New California Law Establishes Additional Requirements for Conducting Elections Involving Stormwater and Flood Control Service Fees

by Best Best & Krieger LLP

Public Agencies Must Adhere to New Steps By Next Summer

Public agencies that handle water, sewer, and solid waste services in California are required to comply with certain mailed notice and majority protest public hearing procedures in order to impose a new service fee or to increase an existing fee. For the adoption of all other property-related fees, including stormwater and flood control service fees, a public agency must also comply with an additional voter approval process. This voter approval process is  referred to as an “election” in California Constitution article XIII D, section 6(c). Assembly Bill 553, recently signed by the governor and effective July 1, 2014, establishes new requirements for conducting these property-related fee elections and clarifies that such proceedings are not “elections” or “voting” for purposes of California Constitution article II and the California Elections Code.

Beginning July 1, 2014, a public agency that opts to submit a proposed fee to the registered voters residing in the affected area for approval must have the election conducted by its elections official or its designee. If the public agency opts to submit the proposed property-related fee for approval by a majority vote of property owners who will be subject to the fee, then in addition to the existing procedures required under Article XIII D, section 6, the following procedures must be followed:

  • the face of the envelope mailed to the property owner with the ballot and notice must contain, in at least sixteen-point type, the following statement in substantially the following form: “OFFICIAL BALLOT ENCLOSED” and may be repeated in a language other than English;
  • the ballot must include the public agency’s address for return of the ballot, the date and location where the ballots will be tabulated, and a place where the person returning it may indicate his or her name, a reasonable identification of the parcel, and his or her support or opposition to the proposed fee;
  • the ballots must be tabulated in a location accessible to the public;
  • the ballot must be in a form that conceals its content once it is sealed by the person submitting it;
  • the ballot must remain sealed until the ballot tabulation commences.

At the conclusion of the required public hearing, an impartial person designated by the agency—someone who does not have a vested interest in the outcome of the proposed assessment—must tabulate the submitted ballots. An impartial person includes the clerk or secretary of the agency. If the public agency uses its personnel to tabulate the ballots, or if it contracted with a vendor for the tabulation and the vendor or its affiliates participated in the research, design, engineering, public education, or promotion of the fee, the ballots must be unsealed and tabulated in public view.

The ballot tabulation may be continued to a different time or location accessible to the public, provided that the time and location are announced at the location at which the tabulation commenced and posted by the public agency in a location accessible to the public. Additionally, the impartial person may use technological methods to tabulate the ballots, including punch-card or optically readable (bar-coded) ballots. This section also provides that during and after the tabulation, the ballots and, if applicable, the information used to determine the weight of each ballot, are public records subject to public disclosure and must be made available for inspection by any interested person. With the reference to a “weighted ballot,” this section confirms that a public agency may use a weighted ballot procedure for property-related fee elections similar to that used for assessments. A public agency must preserve the ballots for a minimum of two years, after which they may be destroyed.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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