COMMENTARY: If I Vote No, What Does That Mean? – The Davis City Council made the mistake of most public agencies I have followed for the last twenty years – they listened to the advice of their attorney rather than political advice. It is not that City Attorney Harriet Steiner was completely wrong when she warned that a binding measure could restrict the city’s ability to make changes to decisions as the project moves forward.
Instead, following the advice of counsel, the city council has put themselves into a potentially lose-lose situation. On the one hand, they have essentially promised that they will follow what the voters recommend. But on the other hand, what the voters recommend will not carry with it critical components.
As of right now, the voters will be voting on whether the city should participate in the Woodland-Davis Clean Water Agency
project. They know the size. Presumably they will know the total costs.
But knowing the total cost of the project is like knowing that the characters on your screen are Greek letters without any ability to decipher what the text actually means.
What we do not know now and may not know at the time of the election is what the rate structure will be.
In fact, it appears that the council is planning for the public to approve the rates separately through a Proposition 218 process AFTER they vote on whether or not to approve the advisory ballot measure.
As one of the councilmembers told the Vanguard, they believe that the council has earned credibility on this issue. Last September 6, 2011, the council passed a rate structure that seemed misleading, difficult to understand, and overly expensive.
A group forum distributed and collected signatures that would have put the rates to a public vote. Three months after the September 6 vote, the council rescinded that vote and put us on the current trajectory with the WAC, a March 2013 vote, and a full public process.
But the assumption that the public trusts the council on this issue might be overly optimistic. As one commenter noted: “One can be certain that if the advisory ballot measure is rejected, the Council will cosmetically tweak the JPA plan to appear responsive to the voters and attempt to move forward with it.”
Another commenter added, “and there will be nothing to stop them.”
The council, of course, made it clear that they would abide by the public’s decision, they simply desire the flexibility.
Here is the big problem with an advisory vote. The council has committed to a project – they absolutely believe that the city needs surface water. So what happens if the public votes no on the advisory vote – how would the council interpret that vote? Would they interpret it that the public does not want to go to Woodland? That the public does not want the JPA? That the public does not want this specific project?
If I vote no on this project – what does that mean? How is the council interpreting that result?
One thing we know it doesn’t mean, is it doesn’t mean that the voters are rejecting the rates. The reason we know that is that there will be no rates on the ballot.
In the motion passed by the council, the ballot language reads, “subject to approval of increased water rates by the water customers of Davis following a full Proposition 218 process.”
As the member of the Davis City Council told the Vanguard, there’s always the Prop 218 process.
Memory is obviously very short. The Proposition 218 process is about the most flawed process there is in terms of establishing rates. 57% of the people in this community cannot participate in the Prop 218 process because they are renters, not homeowners.
That is despite the fact that, either directly or indirectly, they will pay for the increased water rates.
Last year, there was a Proposition 218 process. The process requires landowners to submit letters of protest for the water rates. Only landowners count. The requirement is onerous – the protest prevails only if more than half of the owners of the parcels of land submit protests.
Despite the Prop 218 process or more likely because of its flaws, many of the voters of Davis felt short-changed on the process. Many felt disenfranchised by the Prop 218 process. They felt that the rates were set too high, that they were arbitrary, and most importantly, they were convoluted.
What happened next was the referendum signature-gathering process that ultimately ended up with a very narrow qualification of a ballot measure that would have put the rates passed on September 6 on the ballot.
“They have shown they can easily collect signatures for an initiative that would kill the project, regardless of consequences. Faced with this prospect, the City Council on Wednesday was forced to backtrack, repeal the water rate increase approved three months ago and initiate a new rate study,” the Daily Democrat wrote back in December 2011.
I understand why Harriet Steiner would recommend to the council that they put an advisory vote on the ballot. I even understand why her logic made sense.
But Harriet Steiner is a lawyer, not a political consultant.
A political consultant would look at this and realize how problematic this is. First, there will be no rate structure that the voters are approving. That will be a separate process through Prop 218 – a flawed process that could be challenged through a referendum. Second, we will not know which flawed company will win the bidding.
But third, we not only do not know what we are voting for, but even more to the point, what we are voting against. The council says that they will abide by the will of the voters, but in a multiple question ballot, which part will they choose to interpret as the no vote?
Again, will they interpret the no vote to mean no surface water, no Woodland, no JPA, no 12 mgd? Will they interpret it to mean no rate hikes or an objection to the cost? Just what will they abide by?
—David M. Greenwald reporting
If the rate structure isn’t on the ballot I think that all but assures that there will be another referendum.
I thought Woodland needed certainty from Davis? Hence the rush to the March ballot. Honestly, it’s embarrassing to watch yet another debacle unfolding
Michael, I truly believe they would’ve had a better chance of getting this through if they just lay out all the facts in March on the ballot including the rate structure. That way they get an up or down vote on the whole thing. The 218 process is going to start up the whole mess again and I smell another referendum in the air.
a vote yay or nay will be in reference to all elements weighed together, since that is how they are presented. what they will abide by is a whole other matter. the rates should be on the ballot, but alas…
The logic in this piece is very convoluted creating unnecessary uncertainty. A “no” vote kills the surface water project and the JPA, resulting in the city having to drill more deep water wells. By the way, a “no” vote will still trigger a Prop 218 vote because rates will have to be raised to pay for the new wells. Or we wait around for the fines to hit, which will also trigger a Prop 218 vote.
A “yes” vote means we move forward with the surface water project and the JPA. This will result in increased rates to pay for the project, which will trigger a Prop 218 vote.
I don’t know where this conspiracy stuff is coming from about a “no” vote resulting in only a slight tweaking of the surface water project. The council moving forward with a project that has been voted down would most assuredly result in a referendum and recalls.
-Michael Bisch
“I don’t know where this conspiracy stuff”
i’m not sure michael bisch knows what a conspiracy means. there is no need for a conspiracy. the council is not legally bound to do anything in an advisory vote. so what they’ll do – we don’t know. that’s not the definition of a conspiracy. please use a dictionary and pick a different word.
Conspiracy theory: the idea that many important political events or economic and social trends are the products of secret plots that are largely unknown to the general public.
The council puts a project to a vote of the people saying “let the voters decide”. Certain individuals then run around claiming the council will move forward with project regardless of the vote outcome. These is no evidence for this claim. Quite the contrary, it would be impractical for the council to move forward in the event of a “no” vote as I’ve pointed out.
-Michael Bisch
i don’t think there is a secret plot, however, the council is not bound to do anything if the voters oppose an advisory vote.
the council said they were going to put a binding vote, their legal counsel talks them out of it, they said the rates would be on the ballot, they won’t be, they said the full project would be on the ballot, it is not. why is that i might be suspicious of their intent? btw, i’m inclined to support the project on the merits, but do not like this.
So David, your argument is that the City Council should have ignored the advice of their legal council, the mandates of State law, and their own rational discussion of the facts, and made their decision based solely on political expediency?
Is that your idea of leadership and good governance?
“So David, your argument is that the City Council should have ignored the advice of their legal council, the mandates of State law, and their own rational discussion of the facts, and made their decision based solely on political expediency?”
Tomorrow’s story will analyze the advice of legal counsel – what is the compelling legal advice that tells you that the city had to go advisory? What mandate of state law in your estimation precluded the city from having a binding vote?
This is all a red herring. Advisory or binding, has no practical effect. If the voters vote the project down, that’s the end of the project. Let me rephrase, that’s the end of the project until the regulatory fines hit. Given the foregoing, it would be irrational to not heed the legal advise as Mark has pointed out.
And as I pointed out, the rates are going to go up dramatically no matter what. In the absence of the surface water project, we are going to be drilling expensive wells and/or incurring regulatory fines. Even if we choose to stick our heads in the sand, the world around us continues to act.
-Michael Bisch
You are ignoring my question David. When I go to the polls I vote for the person I think will be the strongest leader, not the one who performs the best imitation of a windsock.
So again, do the opinions expressed in your article today reflect your definition of leadership and good governance?
I’m not really sure how to answer your question to be honest Mark – I think it’s a good deal more complicated than that.
I thought the WAC was charged with examining, suggesting rate structure, no?
Are they done?
SODA: draft water rates were discussed at the 10/25 meeting:
[url]http://city-council.cityofdavis.org/on-going-committees/water-advisory-committee/agenda—october-25-2012[/url]
Thx Don
This was the consultant presentation. Assume WAC hasn’t voted on recommendation on rates?
Am confused as to why rates won’t be part of ballot if WAC will have recommended to CC. Is it timing issue?
The ballot measure will and should fail without the rate information. All of the information necessary for Davis voters to make an informed decision will only be offered in stages so that multiple referendums may be necessary to challenge each issue piece as it is presented. The Council/staff are relying on voter “exhaustion” not voter support.
No, David it really isn’t complicated at all. In your article today you argue that the Council should be faulted for making a rational decision instead of blindly following your political calculus.
What you are advocating is the antithesis of leadership.
I assume any rate structure will be challenged by project opponents, who will then use the challenge to advocate (further) delay until the rate issues can be resolved. Which will take forever, thereby delaying the project further. After all, in their opinion, there’s no hurry. At this point I don’t know if delay is a strategy or a policy goal.
Don, there is no hurry
Mark: I ask you again, what is the compelling legal authority that precludes a binding vote here? You want to argue some vague and subjective notion of leadership but you are ignoring the real issue here – that they actually a rather wimpy decision to follow vague legal advice.
Don, endless delays via referendums seems unlikely to me. Just because a referendum qualifies for the ballot does not mean it will survive the vote. And referendum after referendum seems unlikely. Sooner or later referendum fatigue will set in and the will of the majority will win out. It seems to me this March vote will decide the matter. We shall see whether the CC and/or Harrington’s group respect the will of the voters.
-Michael Bisch
It’s not “Harringtons Group”
And yes, I am fatigued. Fatigued from having to read more self-serving drivel by the same attorney involved and paid over $1 million for the hatchet job done in the DACHA housing matter, and the same attorney who certified as legal those Sept 6 2011 rates that were clearly fraudulent and unconstitutional , and the same attorney who wrote a memo the CC tried to hide until outed by Dunning and Greenwald that concluded the 2011 referendum was unconstitutional and not binding in the CC
Mark, yes my froliend, I am fatigued, but not from what you think
Sorry: not Mark but my Downtown friend, Michael B. this IPhone keyboard is terribly small
I’m back East, returning soon to yet another CC legal and PR debacle