What’s Next for Bustamante and What Happens to His Council Seat
Posted by Chris Nguyen on July 3, 2012
Clearly, the biggest news in OC politics this week is the arrest of Councilman Carlos Bustamante (R-Santa Ana) on twelve felony counts, including six counts of false imprisonment, three counts of assault with the intent to commit a sexual offense, one count of stalking, one count of attempted sexual battery by restraint, and one count of grand theft by false pretense. Additionally, there were four misdemeanor counts and a sentencing enhancement added.
These charges are in connection with his time as Director of Administrative Services for OC Public Works.
Listed with the occupation of consultant on his booking record, Bustamante was released on $100,000 bail last night at 11:25 PM.
District Attorney Tony Rackauckas will be holding a press conference at 9:30 AM this morning to discuss the Bustamante case in greater detail.
Gustavo Arrellano at OC Weekly reports that Bustamante has a court appearance on Thursday.
Whatever is the end result of his felony prosecution will be between him, his lawyers, and the DA’s office, and possibly, a jury.
However, as Bustamante is a councilman, we will now take a look at the political implications of his arrest. He is almost assuredly not going to run for a third term in November. Even if he does run, he will lose, unless he gets a very extreme split of the anti-incumbent vote (remember, Judge Ronald Kline still received 35% of the vote after being publicly accused of child molestation and being indicted for possessing over 100 images of child pornography).
Assuming Bustamante does the rational thing and does not seek re-election, what happens to Bustamante’s seat in the meantime? Will it go vacant? According to Government Code Section 1770, there are 12 ways in which a city councilmember’s seat can become vacant:
An office becomes vacant on the happening of any of the following events before the expiration of the term:
(a) The death of the incumbent.
(b) An adjudication pursuant to a quo warranto proceeding declaring that the incumbent is physically or mentally incapacitated due to disease, illness, or accident and that there is reasonable cause to believe that the incumbent will not be able to perform the duties of his or her office for the remainder of his or her term. This subdivision shall not apply to offices created by the California Constitution nor to federal or state legislators.
(c) His or her resignation.
(d) His or her removal from office.
(e) His or her ceasing to be an inhabitant of the state, or if the office be local and one for which local residence is required by law, of the district, county, or city for which the officer was chosen or appointed, or within which the duties of his or her office are required to be discharged.
(f) His or her absence from the state without the permission required by law beyond the period allowed by law.
(g) His or her ceasing to discharge the duties of his or her office for the period of three consecutive months, except when prevented by sickness, or when absent from the state with the permission required by law.
(h) His or her conviction of a felony or of any offense involving a violation of his or her official duties. An officer shall be deemed to have been convicted under this subdivision when trial court judgment is entered. For purposes of this subdivision, “trial court judgment” means a judgment by the trial court either sentencing the officer or otherwise upholding and implementing the plea, verdict, or finding.
(i) His or her refusal or neglect to file his or her required oath or bond within the time prescribed.
(j) The decision of a competent tribunal declaring void his or her election or appointment.
(k) The making of an order vacating his or her office or declaring the office vacant when the officer fails to furnish an additional or supplemental bond.
(l) His or her commitment to a hospital or sanitarium by a court of competent jurisdiction as a drug addict, dipsomaniac, inebriate, or stimulant addict; but in that event the office shall not be deemed vacant until the order of commitment has become final.
He’s alive (a), he’s not incapacitated (b), he filed his oath years ago (i), his election was valid (j), his office does not require an additional bond (k), and he has not been committed to a hospital or sanitarium (l).
If (e) or (f) apply, then he will be a fugitive from the law, as I’m pretty sure he’s not allowed to leave the jurisdiction.
He cannot be recalled (d), as Elections Code Section 11007(c) prohibits recalls when there’s less than six months left in an elected official’s term.
That leaves us with (c), (g), and (h). However, (g) is overridden by the stricter Santa Ana City Charter Section 403:
If a member of the City Council absents himself from all regular meetings of the City Council for a period of sixty (60) days consecutively from and after the last regular City Council meeting attended by such member, unless by permission of the City Council expressed in its official minutes, his office shall become vacant and shall be so declared by the City Council.
So that leaves us with California Government Code Section 1770(c) and Section 1770(h), along with Santa Ana City Charter Section 403:
- Now, (c) is the most straightforward: Bustamante can resign, or he can hang on to office as the legal proceedings on his charges move forward.
- Subdivision (h) depends on the outcome of his criminal proceedings: if he pleads guilty to at least one of the felonies or if he’s convicted, then (h) will occur.
- With City Section 403, he’s already missed the July 2 Council meeting because he was arrested on his way to that meeting. If he misses the July 16, August 6, and August 20 meetings, then he will have absented himself from council meetings for sixty days. The council could then declare his seat vacant at the September 3 meeting, though there’d only be two months until the election to fill his seat for the normal four-year term. If he shows up to just one of those three meetings, then Section 403 will be rendered inoperative.
The other part of Section 403 of the Santa Ana City Charter reads:
In the event of a vacancy in the City Council, for whatever cause, the City Council shall declare the office vacant and fill the same by appointment. In each case the person so appointed shall hold office until the next general municipal election and until his successor is elected and qualified for the remainder of an unexpired term. Such appointee must, at the time of his appointment and continuously for one (1) year prior thereto, have been and be a resident of the ward from which his predecessor was elected. If the City Council shall fail to fill a vacancy by appointment within thirty (30) days after such an office shall have become vacant, it shall forthwith cause an election to be held to fill such vacancy.
In essence, if the Council fails to make an appointment within 30 days of the vacancy, then they will trigger an election. I would note Bustamante’s term expires five months from today. Filing for most offices closes on August 10, but for races where an eligible incumbent chooses not to file (e.g. Bustamante), the deadline is extended to August 15.
If Bustamante resigns before August 15, it’s still possible for the Santa Ana City Council to appoint someone to Bustamante’s seat in time for candidate filing. If he resigns after that, they could appoint a caretaker or one of the candidates but that person would not have the incumbent designation on the ballot.