COUNTY OF SANTA BARBARA

COUNTY OF SANTA BARBARA

Stephen Shane Stark

County Counsel

105 East Anapamu Street

Suite 201

Santa Barbara, CA 93101

Telephone: (805)568-2950

FAX: (805) 568-2982

E-Mail: SSTARK@SBARBARA

.mhs.compuserve.com

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COUNTY COUNSEL

August 16, 1996

Honorable William A. Gordon, Presiding Judge

Santa Barbara Superior Court

County Courthouse

Santa Barbara 93101

Re: Response to Grand Jury Report "The City of Solvang and State Water" (Ballot Issues).

Dear Judge Gordon:

County Counsel respectfully submits this response to the "Ballot Issues" part of the 1995-96 Grand Jury Report. County Counsel responds as an affected agency to Findings and Recommendations 7 and 11. We also respond to Findings and Recommendations 8 and 12, which identify the Board of Supervisors as the affected agency, but pertain to our office.

LIMITS OF RESPONSE

Our response is limited to Ballot Issues. County Counsel does not respond to the "Issues Relating to the Solvang City Government" part of the report. Our response is primarily concerned with improving communications between government and the voters in future elections. We further advise of the limits of our response as follows:

A. MATTERS UNDER LITIGATION

There is litigation pending in the Santa Barbara Superior Court, City of Solvang v. Santa Ynez Water Conservation District, Improvement District No. 1, Case No. SM 093289, that concerns the subject matter of the Grand Jury Report. (See Report p.2.) The County of Santa Barbara is not a party to this litigation. County Counsel declines to comment on the substantive conclusions of the Report. In particular, we express no opinion on whether information on the costs and effects of the State Water Project on the City of Solvang was inaccurate or misleading.

B. THE COST OF STATE WATER AND FUTURE FINANCIAL RISKS.

In addition to the City of Solvang, numerous cities and water districts in the County of Santa Barbara have approved participation in the State Water Project. Bonds have been issued and contracts for repayment of construction costs have been approved. Some persons have expressed concern over potential financial risk to the various participants and their ratepayers, and to the County and its taxpayers. The risk would arise if there was a lack of funds to pay State Water Project debt. Whether there is an appreciable risk of loss, and how any shortfall of funds would be met, are questions of public interest. The Board of Supervisors or the 1996-97 Grand Jury may wish to consider further evaluation of the matter and disclosure of any risks. County Counsel, in this response, expresses no opinion on these matters.

GENERAL COMMENT

We agree with the central conclusions of the Grand Jury:

* THE FACTS SHOULD BE DISCLOSED TO THE VOTERS. The voters are the ultimate decision-makers on bond issues. They should have the necessary facts to make an informed decision. All information submitted to the voters -- particularly statements of the costs and risks of proposed measures -- should be accurate. All relevant information should be disclosed to the voters.

* BALLOT MATERIAL SHOULD BE WELL WRITTEN AND UNDERSTANDABLE. If the voters cannot understand the language of ballot materials, the disclosure of facts will not be effective in informing the electorate. The text of ballot measures, and the official statements explaining them, should be written clearly and understandably.

We agree that county officials -- particularly County Counsel -- must ensure that future ballot measures and analyses adequately and clearly inform the voters. We do not support the Grand Jury's recommended remedies:

* County officials are responsible under law for presenting County measures to the Board of Supervisors and for drafting impartial analyses of County measures. We are skeptical of the need and utility of a commission to oversee the accuracy of ballot measures and analyses.

* Basic standards of good writing apply to legal documents and voter information statements. This is a sufficient standard of quality. Computer "grammar check" measures and reader education equivalents are useful tools. It would be wrong to use them as fixed standards.

BALLOT MEASURES AND OFFICIAL BALLOT MATERIAL

FINDING 7: Santa Barbara County has a strong interest in an informed electorate and in providing complete and accurate information on ballots and in all other voter materials. Ballot measures and accompanying Analyses should be written so that a layman can understand them. The K91 ballot, one sentence of 232 words, and the Impartial Analysis required the reading understanding of a high school graduate. Both the K91 ballot measure and the Impartial Analysis failed to inform fully the voters what, exactly, they were voting for.

RECOMMENDATION 7: Ballot measures and accompanying official materials for Santa Barbara County and Special District elections should be written in a clear and understandable manner, using words with common everyday meanings. The Board of Supervisors and its legal counsel should evaluate ballot measures presented and evaluate their accuracy. They should also analyze for readability, using readily available standards, such as Microsoft Word v. 6.0 grammar check.

RESPONSE TO FINDING 7:

1. We agree that the County has a strong interest in an informed electorate and in providing complete and accurate information in ballot materials.

2. We agree that ballot measures and accompanying analyses should be written so that a layman can understand them. This is a goal, not a legal requirement. Ballot measures and ordinances sometimes require precise language that must be written in technical terms. Sometimes, the need for technical language may cause conflict between accuracy and readability.

3. We express no opinion on the understandability of Measure K91, nor on whether the voters were fully informed. The measure was written by district counsel, and County Counsel did not seek to change its language. We do observe that short sentences are generally more understandable than long ones, and that 232 words is long by any standard.

4. County Counsel did review district counsel's impartial analysis of Measure K91 in 1991. We did not revise the analysis. The analysis of the SYRWCD measure is similar to the analyses that County Counsel, city attorneys, and private district counsel prepared for the other 1991 water measures. It contains technical terms, and its language could be simplified and made more readable. The K91 impartial analysis accurately describes how the measure operates and how it will affect existing law, consistent with the Elections Code. In preparing this response, we did not review the K91 analysis in detail. We express no opinion on whether or how its language could have been more informative, balanced, or understandable.

RESPONSE TO RECOMMENDATION 7:

1. We agree that ballot materials should be written in a clear and understandable manner, using words with common ordinary meanings where possible. Legal documents subject to voter approval, such as debt instruments and ordinances, often contain technical terms. In law, ordinary words are given ordinary meanings, and technical words are given technical meanings. While technical concepts can usually be explained in plain language without sacrificing accuracy, it is not always possible.

2. We agree that County officials should evaluate ballot measures presented to the Board of Supervisors for clarity of meaning and for accuracy. Most county measures are approved by ordinance. The language of the ordinance, and that of resolutions specifying ballot language, is prepared or reviewed by the County Counsel. The language is approved by the Board of Supervisors at a public meeting. The County Counsel is responsible for evaluating the language of ballot measures for clarity and readability, as well as legal sufficiency.

3. The County Administrator and County Auditor have professional capability to evaluate for accuracy the facts stated in ballot measures, including statements of financial cost and risk. We agree that the Board of Supervisors is ultimately responsible for the quality and accuracy of County measures presented to the voters, as well as ordinances.

CAUTION: The County and its responsible officials must, under federal securities law, fairly and accurately disclose the risks of County securities offerings (including bonds) to potential buyers. Recent United States Securities and Exchange Commission Rules impose strict disclosure standards on all issuers of municipal securities. (Rule 15c2-12 [1995]). This financial disclosure obligation is additional to any obligation or good practice requiring disclosure to the voters.

4. State law prescribes procedures for ballot analysis of county measures. See Elections Code SS 9160. The County Counsel and County Auditor have specific functions. The County Counsel must prepare an impartial analysis of the effect of the measure on existing law and on its operation (SS 9160(a)). The County Auditor may, at the direction of the Board of Supervisors, prepare a fiscal impact statement that estimates the effect of the measure on revenues and expenditures (SS 9160(c)).[1] The Board of Supervisors does not review the content or the writing of either County Counsel or Auditor analyses. These statements, as well as arguments and other ballot material, are reviewable by petition to the Superior Court.

5. The California Elections Code has separate provisions for district measures. Under SS 9168, the provisions of SS 9160 may apply to "any district bond election called by ... the board of supervisors, or .... conducted by a district." County counsel, if directed by the board, may prepare the impartial analysis for district bond measures.[2] However, for water districts, the district counsel prepares the analysis, subject to review and revision by county counsel (SS 9314). The Board of Supervisors may direct the County Auditor to prepare a fiscal impact statement regarding district measures; the Board and the Auditor should address this policy decision.

6. The decision to propose a bond measure is for the district board. District counsel drafts water district measures and ballot language; the district board approves the final language. The Board of Supervisors adopts resolutions calling for elections on district measures when a district requests that an election be consolidated with a county election. Consolidation is done for the convenience of the district and the elections division. In practice, the Board generally approves consolidated elections based on resolutions adopted by district boards. These resolutions usually contain specific ballot language. A district may choose to conduct its own election. In our opinion, the authority of the Board of Supervisors to adopt a resolution consolidating a district election does not imply any authority of the Board to revise ballot language for district measures. Thus, neither County Counsel nor the Board of Supervisors seeks to review or revise language adopted by district governing boards.

7. We agree that ballot measures and official ballot material should be readable. This principle applies to everyone who writes ballot material, and especially to lawyers. The County Counsel's Office places a high value on good writing. In our opinion, there is no excuse for a public attorney to commit bad writing in an official elections statement. In his classic law review article "Plain English for Lawyers," law professor Richard Wydick advises that "good legal writing is plain English." The article states basic elements of good writing. These provide sound guidance to county counsels and all whose job is to inform decision-makers and the public.[3]

Omit surplus words.

Use familiar, concrete words.

Use short sentences.

Use base verbs and the active voice.

Arrange your words with care.

Avoid language quirks.

8. A commitment by county officials to practice good writing suffices as a standard of quality. We do not support requiring a specific "readability index" or "grade level" standard. Use of a specific computer tool should not be mandatory.[4] Microsoft Word 6.0 "grammar check" is a useful aid to effective writing, within limits. It identifies long sentences and the use of the passive voice, and disciplines the writer to re-think his or her language.[5] A document's score on "grammar check" by no means assures its readability, clarity, or accuracy.

9. The Board of Supervisors is the final authority as to county ballot measures and ordinances. Part of the Board's job is to evaluate and ensure the clarity of county measures, which staff drafts. The Board does not, under law, play any role in the content or language of county counsel ballot analyses. Its role with respect to fiscal impact statements is to consider whether the Auditor should prepare a statement for a county or district measure. The Board does not review the content or the writing of an Auditor's statement.

FINDING 8: The process for placing a ballot measure for a County or Special District election starts with the Board of Supervisors. Impartial arguments for county measures are written by the County Counsel. Impartial Arguments for Special District elections are written by the attorney for that Special District. This creates an appearence (sic) of conflict of interest There is no single county division that has the responsibility in the busy election time of overseeing ballot measures for accuracy, impartiality and readability in conformity with state measures described in the legislative analysis for Election Code Section 9087.

RECOMMENDATION 8: The Board of Supervisors should consider appointing a special commission to oversee county and Special District ballot measures for accuracy and impartiality.

NOTE: This finding and recommendation concern the County Counsel. The Report identifies the Board of Supervisors, not the County Counsel, as the affected agency.

RESPONSE TO FINDING 8:

1. The Board of Supervisors is responsible for ballot measures proposed by the County and for dependent Special Districts (those districts for which the Board of Supervisors is the governing body). The Board is not responsible for ballot measures proposed by independent districts, such as water purveyors, or by cities.

2. The County Counsel is responsible for writing an impartial analysis of the effects on existing law and the operation of county measures and most district measures. County Counsel does not write or sign ballot arguments. The term "impartial argument" used in the report is inaccurate. The Board of Supervisors may direct the County Auditor to prepare an analysis on the financial impact of a county measure. State law requires the County Counsel and the County Auditor to perform these duties.

3. We disagree that County Counsel's preparation of impartial analyses (not arguments) creates an appearance of conflict of interest. This is counsel's statutory duty, and we take it seriously. Writing statements of how proposed measures work and how they will change existing law is no different from giving a legal opinion or advising a county board of its lawful alternatives. County Counsel is obligated to be fair, impartial, and objective. This is a fundamental aspect of governance and a basic operating principle of our office.

4. Further, the operation and effects of bond measures are generally straightforward, and can be described in plain terms. County Counsel analyses are based on the language of the proposed measure. They do not concern fiscal impacts or other "facts" related to proposed measures. We are required to analyze how a measure would change existing law and how a measure will operate. Neither task requires counsel to look behind the language of the measure itself.

5. The County Auditor, who is authorized to prepare fiscal impact statements of county measures at the direction of the Board, should be included in any process that concerns fiscal analysis of ballot measures. This function is within the professional competence of the Auditor.[6]

6. We agree that there is no single local agency that oversees ballot language for "accuracy, impartiality, and readability." The legislative body that proposes the ballot measure is responsible for its accuracy. The County Clerk (elections official), County Counsel and County Auditor are, by the nature of their duties as public officials, required to be impartial. The legislative body and its counsel are jointly responsible for producing readable documents.

7. Elections Code SS 9087 requires the Legislative Analyst to prepare both an impartial analysis that includes a fiscal analysis of state measures. The section requires that "the analysis shall be written in clear and concise terms, so as to be easily understood by the average voter, and shall avoid the use of technical terms wherever possible." It gives the Legislative Analyst the authority to contract with professional writers, and get assistance from other state officials. The Legislative Analyst must submit the analysis to a committee "for the purpose of reviewing the analysis to confirm its clarity and easy comprehension to the average voter." The committee shall include an education specialist, a professional writer, and a bilingual person. The committee has 5 days to make recommendations. This committee only reviews for readability. It does not check analyses for accuracy or impartiality. The Legislative Analyst is responsible for determining the content of the analysis.

RESPONSE TO RECOMMENDATION 8:

1. Whether an oversight commission should be appointed is a policy decision for the Board of Supervisors. Any decision to create a commission involves a trade-off between the costs of creating a new layer of government and promoting public confidence by increased oversight.

2. We are highly skeptical of the value of appointing commissions to oversee statutory functions of public officials. Commissions add time and cost to any process. There are many questions about the utility of a commission that would oversee elections functions. How would an elections oversight commission check the "accuracy" of a ballot measure? Would the commission need staff? How would it evaluate "impartiality?" Is a committee to be charged with the task of ensuring that writing is "readable?"[7]

3. There is an existing process for expedited judicial review of ballot material alleged to be misleading. An elections oversight commission would not substitute for, and could not interfere with, the judicial function of the courts.

ANALYSIS AND DISCLOSURE OF DISTRICT BOND MEASURES

FINDING 11: Ballot measure K91 did not disclose the fact that the revenue bond measure would trigger an additional DWR indebtedness that is more than one half of the total annual amount due by Solvang ratepayers. Including management and operating costs with the rising DWR costs means that the voters incurred a debt that is much more then (sic) what was described by a Solvang official to be "all-inclusive" costs of $13.8 million, seventy-five percent of $18.4 million, the revenue bond number stated in K91.

RECOMMENDATION 11: All Santa Barbara County and Special District revenue bond measures should be analyzed by the Santa Barbara County Elections Division in consultation with the Santa Barbara County Counsel's office (and the abovementioned Recommendation 8 suggested commission) to determine if all necessary information, including estimated projected costs, is given for the voters to make an informed decision.

NO RESPONSE TO FINDING 11. We express no opinion on the merits of the Solvang dispute.

RESPONSE TO RECOMMENDATION 11:

1. County Counsel doubts if the Elections Division has the expertise to evaluate whether the sponsor of a ballot measure gave all necessary financial information. The election official's function is administrative, not investigative. The County Counsel evaluates various legal documents for adequacy of disclosure. We do not, however, have financial investigative resources. The County Auditor is more able to analyze revenue bond measures to determine if the voters have the necessary information, including project costs, to make an informed decision. The County Administrator is responsible for overall quality and accuracy of county business. County Counsel, will, of course, continue to work cooperatively with the Auditor, County Administrator, and Elections Division.

2. We agree that the voters should have all necessary information. We do not agree that the creation of a commission furthers this goal. The existing framework for disclosure is adequate. The Elections Code provides for mandatory counsel's analysis and discretionary auditor's fiscal analysis. It also requires statements that disclose to voters the estimated tax rates for all bond issues that would impose liens on real property. See Elections Code SSSS 9400-05.

FINDING 12: It is wrong to submit the question of the issuance of bonds "not to exceed" a certain sum and then later reveal that the measure effectively obligated the voters to an additional obligation and a much greater sum. There was no information sheet from the water district detailing the pro and cons of the ballot measure, such as was supplied by the County of Santa Barbara in the 1979 water election. Because of the absence of newspaper and other media reporting and official information about the long range costs, it is highly unlikely that the average voter understood the financial implications of his or her vote

RECOMMENDATION 12: The County of Santa Barbara and any Special District submitting a ballot measure requesting the authorization of bonds should explain the financial ramifications of the measure. This can be done by an informational sheet in the voters' materials or by an advertisement in area newspapers as was done for the 1979 election.

NOTE: This recommendation concerns the County, and could affect the County Counsel. The Board of Supervisors, not the County Counsel, is identified as the affected agency.

RESPONSE TO FINDING 12.

1. We express no opinion on the adequacy of disclosure of financial obligations regarding the City of Solvang and State Water.

2. The voters should be informed of all financial obligations that may result from a proposal. The total financial impact of a proposal should be estimated as accurately and communicated as clearly as possible. Both government agencies and the media have an obligation to inform the public of important issues. With improved technology, wider and better communication is feasible. With a commitment to provide the public with information on issues of civic concern, a higher level of public awareness can be achieved in the future.

RESPONSE TO RECOMMENDATION 12:

1. We agree that the financial ramifications of bond measures should be explained to the voters. Elections Code SSSS 9401 and 9402 require an estimate of tax rates that would be levied to finance bond issues and authorize statements regarding alternative revenue sources. The 1991 water elections involved revenue bonds. Many revenue bond measures must be submitted for voter approval, but are not subject to SS 9401 because they do not involve real property tax liens.

2. Governments can provide information to educate the public on the issues involved in proposed ballot measures. Governments may not, under law, spend public funds in support of a position on a ballot measure. Ballot measures are often controversial and involve difficult technical questions. Because the role of government is restricted, the media have a responsibility to assure that there is balanced coverage and thorough reporting on bond issues, tax proposals, and other government-sponsored measures.

We commend the 1995-96 Grand Jury for its thorough work in this report. Government decisions are made for the benefit of the public. Their quality depends in part on an informed public. We look forward to improved communication between government and the voters in future elections. County Counsel pledges to do our part in this effort.

Respectfully submitted,

STEPHEN SHANE STARK

COUNTY COUNSEL

CC: 1996-97 GRAND JURY FOREPERSON

BOARD OF SUPERVISORS

COUNTY ADMINISTRATOR

COUNTY AUDITOR-CONTROLLER

COUNTY CLERK-RECORDER-ASSESSOR

[1] Under 9160(a), the elections official transmits a copy of any county measure to the county counsel and auditor. Under 9160(b), "the county counsel ... shall prepare an impartial analysis of the measure showing the effect of the measure on the existing law and the operation of the measure." If the full text of any ordinance or measure is not printed in the ballot pamphlet, the text below the county counsel analysis must inform the voters that the elections official will furnish a copy of the full text at no cost. Under 9160(c), the board of supervisors may direct the county auditor to "review the measure and determine whether [its] substance ... would affect the revenues or expenditures of the county." The auditor "shall prepare a fiscal impact statement which estimates the amount of any increase or decrease in revenues or costs to the county if the proposed measure is adopted." The analysis and impact statement cannot exceed 500 words. They are printed in the ballot pamphlet before the arguments.

[2] County Counsel is the attorney for dependent special districts, those whose governing body consists of the members of the Board of Supervisors. We are also attorney for some school districts and independent districts. Most independent districts have separate counsel. In practice, district counsel prepares ballot language and draft impartial analyses of independent district measures. Private attorneys representing public entities are bound by the rules of professional ethics governing the practice of law and assume the duties of public officials when representing public entity clients.

[3] 66 Cal. Law Rev. 727 (1978). The Wydick article is available at the County Counsel's Office; a courtesy copy is enclosed for the Grand Jury's information. A similar guide to good writing in general is Strunk & White, The Elements of Style (3d Ed. 1979). This book contains plain, useful rules for effective writing, including elementary principles of usage and composition.

[4] It may be true that the average voter has a sixth to eighth grade reading ability (see p.21). Those who write ballot materials need to recognize their audience, and try to communicate at a level appropriate to the actual readers. However, it is a sad commentary that the "average" adult voter reads at an elementary school level.

[5] Wydick tells his students: "if a sentence is longer than 15 words, re-read it; 20 words, re-think it; 25 words re-write it."

[6] The impartiality of the Auditor cannot be reasonably questioned. The Auditor is elected by all the voters of the County. He or she is responsible not only to the county, but to all county taxing entities, including cities and districts. The Auditor must be an accountant, and is bound by professional ethical standards including impartiality and objectivity.

[7] There is an old chestnut that a camel is a horse designed by a committee. The principle, which is related to the even older saying that "too many cooks spoil the broth," definitely applies to the writing of a statement.