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HomeMy WebLinkAboutStaff Report 15012 (2) City of Palo Alto (ID # 15012) Office of the City Attorney City Council CAO Report Meeting Date: 12/12/2022 Report Type: Action Items Title: Approval of Response to the Grand Jury Report "If You Only Read the Ballot, You're Being Duped" From: Molly Stump, City Attorney Recommendation Staff recommends that Council approve the proposed response to the Santa Clara County Civil Grand Jury Report entitled, “If You Only Read the Ballot, You’re Being Duped,” dated October 7, 2022. Executive Summary The Grand Jury Report surveyed several agencies in Santa Clara County and made findings and recommendations for action with respect to the drafting of ballot measure questions. A copy of the Grand Jury Report is included as Attachment A. The proposed City response for Council approval is Attachment B. Discussion In California, the Civil Grand Jury is convened on an annual basis by the Superior Court in each of the 58 counties to investigate and report on the operations of local government. The Civil Grand Jury is composed of citizen volunteers appointed by the Court. In conducting its work, the Grand Jury has broad access to public officials, employees, records and information. The website of the California Courts describes the operations of the Civil Grand Jury this way: As a truly independent body, each grand jury is free to choose which local governmental entities or public officials to investigate. With very limited exceptions, no one outside the grand jury can direct it to conduct an investigation. Ideas for investigations generally come by way of three avenues: • citizen complaints, • matters raised by the members of the grand jury, and • referrals from the preceding grand jury. Page 2 During its investigations, the grand jury acts as a finder of fact. In addition to determining if the official or entity under investigation is adhering to the laws that govern the operations of that entity, the jury analyzes whether the entity is operating in a businesslike manner and providing public services effectively and economically. While it has no authority to order or otherwise compel compliance with its recommendations, it is through its reports that the grand jury wields its power. State law requires government entities to respond in writing to Grand Jury findings and recommendations that are directed at the entity. Responses are due no later than 90 days from issuance of the report. The City’s response to the October 7, 2021 Grand Jury report is due on January 5, 2023. California Penal Code § 933.05 provides that responses be in the following form: • As to each grand jury finding, the responding person or entity shall indicate one of the following: (1) The respondent agrees with the finding. (2) The respondent disagrees wholly or partially with the finding, in which case the response shall specify the portion of the finding that is disputed and shall include an explanation of the reasons therefor. • As to each grand jury recommendation, the responding person or entity shall report one of the following actions: (1) The recommendation has been implemented, with a summary regarding the implemented action. (2) The recommendation has not yet been implemented, but will be implemented in the future, with a timeframe for implementation. (3) The recommendation requires further analysis, with an explanation and the scope and parameters of an analysis or study, and a timeframe for the matter to be prepared for discussion by the officer or head of the agency or department being investigated or reviewed, including the governing body of the public agency when applicable. This timeframe shall not exceed six months from the date of publication of the grand jury report. (4) The recommendation will not be implemented because it is not warranted or is not reasonable, with an explanation therefor. Staff recommends that Council approve the proposed response at Attachment B, which is reprinted here for convenience: Civil Grand Jury Finding 1: The Civil Grand Jury finds that in the current environment, which is unregulated at the local level, it is easy for the author of a ballot measure question to write the question in a way that is confusing or misleading to voters. Page 3 City of Palo Alto Response: The City of Palo Alto agrees in part and disagrees in part with this Finding. The City of Palo Alto agrees that the drafting of ballot measure language is an important part of the democratic process, and that local governmental entities that sponsor ballot measures have a responsibility to ensure that ballot measure language is clear, accurate, and useful to voters. The City of Palo Alto disagrees that the current process is “unregulated at the local level.” Ballot measure language is drafted by the City’s professional staff and approved by the elected City Council, according to requirements of the City Charter and state law. Draft ballot measure language is posted publicly in advance of the City Council meeting, and members of the public have an opportunity to provide written and oral input prior to Council approval. After Council approval, if residents believe that a ballot measure question does not meet the standards required by law, the recourse in our system is to the courts. The Grand Jury contends this is an ineffective remedy, but in fact, every election year, many pre-election lawsuits are filed in California that challenge ballot measure language. These can result in courts ordering corrections to ballot questions. Because attorney’s fees are recoverable by a successful challenger under the private attorney general statute (Code Civ. Proc. § 1021.5), challengers with meritorious arguments are generally able to obtain counsel to represent them. The City of Palo Alto also disagrees that the example cited from this jurisdiction—Measure L on the November 8, 2022 ballot—was misleading. The statement “until ended by voters,” to which the Grand Jury objects, is true and accurate, and not misleading. California law requires that tax measures on the ballot include a statement on duration. California Elections Code section 13119(b) states: “If the proposed measure imposes a tax or raises the rate of a tax, the ballot shall include in the statement of the measure to be voted on the … duration of the tax to be levied.” In addition, under California law, the voters can repeal or amend an ordinance that has been adopted by the voters. (Cal. Elections Code section 9217 (“No ordinance that is … adopted by the voters, shall be repealed or amended except by a vote of the people, unless provision is otherwise made in the original ordinance.”).) It is therefore a true statement that if a tax ordinance is approved by the voters and does not have a fixed end date, then it will be in effect until it is ended or repealed by the voters. The Grand Jury opines that this is misleading because it implies “that the measure itself provide[s] for repeal or that voters would have an opportunity to repeal the tax when they did not.” While it is true that Palo Alto’s measure itself did not specify a process for voter repeal, that is because voters already have that power under the Elections Code. Under state law voters exercise that power by circulating a petition. For these reasons, “until ended by voters” is a true statement of the law, and therefore is not misleading. Civil Grand Jury Recommendation 1b: Page 4 Governing entities within Santa Clara County should voluntarily submit their ballot questions to the County Counsel for review prior to submission to the Registrar of Voters, unless and until recommendation 1d is implemented. City of Palo Alto Response: The recommendation is not warranted and accordingly will not be implemented by the City of Palo Alto. The Grand Jury’s proposal to empower the County Counsel to review ballot questions, and presumably order changes, is not appropriate for charter cities like Palo Alto, which are separate government entities with independent constitutional authority to control our own elections. Article XI, section 5, subdivision (b) of the California Constitution states that “[i]t shall be competent in all city charters to provide, in addition to those provisions allowable by this Constitution, and by the laws of the State for: … conduct of city elections.” The California Court of Appeal has recognized that “[t]he ‘conduct of city elections’ is one of the few specifically enumerated core areas of autonomy for home rule cities.” (Traders Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37, 46.) The County Counsel is appointed by and serves at the pleasure of the County Board of Supervisors. Giving authority to the County Counsel to review and edit ballot questions for the City of Palo Alto would impinge on Palo Alto’s constitutional authority over its elections. The effect would be to reduce local control by shifting authority to a government entity that is not accountable to Palo Alto residents. Civil Grand Jury Recommendation 1c: Governing entities within Santa Clara County should, by March 31, 2023, adopt their own resolution or ordinance to require submission of their ballot questions to the County Counsel for review prior to submission to the Registrar of Voters, unless and until Recommendations 1d and 1e are implemented. City of Palo Alto Response: For the reasons stated in the response to Recommendation 1b, above, the recommendation is not warranted and will not be implemented by the City of Palo Alto. Civil Grand Jury Recommendation 1e: Governing entities within Santa Clara County should submit their ballot questions for review by the Good Governance in Ballots Commission pursuant to Recommendation 1d. City of Palo Alto Response: The recommendation is not warranted and accordingly will not be implemented by the City of Palo Alto. A commission appointed by the County Board of Supervisors poses the same problems identified in the response to Recommendation 1b, above. Page 5 Resource Impact There is no fiscal impact resulting from approval of this Grand Jury Response. Policy Implications The proposed Grand Jury Response reflects the City’s commitment to transparent governance and local control. Environmental Review The proposed response to the Civil Grand Jury Report is not a project under the California Environmental City of Palo Alto Page 5 Quality Act (CEQA). ATTACHMENTS: • Attachment A: Grand Jury Report (PDF) • Attachment B: Response to Grand Jury- Ballot Measure (DOCX) SUPERIOR COURT BUILDING • 191 NORTH FIRST STREET, SAN JOSE, CALIFORNIA 95113 • (408) 882-2721 • FAX (408) 882-2795 G R A N D J U R Y S A N T A C L A R A C O U N T Y October 7, 2022 City of Palo Alto c/o Ms. Lesley Milton, City Clerk 250 Hamilton Avenue Palo Alto, CA 94301 Sent via email: City.Clerk@cityofpaloalto.org Dear Ms. Milton: The 2022 Santa Clara County Civil Grand Jury is transmitting to you its Final Report, If You Only Read the Ballot, You’re Being Duped. California Penal Code § 933(c) requires that a governing body of the particular public agency or department that has been the subject of a Grand Jury final report shall respond within 90 days to the Presiding Judge of the Superior Court on the findings and recommendations pertaining to matters under the control of the governing body. California Penal Code § 933.05 contains guidelines for responses to Grand Jury findings and recommendations and is attached to this transmission. Please note: 1. As stated in Penal Code § 933.05(a), attached, you are required to "Agree" or "Disagree" with each applicable Finding: 1. If you disagree, in whole or part, you must include an explanation of the reasons you disagree. 2. As stated in Penal Code § 933.05(b), attached, you are required to respond with one of four possible actions to each applicable Recommendation: 1b, 1c, 1e. Your comments are due to the office of the Honorable Beth McGowen, 2023 Presiding Judge, Superior Court of California, County of Santa Clara, 191 North First Street, San José, CA 95113, no later than January 5, 2023. Copies of all responses shall be placed on file with the Clerk of the Court. If you have any questions, please contact Britney Huelbig, Deputy Manager for the Civil Grand Jury, at (408) 882-2721 or CGJ@scscourt.org. Sincerely, James Renalds Foreperson, 2022 Civil Grand Jury Enclosures Page 1 of 3 December 12, 2022 Honorable Beth McGowen Presiding Judge Santa Clara County Superior Court 191 North First Street San Jose, CA 95113 RE: City of Palo Alto Response to 2022 Santa Clara County Civil Grand Jury Report: If You Only Read the Ballot, You’re Being Duped Dear Honorable Judge McGowen, The following is the City of Palo Alto’s response to the above-mentioned Grand Jury Report pursuant to California Penal Code §§ 933 and 933.05. Civil Grand Jury Finding 1: The Civil Grand Jury finds that in the current environment, which is unregulated at the local level, it is easy for the author of a ballot measure question to write the question in a way that is confusing or misleading to voters. City of Palo Alto Response: The City of Palo Alto agrees in part and disagrees in part with this Finding. The City of Palo Alto agrees that the drafting of ballot measure language is an important part of the democratic process, and that local governmental entities that sponsor ballot measures have a responsibility to ensure that ballot measure language is clear, accurate, and useful to voters. The City of Palo Alto disagrees that the current process is “unregulated at the local level.” Ballot measure language is drafted by the City’s professional staff and approved by the elected City Council, according to requirements of the City Charter and state law. Draft ballot measure language is posted publicly in advance of the City Council meeting, and members Page 2 of 3 of the public have an opportunity to provide written and oral input prior to Council approval. After Council approval, if residents believe that a ballot measure question does not meet the standards required by law, the recourse in our system is to the courts. The Grand Jury contends this is an ineffective remedy, but in fact, every election year, many pre-election lawsuits are filed in California that challenge ballot measure language. These can result in courts ordering corrections to ballot questions. Because attorney’s fees are recoverable by a successful challenger under the private attorney general statute (Code Civ. Proc. § 1021.5), challengers with meritorious arguments are generally able to obtain counsel to represent them. The City of Palo Alto also disagrees that the example cited from this jurisdiction—Measure L on the November 8, 2022 ballot—was misleading. The statement “until ended by voters,” to which the Grand Jury objects, is true and accurate, and not misleading. California law requires that tax measures on the ballot include a statement on duration. California Elections Code section 13119(b) states: “If the proposed measure imposes a tax or raises the rate of a tax, the ballot shall include in the statement of the measure to be voted on the … duration of the tax to be levied.” In addition, under California law, the voters can repeal or amend an ordinance that has been adopted by the voters. (Cal. Elections Code section 9217 (“No ordinance that is … adopted by the voters, shall be repealed or amended except by a vote of the people, unless provision is otherwise made in the original ordinance.”).) It is therefore a true statement that if a tax ordinance is approved by the voters and does not have a fixed end date, then it will be in effect until it is ended or repealed by the voters. The Grand Jury opines that this is misleading because it implies “that the measure itself provide[s] for repeal or that voters would have an opportunity to repeal the tax when they did not.” While it is true that Palo Alto’s measure itself did not specify a process for voter repeal, that is because voters already have that power under the Elections Code. Under state law voters exercise that power by circulating a petition. For these reasons, “until ended by voters” is a true statement of the law, and therefore is not misleading. Civil Grand Jury Recommendation 1b: Governing entities within Santa Clara County should voluntarily submit their ballot questions to the County Counsel for review prior to submission to the Registrar of Voters, unless and until recommendation 1d is implemented. City of Palo Alto Response: The recommendation is not warranted and accordingly will not be implemented by the City of Palo Alto. Page 3 of 3 The Grand Jury’s proposal to empower the County Counsel to review ballot questions, and presumably order changes, is not appropriate for charter cities like Palo Alto, which are separate government entities with independent constitutional authority to control our own elections. Article XI, section 5, subdivision (b) of the California Constitution states that “[i]t shall be competent in all city charters to provide, in addition to those provisions allowable by this Constitution, and by the laws of the State for: … conduct of city elections.” The California Court of Appeal has recognized that “[t]he ‘conduct of city elections’ is one of the few specifically enumerated core areas of autonomy for home rule cities.” (Traders Sports, Inc. v. City of San Leandro (2001) 93 Cal.App.4th 37, 46.) The County Counsel is appointed by and serves at the pleasure of the County Board of Supervisors. Giving authority to the County Counsel to review and edit ballot questions for the City of Palo Alto would impinge on Palo Alto’s constitutional authority over its elections. The effect would be to reduce local control by shifting authority to a government entity that is not accountable to Palo Alto residents. Civil Grand Jury Recommendation 1c: Governing entities within Santa Clara County should, by March 31, 2023, adopt their own resolution or ordinance to require submission of their ballot questions to the County Counsel for review prior to submission to the Registrar of Voters, unless and until Recommendations 1d and 1e are implemented. City of Palo Alto Response: For the reasons stated in the response to Recommendation 1b, above, the recommendation is not warranted and will not be implemented by the City of Palo Alto. Civil Grand Jury Recommendation 1e: Governing entities within Santa Clara County should submit their ballot questions for review by the Good Governance in Ballots Commission pursuant to Recommendation 1d. City of Palo Alto Response: The recommendation is not warranted and accordingly will not be implemented by the City of Palo Alto. A commission appointed by the County Board of Supervisors poses the same problems identified in the response to Recommendation 1b, above.