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How Far Can Government Go?

Opposing Attorneys Air Their Measure O Arguments Before Appearing in State Supreme Court

Oct 25, 2007 -- Monterey County Weekly
By Jessica Lyons

Five years ago, anti-tax crusader Mark Dierolf picked a fight with the city of Salinas when he authored Measure O, an attempt to ax the city’s tax on electricity, water and cable TV.

Dierolf, at the time head of the Monterey County Libertarian Party, repeatedly said Measure O simply would “trim the fat” from city government. City officials maintained that killing the utility tax—and losing the $8 million it brought into city coffers annually—would cut city-funded services like police, fire, parks and libraries. Salinas leaders mailed a newsletter to every household, and posted budgets and reports on the city website detailing cuts to programs and services should Measure O pass.

Assemblywoman Anna Caballero, who then was Salinas’ mayor, called Measure O “the most important issue this city has faced in the past 20 years.

“It really has to do with what kind of quality of life people want,” she said. “The Libertarian view is if you dial 911 and you need a police officer, you pay for it. If you need a firefighter, you pay for it. And we don’t live in a community where that happens.”

On Nov. 5, 2002, voters defeated Measure O.

In October 2003, Dierolf and fellow Measure O proponent Angie Morfin filed a lawsuit against Salinas claiming that the city unlawfully spent more than $250,000 in taxpayer money to campaign against Measure O. The city argued it wasn’t campaigning, but rather educating residents about the pending $8 million budget cut. Monterey County Superior Court Judge Robert O’Farrell ruled that the city did nothing unlawful. But the fight didn’t end there.

Vargas and Dierolf appealed the court’s decision; now the state Supreme Court has agreed to hear the case.

The following articles preview what attorneys for each side likely will argue.
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Joel Franklin: How Far Can Government Go?

Oct 25, 2007
By Joel Franklin

In America, as so well stated by President Abraham Lincoln in his address at Gettysburg, we have “government of the people, by the people, for the people.”

The city of Salinas does not seek to turn that notion on its head; indeed, the city wholeheartedly endorses it.

The government, nevertheless, plays an important role in the democratic process: informing the people.

Thus, government operates openly and elected officials have a duty to inform citizens about the operation of government – to be accountable, forthright and open. Government should not operate in secret, or prevent citizens from speaking their viewpoints. Nor should government, in the face of public controversy, advocate a particular vote or clearly urge a result from voters on an identified ballot measure.

However, government entities properly fulfill the democratic goal of informing citizens on the effects of a pending ballot measure, especially if its passage would significantly impact the funding and operation of the government. The government and its staff are in a unique position to know the effects of a potential ballot measure on the operation of government and its provision of community services and programs.

The US Supreme Court has held that government has a legitimate interest in informing, educating and persuading.

In order to achieve these goals, the government must be able to communicate with the electorate. Government informs and fosters robust public debate by publishing agendas of items to be considered by elected officials, giving notice of public meetings and hearings, holding public meetings, and publicly informing citizens of official actions and votes as required by law. In this way, the government is a participant in the “marketplace of ideas,” encourages public input, and provides an opportunity for voices to be heard from those who wish to dissent from or advocate for a particular ballot measure, political position, or course of government action. The government’s role in the debate is important and necessary. The government’s voice enhances the democratic system: it provides facts, ideas, analysis and expertise not always available from private sources.

In this process, government, by its elected officials and staff, engages in many forms of “speech.” The government participates in expressive activity when it warns of the dangers of cigarette smoking, spray paint or alcohol consumption or drug use, neighborhood watch programs, or publishes public safety alerts. Indeed, in this country of representative government we elect officials who will and must speak for all citizens, including those who disagree with government positions on some, if not all, issues. Speech under the First Amendment of the US Constitution and the California Constitution as a vehicle for informing the public should not turn on its source, whether the government, association or individual.

In the case of Morfin Vargas v. City of Salinas, now pending in the California Supreme Court, these significant statewide issues are being considered. In 2001, plaintiff Angie Morfin Vargas, Mark Dierolf and other anti-tax advocates proposed a ballot measure in the city of Salinas that would repeal the city’s utility tax, Measure O. In response to the proposed 13 percent cut in its budget (about $8 million) from Measure O, city of Salinas staff and council members, after a year-long public debate and financial analysis, adopted a “contingency” budget to prepare for the potential loss of millions of operating revenue. During nine public hearings, where budgetary alternatives were openly discussed and debated, each city department recommended such cuts as they believed most minimally impacted city services. For example, with more than $1 million to be cut from the Fire Department budget, paramedic, hazardous materials team and six firefighter positions had to be cut or restructured.

When these and other reports by the city were posted on the city’s webpage along with the City Council’s meeting minutes, and then summarized in the city’s regular quarterly newsletter and a one-page handout available at certain city offices, the city was sued by local taxpayers, alleging those actions were partisan political campaigning. The plaintiffs claimed that the city illegally expended public funds and subverted free elections by not putting the plaintiffs’ message in the city’s website, newsletter and summary sheet. The city and its staff were also sued for damages because the plaintiffs claimed the city’s “speech” was illegal: They argued that, by informing the citizens of the budget and specific tax cuts adopted for the contingency if Measure O were to pass, the city took a partisan position.

The standard for measuring the constitutionality of government speech under these circumstances should be clear and consistent with state law. The city of Salinas urges a straightforward legal test to the California Supreme Court: the government will illegally expend public funds if it makes any statement that “contains express words of advocacy” or “taken as a whole unambiguously urges the passage or defeat of a clearly identified ballot measure (or candidate).” The plaintiffs in the Morfin Vargas litigation prefer a standard that government speech be prohibited completely or is too vague to provide any guidance to government employees. Plaintiffs’ standard punishes government speech based on all of the circumstances surrounding the speech and its “subtle factors,” such as its “style, tenor, and timing.” Under plaintiffs’ view, liability could be based on the color, font size and style of a government “PowerPoint” presentation, website, newsletter, or information sheet.

Should public employees be protected from suit when they convey information to the public about the actions of government? Do they have First Amendment speech protections if they are doing their job reporting information and making policy decisions on budget matters? Should the listener decide whether the government speaker can be sued for delivering accurate, fair and impartial information, but which nevertheless is disputed by or offends the viewpoint of the listener? How should the courts balance these interests?

In Morfin Vargas, the city and its officials and staff were discussing governmental affairs and operations. The freedom of such discussion should be protected by the First Amendment. Government plays a recognized, legitimate informational role in the exchange of ideas. When it does so, it should be given some measure of protection in discharging its duty to inform the electorate on matters of public interest, especially when it addresses and decides fiscal matters directly related to the needs of its citizens and funds to serve the community.

Unless the government advocates for a particular vote on a measure or, without ambiguity, urges a particular outcome in an election, its voice should be protected by the Constitution. Officials and staff should not face personal liability for doing their jobs – informing the public on matters of public interest.

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Steven Andre: How Far Can Government Go?

Oct 25, 2007
By Steven Andre

The issue in Morfin Vargas v. City of Salinas has to do with what a government may do to influence voters’ opinions on an election issue. Specifically, may it use public funds to support one side in the election contest? The Vargas case really has nothing to do with the merits of Measure O.

Measure O was designed to reduce a city tax on utilities. Its supporters believed mismanagement of city finances by city officials had resulted in overspending and poor prioritization. City officials made an unusual response to Measure O. While complaining that the city had no money, they spent more than $250,000 in public funds to oppose Measure O. They did this by a newsletter sent to every Salinas household, a leaflet and extensive materials on the city’s website. These city publications all expressed the argument of the opponents of Measure O that devastating consequences would ensue should it pass.

In retrospect, the position of Measure O supporters – that the city’s finances have been poorly managed – has been vindicated. After Measure O failed, the city approved substantial increases in salaries and benefits. Then, loss of the anticipated share of vehicle registration funds and other losses unexpectedly reduced the city’s revenue by about $8 million dollars – an amount identical to that received from the utility tax. The horrible consequences promised by Measure O opponents and identified in the city’s materials as following from this loss of revenue – rampant graffiti, closed parks, methamphetamine labs, bio/chemical terrorism, abandoned vehicles and illegal residences – did not happen. Instead, the city did a little belt tightening and adopted some of the proposals of the Measure O supporters to better manage public resources.

But city administrators continued to mismanage and squander millions in public funds, paying large salary and benefit increases, protecting public service monopolies and maintaining “white elephants” like city-owned golf courses and a community center. This continuing extravagance resulted in national embarrassment when Salinas proclaimed that it was closing its libraries. Of course this predicted crisis did not materialize either. When the voters approved a temporary tax increase (Measure V) to bail out the spendthrift city officials, the city government didn’t learn its lesson. The bailout money was used to fund millions more in new pay and benefit increases and to hire more managers in an already bloated and top-heavy bureaucracy.

The problem with what city administrators did in campaigning against Measure O is not merely that they wasted scarce public funds to do this. Their conduct raises a fundamental issue concerning the role of American government and its relationship with the governed. This has to do with the question of who ultimately governs in our constitutional form of government – the people or government officials. Our California Supreme Court addressed this question in its 1976 landmark decision, Stanson v. Mott. In Stanson, the Court recognized that there are constitutional limits on what government may do to influence the populace. When it comes to elections – where the sovereign people seek to govern – government is forbidden from raiding the public treasury to seek to skew this process. In other words, government is not allowed to tell us how to think – at least not in the election context.

Voter satisfaction or dissatisfaction with government policies is ordinarily expressed at the ballot box when an administration is retained or is voted out of office. Public officials are free to promote an elected administration’s policies in the ordinary course of governance. But when the government policy in question is the subject of an election, a different problem is presented. Because this is an area in which the sovereign electorate seeks to govern, efforts by public officials to engage in partisan lobbying of the voters’ ballot decision runs contrary to the fundamental constitutional precept recognized by the Supreme Court in Stanson that “government may not ‘take sides’ in election contests or bestow an unfair advantage on one of several competing factions.”

Salinas city officials crossed the line by using public funds on the eve of an election to distribute one-sided materials supporting the view that Measure O would have harmful consequences for Salinas residents. The broader, more sinister and Orwellian ramifications of allowing government agencies to engage in such expenditures to influence how we think about election issues should be carefully contemplated. The campaign propaganda distributed by Salinas city officials was unmistakably designed to frighten voters into believing passage of Measure O would mean devastating losses of significant services, more crime, urban blight and other awful consequences.

The voice of government is powerfully persuasive and fear is a strong motivator. Just how far we are willing to let government scare us is a timely issue. Some government agencies are increasingly seeking to turn the “home of the brave” into the haven of the scared by incessantly berating us with the shadowy threat of terrorism. We need to consider how much freedom we are prepared to cede to government for the perception of increased security.

Our nation’s Founding Fathers’ distrust of government and desire to limit government’s ability to perpetuate itself at the expense of individual liberty lies at the heart of the Vargas case. Vargas asks the Supreme Court to reaffirm its decision in Stanson, which draws the line restricting government’s ability to seek to influence how we think about an issue and preventing such intrusion, at least in the electoral process.

At the core of this constitutional analysis is the basic notion that we tell our government what to do, not the other way around. We should neither desire nor trust government’s view on how we should cast our ballot. This is an area where the courts should not allow government to try to influence or scare us into making a particular decision.

The dark alternative to the restriction recognized by the Supreme Court is that government agencies could divert unlimited public funds to erect billboards, buy television and radio ads and full-page ads in the Monterey County Weekly effectively stating, “Big Brother says you are in terrible danger and will be killed by terrorists unless you vote for Measure X.”


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