Prop 218 Process Remains Problematic

The city has set up a process whereby the voters would vote on whether to approve the water project prior to the ratepayers completing the Prop 218 process.  In yesterday’s column, Bob Dunning argued that the voters ought to know the costs prior to the election and suggested at multiple points that the council and other decision-making may want to “keep the unwashed masses in the dark,” suggesting “what the city wants here is a blank check” in case of cost overruns.

We found his arguments compelling with regard to the concerns about going forward with the election prior to the rate process competition, but we recognize at the same time this is probably seen more as a timing issue than an attempt by the council to keep the voters in the dark about the costs.

Part of the problem with doing the election first, before completing the Prop 218 process, is the patent unfairness of the process itself.

A year ago we discussed the flaws of the Prop 218 process.  In the second portion of Bob Dunning’s Thursday column, he addresses some of those concerns.

Bob Dunning writes, “The city does plan to send out Prop. 218 notices – separate from the actual ballots – before the election, but the problem with that plan is that these notices will go only to ratepayers and not to the general public.”

He notes that roughly 55 percent of those who would be eligible to vote in this election are renters.  He argues “They’ll receive nothing at all in the way of cost information from the city.”

It is unclear if that will be true and certainly the city and the campaign will actually have a strong incentive to fully inform all potential voters.

However, Mr. Dunning is absolutely correct when he writes, “Those renters might not be ‘ratepayers’ in the legal sense of the word, but one way or another they’ll be paying for the increased cost of water as well.”

That is part of the problem with the process – folks who rent homes, particularly, will receive their water bills (if they pay them directly) but have no say in the Prop 218 process.

Mr. Dunning continues: “So 45 percent of voters will get formal notification from the city before the election that their water rates are about to triple, but 55 percent of voters will receive nothing at all from the city. It’s like sending a voter information guide only to Democrats and not to Republicans.”

There are a number of leaps in this logic.  The first, is that he seems to be conflating the voters with the ratepayers.  Second, he’s assuming that 55 percent of the “voters” will receive nothing at all from the city – he simply does not and cannot know that.

He continues: “The city will argue that formal Prop. 218 notices cannot legally be sent to renters, which is true, but there’s nothing in the language of 218 to prevent the city from notifying all voters that water rates will go up dramatically, both for homeowners and apartment building owners, if this project is approved.”

I agree but he does not KNOW that the rest of the voters will not get notification.  That decision has not been made yet.

He adds, “Homeowners and renters can then do what they wish with the information, but they’ll all be on equal footing when they cast their ballots.”

Mr. Dunning continues, “If this thing ever ends up in court, as it well might, I suspect a judge will find it outrageous that one group of voters received valuable cost information before voting and another group of voters didn’t.”

There are several critical problems with Mr. Dunning’s commentary.  First, he continues jumping to conclusions on voter information when those decisions have not been made yet.

Second, he acts as though Prop 218 law has not been tested in courts and that this is the first time for such a test.

There are two critical problems that Mr. Dunning does not quite identify that might be more fruitful avenues.

First, the people in the city who directly pay their rates but who are renters and not offered a stake in the Prop 218 process might be able to pursue a remedy.  The city of Davis claimed last year those renters would be ineligible to participate.

Second, the biggest problem the city faces is the decision to push forward with the election before completing the rate study.  That leaves open a small possibility for a yes vote on the ballot but a successful challenge on the rates (I really don’t see this happening).  But if that happens, the city would conceivably have the ability to introduce another Prop 218 process without the voters having to approve it.

The bottom line is that an election where the voters do not know for certain what the water rates are is problematic.  The city has argued about the timing and about the legality of attempting to referendize the water rates that have been approved through a Prop 218.

The Vanguard does not see this as nearly the insurmountable hurdle that has been portrayed by the city attorney.

As we noted yesterday, the city has likely unnecessarily allowed issues like this to hang out there for Bob Dunning and others to swing away at.  Worse yet, from the city’s perspective, it seems unlikely they will be able to respond until January.  That likely means that Bob Dunning will have free and open season to shape the issues as he sees fit.

The city may survive this, but they are taking a huge and unnecessary risk.

—David M. Greenwald reporting

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