Marin IJ

Confusion lingers in flood fee vote

Rob Rogers
Marin Independent Journal
Article Launched:07/03/2007 06:57:32 PM PDT

Both supporters and opponents of Ross Valley's controversial flood control measure have agreed on one thing: The election that made the fee legal was like no other in Marin history.

"This isn't the type of election people are used to having here," said Marin Registrar of Voters Elaine Ginnold. "Any time that happens, people are going to challenge the outcome. Why did we have to sign the ballots? Why were the ballots public, when we usually have a secret ballot?

"There was nothing under-handed about this election," Ginnold said. "But it was different from what a lot of people were used to."

Ross Valley residents voted on the flood tax in the mail, rather than at the ballot box. The election, in which residents supported the measure by a vote of 3,208 to 3,143, was held by the Department of Public Works and administered by that agency's consultant, MIG Inc. of Berkeley, rather than the county office of elections, although elections workers verified the vote count.

More than 20 percent of votes cast had to be discounted because the ballots in question were never signed, as required by instructions printed on the back of the ballot.

"The ballot had to be signed with the property owner's name," Ginnold said. "In a regular election, if you were to sign on the ballot, it would invalidate it."

And some property owners may never have realized they were participating in an election, said Kentfield resident Lucy McKenzie. Only 8,059 of the 15,010 ballots mailed to voters were returned.

"I've been a property owner for over 20 years, and as far as I can recall, this is the first time I've seen an election handled in this manner," McKenzie said. "To a lot of people, the ballot probably looked like mail of little importance. It wasn't until you opened it up that you realized it was a ballot for a tax measure.

"I don't care whether you're for or against the tax," McKenzie continued. "The way in which they conducted the election disenfranchised citizens who voted."

County officials said the unusual nature of the election allowed passage of the flood control tax by a simple plurality, rather than the two-thirds majority that would ordinarily be required.

"A regular election would have taken at least a two-thirds majority to make it viable," Ginnold said. "The reason for this election is that it only required a majority vote."

Rather than calling the flood control measure a "tax" - which would be voted on, and paid for, by every resident of the flood control district, whether they benefited from flood control projects or not - county officials referred to it as a "benefits assessment," a fee paid only by property owners in the affected area.

By law, public agencies can use benefits assessments to pay for improvements, such as roads or sewer lines, in a particular area. Until 1996, governments could pass such assessments automatically, unless more than half of the affected property owners wrote a letter of protest. Proposition 218, passed that year, required public agencies to hold an election by mail before passing a benefits assessment.

Unlike a tax, benefits assessments are paid by property owners according to the proportion of benefits they receive from the project. The average Ross Valley homeowner will pay $125 a year for the next 20 years.

Because of this, benefits assessment ballots include the property owner's name, parcel number and the amount the owner must pay over the duration of the assessment. Those documents become disclosable public records, unlike the secret ballots used in county elections.

In fact, according to state law, a benefits assessment election is a protest vote, and not an election at all:

"The majority protest proceedings described in this subdivision shall not constitute an election or voting for purposes of Article II of the California Constitution or of the California Elections Code," says Government Code Section 53753(e)(4).

While benefits assessments have rarely been used in Marin County, they are fairly common elsewhere, Ginnold said.

"They're used by health-care districts, or to put in sewers," Ginnold said. "In Oakland, they imposed a fire protection fee in order to increase the amount of brush control."

In Marin, supporters of the flood control measure said the $40 million it will generate will help prevent damage from disasters like the Dec. 31, 2005 floods that devastated about 1,200 homes and 200 businesses in Fairfax, Greenbrae, Kentfield, Larkspur, Ross and San Anselmo. The Corte Madera Creek basin has flooded 14 times in the past 50 years.

"The bottom line is we are doing the right thing, protecting the public," said Supervisor Hal Brown, who rallied support for the flood control measure. "I look forward to taking the results to the Board of Supervisors on Tuesday and having the (results) certified."

Treasurer-Tax Collector Michael Smith, whose department oversees the office of elections, said the Department of Public Works and its consultant would decide how to address the matter of the unsigned ballots.

"That decision will be guided by the DPW," Smith said. "The ballots are in a secure environment. The DPW will take them to the Board of Supervisors on Tuesday, and the results will be certified."

Anyone wishing to contest the election should contact the Department of Public Works, the office of elections and the supervisors, Smith said.

Despite the confusion over the ballots, however, Brown said he has received only five calls regarding the election.

"I think we move forward unless there is a court action," the supervisor said. "Any time there is a close vote there is always a controversy."

Contact Rob Rogers via e-mail at; IJ reporter Mark Prado contributed to this report.
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