August 21, 2012

San Jose Mercury News

Taxpayer group takes on Santa Clara County, water district

By Tracy Seipel and Paul Rogers
Staff writers

Setting the stage for a showdown over two half-billion dollar tax measures, a taxpayer group filed a lawsuit Monday against Santa Clara County and renewed a threat to sue the Santa Clara Valley Water District to keep a pair of local measures off the November ballot.

The Silicon Valley Taxpayers' Association sued Santa Clara County and its board of supervisors over their eighth-cent sales tax measure.

In a 42-page filing with the 6th District Court of Appeal, the association accused the county of violating a provision in the California constitution that requires proposed tax increases to appear on a ballot where at least one seat for the board of supervisors also will appear.

The county supervisor races, however, were decided in the June 5 primary.

The requirement "has been in effect since 1996, specifically to provide taxpayers with the opportunity to vote on taxes at certain times and under certain circumstances, and that didn't happen here," said attorney Bradley Hertz, who is representing the group.

Neither acting County Counsel Lori Pegg nor George Shirakawa Jr., president of the Board of Supervisors, would comment Monday.

Hertz's lawsuit, which names as a respondent Registrar of Voters Barry Garner, seeks a court decision by Sept. 4, the day after Labor Day, because of the imminent deadline facing Garner's office to print and mail election materials.

If passed, the eighth-cent sales tax measure would raise an additional $498.5 million over its 10-year span. County supervisors say it would pay for such things as law enforcement, job creation, hospital emergency room services, health care for lower-income children, housing for the homeless and programs to help students stay in school.

Meanwhile, another public agency on Monday rebuked the taxpayers' association, almost certainly setting the stage for a second lawsuit on another measure. The Santa Clara Valley Water District refused to remove a $548 million parcel tax it has placed on the November ballot in Santa Clara County, as the taxpayers' association had demanded in a letter on Friday.

The taxpayers' group claimed that the water district measure is invalid because of a series of clerical and open meetings law errors. Those stem from the water district's mistake on Aug. 6, when its staff turned in the measure to county elections officials, but its title and summary contained 77 words -- two more than the 75-word limit in the law.

Compounding the problem, the water district rushed to hold a special meeting on Aug. 8 to cut two words from the measure, but then did not post the agenda on its website 24 hours ahead of time, as required under California's open meetings law.

On Monday, Beau Goldie, CEO of the water district, characterized those shortcomings as minor transgressions, and said he will recommend that when the seven-member water district board meets next on Aug. 28 that it vote to leave the measure on the Nov. 6 ballot.

"I feel bad that now this is at risk. But I think we'll get through it," said Goldie. "I see no reason to pull it off the ballot. I want the community to have a voice."

Goldie called the threat of a lawsuit frivolous, and said the water district made a "good faith effort" to comply with the open meeting law because its clerk's office posted a written notice in the district's lobby more than 24 hours ahead of time, and only missed the deadline to post the agenda to its website and email it to the media by less than an hour. It would be disappointing, he added, if a group that purports to look out for taxpayers hits the district with a lawsuit over a "technicality" that will cost taxpayers money to defend.

The taxpayer's association already was opposing the water district measure before the clerical errors.

"We are a nation of laws and we value the rule of law," said Hertz. "Where do you draw the line if you can have more words to a question or fewer hours to notice requirements or an election when you're not permitted to have an election? It becomes a slippery slope as to the law having meaning at all."

The tax measure, which would fund dam maintenance, flood control and environmental projects, would continue a $54 per home annual tax, first put in place by voters in 2000 and due to expire in 2016. If the ballot measure, which requires a two-thirds majority to pass, is removed from the ballot or defeated, the water district could place it on the ballot again in 2014 or early 2016, although it would face longer odds of passing during elections of lower turnout than general elections with a presidential race, like this year's.

There has been some confusion over whether the water district is even bound by the open meetings law. In June, Gov. Jerry Brown signed a state budget, AB1464, that suspended parts of the open meetings law for up to three years as a way for the state to save money. That's because under state law, local government agencies can seek reimbursement from the state for the costs of posting agendas. But Brown did not suspend the entire law. He only suspended the main section, which requires local agencies to post agendas 72 hours in advance of their regularly scheduled meetings. He did not suspend the section that requires 24 hours notice of special meetings.


Paul Rogers covers resources and environmental issues. Contact him at 408-920-5045. Follow him at

This article is also available at the Web site of the San Jose Mercury News, here.


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