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Home My WebLink About08 - Prohibiting the Use of Public Funds for Tax Measure AdvocacyPO e CITY OF z NEWPORT BEACH ,q City Council Staff Report March 13, 2018 Agenda Item No. 8 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Dave Kiff, City Manager - 949-644-3001, dkiff _newportbeachca.gov PREPARED BY: Dave Kiff, City Manager - 949-644-3001 TITLE: Resolution No. 2018-16: Adoption of City Council Policy A-3 Prohibiting the Use of Public Funds for Tax Measure Advocacy ABSTRACT: Mayor Duffield requests Council consideration of this item under the authority provided to him in City Council Policy A-1. The attached resolution and City Council Policy A-3 prohibit the City from using public funds to mount "informational campaigns" or to advocate for or against tax measures. RECOMMENDATION: a) Determine this action is exempt from the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Adopt Resolution No. 2018-16, A Resolution of the City Council of the City of Newport Beach, California, Adopting City Council Policy A-3 Prohibiting the Use of Public Funds for Tax Measure Advocacy. FUNDING REQUIREMENTS: There is no fiscal impact associated with the adoption of this City Council Policy A-3. DISCUSSION: State and Federal law prohibit public agencies from spending public funds to support or oppose ballot measures. The courts have interpreted these laws to carve out a narrow exception allowing for the use of public funds to provide information regarding ballot measures to the public. However, Mayor Duffield and Mayor Pro Tem O'Neill believe that public agencies in the past have blurred the lines between advocacy and information, especially when the underlying ballot measure relates to a tax. WE Adoption of City Council Policy A-3 March 13, 2018 Page 2 To prohibit advocacy in this regard, Mayor Duffield and Mayor Pro Tem O'Neill have offered the attached City Council Policy A-3, which would prohibit the City of Newport Beach from spending public funds to mount "informational campaigns" or to advocate for or against local tax measures on either the City or County ballot. The prohibition would also apply to the expenditure of funds associated with City staff time spent to promote or oppose a measure. Under the proposed policy, City officials would be allowed to respond to questions about the fiscal impacts of any tax measure, however. ENVIRONMENTAL REVIEW: Staff recommends the City Council find the adoption of City Council Policy A-3 is not subject to the California Environmental Quality Act (CEQA) pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because the adoption of City Council Policy A-3 has no potential for resulting in physical change to the environment, directly or indirectly. NOTICING: This agenda item was noticed according to the Brown Act (72 hours in advance of the meeting at which the City Council considers the item). ATTACHMENT: Attachment A — Resolution No. 2018-16 8-2 ATTACHMENT A RESOLUTION NO. 2018- 16 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH, CALIFORNIA, ADOPTING CITY COUNCIL POLICY A-3 PROHIBITING THE USE OF PUBLIC FUNDS FOR TAX MEASURE ADVOCACY WHEREAS, in the last century, the California Supreme Court has cautioned that "the use of the public treasury to mount an election campaign which attempts to influence the resolution of issues... present[s] a serious threat to the integrity of the electoral process" (Stanson v. Mott (1976) 17 Cal.3d 206, 218); WHEREAS, the California Legislature has expressly prohibited local agencies from expending public funds to support or oppose a ballot measure (California Government Code Section 54964(a)); WHEREAS, since the Stanson decision, the California Supreme Court has clarified that "Stanson does not preclude a governmental entity from publicly expressing an opinion with regard to the merits of a proposed ballot measure, so long as it does not expend public funds to mount a campaign on the measure... Rather, the threat to the fairness of the electoral process to which Stanson referred arises when a public entity or public official is able to devote funds from the public treasury, or the publicly financed services of public employees, to campaign activities favoring or opposing such a measure" (Vargas v. City of Salinas (2009) 46 CalAth 1,36-37)1 WHEREAS, the California Supreme Court has cautioned "that even when a publication or communication imparts useful information and does not expressly advocate a vote for or against a specific candidate or ballot measure, the expenditure of public funds to prepare or distribute the communication is improper when the `style, tenor, and timing' of the publication demonstrates that the communication constitutes traditional campaign activity' (Vargas at 27; Emphasis added); WHEREAS, some California public agencies may have inadvertently, or on purpose, blurred the lines between advocacy and information associated with tax measures; and WHEREAS, the City Council recognizes the inherent risks and potential ambiguities involved with determining whether an informational message associated with a tax measure is actually improper advocacy, and the possible temptation to deliberately confuse one with the other. NOW, THEREFORE, the City Council of the City of Newport Beach does hereby resolve as follows: E:, Resolution 2018 - Page 2 of 2 Section 1: The City Council hereby adopts City Council Policy A-3 (Prohibition on Tax Measure Advocacy), which is attached hereto and incorporated herein by reference. Section 2: If any section, subsection, sentence, clause or phrase of this resolution is for any reason held to be invalid or unconstitutional, such decision shall not affect the validity or constitutionality of the remaining portions of this resolution. The City Council hereby declares that it would have passed this resolution and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional. Section 3: The recitals provided in this resolution are true and correct and are incorporated into the substantive portion of this resolution. Section 4: The City Council finds adoption of this resolution is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Section 5: This resolution shall take effect immediately upon its adoption, and the City Clerk shall certify the vote adopting this resolution. ADOPTED this _ day of , 2018. Marshall "Duffy" Duffield Mayor ATTEST: Leilani 1. Brown City Clerk APPRO E S TO FORM: City o e s Office Aa n C. Harp City Attorney Attachment: City Council Policy A-3 A-3 PROHIBITION ON TAX MEASURE ADVOCACY The City of Newport Beach shall not use public funds, either through its own staff or through the hiring or use of outside consultants, to engage in advocacy or informational campaigns for or against local tax measures on the City or County ballot. This prohibition includes, but is not limited to, "public education," "public opinion polling," "studies," or "written or verbal communications" regarding tax measures. This prohibition is not intended to limit staff's ability to respond to questions about the fiscal impact of any local tax measure. Adopted: March 13, 2018 E:�