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San Jose Mercury News

Two-word error could cost Santa Clara Valley Water District half a billion dollars

By Paul Rogers

August 19, 2012

[This article is also posted at the web site of the San Jose Mercury News, here.]


In what could turn out to be one of the costliest clerical errors in California history, a two-word mistake is threatening to bring down a half-billion-dollar tax measure scheduled for the November ballot in Silicon Valley.

The problem?

When the Santa Clara Valley Water District turned in ballot language this month to elections officials to place a $548 million parcel tax before voters, the summary of the measure was 77 words.

Under election law, however, summaries can be no more than 75 words.

When elections officials alerted the water district about the error, the district rushed to hold a board meeting and approved a new measure, this time with two fewer words.

The trouble is, the districtdidn't post a public agenda of the Aug. 8 meeting on its website, or send it out to the media, 24 hours ahead of time as required under California's open meetings law, the Brown Act. It missed those deadlines by less than an hour.

And late Friday, lawyers for a taxpayer group sent a letter to the district threatening a lawsuit unless they pulled the measure off the ballot.

"We believe it's a violation," said John Roeder, president of the Silicon Valley Taxpayers' Association.

"If they say, 'OK, we're sorry, we'll take it off the ballot,' then we won't do anything more. But if they tell us, no, they're right, then we'll decide what steps to take after that."

Even if the water district -- a government agency based in San Jose that provides drinking water and flood control to 1.8 million people -- wanted to, it can't go back now and hold a revote to approve the 75-word version. That's because the final deadline passed Wednesday to alter ballot measures in Santa Clara County. So if its Aug. 8 vote is nullified, it could be left with an illegal ballot measure -- two words too long.

Rick Callender, the government relations manager of the water district who supervised efforts to place the measure on the ballot, did not return phone calls or emails seeking comment Friday.

But Linda LeZotte, chairwoman of the water district board, said the intent of the agency was simply to make sure it did everything right, and that it would be a shame for the measure, which would fund trails, creek restoration and dam maintenance, to be killed over a two-word mistake.

"That would be devastating to the water district," said LeZotte, an attorney. "We were not changing the essence of the measure. We were removing two innocuous words that mistakenly put us over the word count. It was a minor technicality. I just don't see the substantial damage that has been done to the public."

LeZotte said she asked Callender how the agency could have failed to count its words properly.

"He said he didn't know," she said. "But somewhere in the system, two words were added."

The water district found out about the mistake Aug. 7. One day earlier, district clerk Michele King had emailed the ballot language to the Santa Clara County elections office, language that the water district board had approved July 24. At the elections office, deputy registrar Shannon Bushey counted up the words, and contacted the water district, she said, leaving a message that the measure needed to be shortened.

The next morning, the news set off a flurry of activity at the water district. LeZotte called for another meeting to be held the following day. The clerk's office prepared an agenda, had it approved by the agency's attorney, and posted a paper copy in the lobby at 10:19 a.m. -- 24 hours and 41 minutes before the 11 a.m. meeting time the next day, according to email records, meeting Brown Act rules.

But the agency didn't change its website until 11:45 a.m. that Tuesday -- 23 hours and 15 minutes before the meeting. And it didn't send out the agenda via emails to the media until 11:59 a.m., 23 hours and 1 minute before the meeting. Both actions are required by the Brown Act at least 24 hours before government meetings so the public has a chance to attend and participate.

When the meeting was held Aug. 8, the entire event lasted 2 minutes and 58 seconds. The water board's seven elected members, who voted unanimously to take out the words "as" and "No." (number) from the measure, are eligible to receive their standard payment, $286 per meeting, despite the record brevity. They also can put in for mileage reimbursement at 55 cents a mile. And the district served them a boxed lunch afterward.

"I have no intention personally of requesting reimbursement of any kind for that meeting," LeZotte said. "I would suggest that the other board members also not put in for it."

The Silicon Valley Taxpayers' Association has sued and won before. In 2002, the group sued the Santa Clara County Open Space Authority, fought seven years in court, and won a state Supreme Court ruling that required the open space agency to refund an illegally approved parcel tax to 321,000 property owners. The taxpayers group also said it will file a lawsuit Monday challenging a one-eighth-cent sales tax measure proposed by Santa Clara County.

If the current water district case ends up in court, such a lawsuit could offer a high-stakes showdown, experts say.

"It's conceivable a court might say we're not going to invalidate the chance for voters to speak," said attorney Terry Francke, general counsel of Californians Aware, an open government advocacy group in Sacramento. "But a court could just as easily say that if the district thought this was all that important, they should have filed it in time. If it was that important to them, why did they cut it so close?"

 

 

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

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