REPORT TO COUNCIL
SUBJECT
Title
Adopt a Resolution Calling a General Municipal Election to be Held in the City of Sunnyvale on Tuesday, November 8, 2016, for the Purpose of Submitting to City Voters an Initiative Ordinance to Require Voter Approval for Any Sale, Lease, Lease Extension, Lease Renewal, Land Swap or Transfer of Property Owned, Leased Or Used by the City as a Public Park or Community Service Amenity (The "Public Lands For Public Use Act"); Requesting Consolidation with the Statewide General Election and Election Services from Santa Clara County; Directing the City Attorney to Prepare an Impartial Analysis; and Setting Priorities for Ballot Arguments
Report
REPORT IN BRIEF
On August 11, 2015, in accordance with California Elections Code Section 9215, Council took action to submit an initiative ordinance, without alteration, to the voters at the next general municipal election to be held on November 8, 2016, and directed staff to bring the necessary actions back at the appropriate time to order an election.
This report provides a summary of the background of the initiative ordinance and presents the resolution required for placing the measure on the ballot.
BACKGROUND
On December 2, 2014, proponents of an initiative titled “Public Lands for Public Use Act” (the “Initiative,” “Ordinance,” or “Measure”) filed a Notice of Intent to circulate a petition to modify the City’s municipal code by requiring prior voter approval for any sale, lease, lease extension, lease renewal, land swap, or transfer of property owned, leased, or used by the City as a public park or community service amenity. Proponents began circulating the petition for signatures on or about February 6, 2015.
Section 1404 of the Sunnyvale City Charter provides that the municipal initiative process is governed by State law (California Elections Code Sections 9200 et. seq.). During circulation of a petition, a legislative body may refer the proposed initiative measure for a report on its impacts (Elections Code Sec. 9212).
On April 21, 2015, Council considered RTC 15-0362, and requested that a Section 9212 report be prepared on the impacts of the proposed initiative ordinance, to be provided to Council at the time the Certificate of Sufficiency was presented.
On June 15, 2015, the initiative petition was filed with the Office of the City Clerk. The City Clerk, as the city elections official, determined there were a sufficient number of signatures to proceed, and requested the Santa Clara County Registrar of Voters (ROV) to provide services for verification of signatures.
On July 27, 2015, the City received a Certificate of Sufficiency from the ROV indicating the petition contained a sufficient number of valid signatures for submission to the voters at the City’s next regular election.
On August 11, 2015, Council considered RTC 15-0747 (Attachment 2), and took action to accept the Certificate of Sufficiency. At that time, Council also received and considered the “Report on Impacts of the ‘Public Lands for Public Use Act’ Initiative prepared under Elections Code Section 9212”. Council took action to order the submission of the initiative ordinance, without alteration, to the voters at the next general municipal election to be held on November 8, 2016, and directed staff to bring the necessary actions back at the appropriate time to order an election.
On June 14, 2016, Council considered RTC 16-0364 to adopt a resolution calling an election to submit the initiative ordinance to the voters. Council took action to direct the City Attorney to evaluate whether the 75-word ballot measure question should be revised to clarify that the ordinance would potentially apply to both leases of city property to others and city leases of property owned by third parties. In addition, following the June 14 meeting, proponents of the measure contacted the City Attorney and raised several questions and concerns related to the ballot question, arguments, and other issues. This report updates the June 14 report to include discussion of the additional issues raised by the Council and proponents.
ENVIRONMENTAL REVIEW
Environmental review of voter-initiated ballot measures is not required under the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines section 15378(b)(3).
DISCUSSION
Consistent with the Council’s direction to return with the actions necessary to place the initiative on the November 8, 2016 ballot, this report provides the Resolution Calling the Election, which is required in order to place the initiative measure on the ballot. In addition to placing the initiative on the ballot, the resolution also directs the City Attorney to prepare an impartial analysis for the measure (Elections Code Section 9280), and provides for submission of ballot arguments (in support and in opposition).
Ballot Question
The draft ballot question (sometimes referred to as the “ballot label”) presented to Council on June 14 was:
Shall an ordinance be adopted to require the City to conduct a citywide election requesting approval from a majority of voters for any sale, lease, lease extension, lease renewal, land swap, or transfer of any property, facility, or land that the City owns, leases, or uses for government administration, recreation, public park, or similar community purposes?
Several issues have been raised related to this draft ballot question since the June 14 meeting. Councilmember Griffith requested clarification on whether the “lease” provision applies to leases of city property or city leases of third party property. Proponents of the measure also informed the City Attorney that they believe the ballot question should (a) be identical to the ballot title and summary, or, at a minimum, (b) focus on the fact that the initiative amends the municipal code (rather than refer to adoption of an ordinance), (c) refer to “voter approval” rather than “citywide election,” or add “special or general” citywide election to clarify that the election could occur at any time permitted under state law, and (d) not commingle the concepts of “public park” and “community service amenity” and/or refer simply to “community service amenities” and “public parks.”
General Standards for Ballot Questions
The most relevant provisions of the Elections Code related to wording of ballot propositions submitted to voters are Section 9051, which specifies that the ballot question “shall not contain more than 75 words and shall be a condensed version of the ballot title and summary,” and Section 13119, which provides that initiative measures submitted to local government voters must be in the form “’Shall the ordinance (stating the nature thereof) be adopted?’”
Election Code Section 10101, found in Part 2 (Municipal Elections) in Division 10 (Local, Special, Vacancy, and Consolidated Elections) states: “This part shall apply to all municipal elections, except where otherwise provided for in the Constitution of the state, or in a charter duly adopted or amended pursuant to the Constitution of this state.”
Elections Code Section 9051 is found in Article 5 (Ballot Titles) of Chapter 1(State Elections) of Division 9 (Measures Submitted to the Voters) and makes no reference to its applicability to local elections or local election officials. Not only is it in a section that specifically states that it governs state elections, but also by its terms the only public officials referenced in the stature are the Legislative Analyst and the Attorney General-both of whom are state officials not local election officials. Furthermore, no case has ever construed or applied the “condensed version” or similar provisions of Section 9051 to the ballot question for a local measure. Rather, the focus is on the accuracy and fairness of the ballot question in light of the language of the initiative. Relevant case law describes the purpose of the ballot question as “reasonably inform[ing] the voters of the character and purpose of the proposed measure” and “avoid[ing] misleading the public with inaccurate information.” (Yes on 25, Citizens for an On-Time Budget v. Superior Court (2010) 189 Cal.App.4th 1445, 1452.) Thus, ballot questions should be impartial, while giving voters sufficient information to understand the character of the proposal and what the measure means. (See McDonough v. Superior Court (2012) 204 Cal.App.4th 1169, 1175-76; Boyd v. Jordan (1934) 1 Cal.2d 468, 472-74.)
The Council has “‘considerable latitude’ in composing the ballot title and [courts] must presume its language to be accurate.” (McDonough, supra at 1174.) The completeness of a ballot question is not the test; the test is whether it is partial (or false or misleading).” (See Martinez v. Superior Court (2006) 142 Cal.App.4th 1245,1248 (citing Amador Valley Joint Union High School Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 242-43); Monette-Shaw v. San Francisco Bd. of Supervisors (2006) 139 Cal.App.4th 1210, 1218, fn.5.) While a ballot question that obscures the central objective or effect of an initiative might be invalid (see McDonough, supra at 1175-76), courts do not require that the question be “the ‘most accurate, ‘most comprehensive,’ or ‘fairest’ that a skilled wordsmith might imagine.” (Martinez v. Superior Court (2006) 142 Cal.App.4th 1245, 1248.) Moreover, courts have found that ballot questions need not be limited only to the proponents’ stated purpose of a measure, upholding ballot questions that properly describe the actual impacts of an initiative. (See Yes on 25, supra, 189 Cal.App.4th at 1454.) Thus, a ballot question that includes the essential features of a measure and a general description of what the measure provides will likely be upheld.
Council and Proponents’ Concerns Regarding the Ballot Question
As discussed above, the Council has substantial discretion in determining the ballot question. Neither the Elections Code nor relevant case law requires the City to use the exact ballot title or summary in forming the ballot question, as suggested by proponents (although that is an option the Council may select in drafting the ballot question). Similarly, because Elections Code Section 13119 requires the question to include “Shall the ordinance be adopted…” changing “adopted” to “amended” is not appropriate, although additional wording could be added to further explain that the ordinance would amend the municipal code.
With respect to proponents’ concerns about using the term “citywide election” rather than “voter approval,” staff believes that “citywide election requesting approval from a majority of voters” accurately describes the process that would be required. “Citywide election” is a term used in the ballot summary. Finally, while proponents’ suggestion to condense the types of uses to “community service amenities” and “public parks” is possible, staff believes it is appropriate to provide examples, particularly of what is considered a “community service amenity,” as that is a specifically defined term in the ordinance that is not currently defined or used in the Sunnyvale Municipal Code, or a term used in general conversation. The revised ballot question includes key examples of broad uses that would fall into these categories that most voters would understand. As the ballot question is limited to 75 words, it necessarily cannot include the full definitions contained in the initiative.
With respect to Councilmember Griffith’s question about whether the voter-approval requirement in the initiative would apply equally in leasing city property to others and private property from others, the answer is that it does apply to both types of property transactions related to leases, sales and other applicable property transfers. As discussed in the Report on Impacts of Public Lands for Public Use Act Initiative Under Elections Code Section 9212 report, at page 8, the initiative amends SMC Chapter 2.70 to cover “rights to use land for a public park or CSA, including land owned by others.” (emphasis added).
Options for Ballot Questions
Considering the issues raised above, staff provides the following ballot question options:
1. Draft presented to City Council on June 14:
Shall an ordinance be adopted to require the City to conduct a citywide election requesting approval from a majority of voters for any sale, lease, lease extension, lease renewal, land swap, or transfer of any property, facility, or land that the City owns, leases, or uses for government administration, recreation, public park, or similar community purposes?
2. Revised language recommended by staff based on Council direction and proponent comments:
Shall an ordinance be adopted amending the municipal code to require the City to conduct a citywide special or general election requesting approval from a majority of voters for any sale, lease, lease extension, lease renewal, land swap, or transfer to or from other parties of any property, facility, or land that the City owns, leases, or uses for public parks or as a community service amenity, which includes places primarily used for government administration, recreation, exercise, or enjoyment public park, or similar community purposes?
3. Question based on proponent’s request to use ballot title language only:
Shall an Initiative Ordinance be adopted amending the City of Sunnyvale’s Municipal Code to require voter approval for any sale, lease, lease extension, lease renewal, land swap, or Transfer of Property Owned, Leased, or Used by the City as a Public Park or Community Service Amenity?
Ballot Arguments
Assuming that the proponents will prepare an argument in favor, below are options for the Council to consider relative to an opposition argument.
Elections Code Section 9282(a) provides that the proponents who filed the initiative petition may file a written argument in favor of the ordinance, and the legislative body may submit an argument against the ordinance. Although the Council has not taken an official position on the ordinance, pursuant Elections Code Section 9282(a), the Council may wish to discuss and consider whether to authorize the City Council or any member or members of the City Council to submit an argument against the ordinance. Elections Code Section 9287(a) provides that if more than one argument for or against any city measure is submitted, the city elections official shall give preference and priority in the following order: (a) The legislative body, or member or members of the legislative body authorized by that body; (b) The individual voter, or bona fide association of citizens, or combination of voters and associations, who are the bona fide sponsors or proponents of the measure, (c) Bona fide associations of citizens; (d) Individual voters who are eligible to vote on the measure.
If the Council decides to either submit an argument against the ordinance or authorize certain members to submit an argument, then pursuant to Election Code Section 9287(a) that argument will be given preference over any other argument submitted against the ordinance. If the Council chooses not to submit an argument, the City Clerk will follow the priorities described in Elections Code Section 9287(a) in selecting an argument to be printed in the sample ballot.
The resolutions are drafted with three options for the Council’s consideration regarding the submission of the argument against the measure:
a) Authorize the City Council as a body to submit a written argument against the measure;
b) Authorize __[#]___ member(s) of the City Council to submit a written argument against the measure:__[one or more name(s)]_. At [Name(s)] discretion, the argument may also be signed by other members of the City Council, bona fide associations, or individual voters who are eligible to vote on the measure. In the event that an argument is filed for the measure [Name(s)] is[are] also authorized to submit a rebuttal argument on behalf of the City Council, which, at [Name(s)] discretion, may also be signed by members of the City Council, bona fide associations, or individual voters who are eligible to vote on the measure. Signatures on the rebuttal argument may be different from those who signed the primary argument.
c) Take no action with regard to authorizing the Council, or member or members of the Council to submit a written argument against the measure.
The deadline for submitting arguments for and against the measure will be 14 days from the adoption of the Resolution Calling the Election (Elections Code Section 9286). Rebuttal arguments may then be filed by the author(s) of the primary arguments no later than ten days after the final filing date for primary arguments (Elections Code Section 9285(4)).
If Council takes action to adopt the resolution calling the election and other necessary actions at this time, the period for filing primary arguments will start immediately and the deadline to file will be July 26, 2016. If option (a) is selected to authorize the City Council as a body to submit a written argument against the measure, a special meeting will need to be scheduled before July 26. The period for filing rebuttal arguments will start July 27 and the deadline to file will be August 5, 2016.
If Council does not take action to adopt the resolution calling the election and other necessary actions at this meeting, the matter could be brought back on July 26 for further consideration by the Council and to take action to place the measure on the ballot. Action must be taken no later than the July 26 meeting in order for the Santa Clara County Board of Supervisors to act on the City’s consolidation request before the August 12, 2016 deadline to place matters on the November 8, 2016 election.
FISCAL IMPACT
The cost incurred with the County of Santa Clara Registrar of Voters for the petition signature verification was $3,085 in FY2015-16. The estimated, one-time cost for this initiative to be included as a ballot measure on Sunnyvale’s next general election is approximately $74,000. The Registrar of Voters estimates the cost of conducting the 2016 General Municipal Election for the City of Sunnyvale, including the election of officers and up to three possible ballot measures, to be $441,000. The proposed FY 2016/17 budget for election costs is $452,158. Following the election, the County will determine the actual costs and will bill the City for its pro-rata share. Should costs exceed the approved budget amount, staff will return to Council to request additional funds via a Budget Modification.
PUBLIC CONTACT
Public contact was made by posting the Council agenda on the City's official-notice bulletin board outside City Hall, at the Sunnyvale Senior Center, Community Center, and Department of Public Safety; and by making the agenda and report available at the Sunnyvale Public Library, the Office of the City Clerk, and on the City's website.
ALTERNATIVES
1. Adopt Ballot Question Option 1: A Resolution Calling a General Municipal Election to be Held in the City of Sunnyvale on Tuesday, November 8, 2016, for the Purpose of Submitting to City Voters an Initiative Ordinance to Require Voter Approval for Any Sale, Lease, Lease Extension, Lease Renewal, Land Swap or Transfer of Property Owned, Leased Or Used by the City as a Public Park or Community Service Amenity (The "Public Lands For Public Use Act"); Requesting Consolidation with the Statewide General Election and Election Services from Santa Clara County; Directing the City Attorney to Prepare an Impartial Analysis; and select Option __(a)(b) or (c)_ to provide for authority to submit written ballot arguments and rebuttal arguments. (Attachment 1)
2. Adopt Ballot Question Option 2: A Resolution Calling a General Municipal Election to be Held in the City of Sunnyvale on Tuesday, November 8, 2016, for the Purpose of Submitting to City Voters an Initiative Ordinance to Require Voter Approval for Any Sale, Lease, Lease Extension, Lease Renewal, Land Swap or Transfer of Property Owned, Leased Or Used by the City as a Public Park or Community Service Amenity (The "Public Lands For Public Use Act"); Requesting Consolidation with the Statewide General Election and Election Services from Santa Clara County; Directing the City Attorney to Prepare an Impartial Analysis; and select Option __(a)(b) or (c)_ to provide for authority to submit written ballot arguments and rebuttal arguments. (Attachment 2)
3. Adopt Ballot Question Option 3: A Resolution Calling a General Municipal Election to be Held in the City of Sunnyvale on Tuesday, November 8, 2016, for the Purpose of Submitting to City Voters an Initiative Ordinance to Require Voter Approval for Any Sale, Lease, Lease Extension, Lease Renewal, Land Swap or Transfer of Property Owned, Leased Or Used by the City as a Public Park or Community Service Amenity (The "Public Lands For Public Use Act"); Requesting Consolidation with the Statewide General Election and Election Services from Santa Clara County; Directing the City Attorney to Prepare an Impartial Analysis; and select Option __(a)(b) or (c)_ to provide for authority to submit written ballot arguments and rebuttal arguments. (Attachment 3)
4. Do not adopt a Resolution calling an election and other necessary actions at this time, provide further direction to staff, and return with the appropriate actions before the August 12, 2016 deadline to submit the measures to the County Registrar of Voters for the November 8, 2016 election.
STAFF RECOMMENDATION
Recommendation
Alternative 2: Adopt Ballot Question Option 2: A Resolution Calling a General Municipal Election to be Held in the City of Sunnyvale on Tuesday, November 8, 2016, for the Purpose of Submitting to City Voters an Initiative Ordinance to Require Voter Approval for Any Sale, Lease, Lease Extension, Lease Renewal, Land Swap or Transfer of Property Owned, Leased Or Used by the City as a Public Park or Community Service Amenity (The "Public Lands For Public Use Act"); Requesting Consolidation with the Statewide General Election and Election Services from Santa Clara County; Directing the City Attorney to Prepare an Impartial Analysis; and Setting Priorities for Ballot Arguments.
Prepared by: Kathleen Franco Simmons, City Clerk
Reviewed by: John Nagel, City Attorney
Reviewed by: Timothy J. Kirby, Interim Finance Director
Reviewed by: Kent Steffens, Assistant City Manager
Approved by: Deanna J. Santana, City Manager
ATTACHMENTS
1. Ballot Question Option 1: Resolution Calling a General Municipal Election to be Held in the City of Sunnyvale on Tuesday, November 8, 2016, for the Purpose of Submitting to City Voters an Initiative Ordinance to Require Voter Approval for Any Sale, Lease, Lease Extension, Lease Renewal, Land Swap or Transfer of Property Owned, Leased Or Used by the City as a Public Park or Community Service Amenity (The "Public Lands For Public Use Act"); Requesting Consolidation with the Statewide General Election and Election Services from Santa Clara County; Directing the City Attorney to Prepare an Impartial Analysis; and Setting Priorities for Ballot Arguments.
2. Ballot Question Option 2: Resolution Calling a General Municipal Election to be Held in the City of Sunnyvale on Tuesday, November 8, 2016, for the Purpose of Submitting to City Voters an Initiative Ordinance to Require Voter Approval for Any Sale, Lease, Lease Extension, Lease Renewal, Land Swap or Transfer of Property Owned, Leased Or Used by the City as a Public Park or Community Service Amenity (The "Public Lands For Public Use Act"); Requesting Consolidation with the Statewide General Election and Election Services from Santa Clara County; Directing the City Attorney to Prepare an Impartial Analysis; and Setting Priorities for Ballot Arguments.
3. Ballot Question Option 3: Resolution Calling a General Municipal Election to be Held in the City of Sunnyvale on Tuesday, November 8, 2016, for the Purpose of Submitting to City Voters an Initiative Ordinance to Require Voter Approval for Any Sale, Lease, Lease Extension, Lease Renewal, Land Swap or Transfer of Property Owned, Leased Or Used by the City as a Public Park or Community Service Amenity (The "Public Lands For Public Use Act"); Requesting Consolidation with the Statewide General Election and Election Services from Santa Clara County; Directing the City Attorney to Prepare an Impartial Analysis; and Setting Priorities for Ballot Arguments.