City's legal advice may not be on point | Davis Enterprise
So, City Attorney Harriet Steiner rained on the parade of the 3,866 Davis residents who signed petitions to place the city?s water rate hike on the ballot when she declared ?The city?s newly adopted water rates are not subject to challenge by referendum.?
Well, without belaboring the point, this is the same city attorney who signed off on the incredibly one-sided Zipcar contract summer before last, so her opinion deserves a good deal of objective scrutiny.
It?s interesting that her opinion was released after a number of media requests and was dated Nov. 15, when it?s obvious it was written some time before that. Otherwise, why would there be statements such as ?the county elections official is currently examining the petition to determine whether it contains the required number of signatures??
By Nov. 15, the county already had verified that the referendum petition had qualified.
However, despite the fact I?ve made numerous requests of city officials, both elected and otherwise, as to when this opinion actually was offered, I?ve received absolutely no responses.
One council member did, however, admit that ?Harriet sent us a memo on Nov. 4 concerning whether or not we were bound to honor the referendum. It was confidential because Harriet said it was confidential.
?Personally, I was perplexed as to why council or counsel would want to withhold this information. I personally think that the citizens should have been informed at a far, far earlier point that this might be an issue.?
Amen to that.
But apparently the city attorney thinks she works only for her political allies on the City Council, not for the unwashed masses who pay her salary.
Be that as it may, her analysis of the ?legality? of the referendum process is fatally flawed. I say this despite the fact my hourly rate is considerably less than hers.
First, even Harriet has to admit that ?there are no post-Proposition 218 cases that are directly on point? of her contention that the water rates are not subject to challenge by referendum.
She then notes ?Proposition 218 only addresses initiatives and it is silent with respect to the power of the referendum. The provision?s silence regarding the referendum power to reduce, repeal or affect Proposition 218 fees and charges is a strong indicator that the referendum power is not available for those purposes.?
Hold your horses there, counselor. You?re finding a prohibition where no prohibition exists. Silence does not automatically translate to prohibition.
In fact, a quick look at the opinion of the state Legislative Analyst?s Office concerning Prop. 218 reveals the exact opposite conclusion.
In Appendix I, titled ?Areas in which legislative or judicial clarification may be needed ? Elections,? the LAO asks ?Who may vote on referendums to repeal assessments, fees, or taxes??
Note that magic word ?referendums.? Now, common sense will tell you that if the LAO is asking the question as to who gets to vote in referendums to repeal assessments, fees, or taxes, it presupposes that a referendum itself is completely legal.
The LAO, in fact, is not questioning in any way the right of citizens to use the referendum process. It?s merely raising the question as to who gets to vote once a referendum qualifies for the ballot. In other words, not only is the LAO not silent on referendums, it specifically says they are a part of the process.
That?s enough for me, but there?s much, much more.
Adds the LAO analysis: ?Prior to Proposition 218?s passage, the courts allowed local governments significant flexibility in determining fee and assessment amounts. A business or resident challenging the validity of a fee or assessment carried the ?burden of proof? to show the court that the fee or assessment was illegal.
?Proposition 218 changed this legal standard by shifting the burden of proof to local governments. Now local governments must prove that any disputed fee or assessment charge is legal.?
And furthermore, although there is a legal distinction between initiatives and referendums, the LAO adds ?Proposition 218 eliminates any ambiguity regarding the power of local residents to use the initiative by stating that residents of California shall have the power to repeal or reduce any local tax, assessment or fee.?
Two things to note here. First, the italics on the word ?any? are theirs, not mine. And second, the word ?repeal? generally assumes a referendum, not an initiative. Add that to the fact the LAO specifically recognizes the right to a referendum in its analysis and you pretty much have a slam dunk.
But yes, there?s more.
And I hope the city attorney and all members of the Davis City Council read Section 5 of Proposition 218 before deciding to declare both the referendum petition and the referendum process invalid and effectively slap the faces of all 3,866 citizens of this town who bothered to sign it.
Says Section 5, titled ?Liberal Construction?: ?The provisions of this act shall be liberally construed to effectuate its purposes of limiting local government revenue and enhancing taxpayer consent.?
Game, set, match.
? Reach Bob Dunning at bdunning@davisenterprise.net
Short URL: http://www.davisenterprise.com/?p=105782
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