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HomeMy WebLinkAboutItem No. 26 Amendments City Council Policy No. 200-5ACity Council Agenda Report City of Lake Elsinore 130 South Main Street Lake Elsinore, CA 92530 www.lake-elsinore.org File Number: ID# 19-805 Agenda Date: 12/8/2020 Status: Approval FinalVersion: 1 File Type: Council Business Item In Control: City Council / Successor Agency Agenda Number: 26) Amendments to Council Policy No. 200-5A regarding Commission Appointments to Include Measure Z Citizen Committee Adopt A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE, CALIFORNIA, ADOPTING REVISIONS TO COUNCIL POLICY NO. 200-5A, COMMISSION APPOINTMENTS. Page 1 City of Lake Elsinore Printed on 12/3/2020 REPORT TO CITY COUNCIL To: Honorable Mayor and Members of the City Council From: Grant Yates, City Manager Prepared by: Nicole Dailey, Assistant to the City Manager Date: December 8, 2020 Subject: Amendments to Council Policy No. 200-5A regarding Commission Appointments to Include Measure Z Citizen Committee Recommendation Adopt A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE, CALIFORNIA, ADOPTING REVISIONS TO COUNCIL POLICY NO. 200-5A, COMMISSION APPOINTMENTS. Background In July 2020, the City Council approved staff’s recommendation to place a transactions and use tax measure, Measure Z, on the November 3, 2020 General Municipal Election Ballot. This decision was made to allow Lake Elsinore’s voters to decide whether to support a proposed Ordinance (Exhibit C) imposing a one cent, or one percent, local transactions and use tax to generate unrestricted general fund dollars for municipal services, such as police and fire services, road maintenance, and homelessness solutions. To pass, the measure required a Yes vote by a majority of the electorate, i.e. 50% or more. As of Thursday, December 3, 2020, 15,902 voters, or 64%, had voted “Yes” on Measure Z and 8,962 voters, or 36%, had voted “No” on Measure Z. Following the passage of Measure Z, a citizen oversight committee must be established to review and advise upon the spending and use of Measure Z funding in accordance with the Ordinance (Exhibit C). This committee provides financial transparency and ensures this funding is being used in a manner appropriate to the established goals and needs of the community. In 2004, the City Council established a Council Policy, 200-5A, regarding Commission Appointments. In particular, the policy establishes the guidelines, selection and role of Commission Appointments by the City Council, which includes any regular, ongoing committee, board or commission consisting of members appointed by the City Council. The policy was subsequently revised in 2006. Discussion The newly proposed citizen oversight committee, to be known as the Measure Z Citizen Committee, is unique in its structure and purpose compared to existing commissions which include the Planning and Public Safety Advisory Commission. Key requirements for the Measure Z Citizen Committee as specified by the transactions and use tax ordinance include:  The committee shall consist of five (5) members, all must be residents of the City.  The Committee must meet at least twice each calendar year and more frequently, if necessary, to discharge the responsibilities of the Committee.  All meetings of the Committee shall be held in accordance with provisions of the Ralph M. Brown Act (Cal. Gov. Code Section 54950 et seq.).  The City shall initially post and publish notice soliciting applications for persons interested in being members of the Committee and shall thereafter repost and republish notice soliciting applications as necessary to fill vacancies on the Committee.  The City Council shall review all applications for eligibility and at a public meeting appoint five (5) eligible applicants to serve as members of the committee.  Each member of the Committee shall serve for a term of two (2) years and such service shall be at the pleasure of the City Council.  Three (3) members of the Committee shall constitute a quorum.  Members of the Committee shall not receive a stipend. As announced and discussed at the November 10, 2020 City Council meeting, staff recommends the committee includes one (1) resident member from each of the City’s five council districts. Each member would be nominated by the district’s elected Council Member and affirmed by an action of the City Council at an open public meeting. The City’s elected City Treasurer will serve as an Ex-Officio, non-voting member, on the committee. Other considerations for the Measure Z Citizen Committee included what would happen if a district does not have a qualified applicant and the use of staggered terms. Staff recommends that if the representative Council Member determines that there is no qualified applicant from his or her district, that the Council Member select a Measure Z Citizen Committee nominee from any remaining qualified applicants. Additionally, staff recommends that initially two (2) Measure Z Citizen Committee members serve only a one-year term to create staggered terms. These initial members would be those representing District 1 selected by Mayor Brian Tisdale and District 3 selected by Council Member Tim Sheridan. Staff has amended Council Policy No. 200-5A to reflect the specific requirements of the Measure Z Citizen Committee for City Council consideration. Staff is also developing a comprehensive, communitywide online application process. A notice soliciting applications will be published and posted in January 2021. Staff will reach out to the community via social media, news media, email, website, homeowner’s associations and other outreach opportunities to announce to residents in each district. Prior to the review and selection of applicants by each Council Member, staff will assist in reviewing, interviewing and ranking applicants based on qualifications. Each City Council Member’s nominee will be presented to the City Council for formal appointment in March of 2021 prior to the mid-year budget. Fiscal Impact There are no fiscal impacts related to this item at this time. Exhibits A – Resolution B – Amended Council Policy C – Ordinance RESOLUTION NO. 2020-___ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE, CALIFORNIA, ADOPTING REVISIONS TO COUNCIL POLICY NO. 200-5A, COMMISSION APPOINTMENTS Whereas, by Resolution No. 2020-80 adopted by the City Council on July 28, 2020, the City Council approved the placement of a transactions and use tax on the ballot to be considered during the General Municipal Election held in the City of Lake Elsinore on Tuesday, November 3, 2020; and Whereas, a majority of the voters in the City of Lake Elsinore voted in support of the transaction and use tax, known as “Measure Z,” thereby passing and adopting Ordinance No. 2020-1439 and adding Chapter 3.30, Transactions and Use Tax, to the Lake Elsinore Municipal Code; and Whereas, Ordinance No. 2020-1439 establishes a citizens’ oversight committee to independently review and advise upon the City’s expenditure of proceeds generated by the transactions and use tax; and Whereas, the City Council adopted the City Council Policy No. 200-5A for Commission Appointments in 2004 and revised the policy in 2006; and Whereas, City Council Policy 200-5A states a “Commission” shall include any regular, ongoing committee, board or commission consisting of members appointed by the City Council; and Whereas, revision of Council Policy 200-5A is necessary to accurately include the formation, selection and responsibilities of the citizens’ oversight committee, known as the Measure Z Citizen Committee, as specified by Ordinance No. 2020-1439; and Whereas, the City Council desires to adopt the revision of the City of Lake Elsinore’s Council Policy 200-5A Commission Appointments. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF LAKE ELSINORE DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS: Section 1. The City Council hereby finds that the above-referenced recitals are true and correct and material to this Resolution. Section 2. The attached Exhibit B, City of Lake Elsinore Revised City Council Policy 200-5A, is hereby adopted and made part of this Resolution. Section 3. This Resolution shall take effect from and after the date of its passage and adoption. Section 4. That the City Clerk shall certify to the passage and adoption of this Resolution and enter it into the book of original Resolutions. Passed and Adopted at a regular meeting of the City Council of the City of Lake Elsinore, California, this 8th day of December 2020. Brian Tisdale, Mayor CC Reso No. 2020 - ___ Page 2 of 2 Attest: Candice Alvarez, MMC City Clerk STATE OF CALIFORNIA ) COUNTY OF RIVERSIDE ) ss. CITY OF LAKE ELSINORE ) I, Candice Alvarez, MMC City Clerk of the City of Lake Elsinore, California, do hereby certify that Resolution No. ______ was adopted by the City Council of the City of Lake Elsinore, California, at the Regular meeting of December 8, 2020 and that the same was adopted by the following vote: AYES: NOES: ABSENT: ABSTAIN: _____________________________ Candice Alvarez, MMC City Clerk CITY OF LAKE ELSINORE, CALIFORNIA COUNCIL POLICY MANUAL SUBJECT: Commission Appointments Policy No. 200-5A Effective Date: 11/03/04 Revised: 9/12/06; 12/08/20 Page No. 1 of 12 DEFINITIONS For purposes of this Policy, the term “Commission” shall have the meaning set forth below: A “Commission” shall be a regular, ongoing committee, board or commission consisting of members appointed by the City Council. The City Council shall establish by ordinance all Commissions which shall advise the City Council and perform such other functions and duties as prescribed by the City Council. BACKGROUND The City of Lake Elsinore currently has three standing Commissions: the Planning Commission, the Public Safety Advisory Commission and the Measure Z Citizen Committee. The Planning Commission was established pursuant to Lake Elsinore Municipal Code Chapter 2.24 and the Public Safety Commission was established pursuant to Lake Elsinore Municipal Code Chapter 2.26. Within specific areas of responsibility, each Commission serves as an advisory body to the City Council on policy matters or reviewing specific issues as directed by the City Council or prescribed by law. The Planning Commission is both advisory and regulatory and organized according to the City Code (Ch. 2.24) and State statute (Government Code Section 65100 et seq. and Sections 65300-65401). The Measure Z Citizen Committee was established by Lake Elsinore Municipal Code Chapter 3.30, Section 3.30.160, following approval of Measure Z “City of Lake Elsinore Transactions and Use Tax Ordinance” by a majority of the Lake Elsinore voters in the November 3, 2020 General Municipal Election. The Measure Z Citizen Committee serves an advisory role to the City Council regarding the expenditure of revenues generated by the transactions and use tax. The City has adopted a City Council Policy Manual which includes City Council Policy Nos. 100-2 (Code of Ethics), 100-3 (Anti-Discrimination), 200-2 (Open Meetings – Brown Act), and 200-3 (Conflict of Interest) which specified policies are also applicable to all advisory bodies. A copy of these Policies shall be provided to all appointed Commission members. CITY OF LAKE ELSINORE, CALIFORNIA COUNCIL POLICY MANUAL SUBJECT: Commission Appointments Policy No. 200-5A Page No. 2 of 12 PURPOSE To define policies and procedures for the appointment by the City Council of members of Commissions. POLICIES AND PROCEDURES APPLICABLE TO COMMISSIONS A. General; Methods of Selection 1. General. The City Council shall establish a Commission by ordinance which clearly defines the extent of the Commission’s authority and the nature of the Council’s review of the Commission’s action (e.g. de novo or on the record). Appointments shall be discussed and made in open session. 2. Method of Selection. i. Annual List. A list of all regular and ongoing boards, commissions, and committees whose members serve at the pleasure of the City Council shall be posted on or before December 31 of each year. This list shall be known as the “Local Appointments List.” The list shall contain the following information: a) a list of all appointive terms which will expire during the next calendar year, b) the name of the incumbent appointee, c) the date of appointment, d) the date the term expires, and e) the necessary qualifications for the position. ii. Posting of Annual List. The Local Appointments List shall be posted at City Hall and copies shall be available to members of the public for a reasonable fee which shall not exceed actual cost. The Local Appointments List shall also be provided to and posted in the Lake Elsinore Branch of the Riverside County Library located at 600 W. Graham Avenue. CITY OF LAKE ELSINORE, CALIFORNIA COUNCIL POLICY MANUAL SUBJECT: Commission Appointments Policy No. 200-5A Page No. 3 of 12 B. Qualifications; Compensation; Elective Office 1. Qualifications i. The Ordinance establishing the Commission shall specify that members shall be at least 18 years of age and such other qualifications as the City Council deems necessary and appropriate. (LEMC Chapter 2.24) ii. Members of the City Council or any City Commission are disqualified for membership in any other Commission. No person shall be a concurrent member of more than one Commission. iii. Members of the Planning Commission and Public Safety Advisory Commission will be appointed “at large.” Members of the Measure Z Citizen Committee shall be appointed “by district” with one member appointed from each of the five City Council Districts. Except as provided hereinbelow, each Measure Z Citizen Committee member must reside in the Council District from which he or she is appointed. In the event the representative Council Member determines that there is no qualified applicant from his or her District, that Council Member may nominate and the City Council may appoint a Measure Z Citizen Committee member from any remaining qualified applicants residing in the City but outside that Council District. 2. Compensation. The City Council shall fix the compensation of all appointive Commission members by ordinance or by resolution. 3. Elective Office. Commission members shall be permitted to retain membership while seeking any elective office. However, members shall not use the meetings, functions or activities of such bodies for purposes of campaigning for elective office. Commission members who are running or who have run for elective office shall comply with the provisions of California Government Code Section 84308 concerning the prohibition against solicitation and acceptance of certain campaign contributions, the disclosure of CITY OF LAKE ELSINORE, CALIFORNIA COUNCIL POLICY MANUAL SUBJECT: Commission Appointments Policy No. 200-5A Page No. 4 of 12 certain campaign contributions and the disqualification from participating in decisions in which the person making the campaign contribution has a financial interest. C. Application/Selection Process 1. A current list of applicants is established each year. Applications may be submitted to the City Clerk at any time between January 1 and December 31. These applications may be considered for various vacancies throughout the year; however, on December 31, any remaining applications of these persons not appointed will be void. In order to be considered in the following year, new applications will need to be submitted starting January 1. During the year, the application process begins for a particular opening when a vacancy occurs due to term expiration, resignation, removal or death of a member. 2. The application period will normally run for a period of four weeks from the date the vacancy occurs. Applications are available from the City Clerk’s office and shall be posted on the City’s website. A copy of this Policy No. 200-5A shall be provided to all applicants. 3. Applicants are required to complete and return a separate application for each Commission they desire to serve on by the established deadline and in accordance with the posted instructions. The City Clerk shall compile a list of applicants from the applications received (the “List of Applicants”). 4. Incumbents seeking a reappointment are required to complete and file an updated application with the City Clerk by the application deadline. 5. The City Council shall annually appoint a subcommittee of two (2) City Council Members to nominate appointees to the Planning Commission and Public Safety Advisory Commission from the List of Applicants (as defined above). Measure Z Committee Members shall be nominated from the one each by each City CITY OF LAKE ELSINORE, CALIFORNIA COUNCIL POLICY MANUAL SUBJECT: Commission Appointments Policy No. 200-5A Page No. 5 of 12 Council Member from his/her Council District in accordance with Section B.1.iii, above. 6. After the application deadline, the subcommittee members (for purposes of the Planning Commission and Public Safety Advisory Commission) or individual Council Members (for purposes of the Measure Z Citizen Committee) shall evaluate the applications received and may schedule or waive interviews, or extend the application process in the event insufficient applications are received. 7. After consideration of the foregoing, the appointment subcommittee shall select the candidate(s) it wishes to recommend to serve on the Planning Commission and the Public Safety Advisory Commission and shall submit a written report to the City Council citing its reasons for selecting the candidate(s) recommended. Measure Z Citizen Committee nominees will be presented by each Council Member. Applications submitted by the finalists will be provided to the City Council and made a part of the Council agenda packet for its review and consideration. 8. All Commission appointments and reappointments shall be made at a regularly scheduled City Council meeting, and require an affirmative vote of not less than a majority of the Council present. 9. Following a Council appointment, the City Clerk shall notify successful and unsuccessful applicants, as applicable, in writing. 10. An orientation will be scheduled by support staff following an appointment (but before taking office). D. Term of Office 1. The term of office for members of the Planning Commission and the Public Safety Advisory Commission is four (4) years. The term of office for members of the Measure Z Citizen Committee is two (2) years; provided, however, that two members shall be appointed to an initial one-year term upon establishment of the Measure Z Citizen Committee in order to satisfy the requirement CITY OF LAKE ELSINORE, CALIFORNIA COUNCIL POLICY MANUAL SUBJECT: Commission Appointments Policy No. 200-5A Page No. 6 of 12 for staggered terms. The term of office for members of all other Commissions shall be the term set forth in the enacting ordinance for such Commission. 2. Terms are staggered to be overlapping, so that all terms do not expire in any one year. 3. If the event of a vacancy due to a member’s resignation or termination before the end of his/her term, a replacement serves out the remainder of that term. E. Appointments/Oaths 1. The City Council is the appointing body for all Commissions. All members serve at the pleasure of the City Council for designated terms. 2. All appointments and reappointments shall be made at a regularly scheduled City Council meeting, and require an affirmative vote of not less than a majority of the Council present. 3. Prior to taking office, all members must complete an Oath of Allegiance required by the Article XX, ¶3, of the Constitution of the State of California. All oaths are administered by the City Clerk or his/her designee. 4. Appointments made during the middle of the term are for the unexpired portion of that term. F. Conflict of Interest and Disclosure Requirements 1. A Conflict of Interest Code has been updated and adopted by the City Council pursuant to Government Code Section 87300 et seq. Copies of this Code are filed with the City Clerk. Pursuant to the adopted Conflict of Interest Code, members serving on the Planning Commission, Public Safety Commission and Measure Z Citizen Committee are required to file a Statement of Economic Interest with the City Clerk to disclose personal interest in investments, real property and income. This is done within thirty CITY OF LAKE ELSINORE, CALIFORNIA COUNCIL POLICY MANUAL SUBJECT: Commission Appointments Policy No. 200-5A Page No. 7 of 12 days of appointment and annually thereafter. A statement is also required within thirty days after leaving office. 2. If a public official has a conflict of interest, the Political Reform Act may require the official to disqualify himself or herself from making or participating in a governmental decision, or using his or her official position to influence a governmental decision. Questions in this regard may be directed to the City Attorney. G. Selection of Chair and Vice Chair 1. The Chair and Vice Chair of each Commission shall be selected upon establishment and in July of each year thereafter by a majority of the members and shall serve for one year or until their successors are selected. 2. Each Commission may annually rotate its Chair. H. Meetings and Officers 1. Agendas/Notices/Minutes i. All meetings shall be open and public and shall conduct business through published agendas, public notices and minutes and follow all of the Brown Act provisions governing public meetings. Special, cancelled and adjourned meetings may be called when needed, subject to the Brown Act provisions. ii. Support staff for each Commission shall be responsible for properly noticing and posting all regular, special, cancelled and adjourned meetings. Copies of all meeting agendas, notices and minutes shall be provided to the City Council, City Manager, City Attorney, City Clerk and other appropriate staff, as requested. iii. Original agendas and minutes shall be filed and maintained by support staff in accordance with the City’s adopted Records Retention Schedule. CITY OF LAKE ELSINORE, CALIFORNIA COUNCIL POLICY MANUAL SUBJECT: Commission Appointments Policy No. 200-5A Page No. 8 of 12 2. Conduct and Parliamentary Procedures i. Unless otherwise specified by State law or City regulations, conduct of all meetings shall generally follow the most recent edition of The Standard Code of Parliamentary Procedure revised by the American Institute of Parliamentarians. ii. A majority of Commission members shall constitute a quorum and a quorum must be seated before official action is taken. iii. The Chair of each Commission shall preside at all meetings and the Vice Chair shall assume the duties of the Chair when the Chair is absent. 3. Meeting Locations and Dates i. Meetings shall be held in the Council Chambers or other designated City facilities as noticed. ii. All Commissions shall conduct regular meetings at least once a month. Special meetings may also be scheduled as required by the Commission. iii. Monthly regular meetings shall have a fixed date and time established by the Commission. Changes to the established regular dates and times are subject to the approval of the City Council. An exception to this rule would include any changes necessitated to fill a temporary need in order for the Commission to conduct its meeting in a most efficient and effective way as long as proper and adequate notification is provided to the Council and made available to the public. CITY OF LAKE ELSINORE, CALIFORNIA COUNCIL POLICY MANUAL SUBJECT: Commission Appointments Policy No. 200-5A Page No. 9 of 12 4. Other Rules and Procedures Each Commission may adopt other rules and procedures as it feels necessary to effectively and efficiently accomplish its duties. I. Attendance 1. An Attendance Policy shall apply to all advisory bodies. Provisions of this Policy No. 200-5A are listed below. i. A compilation of attendance will be submitted to the City Council at least annually listing absences for all Commissions/Committee members. ii. Absences, which result in attendance at less than two thirds of their meetings during the calendar year, will be reported to the City Council and may result in replacement of the member by the Council. iii. Any member who feels that unique circumstances have led to numerous absences can appeal directly to the City Council or appropriate City staff member for a waiver of this Policy No. 200-5A or to obtain a leave of absence. 2. While it is expected that members be present at all meetings, the chair should be notified if a member knows in advance that he/she will be absent. J. Relationship to Council, Staff and Media 1. Upon referral by the Council, the Commission shall study referred matters and return their recommendations and advise to the Council. With each such referral, the Council may authorize the City staff to provide certain designated services to aid in the study. 2. Commissions shall not become involved in the administrative or operational matters of City departments unless specifically provided in their prescribed powers and duties. Members may not direct staff to initiate major programs, conduct large studies, or CITY OF LAKE ELSINORE, CALIFORNIA COUNCIL POLICY MANUAL SUBJECT: Commission Appointments Policy No. 200-5A Page No. 10 of 12 establish department policy without approval of the City Council. City staff assigned to furnish staff services shall be available to provide general staff assistance, such as preparation of agenda/notice materials and minutes, general review of department programs and activities, and to perform limited studies, program reviews, and other services of a general staff nature. Commissions may not establish department work programs or determine department program priorities unless specifically authorized. The responsibility for setting policy and allocating scarce City resources rests with the City’s duly elected representatives, the City Council. 3. Additional or other staff support may be provided upon a formal request to the City Council. 4. The Commission Chair shall act as the Commission’s lead representative. Pursuant to Council Policy 400-6, no Commission Chairperson or member shall prepare or distribute an official press release to the media. Commission members may express personal opinions and comments so long as the member clarifies that his or her statements do not represent the position of the Commission and/or the City Council. K. Council Referrals Referrals and requests from the City Council for advice and recommendations shall be transmitted by the City Manager or by the City Council during a joint study session. Commissions shall expeditiously consider and act on all referrals and requests made by the City Council and shall submit reports and recommendations to the City Council on these assignments. L. Recommendations, Requests and Reports As necessary and appropriate, the agenda for the regular City Council meeting will include an item called “Commission/Committee Reports, Announcements and/or Appointments”. At this time, Commissions may submit recommendations in writing or reports and may request direction and support from the City Council. Such requests shall be communicated CITY OF LAKE ELSINORE, CALIFORNIA COUNCIL POLICY MANUAL SUBJECT: Commission Appointments Policy No. 200-5A Page No. 11 of 12 to the City Manager in advance so that they may be listed on the agenda. The Council will receive such reports and recommendations and, after suitable study and discussion, respond or give direction. M. Public Appearance of Commission Members When a Commission member appears in a non-official, non-representative capacity before the public, for example in a Council meeting, the member shall indicate that he or she is speaking only as an individual. If the Commission member appears as the representative of an applicant or a member of the public, the Political Reform Act may govern this appearance. In addition, in certain circumstances, due process considerations might apply to make a Commission member’s appearance inappropriate. Conversely, when a member who is present at a Council meeting is asked to address the Council on a Commission matter, the member should represent the viewpoint of the particular Commission as a whole (not a personal opinion). N. Removal Appointed officials hold office at the pleasure of the Cit y Council. The City Council may remove a Commission member without notice or a hearing upon a vote of the majority of the City Council. O. Resignations Resignations must be submitted in writing to the City Clerk, who will distribute copies to City Council and appropriate staff. P. Unscheduled Vacancies 1. Notice of unscheduled vacancy; Selection. Whenever an unscheduled vacancy occurs in any Commission (whether due to resignation, death, termination, or other causes) a special vacancy notice shall be posted on the City’s website and in the office of the City Clerk, the Lake Elsinore Branch of the Riverside County Library, and in other places as directed by the City Council, not earlier than 20 days before or not later than 20 days after the vacancy occurs. Final appointment to the Commission shall not be CITY OF LAKE ELSINORE, CALIFORNIA COUNCIL POLICY MANUAL SUBJECT: Commission Appointments Policy No. 200-5A Page No. 12 of 12 made by the City Council for at least 10 working days after the posting of the notice in the City Clerk's office. 2. Emergencies. Notwithstanding the foregoing, the City Council may, if it finds that an emergency exists, fill the unscheduled vacancy immediately. A person appointed to fill the vacancy shall serve only on an acting basis until the final appointment is made pursuant to this section. Q. Disbanding of Advisory Body Unless otherwise required by law, a Commission may be disbanded due to lack of business or other cause upon majority vote of the City Council following a recommendation of the City Council, Commission Chair or appropriate staff. R. Waiver of Requirements In the event compliance with any of the above requirements would seriously interfere with or interrupt the important business of the City, the City Council may, with the approval of four Council members, waive one or more of said requirements. HISTORY Adopted by Minute Action 11/03/04 Amended by Resolution No. 2006-152 9/12/06 Amended by Resolution No. ___ 12/08/20 ORDINANCE NO. 2020-1439 AN ORDINANCE OF THE PEOPLE OF THE CITY OF LAKE ELSINORE, CALIFORNIA, ADOPTING TITLE 3, CHAPTER 3.30 OF THE LAKE ELSINORE MUNICIPAL CODE (LEMC) REGARDING A TRANSACTIONS AND USE TAX (SALES TAX) Whereas, Revenue and Taxation Code section 7285.9 authorizes the governing body of any city (i.e. the City Council) to levy a transactions and use tax for general revenue purposes under Part 1.6 of the Revenue and Taxation Code; and Whereas, Revenue and Taxation Code section 7285.9 requires the City Council to adopt an ordinance proposing to levy a general purpose transactions and use tax by a two-thirds vote of the City Council, and to then submit the ordinance to the voters, who must approve the ordinance by a majority of the voters voting on the measure for it to take effect; and Whereas, the City Council and the People of the City of Lake Elsinore desire to adopt a transactions and use tax pursuant to Revenue and Taxation Code section 7285.9 for general revenue purposes; and Whereas, having the capacity to respond rapidly to 9-1-1 emergencies is critical and additional locally controlled funding is necessary to ensure enough law enforcement officers, firefighters, and paramedics to respond quickly to 9-1-1 emergencies; and Whereas, keeping Lake Elsinore safe, clean, and well-maintained will help protect and improve local property values; and Whereas, securing additional locally controlled funding will provide the City the funding needed to avoid deep cuts in all service areas, including police, 9-1-1 emergency response, the maintenance of streets, parks and public facilities, as well as programs for youth and seniors; and Whereas, currently, nearly all of the sales tax generated locally goes to the State of California or the County -- the proposed November 2020 measure will ensure that a higher percentage of sales tax dollars stay in Lake Elsinore; and Whereas, all money raised by the proposed measure will be used to fund essential services and facilities in Lake Elsinore and by law, it can’t be taken away by the State or used for other purposes; and Whereas, the revenues generated from the proposed transactions and use tax would be used by the City to pay for all the aforementioned services, as well as other general municipal services. NOW THEREFORE, THE PEOPLE OF THE CITY OF LAKE ELSINORE, CALIFORNIA, DO ORDAIN AS FOLLOWS: Ord. No. 2020-1439 Page 2 of 8 Section 1: Chapter 3.30, Transactions and Use Tax, is hereby added to Title 3 of the LEMC as follows: Chapter 3.30 TRANSACTIONS AND USE TAX Sections: 3.30.010 Short Title. 3.30.020 Purpose and Intent. 3.30.030 Transactions Tax Rate. 3.30.040 Use Tax Rate. 3.30.050 Independent Annual Audit. 3.30.060 Operative Date. 3.30.070 Termination. 3.30.080 Contract with State. 3.30.090 Place of Sale. 3.30.100 Adoption of Provisions of State Law. 3.30.110 Limitations on Adoption of State Law and Collection of Use Tax. 3.30.120 Permit Not Required. 3.30.130 Exemptions and Exclusions. 3.30.140 Amendments To State law 3.30.150 Enjoining Collection Forbidden. 3.30.160 Citizen Oversight Committee. 3.30.010 Short Title. The Chapter shall be known as the “City of Lake Elsinore Transactions and Use Tax Ordinance” and shall be applicable in the incorporated territory of the City of Lake Elsinore. This chapter shall complement, and not replace or supersede, the city’s existing sales and use tax, as such tax is described in Chapter 3.28 of Title 3 of the Lake Elsinore Municipal Code. 3.30.020 Purpose and Intent. In enacting the City of Lake Elsinore Transactions and Use Tax Ordinance (“Ordinance”), it is the purpose and intent of the People of the City of Lake Elsinore to: A. Impose a retail transactions and use tax in accordance with the provisions of Part 1.6 (commencing with Section 7251) of Division 2 of the Revenue and Taxation Code and Section 7285.9 of Part 1.7 of Division 2 of the Revenue and Taxation Code which may be used for general municipal services and all lawful public purposes of the City. B. Adopt a retail transactions and use tax ordinance that incorporates provisions identical to those of the Sales and Use Tax Law of the State of California insofar as those provisions are not inconsistent with the requirements and limitations contained in Part 1.6 of Division 2 of the Revenue and Taxation Code. C. Adopt a retail transactions and use tax ordinance that imposes a tax and provides a measure therefore that can be administered and collected by the State Board of Equalization in a manner that adapts itself as fully as practicable to, and requires the least possible deviation Ord. No. 2020-1439 Page 3 of 8 from, the existing statutory and administrative procedures followed by the State Board of Equalization in administering and collecting the California State Sales and Use Taxes. D. Adopt a retail transactions and use tax ordinance that can be administered in a manner that will be, to the greatest degree possible, consistent with the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code, minimize the cost of collecting the transactions and use taxes, and at the same time, minimize the burden of record keeping upon persons subject to taxation under the provisions of this Chapter 3.30.030 Transactions Tax Rate. For the privilege of selling tangible personal property at retail, a tax is hereby imposed upon all retailers in the incorporated territory of the City, as it exists on the operative date of this Chapter, and in the incorporated territory of the City as it may hereafter be amended through annexation, at the rate of one percent (1%) of the gross receipts of any retailer from the sale of all tangible personal property sold at retail in said territory on and after the operative date of the Ordinance codified in this Chapter. 3.30.040 Use Tax Rate. An excise tax is hereby imposed on the storage, use or other consumption in the City of tangible personal property purchased from any retailer on and after the operative date of the Ordinance codified in this Chapter for storage, use or other consumption in the incorporated territory of the City, and in the incorporated territory of the City as it may hereafter be amended through annexation, at the rate of one percent (1%) of the sales price of the property. The sales price shall include delivery charges when such charges are subject to state sales or use tax regardless of the place to which delivery is made. 3.30.050 Independent Annual Audit. The proceeds resulting from the transactions and use tax imposed by this Chapter shall be deposited into the City’s general fund and shall be subject to the same independent annual audit requirements as other general fund revenue. The independent auditor’s report, which shall include an accounting of the revenues received and expenditures made from the transactions and use tax, will be presented annually to the citizen oversight committee, the City Council and made available for public review. 3.30.060 Operative Date. “Operative Date” shall mean the first day of the first calendar quarter commencing more than 110 days after the adoption of the City of Lake Elsinore Transactions and Use Tax Ordinance. 3.30.070 Termination. The transactions and use tax levied by this Chapter shall commence on the operative date and shall continue until terminated by a vote of the registered voters of the City. 3.30.080 Contract with State. Prior to the operative date, the City shall contract with the State Board of Equalization to perform all functions incident to the administration and operation of this Chapter; provided, that if the City shall not have contracted with the State Board of Equalization prior to the operative date, it shall Ord. No. 2020-1439 Page 4 of 8 nevertheless so contract and in such a case the operative date shall be the first day of the first calendar quarter following the execution of such a contract. The City Council may make any technical amendments to this Chapter required by the State Board of Equalization, except for any changes affecting the tax rate, tax methodology, or its manner of collection. 3.30.090 Place of Sale. For the purposes of this Chapter, all retail sales are consummated at the place of business of the retailer unless the tangible personal property sold is delivered by the retailer or his or her agent to an out-of-state destination or to a common carrier for delivery to an out-of-state destination. The gross receipts from such sales shall include delivery charges, when such charges are subject to the state sales and use tax, regardless of the place to which delivery is made. In the event a retailer has no permanent place of business in the state or has more than one place of business, the place or places at which the retail sales are consummated shall be determined under rules and regulations to be prescribed and adopted by the State Board of Equalization. 3.30.100 Adoption of Provisions of State Law. Except as otherwise provided in this Chapter and except insofar as they are inconsistent with the provisions of Part 1.6 of Division 2 of the Revenue and Taxation Code, all of the provisions of Part 1 (commencing with Section 6001) of Division 2 of the Revenue and Taxation Code are hereby adopted and made a part of this Chapter as though fully set forth herein. 3.30.110 Limitations on Adoption of State Law And Collection of Use Tax. In adopting the provisions of Part 1 of Division 2 of the Revenue and Taxation Code: A. Wherever the state of California is named or referred to as the taxing agency, the name of the City shall be substituted therefor. However, the substitution shall not be made when: 1. The word “state” is used as a part of the title of the state Controller, state Treasurer, State Board of Control, State Board of Equalization, state Treasury, or the Constitution of the state of California. 2. The result of that substitution would require action to be taken by or against the City or any agency, officer, or employee thereof rather than by or against the State Board of Equalization, in performing the functions incident to the administration or operation of this Chapter. 3. In those sections, including, but not necessarily limited to sections referring to the exterior boundaries of the state of California, where the result of the substitution would be to: a. Provide an exemption from this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not otherwise be exempt from this tax while such sales, storage, use or other consumption remain subject to tax by the state under the provisions of Part 1 of Division 2 of the Revenue and Taxation Code, or; b. Impose this tax with respect to certain sales, storage, use or other consumption of tangible personal property which would not be subject to tax by the state under the said provision of that code. Ord. No. 2020-1439 Page 5 of 8 4. In Sections 6701, 6702 (except in the last sentence thereof), 6711, 6715, 6737, 6797 or 6828 of the Revenue and Taxation Code. B. The word “city” shall be substituted for the word “state” in the phrase “retailer engaged in business in this state” in Section 6203 and in the definition of that phrase in Section 6203. 3.30.120 – Permit Not Required. If a seller’s permit has been issued to a retailer under Section 6067 of the Revenue and Taxation Code, an additional transactor’s permit shall not be required by this Chapter. 3.30.130 – Exemptions and Exclusions. A. There shall be excluded from the measure of the transactions tax and the use tax the amount of any sales tax or use tax imposed by the state of California or by any c ity, city and county, or county pursuant to the Bradley-Burns Uniform Local Sales and Use Tax Law or the amount of any state-administered transactions or use tax. B. There are exempted from the computation of the amount of transactions tax the gross receipts from: 1. Sales of tangible personal property, other than fuel or petroleum products, to operators of aircraft to be used or consumed principally outside the county in which the sale is made and directly and exclusively in the use of such aircraft as common carriers of persons or property under the authority of the laws of this state, the United States, or any foreign government. 2. Sales of property to be used outside the City which is shipped to a point outside the City, pursuant to the contract of sale, by delivery to such point by the retailer or his or her agent, or by delivery by the retailer to a carrier for shipment to a consignee at such point. For the purposes of this paragraph, delivery to a point outside the City shall be satisfied: a. With respect to vehicles (other than commercial vehicles) subject to registration pursuant to Chapter 1 (commencing with Section 4000) of Division 3 of the Vehicle Code, aircraft licensed in compliance with Section 21411 of the Public Utilities Code, and undocumented vessels registered under Division 3.5 (commencing with Section 9840) of the Vehicle Code by registration to an out-of-city address and by a declaration under penalty of perjury, signed by the buyer, stating that such address is, in fact, his or her principal place of residence; and b. With respect to commercial vehicles, by registration to a place of business out-of- city and declaration under penalty of perjury, signed by the buyer, that the vehicle will be operated from that address. 3. The sale of tangible personal property if the seller is obligated to furnish the property for a fixed price pursuant to a contract entered into prior to the operative date of the Ordinance codified in this Chapter. 4. A lease of tangible personal property which is a continuing sale of such property, for any period of time for which the lessor is obligated to lease the property for an amount fixed by the lease prior to the operative date of the Ordinance codified in this Chapter. Ord. No. 2020-1439 Page 6 of 8 5. For the purposes of subsections (B)(3) and (B)(4) of this section, the sale or lease of tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has t he unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised. C. There are exempted from the use tax imposed by this Chapter, the storage, use or other consumption in the City of tangible personal property: 1. The gross receipts from the sale of which have been subject to a transactions tax under any state-administered transactions and use tax ordinance. 2. Other than fuel or petroleum products purchased by operators of aircraft and used or consumed by such operators directly and exclusively in the use of such aircraft as common carriers of persons or property for hire or compensation under a certificate of public convenience and necessity issued pursuant to the laws of this state, the United States, or any foreign government. This exemption is in addition to the exemptions provided in Sections 6366 and 6366.1 of the Revenue and Taxation Code of the state of California. 3. If the purchaser is obligated to purchase the property for a fixed price pursuant to a contract entered into prior to the operative date of the Ordinance codified in this Chapter. 4. If the possession of, or the exercise of any right or power over, the tangible personal property arises under a lease which is a continuing purchase of such property for any period of time for which the lessee is obligated to lease the property for an amount fixed by a lease prior to the operative date of the Ordinance codified in this Chapter. 5. For the purposes of subsections (C)(3) and (C)(4) of this section, storage, use, or other consumption, or possession of, or exercise of any right or power over, tangible personal property shall be deemed not to be obligated pursuant to a contract or lease for any period of time for which any party to the contract or lease has the unconditional right to terminate the contract or lease upon notice, whether or not such right is exercised. 6. Except as provided in subsection (C)(7), a retailer engaged in business in the City shall not be required to collect use tax from the purchaser of tangible personal property, unless the retailer ships or delivers the property into the City or participates within the City in making the sale of the property, including, but not limited to, soliciting or receiving the order, either directly or indirectly, at a place of business of the retailer in the City or through any representative, agent, canvasser, solicitor, subsidiary, or person in the City under the authority of the retailer. 7. “A retailer engaged in business in the City” shall also include any retailer of any of the following: vehicles subject to registration pursuant to Article 1 (commencing with Section 4000) of Division 3 of the Vehicle Code, aircraft licensed in compliance with Section 21411 of the Public Utilities Code, or undocumented vessels registered under Division 3.5 (commencing with Section 9840) of the Vehicle Code. That retailer shall be required to collect use tax from any purchaser who registers or licenses the vehicle, vessel, or aircraft at an address in the City. D. Any person subject to use tax under this Chapter may credit against that tax any transactions tax or reimbursement for transactions tax paid to a district imposing, or retailer liable for a transactions tax pursuant to Part 1.6 of Division 2 of the Revenue and Taxation Code with Ord. No. 2020-1439 Page 7 of 8 respect to the sale to the person of the property the storage, use or other consumption of which is subject to the use tax. 3.30.140 Amendments To State Law. Subsequent to the effective date of the Ordinance codified in this Chapter, all amendments to Part 1 of Division 2 of the Revenue and Taxation Code relating to sales and use taxes and which are consistent with Part 1.6 and Part 1.7 of Division 2 of the Revenue and Taxation Code, and all amendments to Part 1.6 and Part 1.7 of Division 2 of the Revenue and Taxation Code, shall automatically become a part of this Chapter, provided however, that no such amendment shall operate so as to affect the rate of tax imposed by this Chapter. 3.30.150 Enjoining Collection Forbidden. No injunction or writ of mandate or other legal or equitable process shall issue in any suit, action or proceeding in any court against the state or the City, or against any officer of the state or the City, to prevent or enjoin the collection under this Chapter, or Part 1.6 of Division 2 of the Revenue and Taxation Code, of any tax or any amount of tax required to be collected. 3.30.160 Citizen Oversight Committee. A. A citizens’ oversight committee is hereby established to independently review and advise upon the City’s expenditure of proceeds generated by the transactions and use tax. The committee shall meet at least twice each calendar year and more frequently, if necessary, to discharge the responsibilities of the committee. All meetings of the committee shall be held in accordance with provisions of the Ralph M. Brown Act (Cal. Gov. Code Section 54950 et seq.). 1. The committee shall consist of five (5) members, all whom shall be residents of the City of Lake Elsinore. The City shall initially post and publish notice soliciting applications for persons interested in being members of the committee and shall thereafter repost and republish notice soliciting applications as necessary to fill vacancies on the committee. The City Council shall review all applications for eligibility and at a public meeting appoint five (5) eligible applicants to serve as members of the committee. Each member of the committee shall serve for a term of two (2) years and such service shall be at the pleasure of the City Council. Three (3) members of the committee shall constitute a quorum. Members of the committee shall not receive a stipend for their service. Any additional responsibilities and duties of the committee shall be established by resolution of the City Council. 2. The citizens’ oversight committee shall annually review and report on (i) the City’s proposed and actual expenditure of proceeds generated by the transaction and use tax and (ii) the independent annual audit required under this Chapter. The committee’s report shall be submitted to the City Council for review and discussion at a public meeting of the City Council. 3. The City shall provide such staff resources as are reasonably necessary to assist the committee with the discharge of its duties under this Chapter. The committee shall not have authority to hire or retain its own staff, consultants, or contractors. Section 2: CEQA. The adoption of this Ordinance is not a "project" subject to the requirements of the California Environmental Quality Act of 1970 (California Public Resources Ord. No. 2020-1439 Page 8 of 8 Code § 21000 et seq.) and the state CEQA Guidelines (California Code of Regulations, Title 14, § 15000 et seq.). CEQA Guidelines Section 15378(b)(4) provides that the creation of government funding mechanisms or other government fiscal activities that do not involve any commitment to a specific project that may result in a potentially significant physical impact on the environment are not projects subject to the requirements of CEQA. Section 2: Severability. If any section, sentence, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of a court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this Ordinance. The People of the City of Lake Elsinore hereby declare that they would have adopted this Ordinance irrespective of the invalidity of any particular portion thereof and intends that the invalid portions should be severed and the balance of the Ordinance be enforced. Section 3: Election Required; Effective Date. This Ordinance shall be submitted to the voters at the regular municipal election to be held on Tuesday, November 3, 2020 . This Ordinance shall not become operative unless and until a majority of the electors voting on the measure vote to approve this Ordinance, in which case this Ordinance shall go into effect ten (10) days after the date on which the election results are declared by the C ity Council. Section 4: Certification. The City Clerk shall certify to the passage of this Ordinance and shall cause a synopsis of the same to be published according to law. Passed and Adopted by the People of the City of Lake Elsinore, California, at the General Municipal Election held on November 3, 2020. Brian Tisdale Mayor Attest: Candice Alvarez, MMC City Clerk