By Jill Cowan
6:30 PM PDT, October 13, 2012
Deciding the fate of 38 constitutional amendments sounds like a big deal.
But Newport Beach officials say changing the city's guiding legal document is a routine part of civic maintenance required to adapt a 54-year-old document to modern times.
Measure EE will ask voters to modify the charter Nov. 6 by checking just one box to make about three dozen changes to a document whose weight hovers somewhere between municipal and state laws.
"The charter is basically the constitution of the city," said Newport Beach City Attorney Aaron Harp.
Then again, the U.S. Constitution doesn't get amended for typos.
About a quarter of California's cities have charters, allowing them to manage their municipal affairs, as long as they don't conflict with state law.
What that leaves open for local control is subject to debate, as evidenced by the heated rhetoric swirling around Costa Mesa's upcoming vote to potentially adopt a charter.
The changes proposed in Measure EE are the latest in a long line of alterations to Newport Beach's charter, which 3,703 Newport Beach residents voted to adopt in June 1954.
Since then, charter amendments have been on the ballot 21 times, according to a city staff report. While the vast majority required residents to cast separate votes on individual changes, 2010's Measure V made about 15 changes with one vote.
"A charter sets the tone and priorities for a particular city," said Paul Watkins, chairman of the Citizens Charter Update Committee, which helped the city craft Measure EE. Watkins was also a member of the 2010 charter update commission.
Supporters say the ballot item mostly takes care of housekeeping.
"Of the 38 items that we have for the 2012 [measure], I believe the lion's share fall into one of three categories," Watkins said. "They're either clerical, anachronistic or they integrate into the charter long-established and long-accepted practices."
Opponents say that the measure would make too many changes for voters to make an informed decision and that some of its more substantive proposals are ill-conceived.
Officials say that to break the measure into multiple questions on the ballot would unnecessarily increase costs.
According to 2010 estimates, the Orange County Registrar of Voters office provided to the city, putting four charter amendment questions on the ballot, as opposed to just one, could have cost about $7,000 more. The price to add two more questions went up in about $5,000 increments from there.
Still, longtime council critic Jim Mosher said, "People don't really know what they're voting on."
The two most substantial items included in the measure, city officials and measure opponents agree, are proposed bans on red-light cameras and on class-action claims against the city.
The red-light camera provision was added to the measure at the council's suggestion after the citizens committee had stopped meeting. Opponents say the move created a "red herring," designed as a last-minute, high-profile "vote-getter."
The cameras, which photograph cars running red lights and send out resulting tickets by mail, have been widely criticized as legally problematic and ineffective at preventing accidents.
"Nobody likes red-light cameras," said former Planning Commissioner Robert Hawkins, who opposes Measure EE.
Mayor Pro Tem Keith Curry said the city hasn't considered installing red-light cameras and that in theory an ordinance could suffice to keep them off city streets.
However, he said, taking up the issue in the charter is a way of signaling a priority to future councils.
"You never know who's going to be sitting up there two years from now," Curry said.
The private camera companies that contract with cities, he added, "are a powerful lobby, and in this age of 'No raising taxes,' they're an irresistible force [as a source of revenue.]"
Watkins said he didn't see a problem with the ban's late introduction. The language, he said, was borrowed from an Anaheim ballot measure voters approved in 2010.
"It made sense to me," he said. "So many red-light camera allowances are designed to raise revenue, and that just isn't in keeping with the tone of our city. ... It is a preemptive measure."
Similarly, Harp said the prohibition against class-action lawsuits is a "prophylactic measure."
The city has not faced any class-action lawsuits in recent memory, he said, and he didn't know of any other cities that have adopted similar charter amendments.
"The way these class-action lawsuits work is they claim that every single person in the world is entitled to a dollar," he said. "The attorneys [who bring the suits] get a portion of whatever the ultimate settlement is, and the people get very little."
Curry said the idea is to "protect the taxpayers and the city against shakedown lawsuits," which he said suck up city resources in addition to the council's time.
Official ballot arguments against Measure EE say that the provision "restricts citizens' rights to recover illegally charged fees and may have questionable legality."
Hawkins argued that the change is redundant, saying state law protects against frivolous lawsuits.
In staff reports on legal justification for the amendment, acting Assistant City Attorney Michael Torres cited a California Supreme Court Decision, Ardon vs. the city of Los Angeles, in which a judge ruled that class-action claims could be filed against a local government, unless that entity has a "specific tax refund procedure set forth in applicable governing claims statute." The letter points to Newport Beach's claim procedure, which is written into the city's municipal code.
In other words, because the city has an established claim procedure, the memo says, the city can prohibit those from coming in the form of class-action claims.
Harp said a group could still come together to file a claim against the city.
"What would end up happening is if you have 100 people, they could submit the same basic claim form," he said. "This thing really isn't designed to prevent people with legitimate claims from getting redress for those claims."
Many of the other Measure EE provisions make minor changes to wording, like changing "he" to "he or she."
A few others truncate longer policies and defer to state law, like a provision that removes a paragraph of explanation for how the city must notify the public of special council meetings with the requirement that the council follow the state's Ralph M. Brown Act, which sets standards for government transparency.
But even small changes, critics say, could have broader implications.
Mosher said the charter's current open meetings policy is stronger than the Brown Act — and that's a good thing.
"That's just going to be cast out, [so we're] just relying on the Brown Act?" Mosher asked. "Why?"
Another provision that's drawn critics' ire is one that would allow the city to publish yearly financial audits online instead of in a newspaper.
Curry said the council hasn't run the more than 200-page audit in a physical paper for years.
The audit, Curry said, is already easily accessible online.
Officials have also said that a change to allow council members to receive $1,227.35 per month in compensation is a language update, rather than a substantive change.
Curry said that the council already receives that amount, only it is currently characterized as "reimbursement for expenses," thanks to tax loophole maneuvering by city officials back in the '60s.
The new wording, he has said, changes nothing, but makes the compensation more transparent.
Ron Hendrickson, a Measure EE opponent, said in cases like these, it's a matter of process.
"The city's trying to change the charter to match what they've been doing," he said. "That seems backwards."
Harp said that in murky areas that state law doesn't fill in, not much happens if the city doesn't precisely comply with the charter, unless someone sues.
He said someone could bring a lawsuit against the city for not complying with its own charter, but it would come at an unnecessary cost to taxpayers.
Ultimately, Curry said, the proposed changes are meant to make the city fiscally and operationally efficient, not fundamentally change its values or direction.
"The changes make [the charter] more relevant to the 21st century," he said. "You only get the opportunity every two years to do the things we need to do."