BBB Allows Mayor 5 Terms, 20 Years in Office

By: 
Ian Patton, Long Beach Reform Coalition

Simply put, the entire basis of Mayor Garcia’s Yes campaign for charter amendment Measure BBB is a fraud:  Both taxpayer dollars for “informational flyers” to the tune of $100,000 or more, and an entire special interests-funded big money campaign are predicated on the mayor’s claim that, while BBB sets a three-term limit, it also eliminates a “loophole” to gain extra terms and substitutes it with a “firm” terms limit.  Now it is clear that this was a profound, potentially disastrous error, if not a lie.

Following an inconclusive dialogue with the Long Beach City Attorney’s office, our campaign conducted a search for a highly respected election attorney to review an issue highlighted by the city attorney’s own “Impartial Analysis” of Measure BBB.  In it, the city attorney states, without further clarification, that “Under state law, term limits measures may only apply prospectively.”

Prospective’ application of a law means that it can only apply going forward.  Terms which officials have already been elected to can never be held against them under new term limits, despite wording in the law which imposes a “lifetime” three-term limit.  This issue was raised by some community activists but had never been reviewed by an outside attorney specializing in election law before now.

First our campaign sought clarification from the city attorney’s office, and we received an illogical explanation.  In the final email in our exchange with that office, we requested that an official California Attorney General Opinion on the matter be sought, the AG’s office being the ultimate adviser on state law for municipalities and which regularly provides official opinions on such issues.  We sent our last email to the city attorney on October 9, 2018 with this concluding sentence:  “As you are no doubt aware, private citizens and entities cannot apply for an Attorney General Opinion.  Therefore we would strongly request and encourage that your office seek that official confirmation in advance (to the extent possible) of Long Beach residents casting their ballots.”  This email was met with dead silence from the city attorney’s office.  We have yet to receive a response.

As a result, our campaign found and retained one of the most respected election attorneys in California, Gautam Dutta of the Bay Area firm BEE.  Dutta, a Yale and Georgetown Law graduate, has handled matters specific to Long Beach, as well, pertaining to the municipal initiative process and, in his former capacity as Deputy Director for Political Reform at the New America Foundation, devoted nearly two years to educating Long Beach representatives and voters about the potential for alternative voting systems, particularly ranked voting.

Mr. Dutta has performed a legal analysis and concluded that the city attorney’s wording of Measure BBB means that, if passed, this charter amendment would open Long Beach up to a direct legal challenge (by an incumbent seeking additional terms) based on the "prospective" application provision of state law, which would almost certainly lead to a court deeming current officeholders’ terms not countable against their new term limits.

The first thing BBB does is to repeal the current term limits charter language, and that repeal would stand regardless of the legality of the other provisions in BBB.  And those other provisions go on to create a new three-term “lifetime” limit.  But a lifetime limit means applying the law retroactively for those currently in office and that is specifically forbidden for newly enacted municipal term limits under state law.

The clearest example of this is the case of Los Angeles City Councilman Michael Woo, who faced newly enacted term limits, which were written to be retroactive and to include terms he had already served.  But the judge in the case threw out the retroactive application written into that new LA term limits law because it was in direct conflict with the "prospective" application provision of state law.

The result of Mr. Dutta’s analysis, which is in accord with and expands on the legal analysis of former councilmember and attorney Gerrie Schipske, who previously raised this issue, is that the voters of Long Beach are currently being subjected to a massive political fraud on the part of the mayor and his political ally, the city attorney.

When a court strikes down the “lifetime” provision of BBB for current incumbents, providing the mayor (as well as the other second term incumbents on the City Council) an open path to serving five total full terms1 (four for a current first term incumbent), or 20 years in office, he will claim he never imagined that could have been the result of Measure BBB and then go ahead and do what perhaps he had always intended to do.

 

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