarding the application period and application on the City’s website and share the information with the public broadly. Staff plan to issue a press release with the application information; publish the same on the City website and in the Sunnyvale Sun; send the information to residents who receive City Council meeting notices, Sunnyvale neighborhood associations, the League of Women Voters, school districts serving Sunnyvale, the Sunnyvale Chamber of Commerce and Sunnyvale Downtown Association.
Appointment Process
Sunnyvale Municipal Code section 2.30.030(c) requires the City Clerk to share applications with the City Council and the public. After the January 20, 2022 application deadline, the City Clerk will confirm candidate eligibility to serve in Council at-large Seat No. 3 and schedule interviews with eligible candidates. Once candidate eligibility has been confirmed the candidate applications and links to the associated Statements of Economic Interests (FPPC Form 700) for each candidate will be shared with Council and the public on the City’s website and sent to residents who receive City Council meeting notices.
Sunnyvale Municipal Code section 2.30.030(d) provides for open and public interviews of candidates with the public able “to ask questions or provide comment before the interviews.” The proposed interview format included in the appointment process resolution (Attachment 2) includes a public comment portion at the beginning of each date of interviews where members of the public may comment on the interview process or individual candidates, ask questions about the interview process as well as suggest questions for Council to ask individual candidates or questions for Council to ask all candidates.
The proposed interview format anticipates Councilmembers will review the responses to the standardized questions included on the candidate applications and be able to freely ask questions of each candidate during the interviews instead of following a pre-determined set of questions during the interviews.
The proposed interview format authorizes the Mayor to work with staff to determine the amount of time to schedule for each candidate interview, anticipated to be 30 to 60 minutes depending on the number of applications received.
The Draft Recruitment Schedule sets February 8, 2022, as the date Council will consider making an appointment to at-large Council Seat No. 3. Sunnyvale Municipal Code section 2.30.030(e) provides for a public hearing after interviews have taken place and before Council considers making an appointment. This public hearing will take place on February 8, 2022 before Council votes to make an appointment.
Sunnyvale Municipal Code section 2.30.030(f) provides the following process for Council to make an appointment after hearing from the public:
(1) If there are fewer than five candidates, the mayor shall announce each candidate’s name. Council will vote on each candidate. Should a tie between the candidates receiving the most affirmative votes occur, the affected applicants may be voted on again.
(2) If there are five or more candidates, the mayor shall ask each councilmember to rank the candidates from first choice to last choice on a written ballot. The mayor may choose to recess the meeting while the city clerk counts the ballots. If one candidate receives four or more first choice votes, that candidate shall be declared to be appointed. If not, and one candidate has received the fewest first-choice votes, that candidate shall be eliminated, with his or her votes reassigned to the voters’ second-choice candidates. If multiple candidates have tied for the fewest first-choice votes by receiving only one vote each, they shall be eliminated and their votes reassigned in the same manner. If multiple candidates have tied for the fewest first-choice votes by receiving two votes each, whichever one of them has received the fewest second-choice votes shall be eliminated and the votes reassigned. If multiple candidates have tied for the fewest first-choice votes by receiving two votes each, and have the same number of second-choice votes, the clerk shall call for a tiebreaker vote between those candidates, with the loser of the tiebreaker being eliminated and having his or her first-choice votes reassigned. The counting process shall continue until one candidate has at least four votes and is declared to be appointed. The city clerk shall announce the result of the voting.
Section 2.30.030(f)(3) restates the Charter requirement that an appointment requires at least four affirmative votes. Depending on the number of candidates, the affirmative votes will be counted by the number of yes votes if there are fewer than five candidates or by the results of the 2.30.030(f)(2) ranking process in the case of five or more candidates.
FISCAL IMPACT
Declaring at-large Council Seat No. 3 vacant does not have a fiscal impact. Conducting a recruitment to make an appointment to at-large Seat No. 3 will include publishing notice of the appointment process in local newspapers; this cost can be absorbed within the existing budget. If the City Council is unsuccessful in making an appointment to at-large Seat No. 3 within 60 days of declaring the vacancy, the Charter requires the City to call a special election. The cost to conduct an election could be between $1,937,773 and $3,148,882 or more depending on the date of the election and whether the election could be consolidated with other elections.
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City's official-notice bulletin board outside City Hall, Sunnyvale Public Library and Department of Public Safety. In addition, the agenda and report are available at Office of the City Clerk and on the City's website.
ALTERNATIVES
1. Adopt Two Resolutions: (1) Declaring City Council At-Large Seat No. 3 vacant; and (2) Establishing the process and schedule for making an appointment to City Council At-Large Seat No. 3.
2. Adopt Two Resolutions: (1) Declaring City Council At-Large Seat No. 3 vacant; and (2) Establishing the process and schedule for making an appointment to City Council At-Large Seat No. 3, with modifications, including possible modifications to the Recruitment Dates or Application, or further direction regarding publicizing the application period.
3. Other direction as provided by Council.
STAFF RECOMMENDATION
Recommendation
Alternative 1: Adopt Two Resolutions: (1) Declaring City Council At-Large Seat No. 3 vacant; and (2) Establishing the process and schedule for making an appointment to City Council At-Large Seat No. 3.
Staff
Prepared by: David Carnahan, City Clerk
Reviewed by: Teri Silva, Assistant City Manager
Approved by: Kent Steffens, City Manager
ATTACHMENTS
1. Resolution Declaring City Council At-Large Seat No. 3 Vacant
2. Resolution Approving the Process and Schedule for Making an Appointment to City Council At- Large Seat No. 3
3. Mason Fong - Formal Letter of Resignation from the Sunnyvale City Council
4. Sunnyvale Charter Section 606 - Vacancies
5. Sunnyvale Municipal Code Chapter 2.30 - Appointment Process to Fill Vacancies on the City Council
6. November 22, 2021 City Council Meeting Minutes
7. Draft Application for Candidates for Appointment as Council Member (Exhibit A to Resolution Approving the Process and Schedule for Making an Appointment)
8. Redlines of Changes to Draft Application from Appointment as Interim Council Member Application
9. Draft Recruitment Schedule