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TC Ord. No. 22-11 Enacting Chapter 2.29 Recall ProceduresA ,avo n C O i O H A D C ORDINANCE NO.22-11 ENACTING CHAPTER 2.29 RECALL PROCEDURES OF THE AVON MUNICIPAL CODE WHEREAS, the Town of Avon ("Town") is a home rule municipal corporation and body politic organized under the laws of the State of Colorado and possessing the maximum powers, authority and privileges to which it is entitled under Colorado law; and WHEREAS, the Town Council of the Town of Avon ("Council") finds that a well defined procedure for the recall of Council members will benefit the public confidence and participation the constitutional rights of recall; and WHEREAS, Section 3.5 Recall of the Town of Avon Home Rule Charter states that the Council may provide by ordinance for recall procedures; and WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with the requirement of Section 6.5(d) of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, has determined to take final action on this Ordinance prior to concluding the public hearing on second reading. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Section 2.29 Enacted. Section 2.29 Recall Procedures of the Avon Municipal Code is enacted in its entirety to read as set forth in Exhibit A: Section 2.29 Recall Procedures. Section 3. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term "provision" means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term "application" means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Ord 22-11 Recall Procedures 2°d and FINAL Reading, July 26 2022 Page 1 of 3 Section 4. Effective Date. This Ordinance shall take effect thirty days after the date of final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 5. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 6. Codification of Amendments. The codifier of the Town's Municipal Code, Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any typographical error in the enacted regulations, provided that such correction shall not substantively change any provision of the regulations adopted in this Ordinance. Such corrections may include spelling, reference, citation, enumeration, and grammatical errors. Section 7. Publication by Posting. The Town Clerk is ordered to publish this Ordinance in accordance with Chapter 1.16 of the Avon Municipal Code. [SIGNATURE PAGE FOLLOWS] Ord 22-11 Recall Procedures 2"d and FINAL Reading, July 26 2022 Page 2 of 3 INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING by the Avon Town Council on June 14, 2022, and setting such public hearing for July 26, 2022 at the Council Chambers of the Avon Municipal Building, located at One Hundred Mikaela Way, Avon, Colorado. BY: Sarah Smith Hymes, M yor ATTEST: OF q�O :SEAL: ADOPTED ON SECOND AND FINAL READING by the Avon Town Council on July 26, 2022. BY: ATTEST: "4 l v vl Sarah Smith Hymes, ayor APPROVED AS TO FORM: 'Karl Han wn Attorney Ord 22-11 Recall Procedures 2" and FINAL Reading, July 26 2022 Page 3 of 3 Town Clerk �WN OFq� :S EA L: EXHIBIT A: ENACTMENT OF CHAPTER 2.29 TO TITLE 2 OF THE AVON MUNICIPAL CODE CHAPTER 2.29 Recall Procedures 2.29.010 - The recall. (a) Authority. These recall procedures are adopted pursuant to Article XXI of the Colorado Constitution. To the extent these recall procedures conflict with C.R.S. 31-4-501 et seq., this Chapter 2.29 controls. (b) Power. Any elective officer of the Town may be recalled from office, through the procedure and in the manner provided herein, by the registered electors entitled to vote for a successor of such incumbent officer. For purposes of this Title, the words "registered elector" shall be construed to mean persons residing within the Town who are registered to vote in Town elections as of the date they signed the petition for recall. No recall petition shall be circulated or filed against any officer (i) until the officer has actually held office for at least ninety (90) days in the officer's current term, nor (ii) within nine (9) months of the end of such term. The procedure to effect a recall shall be as provided in this Title. These procedures for recall of elected officials shall be interpreted to be consistent with the United States Constitution, Article XXI of the State Constitution and the Charter. (c) Commencement of proceedings; affidavit and sworn statement. One (1) or more registered electors entitled to vote for a successor of such incumbent officer may commence recall proceedings by filing with the Town Clerk an affidavit of not more than two hundred (200) words stating the reasons or ground(s) for the recall of the officer sought to be removed. A separate affidavit shall be filed for each officer sought to be recalled. Within two (2) business days after the filing of the affidavit, the Town Clerk shall email and mail a copy by either method showing actual receipt by the affected officer. Within five (5) business days after the date of the Town Clerk sends the affidavit to the affected officer, the affected officer may file with the Town Clerk a sworn statement of not more than three hundred (300) words in defense of the charges. The affidavit and the sworn statement in defense are intended for the information of the registered electors, who shall be the sole and exclusive judges of the sufficiency of the grounds assigned for the recall, and the defense of the charges, and said grounds and defense shall not be open to judicial review. Within ten (10) days after the date by which any statement in defense must be filed, a petition for recall of the officer shall be submitted to the Town Clerk for approval of the form of the petition containing the grounds and the defense in accordance with Section 2.29.202(b) of this Chapter by the registered elector who submitted the affidavit. The petition shall be circulated, signed, verified and filed in the manner provided in Section 2.29.020. Chapter 2.29 — Procedures for Recall of Councilmembers (d) Call of election. A recall election shall be for the dual purposes of voting on the recall of the officer sought to be removed and the election of a successor. Upon the Town Clerk's presentation to Council of a petition that is certified sufficient under Section 2.29.020(g), the Council shall set a date for the election which shall be held on a Tuesday not less than sixty (60) nor more than one hundred twenty (120) days from the date of presentation of the certified petition to Council. However, if any other Town election is to occur within one hundred eighty (180) days from the presentation of the certified petition to Council the recall election shall be postponed and consolidated with such other Town election. The order setting a date for the recall election shall not become effective until ten (10) days from the presentation of the certified petition to Council. If the officer resigns within the ten-day period, the vacancy may be filled by appointment in accordance with the Charter. If a vacancy occurs in the affected office after the effective date of the order, an election to fill the vacancy shall nevertheless proceed. (e) Disqualification for office. No person who has been recalled or has resigned after the Town Clerk's presentation to Council of a certified, sufficient petition for recall of such person shall serve the Town in any elected or appointed capacity within two (2) years after such removal or resignation. 2.29.020 - Petitions. (a) Separate petitions required. A separate petition shall be circulated and filed for each officer sought to be recalled. (b) Form and content. (1) Approval of form. No petition shall be circulated until the Town Clerk, or another representative of the Town designated by the Town Clerk, has approved the form for circulation. The Town Clerk shall first determine that the petition form contains only the matters required by this Title. The Town Clerk may prescribe a general form of petition which shall contain warnings and notices to signers as deemed necessary by the Town Clerk. The Town Clerk's approval under this Section shall not constitute an approval of the content of the petition, but rather, shall start the running of the time periods provided for circulation and filing of petitions for recall. (2) Statement of purpose. The petition shall be addressed to Council and shall contain or have attached to each petition section throughout its circulation a copy of the reasons or ground(s) set forth in the affidavit on file with the Town Clerk, and if requested by the officer sought to be recalled, a copy of the officer's statement in defense. (3) Petition Committee. Each petition shall designate by name, email address and mailing address, not less than three (3) nor more than five (5) registered electors of the Town who shall represent the signers of the petition in all matters affecting the petition, and who endorse the petition. Each of the petition representatives shall complete and provide to the Town Clerk an affidavit affirming each representative has consented to their role as a recall petition representative, and such representative is aware of and supports the reasons or grounds underlying the recall of the officer as provided to the Town Clerk pursuant to Section 2.29.010(b). Notice or service of process to any petition representative will be deemed to be notice or service of process on all of the petition representatives. Any action required to be taken by the petition representatives, must be set forth in an Affidavit signed by a majority of the petition representatives. (4) Signatures. Only registered electors of the Town on the date of their signature on the petition may sign the petitions authorized under this Title. Each signer must sign his or her own signature and each signature shall be followed by the legible and printed name of the signer, the street and number address of the registered elector's residence which must be identical to the address contained in that registered elector's voter registration on file at the County of Eagle, and the date of signing of the petition. No person shall knowingly sign his or her name more than once for the recall of the same officer. No petition shall be circulated until such time as the Town Clerk has calculated and approved the number of valid signatures required for the petition to be deemed sufficient in accordance with this Title. Any signer of a petition may have his or her signature removed by filing a written demand with the Town Clerk within five (5) business days of the filing of a signed petition. (c) Circulation of petition. Prior to the circulation of any petition, a majority of the designated petition representatives shall meet with the Town Clerk and the Town Attorney for the purpose of confirming the number of valid signatures required for petition for recall to be deemed sufficient and for the purpose of confirming the circulation procedures and restrictions. The petition may be circulated and signed in sections with each section consisting of one (1) or more sheets securely fastened at the top, provided that each section contains a full and accurate copy of the text of the petition in the form approved by the Town Clerk and the names and addresses of the designated petition representative for that section of the petition. The affidavit required pursuant to subsection (d) herein must be securely fastened at the top to each circulated petition section. The designated petition representative's affidavit shall not be removed at any time from the circulated petition section. All petition sections shall be filed with the Town Clerk as one (1) instrument. Only persons eighteen (18) years of age or older may circulate the petition for signatures. The circulation of any petition by any medium other than personally by a circulator is prohibited. No person shall receive any compensation whatever for signing a recall petition. (d) Affidavit of circulator. A circulator shall attach to each section of the petition circulated, an affidavit signed by the circulator under oath before a notary public stating the following: (1) the circulator's address of residence; (2) that the circulator is eighteen (18) years of age or older; (3) that he or she personally circulated the petition section; (4) that each signature was affixed in the circulator's presence; (5) that no information pertaining to a signer was completed by the petition circulator or any petition representative; (6) that to the best of the circulator's knowledge and belief each signer was at the time of signing the petition a registered elector of the Town; (7) that to the best of the circulator's knowledge and belief each signature is the genuine signature of the person whose name it purports to be; (8) that each signer had an opportunity before signing to read the full text of the petition; and (9) that the circulator has not paid or offered to pay any money or other thing of value to any signer for the purpose of inducing or causing the signer to affix his or her signature to the petition. (e) Number of signatures required. (1) First recall attempt. The petition must be signed by registered electors equal in number to at least twenty-five (25) percent the total ballots cast at the most recent preceding regular Town election for any candidate for the office to which the officer sought to be recalled was elected as one of the officers thereof. (2) Subsequent recall attempts. After one (1) recall petition and election which does not result in a successful recall of an officer, another recall petition filed against the same officer during the same term must be signed by registered electors equal in number to at least fifty (50) percent of the total ballots cast at the last preceding regular Town election for all candidates for the office to which the officer sought to be recalled was elected as one of the officers thereof. (3) Calculation of signatures required. For Purposes of determining the total signatures required, the following formulas shall be used: Total ballots cast = Total votes for all candidates + total votes cast for no candidate (i.e. undervotes). Signatures required first recall attempt = (Total ballots cast X 0.25) - (number of Council seats to be filled in the preceding regular Town election). Signatures required subsequent recall attempts = (Total ballots cast X 0.50) (number of Council seats to be filled in the preceding regular Town election). (f) Place of filing, time limits. Petitions for recall shall be filed with the Town Clerk within thirty (30) days of the Town Clerk's approval of the form of petition for circulation under Section 2.29.020(b)(1). The petition representatives filing the recall petition shall sign an affidavit affirming that they each have not tampered with or completed any information on the petition for any signers other than signing their own name. (g) Determination of sufficiency of petition; certification. Within five (5) business days of the filing of a signed petition, the Town Clerk shall ascertain by examination of the petition and the County of Eagle's voter registration record whether the petition is signed by the requisite number of registered electors and otherwise satisfies the requirements of this Title. If the petition is determined by the Town Clerk to be insufficient, the Town Clerk shall so certify and forthwith notify the petition representatives in writing by email at the email address provided by such Petition Representative, specifying the particulars of insufficiency. A copy of the Town Clerk's certification and written report shall also be immediately emailed to the Petition Representatives and to the affected officer at its avon.org address. If the petition is determined by the Town Clerk to be sufficient, the Town Clerk shall proceed under Section 2.29.0200). (h) Protest. Any registered elector may protest the sufficiency of a signed petition, and such registered elector shall file a written protest, under oath, in the office of the Town Clerk within ten (10) days of the filing of the signed petition with the Town Clerk or within five (5) days of any re -filing of a signed petition after withdrawal and amendment. The protest shall set forth with particularity the grounds of protest and the names and defects in form that are protested. Except for any misstatement of material fact, the designated petition representatives' reasons and grounds for the recall may not be protested nor may the officer's sworn statement in defense be protested. Upon the filing of a written protest, the Town Clerk shall set a time for hearing such protest, which shall be no less than seven (7) business days and no more than fourteen (14) business days after the last day on which a protest could be filed. The hearing on such protest shall be conducted by a judge or an attorney in good standing in the State of Colorado, which judge or attorney shall be designated by the Town Clerk in the Town Clerk's sole discretion. At least seven (7) business days before the hearing, the Town Clerk shall email and mail a copy of the protest to all members of the recall committee and all of the designated petition representatives and the officer affected by the recall together with a notice of the date and time for hearing. All records and hearings shall be before the Town Clerk's designee who shall have the power to issue subpoenas to compel the attendance of witnesses to testify and the production of documents. All records and hearings shall be public, and all testimony shall be under oath. The hearing shall be summary in nature and concluded within thirty (30) days after the signed petition was filed with the Town Clerk. The Town Clerk's designee shall decide and certify to the Town Clerk the results of the protest hearing within ten (10) business days after the hearing is concluded. (i) Opportunity to Amend. In case the signed petition is deemed by the Town Clerk to be insufficient, whether following the initial determination by the Town Clerk or following protest proceedings, it may be withdrawn, amended and re -filed, one (1) time only by the written authorization signed by a majority of the designated petition representatives, within fifteen (15) days from the filing of the Town Clerk's certificate of insufficiency. Upon any withdrawal of the signed petition, the petition may only be amended by the addition of any required information relating to a signer thereof by the respective signer thereof, and the attachment of an updated circulator affidavits stating the changes that were made to the petition between the initial submission of the petition and the re -filing of the petition in addition to restatements of the requirements set forth in 2.29.020(d) regarding the re -filed petition. Any amended petition must be re -filed with the Town Clerk within such fifteen -day period. In its opportunity to curing deficiencies under this subsection, the petition may not be re -circulated with a revised or corrected form of petition and no new signatures may be collected. The Town Clerk shall, within five (5) days after re -filing such amendment, re- examine the amended signed petition and re -certify the result in accordance with this Title. (j) Delivery to Council. When and if a petition or amended signed petition is deemed sufficient, whether following the initial sufficiency determination by the Town Clerk in the absence of a protest, following protest proceedings, or upon re-examination of an amendment, the Town Clerk shall so certify and present the certified petition to the Council at its next regularly scheduled meeting. The Town Clerk's certificate shall then be a final determination as to the sufficiency of the petition. 2.29.030 - Elections. (a) Generally. Elections on recall shall be conducted in the same manner as provided generally for regular or special Town elections in the Charter. All Charter provisions related to nomination and qualification of candidates shall apply to recall elections. (b) Nominations on recall. Anyone desiring to become a candidate at the recall election shall do so by nominating petition as required in Article III of the Charter. The deadline for filing a nominating petition for a recall election shall be as established by ordinance of the Council. If more than one (1) officer is sought to be recalled, then the nominating petition must specify which incumbent officer affected by the recall the candidate seeks to succeed. The name of the person against whom the recall petition was filed shall not appear on the ballot as a candidate for that office. (e) Ballots. There shall be printed on the official ballot, as to every officer whose recall is to be voted on, the statement of reasons or grounds and, if requested by the affected officer, the officer's sworn statement in defense followed by the words, "Shall (name of person against whom the recall petition is filed) be recalled from the office of Avon Town Council member?" Following such question shall appear the words, "Yes" indicating a vote in favor of the recall and "No" indicating a vote against such recall. On such ballots, under each question, there shall also be printed the names of those persons who have been nominated as candidates to succeed the person sought to be recalled. It shall not be a requirement for a voter to vote on the question of the recall in order for their vote on a succeeding candidate to be counted. (d) Election results. If a majority of those voting on the question of the recall of any incumbent from office votes "No, the incumbent continues in office. If a majority votes "Yes" for the incumbent's removal, the incumbent shall thereupon be deemed removed from his or her office upon the taking of the oath of office by his or her successor. If the officer is recalled, the candidate for succession receiving the highest number of votes at the election shall be declared elected for the remainder of the incumbent's term. The candidate elected shall take office upon taking the oath of office, which shall occur as the first order of business at the next regular or special Council meeting. In case the candidate elected fails to take the oath of office within thirty (30) days after the issuance of a certificate of election, the candidate with the next highest vote shall be elected, and if there is no other elected successor who takes the oath of office, the office shall be deemed vacant and shall be filled in accordance with the Charter. (e) Reimbursement. If at any recall election the incumbent officer whose recall is sought is not recalled, or in the event of a protest the Town Clerk's designated hearing officer determines that the petition is not sufficient based on the conduct of one or more petition circulators or designated petition representatives, the Town will reimburse the incumbent officer for monies actually spent by the incumbent officer in connection with the recall. Authorized expenses include monies spent in challenging the sufficiency of the recall petition, writing the sworn statement in defense, attorneys fees, and campaign literature and advertising. Unauthorized expenses include monies spent on challenges and court actions not pertaining to the sufficiency of the recall petition, the incumbent officer's personal meals, lodging and mileage, costs of a campaign staff or headquarters, reimbursement for expenses incurred by a committee which has collected donations under Section 1.14.050 of this Code, and expenses incurred prior to the filing for approval of the recall petition form. 2.29.040 — Penalties (a) A person shall not knowingly or under circumstances amounting to criminal negligence: 1. Misrepresent, attempt to misrepresent or assist or conspire with another person to misrepresent or attempt to misrepresent the intent or content of a petition for the recall of a public officer which is circulated pursuant to the provisions of this Title; or 2. Obtain, attempt to obtain or assist or conspire with another person to obtain or attempt to obtain a false, forged, coerced or unauthorized signature on a petition for the recall of a public officer which is circulated pursuant to the provisions of this chapter. (b) Criminal Penalties. Any person who knowingly violates any provision of this Chapter is guilty of a misdemeanor and shall be punished by a fine not exceeding three hundred dollars ($300.00) or imprisonment for a period of not more than ninety (90) days or both such fine and imprisonment. (c) Civil Penalties. Any person who violates any of the reporting provisions of this Chapter shall be liable in any civil action initiated by the Town Attorney or by a person residing within the Town for an amount not more than the amount or value not properly reported. 2.29.050 - Further regulations. The Council may, by resolution, snake such further rules and regulations as are consistent with the Charter and the Colorado Constitution in order to carry out the provisions of this Title.