It’s the latest development in a bitter fight between the city and taxpayers. Last August, the city approved a controversial plan by Fresno Mayor Ashley Swearengin to double water rates in order to fund a $410 million upgrade to the city’s water system. But when a group of taxpayers led by former Fresno County Supervisor Doug Vagim objected to the plan, the city took the taxpayers to court in order to stop a referendum campaign.

Earlier this month, a state appeals court upheld a lower court ruling that ordered the city to fulfill its ministerial duties and issue a petition title and summary. Now the taxpayers say that the title and summary, as prepared by City Attorney Doug Sloan, are biased in favor of the water tax hike.

“Frankly, I don’t believe this Title and Summary filed by the Fresno City Attorney can be considered to represent an impartial statement of the purpose of the proposed measure,”  Vagim said  “This text belongs in the con-argument side of the ballot’s voter guide for Measure W.”

This is the full text:

“Title: Initiative Measure To Repeal City of Fresno’s Four-Year Water Rate Plan And Related Water Fees”

“Summary: A ‘yes’ vote on this measure would repeal water rates to be charged over four years that the Fresno City Council adopted on August 15, 2013, and cause the rates to return to what the Council adopted in 2008. The City Council adopted the 2013 water rates to pay for increased costs to provide adequate water that is safe to drink. The increased costs are caused by changes in state and federal drinking water standards, depletion of ground water, costs of maintenance and repairs to old water pipes and other parts of the water system, and the necessity to build a surface water treatment plant. If the current rates are repealed, the City Council could impose higher rates again. However, it would delay the City’s work to repair and improve the water system.”

Factual errors: Last water rate hike in 2010, not 2008

Vagim points to state law, which requires the city attorney to issue an impartial analysis. The Election Code states:

“In providing the ballot title, the city attorney shall give a true and impartial statement of the purpose of the proposed measure in such language that the ballot title shall neither be an argument, nor be likely to create prejudice, for or against the proposed measure.”

In the complaint letter submitted to the city attorney on Thursday, Vagim’s group cited factual errors in the title and summary, including the last time the city raised water rates. The petition summary references a water rate hike in 2008, when the last such increase passed the council in 2010.

“The prejudicial nature of this misstatement falsely informs voters that water rates have not been raised since 2008, when in fact rates were last increased in 2010,” the letter objecting to the petition summary states.

After five months of delays, the taxpayers say they’ll circulate the biased petition rather than wait for another title and summary. 

“Moreover, the City’s intentional, unreasonable and unlawful delay over the course of the last five (5) months has deprived my client of time to challenge the petition title and summary for petition circulating,” the complaint states.

If they can gather enough signatures, they’ll be looking for a revised title and summary before the election and could recoup legal fees and court costs in the process.

Fresno City Attorney: ‘Title is fair, complete and complies with the law’

The city attorney maintains that the title complies with the law. “We believe the title is fair, complete, and complies with the law,” said Sloan, Fresno’s City Attorney.

But the state’s leading taxpayer advocacy group contended otherwise. “The language is most certainly slanted,” said Jon Coupal, president of the Howard Jarvis Taxpayers Association. “But we have not yet determined whether it crosses the line from the perspective of potential litigation.”

Earlier this month, CalWatchdog.com reported the story of the bully tactics by the City of Fresno in defense of Mayor Swearengin’s water rate increases. Under Swearengin’s plan, the average water bill would be doubled to fund a $410 million upgrade to the city’s water system.

In September, a group of taxpayers, led by former Fresno County Supervisor Doug Vagim, organized a campaign to overturn the rate hikes. But the taxpayers were denied a title and summary for their petition. Without a title and summary, the group couldn’t collect the necessary signatures to get a referendum on the ballot.

City of Fresno sues taxpayers

Then the city sued the taxpayers in an effort to stall the petition from reaching the 2014 ballot. In late November, a Superior Court sided with taxpayers and ordered the city attorney to issue the title and summary. Instead of compiling with the court order, the city filed a notice of appeal, which stayed the court’s order, as part of a strategy to run out the clock on the initiative.

The city of Fresno is facing major financial problems after years of fiscal mismanagement and irresponsible spending. It owes $3.4 million per year in annual construction bond payments for a city-owned minor league baseball stadium. The bond payments were supposed to be covered by a $1-per-ticket fee collected by the team. However, City Manager Renena Smith told the Fresno Bee in November that the team is two years in arrears. To solve its cash flow problems, the city had to borrow $14 million from the water department to balance its books.

Fresno Bee: Thumbs down to Fresno Mayor Ashley Swearengin

Even supporters of the water rate hike have become disgusted with the city’s hardball tactics. Shortly after the first ruling, the Fresno Bee editorial board, which backs the water rate increases, chastised Swearengin.

“We support the water-rate increases; they are vital to the city’s future,” the paper wrote. “But with these stalling and blocking tactics, Swearengin sends a message that she doesn’t trust Fresno voters to do what’s best for the city.”

The “stalling and blocking tactics” stopped the referendum from reaching the June 2014 ballot. To qualify their proposed initiative for the regularly scheduled November 2014 election, taxpayers would need to submit 4,846 valid signatures to the City Clerk by May 8.

The battle began last August, when the city of Fresno approved a controversial plan pushed by Mayor Ashley Swearengin to raise the city's water rates. The additional revenue would go towards a $410 million upgrade to the city's aging water system.

Under Swearengin's plan, most water users, which include city residents and some unincorporated parts of Fresno County, would see their average monthly bills rise to $48, double what they were last year. That didn't sit well with a group of taxpayers, led by former Fresno County Supervisor Doug Vagim, who mobilized a grassroots effort to overturn the rate hikes.

But when the taxpayers tried to circulate a petition to overturn the mayor's plan, the city took the extraordinary step of refusing to grant the petition a title and summary. Without a title and summary, the group couldn't collect the necessary signatures to get a referendum on the ballot.

The move appears to be a direct violation of the California Constitution. Section 3 of Article 13C states that “the initiative power shall not be prohibited or otherwise limited in matters of reducing or repealing any local tax, assessment, fee or charge.”

Pre-emptive strike: City sues taxpayers

Not content to block the initiative, the city went a step further: It sued the taxpayers.

“The City anticipates Initiative Proponents will continue to advocate for the Initiative and its submission to the voters,” its lawsuit states. “By seeking pre-election relief, the City hopes to avoid the cost and expense of submitting an illegal and invalid Initiative to voters.”

Attorneys for Fresno made the remarkable argument that the city's lawsuit would restore the public's trust in government that had been eroded by the courts.

“The voters already fear that everything they vote on ultimately gets invalidated by the courts anyway, and we don't want to feed that fear by letting plainly invalid measures get presented to the voters,” the city's attorney, Michael Colantuono, argued in Fresno County Superior Court.

Taxpayers said that the city was using the legal system to undermine their constitutional rights.

“Our constitutional rights are being infringed on on a daily basis as we're denied the ability to go to the voters to seek their approval,” Chuck Bell, one of the state's preeminent election attorneys, argued on behalf of the taxpayers. “Frankly, we still have the hurdle once a title and summary is issued to retain the requisite signatures of a sufficient number of voters to qualify the measure for the ballot.”

In late November, a Superior Court agreed, and ordered the city attorney to issue the title and summary. Instead of compiling with the court order, the city filed a notice of appeal, which stayed the court’s order, as part of a strategy to run out the clock on the initiative.
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'Core public service not subject to referendum'

Swearengin's office did not respond to an email request for comment on the issue. However, at a press conference last month, the Republican mayor said that the city's interests in managing the water business trumped citizens' rights to petition their government.

“The city of Fresno believes there is ample case law that indicates that a core public service is not subject to a referendum,” she said. “I recognize the short-term pain of raising water rates in the city of Fresno. However, I believe this short-term pain will result in long-term gain for the people of Fresno.”

Much of the city's financial problems stem from years of fiscal mismanagement and irresponsible spending. In a November speech to the Rotary Club of Fresno, City Manager Bruce Rudd acknowledged that “the reality is this organization has always ran close to the edge.”

Among the city's money-pits: a costly city-owned baseball stadium for the town's minor league team, the Fresno Grizzlies. The city owes $3.4 million per year in payments toward the stadium's construction bonds. The bond payments were supposed to be covered by a $1-per-ticket fee collected by the team. However, City Manager Renena Smith told the Fresno Bee in November that the team was two years in arrears.

Which all comes back to the city's water problems. To make up for the cash it wasn't getting from the baseball team, the city had to borrow $14 million from the water department to balance its books.

Fresno Bee turns on mayor over her hardball

Even supporters of the water rate hikes have become disgusted with the city's hardball tactics. Shortly after the first Superior Court ruling, the Fresno Bee editorial board, which backs the water rate increases, chastised Swearengin.

“We support the water-rate increases; they are vital to the city's future,” the paper wrote. “But with these stalling and blocking tactics, Swearengin sends a message that she doesn't trust Fresno voters to do what's best for the city.”

The “stalling and blocking tactics” have already proven effective at stopping the referendum from reaching the June 2014 ballot. If the 5th District Court of Appeals doesn't set aside the stay, taxpayers won’t get a title and summary until May, and the referendum would miss the November ballot. To qualify their proposed initiative for the regularly scheduled November 2014 election, taxpayers would need to submit 4,846 valid signatures to the City Clerk by May 8.

The next scheduled election would occur in 2016, by which time the city is expected to have bond funding contracts in place.

By Steven Greenhut

SACRAMENTO — Psychiatrists talk about the progressive stages of grief people experience after suffering a devastating loss in their personal lives, moving from denial to anger to bargaining (i.e., trying to strike a “deal” with a higher power) to depression and, finally, to acceptance.

Political scientists ought to come up with a similar series of “grief stages” for people grappling with a devastating political loss. Case in point: Republicans, who were convinced that voters would grant them the White House after four years of failed Obama administration policies.

Discouraged political activists have been expressing denial, anger and depression. Currently, they are going through a stage that should be termed “fantasy,” where they advocate ideas that will never come to fruition and pretend there’s a quick, fun solution to deep political problems that will be solved over time and through hard work and vision.

For instance, more than 675,000 Americans, representing all 50 states, have digitally signed online petitions with the White House calling for the secession of their respective states from the union. The Obama administration had created the “We the People” online petition system to encourage the public to more directly participate in the nation’s governance by suggesting ideas that the administration should pursue.

As of Wednesday, petitions from seven states — Alabama, Florida, Georgia, Louisiana, North Carolina, Tennessee and Texas — each had hit 25,000 signatures, the threshold to prompt a “review” by the White House. As the Daily Caller reported, “Launched Nov. 7, the day after Obama won re-election, the [initial secession petition, started by someone in Louisiana] set off an Internet-driven cascade of disaffected Tea Partiers and other conservatives looking — as one petition organizer told The Daily Caller via a ‘direct message’ on Twitter — ‘just to do something, anything, to show we’re not going away quietly.'”

This certainly fits the “just do something” parameters, but the Obama administration will no doubt provide some three-minute review of the petitions and issue a bland statement calling for the continued unification of our country. This secession movement is typical, perhaps, in a world where many people are fixated on Facebook and Twitter.

There’s nothing unserious about secession, despite the idea having been sullied by the unpleasantness of the mid-19th century. It’s the ultimate check and balance on an out-of-control central government, but powerful nations rarely let the unruly provinces break away without bloody struggles. This idea, a temper tantrum really, is not going to happen in a country where, despite the temporary frustration, people still happily spend their weekends at the shopping malls.

Texas Republic

One opinion writer argued that Texas could pull this off. Of course, it could, technically speaking. But it won’t happen because the federal government owns more and bigger guns than even Texans. States are diverse and complex places. Even in Texas, Obama received more than 41 percent of the vote. At the same time, in California, which gave Obama a stunning 59 percent of the vote, most counties went for Mitt Romney. It would be hard to disentangle our nation based simply on state boundaries — despite the simplistic blue state vs. red state breakdown so common among media analysts.

A number of people happy with the election results have filed their own online petitions with the White House “We the People” system, calling for the secession petitioners to be deported.

Texas Gov. Rick Perry dismissed the secession idea, despite his differences with the feds. Secession, then, would be widely opposed even in places where the idea might sprout.

For those of us living in California, secession would mean something even worse than we have now, given that our leaders are further to the left than most elsewhere. For example, the new cap-and-trade system to fight global warming, the first (and, let’s hope, last) in the nation, got started this past week, with an auction of government-issued greenhouse-gas “allowances” that even the Air Resources Board admits will lead to significant “leakages” (i.e., job losses). The folks who crafted this system would have even more power with California outside the Union.

Break up California

The better idea for frustrated Californians (aside from seeking a new home in Oklahoma City or Abilene, Kansas), is to reconsider the notion of breaking our state into more hospitable segments.

Consider that Sacramento County, for example, has a land area not that much smaller than Rhode Island, and a population about 50 percent larger. San Bernardino County is larger, geographically, than nine states. Who says that California, which spans nearly 800 miles north to south, needs to keep its current configuration?

I’d create several California states. Coastal California would run from Los Angeles County through Sonoma County and would offer little to hinder the liberal experimentation popular in places such as San Francisco, Santa Cruz and Los Angeles. Those living outside this state presumably would be free to visit on weekends and enjoy the cultural amenities, but as nonresidents wouldn’t have to pay for the nuttiness.

My Southern California would include Orange, San Diego, Riverside, San Bernardino and Imperial counties. This state would be politically competitive, but conservative leaning.

So, too, would be my Inland California, which would include most of the vast Central Valley and the Sierras. I would throw the most-northern counties into the already proposed state of Jefferson — reflecting an old-time secessionist movement that would combine portions of Northern California and southern Oregon, a collection of mountainous areas with little population and a distinct culture.

There would be more harmony, and fewer complaints by people on either the left or right, who could find it easier to live under political leadership that better reflects their values and priorities.

It’s a fun thought experiment, an act of silliness that can help forlorn conservative-minded California voters cope with a grievous political situation. But, sooner or later, we need to move on from fantasy and accept the world as it exists so that we can pursue serious ideas to save our state from the abyss.

Steven Greenhut is vice president of journalism at the Franklin Center for Government and Public Integrity; Write to him at: steven.greenhut@franklincenterhq.org.