HomeMy WebLinkAbout12/5/2001 - STAFF REPORTS (25) 2 �s
LL
Jim Jones
Cm 1315 Manzanita Ave.
Palm Springs, CA 92264
December 5, 2001
The Honorable Mayor Will Kliendiest
and Members of the City Council
3200 E. Tahquitz Canyon Way
Palm Springs, CA 92262
Dear Mayor and Members of the City Council, I must apologize for not submitting
my letter of resignation prior to my announcement yesterday. As you must
appreciate this was an extremely difficult decision for me one which I did not
make until an hour before.
As I stated yesterday please accept my resignation from my seat on the Palm
Springs City Council effective as of Today December 5, 2001, at 4 PM.
Sincerely,
Jim Jones.
BURKE,WILLIAMS & SORENS1[/EN, LLP J,
CONFIDENTIAL l ZLe 1
This Memorandum is protected under the Attorney-Client and
the Attorney Work Product privileges. It is not a public record and is not subject to disclosure
under the California Public Records Act.
OFFICE MEMORANDUM
TO: David Aleshire, City Attorney CC:
FROM: Doug Haubert, Deputy City Attorney
FILE NO. 04195-0001
DATE: December 5, 2001
RE: City Council Vacancy Created by Councilman Jim Jones' Resignation
INTRODUCTION & SUMMARY OF CONCLUSIONS
On December 4, 2001, Palm Springs City Councilman Jim Jones announced he is
resigning from the Council effective December 12th. His term would not naturally expire until
November 2003. You asked me to research issues related to filling a council vacancy, and my
conclusions are summarized as follows:
1. Provided his resignation is made in writing to the city clerk, his resignation will
be effective on the date he designates (i.e., December 12, 2001), at which time the
seat will become "vacant." He may withdraw his resignation any time before its
effective date, but may not do so thereafter.
2. The Palm Springs City Charter requires the Council to call a special election or
make an appointment to fill a vacancy within 45 days of the date the seat becomes
vacant.
3. If the Council chooses to hold a special election,unless the Council establishes a
different election date, the election must be held on April 9th or November 5th in
2002,the dates of regularly scheduled elections.
4. Because Palm Springs is a Charter City,the Council may establish other times
and procedures for a special election, but must do so by ordinance. Such an
ordinance must be adopted within 45 days following the vacancy,but may also be
adopted as an emergency ordinance.
5. If the council chooses to hold a special election,the Council may appoint an
interim councilmember to serve until the special election is held.
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David J. Aleshire
December 5, 2001
Page 2
LEGAL ANALYSIS
CONCLUSION#1: Provided his resignation is made in writing to the city clerk, his
resignation will be effective on the date he designates (i.e., December
12,2001), at which time the seat will become"vacant." He may
withdraw his resignation any time before its effective date, but may
not do so thereafter.
A resignation must be in writing and made to the city clerk.I Assuming Councilman
Jones provides a written resignation to the city clerk before December 12, 2001, specifying that
date as the date of his resignation,then December 12th is the effective date of his resignation and
the date the office becomes "vacant."2 "Acceptance" of his resignation is a formality that will
not affect the resignation because no acceptance is required.3
The fact that an elected public official's resignation may be withdrawn before its
effective date is well-settled law in California. In People v. Porter(1856) 6 Cal. 26,the
California Supreme Court decided the very issue of when an announced resignation takes effect
in a similar case involving an elected judge. The court stated:
"The resignation of Badgley, by its terms, was to take effect on the 1st of
September. I have no doubt that it was in his power at any time before that date,
to withdraw his resignation and continue in office. Not having done so, the
resignation became effectual, and a vacancy was created on that day."
Porter, although an old case, has been cited favorably numerous times and is still good
law. Accordingly, if Councilman Jones changes his mind between now and December 12,2001,
he may withdraw his resignation. After this date,however,he many not withdraw the
resignation.
CONCLUSION#2: The Palm Springs City Charter requires the Council to call a special
election or make an appointment to fill a vacancy within 45 days of
the date the seat becomes vacant.
The California Constitution gives charter cities broad authority to "make and enforce all
ordinances and regulations in respect to municipal affairs."4 Furthermore,the state Constitution
Cal.Gov.Code § 1750(e).
2 People v. Porter(1856)6 Cal.26;People ex rel. U.S. Webb v. Marsh(1916)30 Cal.App.424.
3 Meeker v. Reed(1924)70 Cal.App.119.
4 Cal.Const.,art.XI, §5(a).
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David J. Aleshire
December 5, 2001
Page 3
gives charter cities "plenary authority" over the election,removal, and compensation of
municipal officers.5
Palm Springs City Charier § 305 directly applies to the filling of a mid-term vacancy on
the City Council. Charter § 305, paragraph 2,provides, in its entirety:
"A vacancy in the city council, from whatever cause, may be filled by
appointment by a majority of the remaining members of the city council, or by
special election. Any person appointed or elected to fill a vacancy in the city
council shall serve the remaining unexpired term of the office. In the event it
shall fail to fill a vacancy by appointment within forty-five days after such office
shall become vacant,the city council shall cause an election to be held forthwith
to fill such vacancy. If[the] city council calls a special election to fill the
vacancy, the city council may make an interim appointment to fill the vacancy
until the date of the special election. The times and procedures for the calling of
any special election to fill a city council vacancy may be established by
ordinance."
Currently, there is only one ordinance adopted in Palm Springs regarding special election
"procedures." Palm Springs Municipal Code § 2.04.070 establishes the procedures that must be
followed when the Council chooses to appoint an interim councilmember. § 2.04.070 further
provides that, "[t]he council,no later than forty-five days after the date of commencement of a
vacancy, shall call a special election to fill the vacancy." Also,the interim appointment must be
made at the same time the election is called.
Therefore, within 45 days a seat becomes"vacant,"the Council must appoint someone to
serve the remainder of Councilman Jones' term or call a special election. If the Council calls a
special election and appoint an interim, it must do both at the same time and with 45 days of the
seat becoming vacant.
CONCLUSION#3: If the Council chooses to hold a special election, unless the Council
establishes a different election date, the election must be held on April
9th or November 5th in 2002,the dates of regularly scheduled
elections.
The City of Palm Springs, as a charter city, is not required to follow state law with regard
to special elections (See Point 94 discussion,below),however,the City Charter does mandate
the following of all state election laws that does not conflict with the City's Charter or Municipal
Code. Palm Springs Charter § 802 provides:
5 Cal.Const.,art.XI, §5(b);Younger v.Board of Supervisors(1979)93 Cal.App.3d
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December 5, 2001
Page 4
"Unless otherwise provided by ordinance, all elections shall be held in accordance
with the provisions of the Elections Code of the State of California, as the same
now exist or hereafter may be amended, for the holding of municipal elections, so
far as the same are not in conflict with this Charter."
Therefore, absent a conflicting charter provision(or City ordinance since the Charter expressly
permits the adoption of special election procedures by ordinance), we look to state law for all
election procedures the establishing of election dates.
Elections Code § 1000 provides, in relevant part:
"The established election dates in each year are as follows:
(a) The second Tuesday of April in each even-numbered year, [April 9, 2002]. . .
(c) The first Tuesday in March in each even numbered year, [March 5, 2002]. . .
(e) The first Tuesday after the first Monday in November of each year
[November. 5, 2002]."
Elections Code § 1003(b)provides that these election dates do not apply to
elections held in chartered cities in which the charter provisions are inconsistent with
these dates. However,the Palm Springs City Charter is silent on the establishing of
specific special election dates. Therefore, absent the adoption of an ordinance to hold an
election on a different day, and in accordance with Elections Code § 1000,the dates Palm
Springs may hold its special election are March 5, April 9, or November 5, 2002.
The March 5, 2002, election date is not feasible because of other state law requirements.
Elections Code § 12101 (a)provides for an"election notice"period during which notice of the
election must be published between 127 and 113 days before the election. In addition, Elections
Code § 12220 provides that a"candidate nomination"period must be held between 113 and 88
days before an election. During this period, candidates must submit nomination papers with
signatures of voters to qualify for placement on the ballot. Since March 5, 2002, is 90 days from
today,the City cannot comply with the"notice"requirement in Elections Code § 12101.
The Council may comply with Elections Code § 12101 in time for the April 9, 2002,
election, however, it must call for the election and comply with the"notice"requirements no
later than December 17, 2001.
In addition to the April 9, 2002 election,the vacancy may be filled at the November 5,
2002 election. For example, if no election is called by January 26, 2002,then an election must
be called"forthwith." However, it is too late for the special election to be consolidated with the
April 9, 2002 election, so the election would then be held in November.
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CONCLUSION#4: Because Palm Springs is a Charter City, the Council may establish other
times and procedures for a special election, but must do so by ordinance.
Such an ordinance must be adopted within 45 days following the vacancy,
but may also be adopted as an emergency ordinance.
Because it is a Charter City, Palm Springs has "plenary authority"over the its own
elections. This is emphasized in the last sentence of Palm Springs Charter § 305, which reads
"The times and procedures for the calling of any special election to fill a city council vacancy
may be established by ordinance." Accordingly, the City is not required to follow state law if it
adopts an ordinance to the contrary.
Because Palm Springs is a Charter City, the Council may establish other times and
procedures for a special election,but must do so by ordinance. As noted above,the Charter
provides that such an ordinance must be adopted within 45 days following the vacancy.
Procedures for holding special elections may be adopted as an emergency ordinance.
Currently,there is only one ordinance adopted in Palm Springs regarding special
elections "procedures." Palm Springs Municipal Code § 2.04.070 establishes the procedures
that must be followed when the Council chooses to appoint an interim councilmember to serve
until the date of a special election. § 2.04.070 provides, in its entirety:
"The city council may fill vacancies in its membership by appointment or by
special election, as provided by state law. In addition, in calling a special
election, pursuant to Government Code Section 36512.2,6 the city council may
make an interim appointment to fill the vacancy until the date of the special
election. Where an interim appointment is to be made,the city council shall
follow the provisions of this section. The council, no later than forty-five days
after the date of commencement of a vacancy, shall call a special election to fill
the vacancy. The person elected at the special election shall fill the term of the
former incumbent. The council shall also, at the same time it calls the special
election, appoint a person to fill the vacancy on an interim basis until the date of
the special election and their successor is elected and qualified. Any special
election under this section may be held on the date of the next regularly scheduled
election to be held throughout the city not less than ninety days from the call of
the special election, unless such an election date falls more than two hundred
seventy days from the call of the special election, in which case the special
6 Government Code§ 36512.2 provides that an interim appointment may serve until the next regularly
scheduled city council election,and then the election winner would serve the remainder of the term. Since the next
regularly scheduled city council election is November 2003,this result is the same as if the person appointed served
until the expiration of Councilman Jones'terns. (See City Council choice number(1),above.
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David J. Aleshire
December 5, 2001
Page 6
election shall be held on the next regularly established election date set forth in
Election Code Section 25007 that is not less than ninety days from the call of the
special election."
This provision provides three important timing considerations if the Council wishes to
call a special election and appoint someone in the interim. First, the interim councilmember
must be appointed at the same time the Council calls for the special election. Second, the special
election must be called within 45 days of the vacancy. So, if the vacancy occurs as expected on
December 12, 2001, the election must be called by January 26, 2002. Third,the special election
cannot be held on a date sooner than 90 days after the date the Council calls for the election.
Also, if the date for the special election is more than 270 days after the date the Council calls for
the election,then the special election must be held on the"next regularly established election
date set forth in [state law]." In the instant case, however,the only election remaining for which
the vacancy can be filled is November 5, 2002.
CONCLUSION#5: If the council chooses to hold a special election, the Council may
appoint an interim councilmember to serve until the special election is
held.
Although state law ordinarily prohibits the interim appointment of councilmembers
pending a special election, Palm Springs, as a charter city, may provide for such appointments.
Palm Springs City Charter § 305 expressly provides:
" . . . If[the] city council calls a special election to fill the vacancy,the city
council may make an interim appointment to fill the vacancy until the date of the
special election . . .."
Therefore,under the Palm Springs Charter, an interim appointment may be made until
the time the special election is called.
7 Section 2500 has been repealed and replaced by Elections Code§ 1000.
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OFFICE MEMORANDUM
TO: David Aleshire, City Attorney CC:
FROM: Doug Haubert,Deputy City Attorney
FILE NO, 04195-000I
DATE: December 5,2001
RE: City Council Vacancy Created by Councilman Jim Jones'Resignation
INTRODUCTION
On December 4,2001,Palm Springs City Councilman Jim Jones announced he is
resigning from the Council effective December 12th. If he did not resign, Councilman Jones'
term would naturally expire in November 2003_ His announcement of resignation raises a
number of legal and procedural questions you have asked me to research, including:
Question #1: What is the effective date of Councilman Jones'resignation and could he
withdraw his resignation before the effective date?
Question #2: If the Council calls a special election,when could the election be held and what
deadlines must be met?
Question #3: If the Council calls a special election, could the Council appoint someone to fill
the vacancy until the special election?
QUESTION M.
Question #1: What is the effective date of Councilman Jones' resignation and could he
withdraw his resignation before the effective date?
Answer: Provided his resignation is made in writing to the city clerk,his resignation will
be effective on December 12, 2001, at which time the seat will become"vacant."
He may withdraw his resignation any time before its effective date.
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Page 2
Analysis
A resignation must be in writing and made to the city clerk.] Assuming Councilman
Jones provides a written resignation to the city clerk before December 12, 2001,specifying that
date as the date of his resignation,then that date is the effective date of his resignation and the
date the office becomes"vacant."2 "Acceptance"of his resignation is a formality that will not
affect the resignation because no acceptance is required.3
The fact that an elected public official's resignation may be withdrawn before its
effective date is well-settled law in California. aPeople v. Porter(1856) 6 Cal. 26, the
California Supreme Court decided the very issue of when an announced resignation takes effect
in a similar case involving an elected judge. The court stated:
"Tile resignation of Badgley,by its terms,was to take effect on the 1st of
September. I have no doubt that it was in his power at any time before that date,
to withdraw his resignation and continue in office. Not having done so, the
resignation became effectual, and a vacancy was created on that day."
Accordingly, if Councilman Jones changes his hind between now and December 12,
2001,he may withdraw his resignation.
QUESTION#2.
Question #2: If the Council calls a special election,when could the election be held and what
deadlines must be met?
Answer: 'Unless the Council establishes a different election date,the election must be held
on the date of a regularly-scheduled election: March 5th. April 9th,or November
5th. The Council may establish other times and procedures for a special election,
but must do so by ordinance.
Analysis
A., Palm Springs City Charter Controls.
Cal.Gov.Code§ 1750(e).
People v Porrer(1856)6 Cal.26,People u rel. U.S. Webb v. Alarsh(1916)30 Cal.App.424.
a Meeker v.Reed(1924)70 Cal,App.119,
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The California Constitution gives obarter cities broad authority to "make and enforce all
ordinances and regulations in respect to municipal affairs,"4 Furthermore, city charters adopted
pursuant to the Constitution"shall supercede any existing charter, and with respect to municipal
affairs shall supercede all laws inconsistent therewith-"5 More specifically,the state Constitution
gives charter cities"plenary authority'over the election,removal, and compensation of
municipal officers,6
Palm Springs City Charter § 305 directly applies to the filling of a mid-term vacancy on
the City Council. Charter § 305,paragraph 2,provides, in its entirety:
"A vacancy in the city council, from whatever cause,maybe filled by
appointment by a majority of the remaining members of the city council, or by
special election. Any person appointed or elected to fill a vacancy in the city
council shall serve the remaining unexpired term of the office. In the event it
shall fail to fill a vacancy by appointment with forty-five days after such office
shall become vacant,the city council shall cause an election to be held forthwith
to fill such vacancy. If the city council calls a special election to fill the vacancy,
the city council may make an interim appointment to fill the vacancy until the
date of the special election. The times and procedures for the calling of any
special election to fill a city council vacancy may be established by ordinance,"
A plain reading of this Charter provision concludes the Council has three choices:
(1) The Council may appoint a person to fill the vacancy until the natural expiration of
Councilman Jones' term,i.e.,until November 2003.
(2) The Council could call for a Special Election and the winner would fill the vacancy
until the natural expiration of Councilman Jones' term,i.e.,November 2003.
(3) The Council could appoint someone to serve as an interim councilmember and that
person would serve until the Special Election, and the winner of the Special Election
would fill the vacancy until the natural expiration of the term,i.e.,November 2003,
Perhaps the most important part of Palm Springs Charter§ 305 is the last sentence, which
reads"The times and procedures for the calling of any special election to f ll a city council
vacancy may be established by ordinance." This provision allows the City great flexibility to
4 Cal.COP5t.,art Xl, §5(a),
5 Cal.Const.,art.XI, §5(a).
G Cal.Const.,art.XI,§5(b);Younger Y.Board of Supervisors(1979)93 Cal.App.3d
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craft a procedure for holding"any special election to fill a city council vacancy." Accordingly,
the City is not required to follow state law if it adopts an ordinance to the contrary.
Currently, there is only one ordinance adopted in Palm Springs regarding special
elections"procedures." Palm Springs Municipal Code §2.04.070 establishes the procedures
that must be followed when the Council chooses to appoint an interim cotmcilmember to serve
until the date of a special election. § 2,04.070 provides, in its entirety:
"The city council may fill vacancies in its membership by appointment or by
special election, as provided by state law. In addition,in calling a special
election,pursuant to Government Code Section 36512.2,7 the city council may
make an interim appointment to fill the vacancy until the date of the special
election. Where an interim appointment is to be made,the city council shall
follow the provisions of this section. The council,no later than forty4llve days
after the date of commencement of a vacancy, shall call a special election to fill
the vacancy. The person elected at the special election shall fill the term of the
former incumbent. The council shall also, at the same time it calls the special
election, appoint a person to fill the vacancy on an interim basis until the date of
the special election and their successor is elected and qualified. Any special
election under this section may be held on the date of The next regularly scheduled
election to be field throughout the city not less than ninety days from the call of
the special election,unless such an election date falls more than two hundred
seventy days from the call of the special election,in which case the special
election shall be held on the next regularly established election date set forth in
Election Code Section 2500s that is not less than ninety days from the call of the
special election."
This provision provides three important timing considerations if the Council wishes to
call a special election and appoint someone in the interim. First,the interim councilmember
must be appointed at the same time the Council calls for the special election. Second,the special
election must be called within 45 days of the 'vacancy. So, if the vacancy occurs as expected on
December 12,2001, the election must be called by January 26, 2002. Third,the special election
cannot be held on a date sooner than 90 days,nor later than 270 days, after the date the Council
calls for the election.
r Government Code§ 36512.2 provides that an interim appointment may serve until the next regularly
scheduled city council election,and then the election winner would serve the remainder of the term. Since the next
regularly scheduled city council election is November 2003,this result is the same as if the person appointed served
until the expiration of Councilman Jones' term. (Sce City Council choice number(1),above.
E Section 2500 has been repealed and replaced by Elections Code§ 1000.
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B. Absent a City Ordinance, California Elections Code will Control Procedures.
The City of Pahn Springs adopts all state election laws not in conflict with the City's
Charter or Mruiicipal Code, Palm Springs Charter § 802 provides:
"Unless otherwise provided by ordinance, all elections shall be held in accordance
with the provisions of the Elections Code of the State of California, as the same
now exist or hereafter may be amended, for the holding of municipal elections, so
far as the same are not in conflict with this Charter."
Therefore, absent a conflicting charter provision(or City ordinance since the Charter expressly
permits the adoption of special election procedures by ordinance),we look to state law for all
election procedures the establishing of election dates.
1. EIection Dates.
Elections Code § 1000 provides,in relevant part:
"The established election dates in each year are as follows:
(a) The second Tuesday of April in each even-numbered year, . . .
(c) The first Tuesday in March in each even numbered year, . . .
(e) The first Tuesday after the first Monday in November of each year,"
Elections Code § 1003(b)provides that these election dates do not apply to elections held
in chartered cities in which the charter provisions are inconsistent with these dates. The Palm
Springs Charter is silent on the establishing of specific special election dates although, as
discussed above, § 305 of the Charter provides"[t]he times and procedures for the calling of any
special election to fill a city council vacancy may be established by ordinance." Therefore,the
Pahn Springs City Council has the flexibility of calling a special election to fill the Jones
vacancy on a day proscribed by state law, or at another date,if it chooses to do so by ordinance.
2. Special Election Procedures.
State law provides that for a special Local election,the governing body of the local agency
shall issue a proclamation or a resolution calling the election. In accordance with the City
Charter§ 305, this proclamation or resolution must be within 45 days of the creation of the
vacancy.
Furthermore,if the Council chooses to appoint an interim councilmember until a special
election is called,the election may not be less than 90 days, or more than 270 days, after the
calling of the election.
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Also, California Elections Code § 12101 (a)provides that notice of the meeting must be
published between 127 and 113 days before the election, specifically:
"Not earlier than the 127th nor later than the 113th day before any municipal
election to fill offices,the city elections official shall publish a notice of the
election in the city pursuant to Section 6061 of the Govenunent Code. The notice
shall be headed"Notice of Election," and shall contain a statement of: (1)The
time of the election. (2)The offices to be filled, specifying Rill term or short term,
as the case may be."
The April 9th election date is 73 days after January 26, 2002, and 118 days after
December 12,2001, Therefore,unless the council adopts by ordinance a different"notice"
procedure,the election should be called no later than December 17,2001,to comply with
Elections Code $ 12101.
If Called at Council Meeting: #days until #days until
April 9,2002 November 5,2002
December 12,2001 118 328
December 19, 2001 ill 321
January 2,2002 97 307
1.January 16, 2002 83 293
III,
Question#3: If the Council calls a special election, could the Council appoint someone to fill
the vacancy until the special election?
Answer: Yes, clearly, as such an interim appointment is provided for in the City's Charter.
IRv#17025 v l
DRAFT
')1V-
We, the undersigned citizens, hereby request that the City Council for the City of
Palm Springs hear our voices.
We, the undersigned citizens, hereby request that members of the City Council
select former Councilwoman Deyna Hodges to fill the vacancy recently created by
the resignation of Councilman Jim Jones.
The Mayor and other Councilmembers recognized Deyna Hodges' 11 years of
outstanding service on December 4, 2001 and we are here to recognize it today.
We, the undersigned citizens, hereby urge the City Council to make the
appointment of Deyna Hodges to the vacant Council seat without further delay.
PRINT NAME SIGNATURE ADDRESS
We, the undersigned citizens, hereby request that the City Council for the City of
Palm Springs hear our voices.
We, the undersigned citizens, hereby request that members of the City Council
select former Councilwoman Deyna Hodges to fill the vacancy recently created by
the resignation of Councilman Jim Jones.
The Mayor and other Councilmembers recognized Deyna Hodges' 11 years of
outstanding service on December 4, 2001 and we are here to recognize it today.
We, the undersigned citizens, hereby urge the City Council to make the
appointment of Deyna Hodges to the vacant Council seat without further delay.
PRINT NAME SIGNATURE ADDRESS
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We, the undersigned citizens, hereby request that the City Council for the City of
Palm Springs hear our voices.
We, the undersigned citizens, hereby request that members of the City Council
select former Councilwoman Deyna Hodges to fill the vacancy recently created by
the resignation of Councilman Jim Jones.
The Mayor and other Councilmembers recognized Deyna Hodges' 11 years of
outstanding service on December 4, 2001 and we are here to recognize it today.
We, the undersigned citizens, hereby urge the City Council to make the
appointment of Deyna Hodges to the vacant Council seat without further delay.
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Preserve and Restore the Historic o��` � " �
Palm Springs Biltmore Hotel
To the Palm Springs City Counsel:
I urge the City Counsel to reconsider and reverse its decision to demolish the historic
Palm Springs Biltmore Hotel on Highway 111. I v,,ould support a plan for this landmark hotel
to be restored to it original condition and put back into operation through private funding.
SIGi`rATURE PRINTED NAME ADDRESS
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Preserve and Restore the Historic
Palm Springs Biltmore Hotel
To the Palm Springs City Counsel:
I urge the City Counsel to reconsider and reverse its decision to demolish the historic
Palm Springs Biltmore Hotel on Highway 111. I would support a plan for this landmark hotel
to be restored to it original condition and put back into operation through private funding.
SIGNATURE Pam TED NAME ADDRESS
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Preserve and Restore the Historic
Palm Springs Biltmore Hotel
To the Palm Springs City Counsel:
I urge the City Counsel to reconsider and reverse its decision to demolish the historic
Palm Springs Biltmore Hotel on High�vay 111. I would support a plan for this landmark hotel
to be restored to it original condition and put back into operation througn private funding.
SIGYATU,RE PRINTED-NAME ADDRESS
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