City threatened with lawsuit for increasing council’s size

The Fremont City Council’s decision to expand its size during a switch to a district-based election system was illegal, according to a South Bay law firm’s letter to the city.

The letter, sent Monday by Gautam Dutta of the San Jose-based Business, Energy and Election Law, PC, calls for repeal of an ordinance the council approved that increases its membership from five to seven.

“Unless the ordinance is promptly repealed, the city could face a lawsuit that will aim to vindicate the rights of Fremont voters, residents, and stakeholders, and seek all reasonable attorney’s fees and costs,” Dutta wrote.

Dutta said in an interview this week that while he believes the city was legally allowed to switch from at-large to district elections, it should have left the decision to add council members to a vote of the people.

Last Feb. 15, the Malibu-based Shenkman & Hughes law firm sent Fremont a letter asserting the city’s at-large election system was diluting “the ability of Latinos…to elect candidates of their choice or otherwise influence the outcome of Fremont’s council elections.”

That firm threatened to sue the city for violating the California Voting Rights Act if it did not voluntarily switch to districtbased elections.

In response, the council on June 13 adopted an ordinance creating a system with six council members who would be elected by districts and a mayor who would be elected by the entire city.

“In the big picture, what happened is disturbing because the people were not consulted on a fundamental change to city government,” Dutta said.

He claims a 2017 amendment to California law intended to ease the switch to district-based elections does not allow for a change in the number of representatives.

He said creating four districts with an elected mayor would have been fine.

However, Fremont City Attorney Harvey Levine said the claim is bunk.

Levine said in an email this week the same law that Dutta is claiming the city violated instead “provides that the legislative body of a city may adopt an ordinance that requires the members of the legislative body to be elected by four, six, or eight districts, with an elective mayor, without being required to submit the ordinance to the voters for approval.”

He also said the district-based system the city crafted creates “greater opportunities for people from all over Fremont to take part in elections at a reasonable cost and to be elected to the City Council.”

He said there is “no reason” to repeal the ordinance, and that it was “developed through a remarkable effort by the City Council, Fremont community members, legal and mapping consultants,” as well as advocates.

Levine said if a lawsuit is filed, the city would “vigorously defend” itself.

According to a state “safe harbor” law, Fremont had 45 days from the time it received Shenkman & Hughes’ letter to adopt a resolution announcing an intent to switch over to district-based elections, and an additional 90 days from that time to enact the system to avoid a potential lawsuit.

But Dutta said the city could have requested

“Unless the ordinance is promptly repealed, the city could face a lawsuit that will aim to vindicate the rights of Fremont voters, residents, and stakeholders, and seek all reasonable attorney’s fees and costs.”

— Gautam Dutta, Business, Energy and Election Law, PC

more time to chew on the issue. Levine disagreed, saying there is nothing in state law that would have allowed for an extension to be granted.

“I don’t think enough time was put into the initial decision to go to districts and then to go to six districts,” Dutta said. “The six-district solution was presented to the people as a fait accompli, but it was not.”

Dutta said he wants the city to comply with the law. “And that means taking back the six-district system that the City Council put in last year,” he said.

“This is not a decision that can or should be made quickly,” Dutta said. “Everybody needs to go in with their eyes wide open and unfortunately that did not happen in the last go around.”

Levine said the letter has been shared with the City Council, which likely will discuss it at a future closed session.