Meeting Information
MINUTES
Special Meeting
Tuesday, March 6, 2001, 9:00 A.M.
City Hall, Room 263
Chairperson: Commissioner Eisenberg
Members: Commissioners Ammiano, Maxwell, Daly, McGoldrick
Alternate: Commissioner Gonzalez
Clerk: Gregoire Hobson
SPECIAL AGENDA
(There will be public comment on each item)
1. Call to Order and Roll Call
The meeting was called to order by Chair Eisenberg at 9:16 a.m.
Members Present: Chair Eisenberg, Commissioners McGoldrick, Daly, Maxwell, and Ammiano
Members Absent: None
2. Approval or modification of the Executive Officer’s Impartial Analysis on the Creation and Maintenance of a San Francisco-Brisbane Municipal Utility District.
Chair Eisenberg asked for the City Attorney’s advice on Item 2.
Paula Jesson, Deputy City Attorney, City Attorney’s Office, stated that the City Attorney and the LAFCo Commission is in agreement that LAFCo can lawfully amend the current Impartial Analysis by removing the last paragraph of the description of the vote requirement.
Chair Eisenberg asked how the ballot would work in the event the Executive Officer removed the last paragraph of the Impartial Analysis-how would the voters know what the vote would be?
Paula Jesson, Deputy City Attorney, stated there are two possibilities. One is that the Impartial Analysis and the ballot pamphlet would be silent. The voters would not know from the ballot pamphlet because there would be no explanation. Information could come from arguments from the press and other means. The other possibility is that the Director of Elections might feel that he/she has the authority to say something about it. The state statute that we are operating under specifically says what goes in the ballot pamphlet and the order in which it goes in with respect to the formation of a MUD. It is not clear that the Director of Elections would have the authority to say something different, and there may be legal risk in her/him doing so. There is a period of time that the material in the ballot pamphlet is open for public review and challenge. If anyone feels that it was improper for the Director of Elections to do, it could be challenged.
Chair Eisenberg asked if in the general ballot involving initiatives, if the Director of Elections would put a footnote on the bottom of the ballot which will tell you that there are two opposing initiatives, and that the one that has the greater percentage of votes will prevail. Could the Director of Elections instruct the electorate as to how the vote works?
Paula Jesson, Deputy City Attorney, replied that she would have to confirm this information.
Chair Eisenberg stated that his concern is that if LAFCo puts a statement in the Impartial Analysis about how the vote works, and the Director of Elections chooses to advise the electorate, and LAFCo disagrees with him/her, then there would be two separate opinions that would lead to confusion.
Paula Jesson, stated that this Commission is legally entitled to take a position on the Impartial Analysis. She feels that if this Commission would take a position, it is less likely that the Director of Elections would have any reason to say something about it. Otherwise, it would lead to confusion.
Chair Eisenberg asked the Executive Officer how she feels about removing the last statement of the Impartial Analysis?
Gloria L. Young, Executive Officer, indicated that there is no issue in removing the last statement of the Impartial Analysis.
Chair Eisenberg motioned to put a substitute amendment to remove the last statement of the Impartial Analysis. Commissioner Ammiano seconded.
Gloria L. Young, Executive Officer, read the statement to be removed as follows:
"To be effective, this measure must be approved by a majority of the voters in both the City and County of San Francisco and the City of Brisbane, pursuant to California Public Utilities Code Sections 11561 and 11652."
Public Comment
Jim Sutton, Coalition for Affordable Public Services, the Campaign Committee organized to oppose the MUD initiative, stated that they strongly urge the Commission to reject this amendment and to keep this important sentence in the Impartial Analysis. LAFCo has the duty to let the voters know about the process for passing this initiative. The fact that either San Francisco or Brisbane has veto power over this initiative makes it different than any initiative that the voters have seen. It is exactly this information that the law asks LAFCo to explain in the Impartial Analysis. There is no ambiguity in the law and the City Attorney’s Office in its filing with the court and other documents spelled out clearly what the law says--that if voters in one district do not pass the MUD initiative, then the entire initiative fails.
Mr. Sutton stated that the footnote about competing measures relates to City initiatives. It is a City law provision that requires the Department of Elections to explain when there are competing initiatives on the ballot. The Director of Elections would have no discretion to put any information about the vote requirement in the ballot pamphlet because state law says that only LAFCo has the authority to put information into the Impartial Analysis.
Mr. Sutton asked that LAFCo remove the third paragraph of the Impartial Analysis because it is unheard of and prejudicial to include the name of a campaign committee in an Impartial Analysis.
Harold Toppel, City Attorney, City of Brisbane, stated that on the day following the March 1 meeting, he faxed a letter for the Commission, but it arrived too late to be included in the packet. He was told it was being distributed to the Commission, but obviously there was not an opportunity for the Commission to review the letter. Mr. Toppel stated that in the letter he takes the position of the previous speaker that there is no ambiguity in the law. If the language on the statute concerning the two-thirds vote is read, it becomes more apparent that each jurisdiction is separately tabulated, and the vote of each jurisdiction is required for passage of the measure.
The letter also suggests language to be included in the Impartial Analysis that they feel is even more precise than the language proposed by the City Attorney as follows:
"To be effective the measure must be approved by a majority of those who voted upon the proposition in the City and County of San Francisco and also a majority of those who voted on the proposition in the City of Brisbane as required by Section 11652 of the California Public Utilities Code. A rejection of the measure by the voters in either of these Cities will result in failure of the entire proposition."
Mr. Toppel stated that the previous paragraph is the essence of this issue and the obligation of this Commission to inform the voters. He doesn’t know what the authority of the Director of Elections may be. It sounds like we are deferring it to another individual whose participation may or may not be provided, or leaving it up to everyone to guess, or leaving it up to a court after the elections. He doesn’t know how the voters of San Francisco or Brisbane can figure out what they are voting on when there has not been a clear articulation of the vote that is required for the passage of the measure. If it is the consensus of the Commission that Brisbane’s vote doesn’t count, then they need to know that. If voters of Brisbane vote to reject the measure, they need to know if there is an attempt to hijack them into a district against their will before the election. Saying nothing on the subject, or simply quoting the statute, or saying the position of both sides gives no useful information. He believes that the function of the Impartial Analysis is to specify the vote of each jurisdiction as required.
Clark Conway, Mayor of Brisbane, stated that an Impartial Analysis means just that, impartial. You will have people promoting it and people against it. The Commission’s job is to give a fair and impartial analysis. His City Council is confused on this whole issue. He stated that Chair Eisenberg came out as a proponent of CLUB and that the Chair stated that it doesn’t matter how the citizens of Brisbane vote, it is the majority vote. That defies the laws of the United States that this country was founded on. He is suggesting that the clause "to be effective, this measure must be approved by a majority of voters in the City and County of San Francisco and the City of Brisbane" be retained in the Impartial Analysis. The Commission needs to inform people by retaining this clause.
Doug Comstock, Coalition for Lower Utility Bills, stated that the Coalition got 25,000 signatures and turned the petition in, as the law requires. They have a right to be named as the proponent of this initiative. The fact that they are a campaign committee because they did the work, put the petition on the ballot, and are the proponents is beside the point. He agrees with Mr. Sutton that the last paragraph of the Impartial Analysis is a very important sentence--that is the reason it should be excluded. It could easily misinform the voters. The Commission does not know whether they need to have the vote of Brisbane and the vote of San Francisco to pass the measure. Therefore, the voters could be easily misinformed and it is important that that does not happen. It may be ambiguous to leave it out, but it is more important to leave it out. If there is a court challenge later, then it will be the job of a judge to decide that, and not the job of LAFCo. In his opinion, he recommends taking the last paragraph of the Impartial Analysis out so as not to misinform the voters.
Commissioner Ammiano is in favor of the motion to remove the last paragraph of the Impartial Analysis. He discussed the possibility that was brought up by Commissioner Gonzalez and the Chair last week of being allowed to find another agency other than Brisbane to participate. Supervisor Maxwell was correct in her assessment if we have a parallel agency that is more willing to participate, that it would make it easier. With all of the hard work that the petitioners, proponents for public power, and Chair Eisenberg have done and the various opinions of our City Attorney, the real issue is to make sure in November that MUD passes.
Chair Eisenberg stated in direct response to the Mayor of Brisbane that he got four e-mails from people in Brisbane that they wanted lower utility bills and they wanted to be part of the MUD process. He agrees with Commissioner Ammiano that they would rather have an agency that would want to be part of a MUD, but is not sure the people of Brisbane would not want to be included. He thinks we should continue the discussion.
Chair Eisenberg stated that on the Motion that it would not be appropriate to include anything on the Impartial Analysis that would be subject to question. The City Attorney and himself are both concerned that if the last paragraph of the Impartial Analysis may be wrong, it would result in litigation. That is the reason for taking it out. In his opinion and in his experience with state initiatives, if there were two opposing state initiatives, the one that has the most votes would win. That is a footnote on the bottom of state and city initiatives. He thinks we have been asked to provide an Impartial Analysis and the Executive Officer has done that in a well thought out manner. She is in concurrence with the Commission to take the sentence out, and that is the reason he would proceed with this motion.
Chair Eisenberg moved with the findings of the advice of the City Attorney and the recommendation of the Executive Officer to remove the last paragraph of the Impartial Analysis and would like to incorporate these findings in the amended Resolution. The amended Resolution with the findings will proceed to the vote.
VOTE:
AYES: Chair Eisenberg, Commissioners Ammiano, Daly, Maxwell and McGoldrick
NOES: None
ACTION: PASSED
3. Public Comment on Items not on the Agenda
Paul Goerke, former City Council and Mayor of Brisbane, resident of San Francisco, stated that he urges that if LAFCo or any representatives from the City go to Brisbane, that it be in public. There has never been a public hearing in Brisbane about this issue with the exception of nine months ago when CLUB went to Brisbane. Questions were asked, but no answers were allowed. Without a public hearing, it goes against the grain of common sense.
Dana Dillworth, Brisbane resident, stated that for the February 12 meeting, she had submitted a letter to the supervisors not knowing the procedure and believes that the letter has to be part of the public record. As the previous speaker had mentioned, Brisbane has not had a public meeting by which any of these issues from San Francisco have been discussed. Her understanding is that it has all been done under closed session. On numerous occasions, Brisbane has not operated according to public will. A neutral position was taken on one referendum and she understands that prior to her moving to Brisbane, there have been two recalls for similar kinds of experiences. She stated that it is important that the Commission understand that Brisbane has the right to protect itself, but does not believe that this is not in the public interest for Brisbane to have a vote. The LAFCo meetings are not publicized well enough in Brisbane. Brisbane is on TCI Pacifica Cable, which does not receive cable showing of these public meetings. Many residents have places in Brisbane where they go to look for meetings that are of public interest, but the agendas have not been posted there. They only have two working days to know about this particular meeting and she apologizes if this is not an overwhelming turnout for Brisbane, but they have not had long enough to know that there is a meeting.
Clark Conway, Mayor of Brisbane stated that Brisbane is neither for nor against the formation of a Municipal Utility District. They are uninformed as to what this means--is this a good thing or a bad thing? He does not know and has hired a consultant to gather information. They wanted an Impartial Analysis to inform the voters. What he is being told, is it doesn’t matter how Brisbane votes, it is the majority of the people from the District. That is undemocratic. How are they going to have a public hearing about something they don’t know anything about?
Chair Eisenberg stated that he was on the Golden Gate National Recreation Area (GGNRA) for eight years. On occasion, the GGNRA would have a joint hearing with the San Francisco Planning Commission. He asked if the Mayor of Brisbane thinks it would be a good idea to bring Brisbane’s City Council to San Francisco to have a joint meeting?
Clark Conway, Mayor of Brisbane, stated that it would be helpful and would check with the rest of the Council.
Chair Eisenberg stated that he would check with the City Attorney and Executive Officer on this issue and that he has no intention of engaging in undemocratic procedures.
Clark Conway, Mayor of Brisbane stated that the LAFCo Commission should clarify and come to a consensus on exactly what the law states.
Public Comment Closed.
Chair Eisenberg asked the Executive Officer to pursue the possibility of having a joint meeting with LAFCo and the officials of Brisbane.
Gloria L. Young, Executive Officer, concurred.
4. Adjournment: The meeting adjourned at 9:49 a.m.