Prop 218 Process A Flawed Democratic Process

A normal democratic process goes something like this, every registered voter has the right to vote.  Those who choose to return a ballot, either by mail or at the polls, have their preferences tallied.  Everyone 18 years of age, who is not currently incarcerated for a felony or on probation, has the right to vote.  The person or issue position with the most votes cast by the voters wins.

The Howard Jarvis Taxpayers Association wrote in the text, “Local governments have subjected taxpayers to excessive tax assessment, fee and charge increases that not only frustrate the purposes of voter approval for tax increases, but also threaten the economic security of all Californians and the California economy itself. This measure protects taxpayers by limiting the methods by which local governments exact revenue from taxpayers without their consent.”

However, the language contains an explicit exception for water or sewer services.

What has developed under Proposition 218 is a wholly undemocratic process.  First, people have to actively challenge the rate hike rather than simply going to the vote.  Anyone who does not challenge the rate hike is assumed to support the rate hike.

That means that, in order to defeat the rate hike, you need not the majority of those who cast a ballot or file a protest, but the majority of ratepayers.

And that is the second part of the process that is undemocratic.  Only “ratepayers,” defined as property owners, have the right to protest.  Nevermind that apartment and other renters may very well have to pay increased water costs, as the rates are passed through by property owners and landlords.

Rancho Yolo residents are in a special kind of dilemma because they own their homes, but not the property on which their homes reside, making them ineligible to vote even though they may be impacted by the rate hikes.

All of this, of course, has been discussed.  What we have learned, however, is that even trying to mobilize a rate protest is tricky.

In a normal election, activists can gain access to lists of voters through the County Elections Office.  That gives them the opportunity to contact voters and influence their vote, whether it be through the mail, door-to-door or by phone.

However, the Vanguard has learned that in the case of a Prop 218 vote, citizens are not able to obtain a list of ratepayers to contact and to encourage to protest against the water rate hikes.

Government Code Section 6254.16 prohibits the city from giving out information on utility customers.

According to Kimberly Hood, an associate of City Attorney Harriet Stein, the Public Records Act contains a specific exemption for utility customer information.

“Specifically, the Public Records Act exempts from disclosure the name, credit history, utility usage data, home address, or telephone number of utility customers, subject to certain limited exceptions, such as where the information is being made available to a family member to whom the information pertains or upon a court order,” Ms. Hood wrote.

However, she added, “The City can provide a list of the parcels subject to utility rates.”

This provision makes a Prop 218 challenge in any sizable city a virtual impossibility.  Not only are non-homeowners precluded from voting, not only must there be a majority of ratepayers to return the ballots, but it is nearly impossible to seek out and contact would-be voters to get them to turn in their ballots.

One, it would appear, could not have designed a more impossible situation if he or she had tried.  While perhaps well intentioned, the Proposition 218 process makes passage in an area the size of Davis impossible.

A couple of years ago, El Macero was able to successfully protest their water rate hikes, but that is a small geographic area that is easily walkable.  This is a city with 65,000 people and numerous parcels.

Fortunately, as we have reported on a frequent basis, Prop 218 is not the only remedy.  Some have suggested that a referendum circumvents the will of the voters who passed Prop 218.

I do not buy that reasoning.  It is doubtful that the people who passed Prop 218 had any idea how difficult and arduous a process it would be to successfully challenge rate hikes.  I suspect that if they did realize it, they would not have supported it.

But, more importantly, it does not matter.  In order to pass a rate hike to the voters, the City of Davis must pass a municipal ordinance.  Every municipal ordinance can be overturned through the referendum process.

That is a check that has been in place since 1911, when progressives led by Governor Hiram Johnson introduced the initiative, referendum and recall at the state and local levels.

In October 1911, the voters ratified these amendments in a special election.

For years, efforts to make democracy more democratic had been thwarted by the control of the Southern Pacific Railroad.  Bribery had been an accepted method of doing business in Sacramento, and a group of reformers sought to change and remake government from the ground up.

As a result of these efforts, citizens gained the right to petition to put on the ballot for approval of the voters, any state or local law.

So those who oppose water rate hikes need not focus merely on the September 6 deadline.  By gathering signatures, they can put the ordinance on the ballot.  By placing it on the ballot, the rules change.

Now a majority of voters who turn out to vote get their votes counted.  All citizens eligible to register to vote can participate.

As we noted previously, the Solano County Taxpayers President Earl Heal wrote the Vanguard recently to note that the City of Dixon was able to repeal the tripling of their sewer rate through a simple initiative.

“Our group has been involved and has helped cities with their Prop 218 process and placing initiatives on the ballot. It may be difficult to collect fifty percent (50%) plus one protests needed to stop the water rate increase,” Mr. Heal told the Vanguard.  “But it is very easy to collect signatures of five percent (5%) of the registered voters who voted in the last gubernatorial ballot.”

In addition to the City of Dixon’s successful efforts, Rohnert Park repealed their water rate increase and the City of Rio Vista  held a special election on June 7, 2011, to bring their water rates back to the 2006 fee structure, and a water district in Sacramento is in the process of collecting signatures for an initiative.

The question, of course, that emerges is, what is the alternative?  There are a few ideas floating around right now, ranging from a longer build up to the high water rates, that would allow people to adjust their budgets and businesses to mitigate the costs over a longer period of time.

There are many who believe that would not work.

There are others that suggest that we do not have to build the water supply project now, that we ought to wait until the sewage treatment plant is upgraded and paid off, and then pursue it.

The regular readers of this column know my position very well.

I believe that this is the wrong time to pursue these kinds of rate hikes.  I think it harms businesses that are struggling in the horrible economy.  It hurts low income residents, perhaps even those who technically would not qualify for subsidies.

And finally I believe it will harm the schools and damage the ability of the district to raise money in the future.

One person who disagrees on this wrote yesterday, “I believe Davis voters will support their schools. I do think the school board will have to work harder to sell the taxes than they have in past decades.”

I do not see the evidence of that.  Earlier this year, Measure A barely passed.  That was before rate hikes.  He might be right that the district will simply have to work harder to win in the future, but I think implementing the rate hikes now puts next year’s parcel tax in deep jeopardy, and definitely the city’s $1 parks tax.

We shall see.

The one big thing that an initiative would gain is that it would change the bargaining power of the two groups.  Obviously, defeating the water rate hikes will not make the project go away, but it will force the city to have to figure out alternative ways to finance, and force them to perhaps forestall this or cut the costs.

That cannot be a bad thing.

—David M. Greenwald reporting

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