Posted on 07 October 2011.
Town Attorney supplants Measure R promises with own interpretation
“Each attorney has his or her own opinion,” Recreation Commission Chair Bill Sauser explained to The Sheet prior to Wednesday’s Town Council meeting. He was referring to a new memo sent out by the Town’s current attorney, Andrew Morris, in regard to the use of the term supplanting in Measures R and U.
At the meeting, Sauser elaborated. “This memo explains legally what to do, but not morally,” he said. “We need to look at the voter intent when they passed these two measures.”
Morris’ memo provides his legal take on what the word supplant means for the two measures. The first and foremost point is that California state law does not allow voters to establish minimum general fund spending requirements, because that would compromise Council’s authority over fiscal management.
“While the voters’ ability to adopt initiatives and conduct referenda is very broad, it is not absolute,” the memo explained.
In other words, the measures do not require Council to continue to spend what it was spending on parks, trails, recreation, mobility, and arts and culture when the measures were originally passed. If the general fund budget needs to be reduced, the Council could choose to fund parks, trails, recreation, mobility, and arts and culture to a lesser degree, and then direct staff to apply for Measure R or U dollars to cover the gap. What it cannot do is take general fund dollars from those projects and divert it elsewhere.
In other words, if the general fund budget was $16 million, and the Council wanted to continue to spend $16 million but wanted to move $2 million from parks, trails, recreation, mobility, and arts and culture to another department or program, it could not. However, if the general fund budget needed to be reduced from $16 million to $14 million, Council could choose to reduce the budget by making cuts to those programs, Morris explained.
In Measure R specifically, the term “supplant” is only used in the expenditure plan, and specifically in reference to existing maintenance funds. According to Morris’ memo, Measure R allows the Council to amend this expenditure plan as long as funds still continue to be used for parks, trails and recreation. Morris therefore concluded that Council could completely remove the supplanting restriction from R if it chose in a simple amendment to the expenditure plan.
As Sauser pointed out, however the memo does not address the voter intent of the measures.
“The last Town Attorney told us to put the supplanting language in the expenditure plan for Measure R because that is where he said it would be strongest,” Sauser said.
Morris clarified that having the supplanting language in the expenditure plan does not make it vulnerable. “The fact that Council can amend that plan, does,” he said.
Morris admitted to not reviewing the campaign materials used for passage of the measures and not fully understanding the political climate during which the measures were passed. These items, he claimed, did not affect his analysis.
For now Council was on board with Sauser and others who held tight to the voter intent of the measures, but with Measures R and U being immune to the lawsuit settlement, discussions on the use of these funds might not be over.
“We need to remember the intent of the voters and if we have to use the money under duress it should have a time limit attached to it,” said Councilmember John Eastman.
“As long as I am here, I won’t spend R or U funds on general fund expenditures unless a bankruptcy judge tells me to do so,” added Councilman Rick Wood.
Councilman Skip Harvey asked that staff bring forward the dollar amounts that were being spent on parks, trails, recreation, mobility, and arts and culture at the time the measures were passed (June 2008 for R and June 2010 for U) in order to use the numbers as reference points.
“I realize we are allowed to go below what we were spending, but we could use the numbers as a guage to know how much we are taking away from these areas,” Harvey explained.
Staff agreed to bring the information back as a consent agenda item and the Council received Morris’ memo.
Measure R fall application process
The Measure R fall application process has been postponed and will most likely open Oct. 24, the Monday following the next regularly scheduled Council meeting, according to Town Recreation Manager Stuart Brown.
Council asked for this postponement in order to allow the Recreation Commission to hold a special meeting on Oct. 12 at 4 p.m. where it will work to prioritize the Town’s Measure R fall funding applications. Currently, the Town has a list of funding requests that totals more than $913,000, however the fall Measure R award is only expected to have about $305,000 available. Some of the funding has already been committed to projects such as the Whitmore Track and to the contract with MLTPA.
The Commission will bring this prioritized list back to Council at its Oct. 19 meeting.