BOARD AGENDA MEMORANDUM
Government Code § 84308 Applies: Yes ☐ No ☒
(If “YES” Complete Attachment A - Gov. Code § 84308)
SUBJECT:
Title
Consider and Approve the February 6, 2023, Board Policy and Planning Committee Recommendation to Revise the Response to the Santa Clara County Civil Grand Jury’s October 7, 2022, Final Report.
End
RECOMMENDATION:
Recommendation
Consider recommendations resulting from the February 6, 2023, Board Policy and Planning Committee meeting to:
A. Review Board Policy and Planning Committee Recommendations for Proposed Response to Santa Clara County Civil Grand Jury October 7, 2022, Final Report Finding 1 and Recommendations 1b, 1c, and 1e; and
B. Approve the Response or Provide Additional Direction and Feedback as Necessary.
Body
SUMMARY:
Background
On October 7, 2022, the Santa Clara County Civil Grand Jury (Civil Grand Jury) issued a report that took issue with the choice of wording used in local ballot measure questions. Specifically, the Civil Grand Jury argues that some local governing entities present ballot questions that are purposefully misleading so they may obtain their desired result. Among other measures, the Civil Grand Jury took issue with the wording of Santa Clara Valley Water District’s (Valley Water)2022 Measure A ballot question.
On October 10, 2022, Valley Water received a letter from James Renalds, Foreperson of the 2022 Civil Grand Jury, providing its report entitled, If You Only Read the Ballot, You’re Being Duped (Report) (Attachment 1). The Report included Findings and Recommendations. In the letter, Valley Water was asked to comment on the Report’s Finding 1 and Recommendations 1b, 1c, and 1e. Under Penal Code section 933.05, Valley Water was requested to respond to the Report by January 5, 2023.
At the Board of Directors Meeting on December 13, 2022, the Response to Santa Clara County Civil Grand Jury’s October 7, 2022, Final Report was reviewed by the Board. The Board Agenda Memorandum (Attachment 2) provided a draft response to the Grand Jury Report with an attached draft response letter. At the meeting, staff provided the Board with an alternate draft response letter as a hardcopy handout (Attachment 3). The Option 2 draft response letter indicated that Valley Water staff would bring the Grand Jury Report to the Board Policy and Planning Committee (BPPC) to analyze the report and provide recommendations to the full Board of Directors by March 31, 2023. The Board voted in favor of the Option 2 letter requesting a time extension for this item to be reviewed by the BPPC, which was ultimately approved in a letter issued by the presiding court judge (Attachment 4).
On February 6, 2023, the BPPC reviewed the Grand Jury Report item. As recommended in the Committee Agenda Memorandum (Attachment 5), the BPPC analyzed and discussed the Grand Jury Report Findings and Recommendations and provided response recommendations for the full Board of Directors to review. The Committee Agenda Memorandum included a summary of other agency responses to the Grand Jury Report.
The BPPC made recommendations for the specific actions required in response to the Grand Jury Report. Under Penal Code section 933.05, Valley Water must state whether it agrees or disagrees with Finding 1 and Recommendations 1b, 1c, and 1e and respond with one of four possible actions:
(1) The recommendation has been implemented, with a summary regarding the implemented action.
(2) The recommendation has not yet been implemented, but will be implemented in the future, with a timeframe for implementation.
(3) The recommendation requires further analysis, with an explanation and the scope and parameters of an analysis or study, and a timeframe for the matter to be prepared for discussion by the officer or head of the agency or department being investigated or reviewed, including the governing body of the public agency when applicable. This timeframe shall not exceed six months from the date of publication of the grand jury report.
(4) The recommendation will not be implemented because it is not warranted or is not reasonable, with an explanation therefor.
The BPPC recommended that staff prepare a new, simplified draft response letter to the Grand Jury Report with responses to partially agree with Finding 1 and disagree with Recommendations 1b, 1c, and 1e (i.e., state that these recommendations will not be implemented because they are not warranted or reasonable).
The following is the staff’s revised recommended response to the Grand Jury Report, which incorporates the BPPC’s guidance and recommendations. The revised draft response is also included in the District’s Draft Response Letter (Attachment 6).
District Response
Finding 1:
The Civil Grand Jury finds that in the current environment, which is unregulated at the local level, it is easy for the author of a ballot measure question to write the question in a way that is confusing or misleading to voters.
Proposed Response: Partially Agree
Valley Water partially agrees. A ballot measure question can be written in a way that is confusing or misleading to voters. However, Valley Water disagrees that ballot measure questions are unregulated at the local level. Ballot measure questions are regulated under the California Elections Code.
The Elections Code requires either that the entire text of the measure be included in the ballot or the voter information guide to ensure that voters understand the purpose of the proposed measure.
Recommendation 1b:
Governing entities within Santa Clara County should voluntarily submit their ballot questions to the County Counsel for review prior to submission to the Registrar of Voters, unless and until Recommendation 1d is implemented.
Proposed Response: The recommendation will not be implemented because it is not warranted.
The California Elections Code already requires local ballot measure questions to be subject to an impartial analysis by the agency’s counsel and then submitted to County Counsel for review prior to submission to the Registrar of Voters. Valley Water has and will continue to comply with these Elections Code requirements for any future ballot measures initiated by the agency.
Recommendation 1c:
Governing entities within Santa Clara County should, by March 31, 2023, adopt their own resolution or ordinance to require submission of their ballot questions to the County Counsel for review prior to submission to the Registrar of Voters, unless and until Recommendations 1d and 1e are implemented.
Proposed Response: The recommendation will not be implemented because it is not warranted.
The California Elections Code already requires local ballot measure questions to be subject to an impartial analysis by the agency’s counsel and then submitted to County Counsel for review prior to submission to the Registrar of Voters. Valley Water has and will continue to comply with these Elections Code requirements for any future ballot measures initiated by the agency.
Recommendation 1e:
Governing entities within Santa Clara County should submit their ballot questions for review by the Good Governance in Ballots Commission pursuant to Recommendation 1d.
Proposed Response: The recommendation will not be implemented because it is not warranted.
Recommendation 1d of the Grand Jury Report states: The County should create an independent, citizen-led oversight commission like the recommended Good Governance in Ballots Commission as described in the “Solutions” section of this report. The Commission should be implemented by August 1, 2024.
Recommendation 1e, which depends on the implementation of 1d, will not be implemented because it requires the establishment of an independent oversight commission (Good Governance in Ballots Commission) to review ballot questions. The County of Santa Clara filed its own response to the Grand Jury Report on December 22, 2022. In the published response, the County disagrees with recommendation 1d stating that “it is not warranted or reasonable to implement” because requiring ballot questions to be reviewed by a new advisory body would create a “burdensome delay to the Registrar of Voter’s ballot preparation process.” Valley Water cannot submit questions for review by an independent oversight commission that the County itself has determined to be unwarranted.
ENVIRONMENTAL JUSTICE IMPACT:
There are no Environmental Justice impacts associated with this item.
FINANCIAL IMPACT:
There is no financial impact associated with this item.
CEQA:
The recommended action does not constitute a project under CEQA because it does not have a potential for resulting in direct or reasonably foreseeable indirect physical change in the environment.
ATTACHMENTS:
Attachment 1: Civil Grand Jury Report
Attachment 2: 12/13/2022 Board Agenda Memo
Attachment 3: 12/13/2022 Draft Response Letter Handout
Attachment 4: Court Extension Letter
Attachment 5: 02/06/2023 BPPC Committee Agenda Memo
Attachment 6: Draft Response Letter
UNCLASSIFIED MANAGER:
Manager
Tina Yoke, 408-630-2385