Let’s take an paradigm of consortium of charter cities in California and understand how it was put together –
Charter cities Vs general law cities –
The California constitution gives cities the power to become charter cities. The benefit of becoming a charter city is that the charter cities have supreme authority over “ municipal affairs”. In other words a charter city law concerning a municipal affair will trump a state law governing the same topic.
Cities that have not adopted a charter are general law cities. General law cities are bound by the state’s general law. Of California’s 478 cities, 120 of them are charter cities.
The charter city provision of the State Constitution, commonly referred to as the “home-rule” provision, is based on the principle that a city, rather than the state, is in the best position to know what it needs and how to satisfy those needs. The home-rule provision allows charter cities to conduct their own business and control their own affairs. A charter maximizes local control.
A city charter, in effect a city’s constitution, need not set out every municipal affair the city would like to govern. So long as the charter contains a declaration that the city intends to avail itself of the full power provided by the California Constitution, any city ordinance that regulates a municipal affair will govern over a general law of the state.
How to Become a Charter City?
To become a charter city, a city must adopt a charter. There are two ways to adopt a charter:
• The city’s voters elect a charter commission. The commission has the responsibility of drafting and debating the charter.
• The governing board of the city, on its own motion, drafts the charter.
In either case, the charter is not adopted by the city until it is ratified by a majority vote of the city's voters.
Foundational aspects of charter cities
What is the Constitutional Framework for Charter Cities?
Article XI, section 3(a) of the California Constitution authorizes the adoption of a city charter and provides such a charter has the force and effect of state law. Article XI, section 5(a), the "home rule" provision, affirmatively grants to charter cities supremacy over "municipal affairs." However, the California Constitution does not define the term "municipal affair."
What are "Municipal Affairs?"
The home rule provision of the California Constitution authorizes a charter city to exercise plenary authority over municipal affairs, free from any constraint imposed by the general law and subject only to constitutional limitations.
How Do the Courts Distinguish Between Municipal and Statewide Concerns?
Whether a given activity is a municipal affair over which a city has sovereignty, or a statewide concern, over which the legislature has authority, is a legal determination for the courts to resolve. Thus, the determination of whether a given activity is a municipal affair or statewide concern is done on a case-by-case basis. The court's determination will depend on the particular facts and circumstances of each case. Keep in mind that the concept of "municipal affairs" is a fluid one that changes over time as local issues become statewide concerns.
What Activities Have the Courts Classified As Municipal Affairs?
There are some areas that the courts have consistently classified as municipal affairs. Examples include the following:
• Municipal Election Matters.
• Procedures for Initiative, Referendum and Recall.
• Procedures for Adopting Ordinances.
• Compensation of City Officers and Employees.
• Processes Associated with City Contracts. (state law establishing employment policy may preempt local regulation of bidding criteria).
• Financing Public Improvements.
• Making Charitable Gifts of Public Funds for Public Purposes.
• Term Limits for Council Members. (regulating term limits).
• Land Use and Zoning Decisions (with a few exceptions).
What Activities Have the Courts Classified as Statewide Concerns?
The following have consistently been classified by the courts as matters of statewide concern:
• School Systems.
• Traffic and Vehicle Regulation.
• Licensing of Members of a Trade or Profession.
• Tort Claims against a Governmental Entity.
• Open and Public Meetings. Ralph M. Brown Act.
• Exercise of the Power of Eminent Domain.
What is in the Californian city charter?
While a city charter is not required to have any particular provisions in it, a city will often reserve for itself the greatest amount of power it can when it adopts a charter. To accomplish this goal, the charter must include a declaration that it is the intention of the city to avail itself of the full power provided by the state constitution to charter cities. However, the city is not required to extend the breadth of its charter any further than it wishes.
Some of the common areas that are explicitly regulated in a charter are:
• The date and conduct of city elections;
• Regulations on the appointment of municipal officials;
• The terms and payment of municipal officials;
• The process for removal of municipal officials;
• Form of government;
• Budget adoption;
• The number, pay, qualifications, and appointment of deputies, clerks, and other employees that each municipal officer will have;
• Sub-government in all or part of the city;
• The tenure of office for deputies, clerks, and other employees;
• The process for removal of such deputies, clerks, and other employees; and
• The constitution, regulation, and government of the local police force.
A number of California cities' charters are available online. The National Civic League also has a model charter project.
Process used to adopt a charter
There are two ways to draft and adopt a city charter. The first is to elect a charter commission. The commission then has the responsibility of debating over the provisions and the drafting of the charter. The other alternative allows the governing board of the city, on its own motion, to draft the charter. In either case, the charter is not adopted by the city until it is ratified by a majority vote of the city's voters.
When using the charter commission approach, the first step is to elect the commission. The vote to elect a charter commission is called for by either a majority vote of the city's governing body or by a petition signed by not less than fifteen percent of the registered voters within the city. If the formation of a charter commission is requested by a petition, the authority in charge of the city's registration records must verify the signatures on the petition. The expense of this verification must be paid for by the city's governing board. If the petition is verified, the city's governing board must call for an election in accordance with sections 1000 and 10403 of the California Elections Code. Cal. Gov't Code section 34452.
Once it has been decided that a charter commission election will take place, candidates for commissioners must be nominated. Candidates for the office of charter commissioner are nominated either in the same manner as officers of the city or by petition. A candidate for charter commissioner must be a registered voter of the city. After the election of commissioners, any vacancy on the commission will be filled by a mayoral appointment. Cal. Gov't Code section 34452.
At an election for charter commission members, the voters will vote first on the following question: "Shall a charter commission be elected to propose a new charter?" After voting on this question, the voters will then vote for the charter commission candidates. If a majority of the voters vote for the formation of a charter commission, then the top fifteen candidates for the office of charter commissioner will be organized as the city's charter commission. No commission will be formed if a majority of voters vote against the election of a charter commission. Cal. Gov't Code section 34453.
Once formed, the charter commission will have the responsibility of developing the city's charter. After a simple majority of commissioners have decided that the proposed charter is appropriate, they file the charter with the city's clerk in preparation for a vote by the city's electorate. Cal. Gov't Code section 34455. However, instead of sending the whole charter at once, periodically the commission may send portions of the charter to the city's electorate for a vote. Cal. Gov't Code section 34462.
After the charter (or portions of it) has been filed, it must be copied in type greater than 10 point and either mailed to all the voters of the city or made available to those citizens who wish to review it before the election. The city may show the difference between existing provisions of law and the new charter through the use of distinguished type styles, but this is not required. Cal. Gov't Code section 34456.
After the charter has been filed with the city clerk, the city's governing board must decide whether to call a special election or to wait until the next established municipal election to submit the charter to the voters. If the city's governing board determines that a special election should be held, then they must call for that special election within 14 days of the charter being filed. The special election must be set at least 95 days after the date from which the special election was called. Cal. Gov't Code section 34457. In any case, the charter commission must send the charter to the voters within two years of the vote that formed the commission. Upon the expiration of the two-year time period, the commission is abolished. Cal. Gov't Code section 34462.
The alternative to electing a charter commission is to have the city's governing board develop and draft the charter. An election to decide on the adoption of a charter may be called by initiative or the city council. Cal. Const. art. XI, § 3. On its own motion, the city's governing board may propose a charter and submit it to the voters for adoption. See Cal. Gov't Code section 34458. With this option, the governing board can call a special election or allow the charter to be voted on at any established election date, as long as that election date is at least 88 days after the proposed charter was filed with the city clerk. See Cal. Gov't Code section 34458. As a practical matter, an election may have to be called sooner than 88 days before the election in order to meet certain notice and ballot printing deadlines.
In either case, the majority of voters must vote in favor of the proposed charter for it to be ratified. The charter will not go into effect until it has been filed and accepted by the Secretary of State. See Cal. Gov't Code section 34459. After a charter is approved by a majority vote of the voters, the mayor and city clerk shall certify that the charter was submitted to the voters of the city and that it was approved by a majority vote. Cal. Gov't Code section 34460. One copy of the approved charter shall be filed with the County Recorder's office and one shall be kept in the City's archive. See Cal. Gov't Code section 34460. A third copy of the charter must be submitted to the Secretary of State with (1) copies of all publications and notices in connection with the calling of the election; (2) certified copies of any arguments for or against the charter proposal which were mailed to the voters; (3) a certified abstract of the vote at the election on the charter. Cal. Gov't Code section 34460.
How to amend or repeal a charter ?
If a citizens group, or the city's governing body, wishes to amend or repeal a portion of the city's charter, the steps remain largely the same as they are for drafting a charter. There are, however, two notable exceptions. First, the petition calling for the repeal or amendment needs only ten percent of the electorate's signatures, instead of the previous fifteen percent. Cal. Elec. Code sections 9215 and 9255. The other notable difference has to do with the charter itself. A city charter may establish different rules for the municipal elections process than those laid out by the state legislature in the Elections Code. If this is the case, the city's charter will govern the elections process used to appeal or amend the city's charter, instead of the general laws laid out in the Elections Code.
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