Wednesday, August 16, 2023

My 8.15.23 Meeting Summary

Last night the Council discussed several significant items:

- We received a presentation from the Contra Costa Mosquito and Vector Control District regarding their scope of services and tips on reducing the risk that certain pest insects and animals present.  As part of the District, the City of Clayton is able to appoint one Trustee to sit on the Board of the District.  Currently that seat is vacant.  If any are interested in learning more or applying to be a Trustee, please contact the City Clerk.

- We received a quarterly update on the City's investment portfolio.  This was also discussed at our Budget and Audit Committee meeting the previous day.  We are experiencing higher yields with some of our more recent buys, however the portfolio continues to be weighted with lower yield CDs that were purchased years ago.  We will be doing an analysis whether it makes sense to sell those at a loss in order to utilize proceeds for higher yield products, but it is unlikely that the return would make that worthwhile.  Overall we still have opportunity to move more liquid cash  into higher yielding investments and the Budget and Audit Committee consisting of myself and Councilmember Trupiano directed staff to do so.

Our current practice has been to concentrate in CDs which are not a liquid product, and are limited to buys of $250K.  With an investment portfolio north of $16M, this means that staff needs to monitor a long list of investments.  The Committee asked Staff to prepare an investment plan that describes the laddering targets so that we can reduce the overall number of investments while still maximizing safety, liquidity, and yield. Overall the City recognized approximately double the investment earnings in FY23 than anticipated due to some of these moves.

- We held a public hearing to adopt an updated Master Fee Schedule. This concludes the process that began several months ago and updates our fees to ensure the City is recovering its costs when it performs certain services. In addition, when a portion of the City is being rented as a venue for an event, the City has the right to collect a fee in exchange for that use.

As large events in our downtown create a disproportionate use of staff time and resources that isn’t well captured in a line item fee schedule, a Special Events Fee was added to our Master Fee Schedule that is tiered based on the size of the event. This is analogous to a park or other facility rental on a larger scale. For many years, the City’s downtown has been the venue for many commercially successful events. And during that time, the City chose to waive substantially all fees associated with the rental of its facilities.  The updated fee schedule does offer a discount on Special Event Fees to non-profits in order to recognize the value they bring.

There were several speakers extolling the virtues of the CBCA at this meeting.  On that front, I agree.  The organization adds a tremendous amount of value to the community, and I commend the generosity of both the organization and its volunteers. These activities however, do not exempt anyone from have to pay for use of City facilities. Fee waivers or discounts represent taxpayer funded subsidies and should be made judiciously. To the extent that the City does not collect fees that it is able, taxes from residents must make up the difference.  

Earlier I made a proposal that could lower or waive fees even further in exchange for an arrangement where the CBCA and the City enter into a revenue sharing agreement.  This should be familiar to the CBCA since they also engage in a revenue sharing arrangement with the vendors that come to their events.  For example, a portion of gross revenue from food sales that take place at events like Art & Wine are paid to the CBCA from the food vendors themselves.  In addition, each vendor pays the CBCA for the privilege of renting space on City streets, those same streets that the CBCA has had their fees waived for the past 15 years.

Unfortunately this proposal was rejected by the Board of CBCA without discussion or any exploration on what was possible.  There was no counter proposal made.  It appears that the position of the organization is that the only acceptable option is to be able to continue to use City facilities for free.  That would not be a prudent position for the City to take and it would be unfair to the residents of this community.

Councilmember Cloven raised a question about the legality of charging a Special Event Fee.  This was addressed squarely by our City Attorney that in fact the Special Events Fee is permissible.  To add more context regarding that discussion, I made a post specifically about the laws surrounding municipal fees here:

We adopted the updated fee schedule on a vote of 3-2 with Councilmembers Cloven and Tillman voting no.  The fee schedule becomes effective in 60 days.  Given events can be booked up to one year in advance, this means that should the organization choose, they can reserve events through 2024.  This would be 1.5 years after we terminated the MUA.

- We directed staff to include instructions with how to use ClearGov to review payment obligations (check register).  Traditionally payment detail has been on the consent calendar at each regularly scheduled Council meeting.  At the next meeting this will continue, with instructions on how to access ClearGov to view the same data.  After that a link to ClearGov will be included in each agenda packet.

- We designated a voting delegate (Trupiano) and alternate (Diaz) for the upcoming September CalCities annual conference consistent with the committee assignments that were approved back in Dec-22.

Prop 26 and 218 and Municipal Fees

This is a longer post about the law surrounding municipal fees.  The short version is that our City Attorney confirmed that Special Event Fees are not subject to limitations of Prop 26 during our 8.15.23 meeting.  The long version is as follows:


There is an argument being made that charging a Special Event fee is somehow prohibited based on Prop 26 and Prop 218.  For reference, here is the Cal Cities Prop 26 and 218 Implementation Guide (Guide).  The Guide describes several examples and details out the application of both propositions.

Essentially, CA voters passed propositions over the past several decades defining what is considered a tax, and requiring voter approval of such taxes.  Some of these requirements were added to the State constitution, specifically in Article XIII C.  Here is how a Tax is defined in that Article:

(e) As used in this article, “tax” means any levy, charge, or exaction of any kind imposed by a local government, except the following:

(1) A charge imposed for a specific benefit conferred or privilege granted directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of conferring the benefit or granting the privilege.

(2) A charge imposed for a specific government service or product provided directly to the payor that is not provided to those not charged, and which does not exceed the reasonable costs to the local government of providing the service or product.

(3) A charge imposed for the reasonable regulatory costs to a local government for issuing licenses and permits, performing investigations, inspections, and audits, enforcing agricultural marketing orders, and the administrative enforcement and adjudication thereof.

(4) A charge imposed for entrance to or use of local government property, or the purchase, rental, or lease of local government property.

(5) A fine, penalty, or other monetary charge imposed by the judicial branch of government or a local government, as a result of a violation of law.

(6) A charge imposed as a condition of property development.

(7) Assessments and property-related fees imposed in accordance with the provisions of Article XIII D.

If a local government is getting money in any way, it is a tax, unless it falls into one of the 7 exceptions above.

The argument some are making is two pronged and goes something like this:  Prong 1 - The Special Event Fee is a tax, and therefore subject to voter approval.  Prong 2 - Even if the Special Event Fee is not a tax, then a local government is limited to only recovering its costs, and since the Special Event Fee is greater than actual costs, it is somehow prohibited.

This argument is easily rebutted, and it is the CA constitution itself that rebuts it. Section (e)(4) above lists as an exception from the definition of "tax" to be "A charge imposed for entrance to or use of local government property, or the purchase, rental, or lease of local government property."  As the Special Event Fee is a charge for the use of government property (i.e. streets, parks, sidewalks, etc.), it clearly falls under the exception to the definition of a tax in (e)(4) above.  Therefore, Prong 1 fails.

To rebut Prong 2, we need to look at the other provisions of section (e) above.  Looking at (1) - (3), each contains the phrase 'reasonable costs'.   The Guide discusses that the language of this section of the State Constitution is from Prop 26, and mirrors previous language contained in Prop 13, which imposes a burden on local government to prove that the amount is no more than necessary to cover the reasonable costs of the governmental activity, and that the manner in which those costs are allocated to a payor bear a fair or reasonable relationship to the payor’s burdens on, or benefits received from, the governmental activity.  In other words, history and courts have essentially defined "reasonable costs" to be actual costs, with some leeway for calculation and distribution of the fees.

But if we look at item (e)(4), this exception to the definition of what constitutes a tax is different than the ones before it.  It does not contain the phrase "reasonable costs".  This is important because there is a canon of statutory interpretation that says, casus omissus pro omisso habendus est.  This generally means that if something is omitted, it is considered to be done intentionally.  SCOTUS's rules for statutory interpretation say that "Every word within a statue is there for a purpose and should be given its due significance."  "Where Congress includes particular language is one section of a statute but omits it in another ..., it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion."

Because the section in the Constitution from Prop 218 that talks about charges for the use of government property omits any reference to reasonable costs, courts have read this as the authors intended - renting government property is not subject to this limitation.  This is also described in the Guide, "in Howard Jarvis Taxpayers Association v. Bay Area Toll Authority (2020) 51 Cal.App.5th 435, review granted October 14, 2020, S263835, the Court of Appeal held that the reasonable cost limitation does not apply to charges imposed for entrance to or use of state property or the purchase, rental, or lease of state property. The California Supreme Court has granted review of both cases."  The Guide was published in Aug 2021.  Subsequent to that, the California Supreme Court let stand the case which means that the Court of Appeal's ruling stands.  As a result, Prong 2 of the argument fails.

Saturday, August 12, 2023

Upcoming Meeting 8.15.23

There are several significant items we will be discussing at our next meeting:

- We will receive the quarterly report regarding the City's investment portfolio.

- We will hold a public hearing to update the City's Master Fee Schedule.

- We will provide direction to staff regarding the elimination of payment information from the regular  agenda packet.

- We will discuss the designation of a voting delegate for the Cal Cities annual conference.

If you have any thoughts or questions on the above, please let me know.