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HomeMy WebLinkAbout05-16-2017 Item 12, DietrickCOUNCIL MEETING:. ITEM NO.: S IDCouncil• • ay 15, 2017 TO: City Council FROM: Christine Dietrick, City Attorney VIA: Katie Lichtig, City Manager R I—Vt15-- r. MAY 16 2017 SLO CITY CLERK SUBJECT: City Council Meeting 5/16/17, Item 12 — Call for a Special Election Ballot Language Attached is correspondence between the City Attorney's Office and the proponents of the Initiative regarding proposed language for the ballot question for the City's Special Election. Attachments: 1. Email chain ending May 11, 2017, re Proposed Ballot Label 2. Email chain ending May 12, 2017, re Alternate Ballot Questions From: Kevin P. Rice To: Dietrick. Christine Subject: RE: Proposed ballot label language false, misleading Date: Thursday, May 11, 2017 6:38:06 PM Attachments: imageOO1.png Christine, Thank you for your kind reply. I understand your concern. I don't believe the word limit is much of a problem as you appear to have more than 30 words still available. I will send you a number of alternate possibilities for your contemplation. Also, I am available all day tomorrow should you wish to communicate. Thankyou, again. Best regards Kevin Rice On May 11, 2017 12:11, "Dietrick, Christine" <adietrickQslocitv.org> wrote: Kevin, I'm happy to discuss it with you, but my concern with what you proposed is that the voters can't repeal something that does not exist. At this point, Chapter 15.10 no longer exists in the SLO Municipal Code. When the measure was titled, it did, so the title was accurate. However, I believe to suggest that you are repealing a Chapter that is not currently in the Code is, in fact, inaccurate and misleading. At this point, the effect of the adoption would be to replace the previously repealed Chapter with a new Chapter. The discussion of what the additional effects of adoption would be, including precluding re -adoption by the City Council without voter approval, will be reflected in the impartial analysis. The word limitation of 75 words on the ballot question does not allow for a lot of nuance and explanation. I am booked this afternoon, but I will spend some additional time reviewing your concerns tomorrow, Thanks. Best, Christine Christine Dietrick City Attorney City of San Luis Obispo lal City Attorney's Office 990 Palm Street, San Luis Obispo, CA 93401-3249 E cdicl6cicCg,) ]o61y.orrg T 8Q,5.281.2140 ATTACHMENT �t-� The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work product. Recipients should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED TIIIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT -7 140. Thank you. From: Kevin P. Rice Sent: Thursday, May 11, 2017 7:12 AM To: Dietrick, Christine <cdietric Qsjocityprg>; Gallagher, Carrie <GallaeGtt slc�citv.gtg> Subject: Proposed ballot label language false, misleading The (proposed) City Resolution to call an election sets out the following "ballot label" (Elec. Code § 303): Shall an ordinance be adopted to replace Chapter 15.10 of the San Luis Obispo Municipal Code, which was previously entitled "Rental Housing Inspection", but was repealed by the City Council on April 20, 2017, with new Chapter 15.10 to be entitled "Non -Discrimination in Housing'" +YES +NO Elections Code § 13119 requires the words "Shall the ordinance (slating the nature thereof) be adopted?" The ballot title prepared by the city attorney, and which appeared on each petition section, should be used (replacing 'initiative' with 'ordinance'), as follows: Shall an ordinance to repeal Chapter 15.10 of the San Luis Obispo Municipal Code entitled "Rental Housing Inspection" and to adopt new Chapter 15.10 entitled "Non -Discrimination in Housing" be adopted? +YES +NO The proposed language is false and misleading in several respects, among them: (1) The language refers to the Initiative as a replacement only and not a repeal. This is false. (2) The City Council repeal is a SEPARATE MATTER from the Initiative's repeal, which creates a voter - controlled lockbox that removes Council discretion. (3) Omission of the Initiative's repeal eviscerates the very crux of the Initiative ---the same portion some Council members adamantly claim is the only reason most signators signed the petition. At the same time, the proposed language emphasizes the portion these same Council members (capriciously) claim wasn't read ---the non-discrimination ordinance. (4) Mention of the City Council repeal conveys the Initiative is redundant and surplussage, when the voter -approved "lock box" is a crucial component of the Initiative. It is clear the proposed false language intentionally misleads in order to hide the very popular repeal and lockbox while emphasizing the portions that best serve opposing arguments. Such games are the sort of "acrimony" I referred to previously. § 13247 The statement of all measures submitted to the voters shall be abbreviated on the ballot in a ballot label as provided for in Section 9051. The ballot label shall be followed by the words, "Yes" and "No." Section 9051 mandates the ballot label "shall be a condensed version of the ballot title and summary..." -- this would preclude the misleading alterations and addition of the City Council repeal language. The city attorney's ballot title should be used in the form published in the Notice of Intent and as printed on 11,000 Petition sections. The ballot title is honest, impartial, true and correct, and not misleading. Sincerely, Kevin Rice From: Dietrick. Christine To: Kevin P. Rice Ce: Stew Jenkins; Daniel 3. Knialit; Carpenter. Ilan; Gallagher. Carrie Subject: RE: Alternate ballot questions Date: Friday, May 12, 2017 12:38:42 PM Attachments: image001.png Dear Mr. Rice: While I agree my original Title and Summary was accurate at the time of its drafting, there has been a fundamental change in the underlying statutory and factual context that I believe now would render simple repetition of that Title in the ballot question inaccurate and misleading. Specifically, the ordinance the initiative seeks to repeal has already been repealed. There is no provision in the proposed initiative repeal language that anticipated or addressed that possibility and I cannot read such a provision into the language proposed in crafting the ballot question, as you suggested in some of your earlier alternative language proposals. Thus, as the Municipal Code exists today and as I stated in our earlier communications, one cannot repeal an already repealed ordinance. One can replace a repealed ordinance with another, re -titled ordinance, as the initiative measure proposes to do. Both prior to drafting the language and since receiving your comments, I have attempted to locate legal authority providing guidance in a similar situation, but thus far have not found anything directly on point. Thus, in drafting the ballot question, I was guided by the general obligation to provide an accurate statement of the measure, in plain language, easily understandable to the average voter and within the 75 word limit. I appreciate your input. I will continue to consider your comments and whether any further refinement could yield greater clarity or accuracy. Thank you. Best regards, Christine Christine Dietrick City Attorney City of San Luis Obispo City Attorney's Office 990 Palm Street, San Luis Obispo, CA 93401-3249 E cdietrick@slocity.org T 805.781.7140 slocity_org The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work product. Recipients should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you ATTACH '& received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT (805) 781-7140. Thank you. From: Kevin P. Rice Sent: Friday, May 12, 2017 12:01 PM To: Dietrick, Christine <cdietrick@slocity.org> Cc: Stew Jenkins Daniel J. Knight Carpenter, Dan Subject: RE: Alternate ballot questions Dear Ms. Dietrick, Apologies for being a burden on your time today. Upon continued reflection, I find myself circling back to the opinion that your original initiative ballot Title is the most proper, and that you are tightly constrained to that Title, to wit: (1) §§ 13247 and 9051 mandates the ballot label "shall be a condensed version of the ballot title and summary..." (2) The original Title is beyond challenge by any party. (3) The original Title a the most accurate and factual, especially in light that the Initiative operates on the former text of Chapter 15.10. Ex post facto amendments are irrelevant to the legal effect of the Initiative, and I believe such nuance and current political events are, as you opined, appropriate within an "impartial analysis", not the ballot label. (4) There can be no charge made that the original Title was influenced by either supporters or opponents, or evolving City opinions of the Initiative. (5) The original Title was published and appeared on 11,000 petition sections, including those signed by voters. It L what voters read and signed. (6) The original Title is least likely to confuse voters (see number 5, supra), and any nuance to that best belongs in an impartial analysis. Your Title is accurate and factual. (7) There can be brought no challenge by any party. For all these reasons, I urge you to utilize your own original Title for the ballot label, and I agree with you that nuance belongs in an impartial analysis. Respectfully submitted. Kevin Rice cc: Stew Jenkins, Daniel Knight, Dan Carpenter On May 12, 2017 09:49, "Kevin P. Rice" wrote: Ah, I see. Interesting. In that case, I would suggest repeal is possible and proper because Chapter 15.10 does, in fact, exist. Further, even though there is presently no text, the Initiative was both noticed and submitted antecedent to the Council repeal. Surely, a Court would conclude a lockbox against the former text is in play, and not a lockbox against the current (empty) text. To find otherwise would be absurd as it would enable a legislative body to evade Initiative by enacting ex post facto amendments undermining an Initiative's meaning and effect. Thus, I believe "repeal" is proper language. However, I suggested "repeal the former Chapter" in my offerings and that seems fine to me as well. 1 made strong effort to respect your proposed language within my suggestions. t feel there are numerous good language options available to you. Thank you for your time. Kevin On May 12, 2017 09:02, "Dietrick, Christine" �cdietrick�,,r)slocity.org> wrote: The Chapter does currently exist, as follows, in the Code: Chapter 15.10 RENTAL HOUSING INSPECTION (Repealed by Ord. 1632) So, you are proposing to replace the now repealed Chapter with your new provision. It would maintain the Chapter number, but replace the Chapter heading and adopt the new heading and ordinance language, even though the ordinance language that used to populate that Chapter is gone. I look at what you are proposing instead though. Christine Dietrick City Attorney City of San Luis Obispo City Attorney's Office 990 Palm Street, San Luis Obispo, CA 93401-3249 E cdietricfc slocity.urg T �Jocity.org The information contained in this e-mail message is intended only for the CONFIDENTIAL use of the designated addressee named above. The information transmitted is subject to the attorney-client privilege and/or represents confidential attorney work product. Recipients should not file copies of this email with publicly accessible records. If you are not the designated addressee named above or the authorized agent responsible for delivering it to the designated addressee, you received this document through inadvertent error and any further review, dissemination, distribution or copying of this communication by you or anyone else is strictly prohibited. IF YOU RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONING THE SENDER NAMED ABOVE AT (805) 781-7140. Thank you. From: Kevin P. Rice Sent: Friday, May 12, 2017 8:06 AM To: Dietrick, Christine Subject: Alternate ballot questions Christine, It struck me while studying your language, if you can't repeal something that does not exist, it would seem you also can't "replace" something that does not exist. I put a lot of hours into these alternate ideas for your contemplation, the simplest being only 37 words (yours is 44 words, by my count.) I hope these prove useful to you, Sincerely, Kevin Rice Alternate 1 — Mentions "lockbox" Variant 1 a (51 words): Shall an ordinance be adopted making permanent, unless authorized by a future vote of the people, the City Council's April 20, 2017 repeal of former Chapter 15.10 of the San Luis Obispo Municipal Code entitled "Rental Housing Inspection" and enactment of a new Chapter 15.10 to be entitled "Non -Discrimination in Housing"? Variant 1 b (50 words) — Places "be adopted" at end (§ 13119): Shall an ordinance which makes permanent, unless authorized by a future vote of the people, the City Council's April 20, 2017 repeal of former Chapter 15.10 of the San Luis Obispo Municipal Code entitled "Rental Housing Inspection" and enactment of a new Chapter 15.10 entitled "Non - Discrimination in Housing" be adopted? Variant 1 c (48 words) — Replace "unless authorized by" with "except by` Shall an ordinance which makes permanent, except by a vote of the people, the City Council's April 20, 2017 repeal of former Chapter 15.10 of the San Luis Obispo Municipal Code entitled "Rental Housing Inspection" and enactment of a new Chapter 15.10 entitled "Non -Discrimination in Housing" be adopted? Alternate 2 — Simple and straightforward Variant 2a (32 words): Shall an ordinance reaffirming the repeal of former Chapter 15.10 of the San Luis Obispo Municipal Code entitled "Rental Housing Inspection" and enacting new Chapter 15.10 entitled "Non -Discrimination in Housing" be adopted? Variant 2b (37 words) — Mentions City Council and date of repeal: Shall an ordinance reaffirming the April 20, 2017 City Council repeal of former Chapter 15.10 of the San Luis Obispo Municipal Code entitled "Rental Housing Inspection" and enacting new Chapter 15.10 entitled "Non -Discrimination in Housing" be adopted? Variant 2c (50 words) — Mentions "lockbox": Shall an ordinance reaffirming the April 20, 2017 City Council repeal of former Chapter 15.10 of the San Luis Obispo Municipal Code entitled "Rental Housing Inspection" thereby making such repeal permanent except by a future vote of the people and enacting new Chapter 15.10 entitled "Non -Discrimination in Housing" be adopted? Alternate 3 — Similar to Alternate 1 Variant 3a (44 words): Shall an ordinance to make binding, except by a future vote of the people, the repeal of former Chapter 15.10 of the San Luis Obispo Municipal Code entitled "Rental Housing Inspection" and enactment of a new Chapter 15.10 entitled "Non -Discrimination in Housing" be adopted? Variant 3b (49 words) — Mentions City Council and date of repeal: Shall an ordinance be adopted to make binding, except by a future vote of the people, the City Council's April 20, 2017 repeal of former Chapter 15.10 of the San Luis Obispo Municipal Code entitled "Rental Housing Inspection" and enactment of a new Chapter 15.10 entitled "Non - Discrimination in Housing"?