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ORDINANCE: O-2002-17
SUBJECT: An ordinance adopting a new Chapter 2.05 relating to the removal of members of the Lakewood City Council.
RECOMMENDATION: Adopt ordinance.
SUMMARY AND BACKGROUND OF SUBJECT MATTER: Section 2.13 of the Lakewood Home Rule Charter states:
"City Council shall have the power to remove its members from office, including the mayor, for cause, as provided in the ordinance hereafter adopted. Removal from office shall require a vote of not less than three-fourths of all members of city council."
The proposed ordinance is in response to this requirement in the Charter that the City Council adopt an ordinance setting forth the causes for removal as well as the procedure to be followed pertaining to removal. A study session was held on this topic on Monday, May 20, 2002, with consensus to bring the ordinance forward to City Council for its consideration.
DATE OF FIRST READING: June 10, 2002.
DATE OF SECOND READING: June 24, 2002.
ORIGINATED BY: Roger W. Noonan, City Attorney
STAFF PERSON RESPONSIBLE: Roger W. Noonan, City Attorney
DOCUMENTS ATTACHED: Ordinance 2002 -17 and Memorandum dated May 10, 2002, to Mayor, City Council, and City Manager.
SUBMITTED BY:
Roger W. Noonan, City Attorney
REVIEWED BY:
Joni Inman, Director Mayor's and City Manager's office
Michael J. Rock, City Manager
MEMORANDUM
TO: Mayor, City Council, and City Manager
FROM: Roger W. Noonan, City Attorney
DATE: May 10, 2002
RE: Home Rule Charter provisions pertaining to City Council
While reviewing the Lakewood Home Rule Charter, I realized one of the provisions
pertaining to City Council requires the adoption of an ordinance in order to
implement the Charter provision. Section 2.13 of the Charter pertains to removal
from office and states as follows:
"City Council shall have the power to remove its members from office, including the mayor, for cause, as provided in ordinance hereafter adopted. Removal from office shall require a vote of not less than three-fourths of all members of city council."
I have asked Paul Kennebeck to assist me by preparing a draft of such an ordinance which is attached to this memorandum.
The ordinance sets forth the actions that would constitute cause for removal from city council and the procedure by which the city council would consider the removal of a member of city council. In preparing this draft ordinance, we reviewed ordinances from several municipalities in Colorado. The proposed ordinance, when adopted, would satisfy our Charter provisions. This ordinance is not intended to address the issue of the ethical conduct, such as conflicts of interest, as that is sufficiently covered in existing state statutes.
Removal, "for cause" is not defined in the City's Charter. The grounds designated for removal must be reasonable to be valid. In this instance, it is clear the Charter authorizes and requires the city council to define what actions constitute cause and thus could result in the removal of a council person. McQuillin's treatise on municipal corporations discusses "cause" in Section 12.230. Under that Section, McQuillin states:
"'Cause' implies a reasonable ground of demotion or removal as distinguished from a frivolous or incompetent ground. 'Cause' or 'sufficient cause' means 'legal cause' and not any cause which a municipal employer may deem to be sufficient. The word 'cause' also has been defined as 'some substantial shortcoming which renders the employee's continuance in office in some way detrimental to the discipline and efficiency of the service and which the law and sound public opinion recognize as good cause for his no longer holding the position.'"
The cause assigned for removal must not be a mere whim or subterfuge or indefinite as to time, place, or nature, or remote or indirect, but must be of substance relating to the character, neglect of duty, or fitness of the person removed. It must be reasonable. If the cause assigned is a reasonable one, then the question whether there is sufficient basis to remove is for the city council.
General topics that have been held to be sufficient cause for removal are: (1) incompetency and inefficiency, (2) neglect of duty, (3) absence, (4) malfeasance, misfeasance and misconduct.
The second aspect of the ordinance is to provide for the procedure that would be followed by the city council pertaining to the consideration of removal of a member of city council. These procedures should provide for due process which includes notice to the individual who is the subject of removal, and an opportunity to be heard.
In summary, the proposed ordinance sets forth the elements of cause for removal of a city council member and the procedures to be followed in considering such removal. The ordinance does not attempt to duplicate existing state statutes dealing with conflicts of interest or codes of ethics or criminal convictions as these are sufficiently set forth in state statutes and the convictions under any of these topics would be in and of themselves, the basis for removal.
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