BILL ANALYSIS
SENATE LOCAL GOVERNMENT COMMITTEE
Senator Richard K. Rainey, Chairman
BILL NO: SB 1477 HEARING: 5/3/00
AUTHOR: Lewis FISCAL: No
VERSION: 4/25/00 CONSULTANT: Swenson
BENEFIT ASSESSMENTS
Background and Existing Law
Proposition 218 (1996) limited local officials' powers to
impose taxes, levy benefit assessments, and charge fees.
The Legislature translated these new constitutional limits
on benefit assessments into statutory procedures for
notice, hearing, and protests (SB 919, Rainey, 1997).
Existing law requires local officials to mail notices to
all affected property owners at least 45 days before the
public hearing on the proposed assessment. Each notice
must include an assessment ballot, which may be used by the
property owner to cast a vote either in favor or against
the proposed assessment. At the conclusion of the public
hearing, local officials must calculate the ballots
submitted. Assessment proceedings must stop if officials
receive more protesting ballots than supporting ballots.
While the 1997 Rainey legislation provided a general
process for assessment proceedings, several issues went
unresolved, including concerns about the confidentiality of
assessment ballots. The "assessment ballot proceeding"
created under Proposition 218 is specifically not an
election, and therefore not subject to the Elections Code
provisions regarding the confidentiality of ballots. On
the other hand, it is not clearly subject to the Public
Records Act either because it is not strictly a majority
protest proceeding.
The Legislature attempted to resolve the ambiguity by
treating assessment ballots under Proposition 218 as
election ballots - confidential and not subject to
disclosure under the California Public Records Act.
However, perceived as too extreme, the measure failed (SB
55, Kopp, 1997). A more common view is that because the
new assessment procedure occurs in the context of a
majority protest hearing, there should be an open public
process.
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Local officials have primarily adopted an "open process
view" for handling assessment ballots but with varying
degrees of ballot confidentiality protection. Some
jurisdictions keep the ballots sealed until the conclusion
of the public hearing, a practice supported by a recent
Legislative Counsel opinion. Others open them for public
viewing as soon as they are received. Some of these
agencies publicize a running tally, while others allow
immediate public viewing of the individual ballots. This
latter practice has been criticized by taxpayers and local
officials alike because they are concerned that it allows
proponents and opponents of a proposed assessment to
identify voters and lobby -- even harass by some accounts
-- property owners during the assessment ballot proceeding
in an effort to influence the outcome of the election.
After several perceived abuses, the author wants to clarify
the handling of local assessment ballots under Proposition
218.
Proposed Law
Senate Bill 1477 clarifies the confidentiality status and
tabulation process of assessment ballots under Proposition
218 assessment proceedings. More specifically, SB 1477
requires that:
Ballots mailed by local agencies be in a form that
conceals their contents once sealed by the voter.
Ballots remain sealed until the tabulation of ballots
following the public hearing on the assessment.
Ballots be tabulated by an impartial person designated
by the agency who does not have a vested interest in
the outcome of the proposed assessment.
During and after the tabulation, the assessment
ballots be treated as public documents and be
available to both the proponents and opponents of the
proposed assessment.
Comments
1. Clarify the rules . Because of ambiguities in the
current statute regarding the handling of local assessment
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ballots, local officials follow a variety of procedures.
Some have treated the ballots strictly as public records,
deeming them open to public inspection upon receipt by the
agency. Others have released the ballots for public
inspection only after tabulating the votes. A few agencies
have treated the ballot procedure like an election,
preserving the confidentiality of the ballots even after
releasing the voting results to the public. This uneven
application of Proposition 218 has resulted in confusion
for both local officials and taxpayers. SB 1477 treats the
assessment ballots as public records but requires
tabulation and confidentiality safeguards. By spelling out
the procedures, SB 1477 clarifies the process for everyone
and provides for the consistent application of Proposition
218.
2. Election or majority protest ? Current law is ambiguous
as to classifying the new assessment protest procedure
created under Proposition 218. The "assessment ballot
proceeding" is specifically not an election, and therefore
not subject to the Elections Code provisions regarding
confidentiality of ballots. On the other hand, it is not
clearly subject to the Public Records Act either because it
is not strictly a majority protest proceeding. SB 1477
assumes that the assessment ballots are public records,
subject to the Public Records Act. This means that the
public can know not only which property owners voted
(including developers and businesses as well as private
citizens), but also how they voted. The Committee may wish
to consider if this is the appropriate resolution to the
continuing debate over the confidentiality of Proposition
218 assessment ballots.
3. Middle ground . Most jurisdictions currently take an
open process approach to their assessment ballot
proceedings. Most agencies also at least acknowledge
ballot confidentiality issues and are concerned with
preserving the integrity of the balloting process. SB 1477
takes the middle ground by treating assessment ballots as
public records but requiring tabulation and confidentiality
safeguards. This approach validates the open process
approach that most jurisdictions currently adhere to while
protecting property owners from lobbying and intimidation
during the balloting procedure. While some local officials
dislike the protections, a recent Legislative Counsel
opinion supports the procedure in SB 1477.
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4. Keep it fair . Current law is vague regarding who can
count the votes submitted on assessment ballots. Some
observers note that a few agencies have engaged in "sloppy"
tabulation practices, including an "interested" party
officially tabulating the votes on their home computer.
Such practices call into question the fairness of the
process, the validity of the outcome, and undermine the
public confidence in the system. By requiring agencies to
follow specific guidelines when tallying votes, SB 1477
keeps the process fair and open, and reduces chances for
abuse.
Support and Opposition (4/27/)
Support : Howard Jarvis Taxpayers Association.
Opposition : League of California Cities.