No justification for delay on No justification for delay on (March 24, 2004)referendum petition decision

The following letter was written by resident Chuck Bernstein to the Menlo Park City Council, and also submitted to the Almanac.

Dear members:

There is no justification whatsoever to delay a decision on the petition that was certified and presented to you on March 2. While some of you might want to delay, personal desires cannot deter your duty to uphold the law.

The Election Code pertaining to referenda is a tangled web of local and county procedures pertaining to both the referendum (citizens petitioning for an enacted law to be put to a vote) and the initiative (citizens petitioning to enact a law). Nevertheless, it is a cherished right in California, and every effort must be made to support it in good faith.

I am not an attorney, but from the perspective of a citizen who can read plain English the clearest direction is that after a certified petition is presented to a city council, it must act at the regular meeting at which the certification of the petition is presented, or within 10 days after it is presented (9118a and 9214a). There is a possibility of a short delay to prepare a report pertaining to the ordinance (more applicable to an initiative than a referendum), but it must be presented no later than 30 days after certification of the petition (9212b and 9111b). In that event, action must be taken within 10 days (9111c and 9214c).

The requirement for immediate action is supported by similar interpretations in other jurisdictions and by an absence of any precedent-setting alternative interpretation. It is supported by Menlo Park's previous interpretation involving the leaf blower ordinance.

Immediate council action is consistent with the language in the city attorney's January 13, 2004, memorandum (p. 3, 5) on the referendum process:

"Upon [in the sense of 'immediately after'] certification of the Petition, the City Council must reconsider the ordinance. The City Council has two options. It must either: repeal the ordinance, or submit the ordinance to the voters."

It is consistent with the language in the city attorney's February 13, 2004, memorandum (p. 1) on "Status report of petition": "Upon certification, the City Council must either repeal the ordinance or submit the ordinance to the voters."

It is consistent with the language and timetable in the Staff Report #04-046 for the March 2 council meeting:

1. "The City Council must provide direction to the City Attorney to prepare an ordinance or resolution" to repeal the ordinance or submit it to the voters (p. 1).

2. "The City Council must now either repeal the Ordinance No. 926 or submit the ordinance to the voters" (p. 1).

3. "Assuming the council adopts such a resolution on March 9, 2004" (p. 2).

In none of these previous communications did the possibility of a delay arise. The only publicly-stated support for a contrary position was the city attorney's verbal statement that the Election Code did not provide for remedies for violations. However, none of his public pronouncements has cited any legal basis for a delay. If there is a supportable basis for a delay, please let the public know. Otherwise, the council casts itself in an outlaw role.

It appears very suspicious that at the March 2 council meeting, without any prior public discussion, the majority would pass a non-debatable motion to table the item without the least bit of intellectual curiosity about whether or not such an action was legal. It would certainly appear to the average citizen that either the council was acting negligently or it was acting in bad faith based on some secret and prohibited communications among council members. In either case, such action would not be covered by the normal shield that protects government officials. As a citizen, I will advocate for individual members' personal liability should the delay in action require legal fees and expenses by the city and the citizens to right the wrong that has been done.

Please, stop the lawyering and heroic interpretations before the city incurs expenses as a result. Make a decision now and let us debate Ordinance 926 on its own merits.

Charles D. Bernstein
Oak Court, Menlo Park

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