The City of Oxnard is playing fast and loose with the rules ... again.
California Elections Code 9280 requires the City Attorney to draft an impartial analysis of our initiative to be printed in the voter handbook. Here is what it states (we have underlined portions for emphasis):
Whenever a city measure qualifies for a place on the ballot, the governing body may direct the city elections official to transmit a copy of the measure to the city attorney, unless the organization or salaries of the office of the city attorney are affected. The city attorney shall prepare an impartial analysis of the measure showing the effect of the measure on the existing law and the operation of the measure. The analysis shall include a statement indicating whether the measure was placed on the ballot by a petition signed by the requisite number of voters or by the governing body of the city.
If the measure affects the organization or salaries of the office of the city attorney, the governing board may direct the city elections official to prepare the impartial analysis. The analysis shall be printed preceding the arguments for and against the measure. The analysis shall not exceed 500 words in length.
In the event the entire text of the measure is not printed on the ballot, nor in the voter information portion of the sample ballot, there shall be printed immediately below the impartial analysis, in no less than 10-point bold type, a legend substantially as follows: "The above statement is an impartial analysis of Ordinance or Measure ____. If you desire a copy of the ordinance or measure, please call the elections official's office at (insert telephone number) and a copy will be mailed at no cost to you."
Today, the city made available the City Attorney's Impartial Analysis of Measure "M" and this is what it says:
City of Oxnard
City Attorney’s Impartial Analysis of Measure “M”
Background: State law authorizes cities to provide sewer services, also known as wastewater services, and to charge rates for such services. By State law, utility rates may not exceed the cost of providing the utility service. The City provides such wastewater services, and in 2015, the City used an expert consultant to conduct a Cost of Services Study, which provided the basis for a five-year schedule of wastewater rates. The rates were intended to produce enough funds to pay the wastewater utility’s debts to its bondholders, for recommended facility improvements, and for other operational costs to comply with State public health permit requirements.
The City held community workshops to inform residents of the possible new rates. The City also conducted a public hearing, as required by State law, to obtain the residents’ feedback. The City Council adopted the new rates, which took effect in March 2016, and were at or below the rates supported by the Cost of Services Study.
The Measure: Measure “M”, if approved by the voters, repeals the City’s new wastewater rates and reverts the rates to the levels they were before March 2016. A legal question exists regarding whether an initiative measure can roll back wastewater rates to a point that a utility would not be able to pay its bondholders and fund current maintenance and operational expenses. The validity of Measure “M” is the subject of a lawsuit regarding whether the Measure sets rates too low to cover the costs required by State law. The Court decided that it will not determine these issues until after the election, and the Court would only decide these issues if the Measure passes. Thus, it is possible that the Measure will not take effect even if approved by the voters.
Measure “M” was placed on the ballot by a voter petition and would require a majority of votes to become effective.
A “Yes” vote would rescind the wastewater rate schedule that took effect in March 2016, and the rates would revert to their prior levels.
A “No” vote would maintain the wastewater rate schedule that took effect in March 2016.
The above statement is an impartial analysis of Measure “M”. If you desire a copy of the Measure “M”, please call the elections official’s office at (805) 385-7803 and a copy will be mailed at no cost to you.
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As currently drafted, we believe the above statement is in violation of the California Elections Code. In no more than 500 words the City Attorney may only state the following:
- The effect of the measure on the existing law and the operation of the measure
- whether the measure was placed on the ballot by a petition signed by the requisite number of voters or by the governing body of the city.
The City Attorney's discussion of the background does not address the effect on existing law, nor the operation of the measure. The fact that there was a cost of service study that "intends" to achieve certain outcomes is irrelevant. Whether the city held community workshops or required public hearings is orthogonal. Mentioning that there is a "legal question" and that the measure is being litigated is particularly outrageous because it is the city initiating the lawsuit. And even then, the City Attorney makes a factual error when he writes "it is possible that the Measure will not take effect even if approved by the voters." That's nonsense. During our April 15 court hearing Judge Rocky Baio stated that the measure will go into effect if adopted by voters and he believes he does not have the authority to put the measure on hold while the city attempts to overturn it with their lawsuit.
Much of what the City Attorney writes is a back door attempt to advocate a position that should only be stated in a ballot argument, not an impartial analysis. Of course no where in this "impartial" analysis does it mention that the new rates being repealed are 87% higher than the old rates.
A simple, straightforward and legal impartial analysis could have been written as follows:
Measure “M”, if approved by the voters, repeals the City’s new wastewater rates and reverts the rates to the levels they were before March 2016.
Measure “M” was placed on the ballot by a voter petition and would require a majority of votes to become effective.
A “Yes” vote would rescind the wastewater rate schedule that took effect in March 2016, and the rates would revert to their prior levels.
A “No” vote would maintain the wastewater rate schedule that took effect in March 2016.
The above statement is an impartial analysis of Measure “M”. If you desire a copy of the Measure “M”, please call the elections official’s office at (805) 385-7803 and a copy will be mailed at no cost to you.
At tonight's city council meeting we asked that the city contact our attorneys to discuss this. Hopefully, we can resolve this without having to go back to court.