HomeMy WebLinkAboutMINUTES - 03161993 - 2.3 THE BOARD OR SUPERVISORS OF
CONTRA COSTA COUNTY, CALIFORNIA
Adopted- this Order on March 16, 1993 by the following vote:
AYES: Supervisors Powers, Bishop, McPeak, Torlakson
NOES: Supervisor Smith
ABSENT: None
• ABSTAIN: None
SUBJECT: Measure A for the June 1993 Election
Following testimony on the proposed benefit assessments for
the nine fire protection districts in the -County; the Board
considered the ballot language for Measure A.
Therefore, IT IS BY THE BOARD ORDERED that the language for
Measure A is APPROVED for presentation to the electorate on the
June 8, 1993 Ballot in those Districts that have other fire
assessment measures.
IT IS FURTHER ORDERED that consideration of the proposed
ordinance specifying retention of local property -taxes is
DEFERRED to March 23 , 1993 .
I hereby certify that this is a true and correct copy of
an action taken and entered on the minutes of the
Board of Supervisors on the date shown.
ATTESTED: 6 l9"
PHIL BATCHELOR,Clerk of the Board
of Supervisors and County Administrator
cc: County Administrator By _ - ,Deputy .
Auditor-Controller
Elections
I
J . v
MEASURE A
"Shall the Treasurer-Tax Collector and
Auditor be instructed by the voters .and by
ordinance adopted by the Board of
Supervisors to collect and allocate the same
proportion of property tax revenues to fire YES
districts, counties, cities and schools as
in 1992-3 and the State be requested to
fully fund education and enact legislation
to retain existing property taxes for NO
critical local services, including fire and
police protection?"
CONTRA COSTA COUNTY COUNSEL
651 Pine Street, 9th Floor
P.O. Box 69
Martinez CA 94553
(510) 646-2058
Fax (510) 646-1078
To: Board of Supervisors
From: Dennis C. Graves
Deputy County Coun
Date: March 11, 1993
Re: Ordinance Specifying Retention of Local Property Tax Revenues
Pursuant to request of Supervisor McPeak, we drafted the attached proposed
Ordinance regarding the retention of local property tax revenues in the event the State
proceeds with its attempt to take $2,600,000,000 (or some other large amount) of local
property tax revenues from the counties of California. In addition to consulting with
Supervisor McPeak, we discussed the proposed Ordinance with the Auditor.
The backbone of the proposed Ordinance is the first section, entitled Findings
and Intent, in which we set forth legislative findings that are intended to demonstrate a
prima facie case that the proposed State property tax"shift"would significantly impair
the County's ability to provide for the health, safety and general welfare of its citizens,
in contravention of the local agency home rule guaranteed by the California
Constitution. The findings also assert that the State's proposal would result in the
counties' paying part of the school funding that Proposition 98 contemplated the State
would pay. We conclude that the State's proposal would be beyond the power granted
to the State in Proposition 13 to pass legislation apportioning property tax revenues
among local agencies.
Policy Question
Supervisor McPeak would like the Board to address the policy question of
whether the Ordinance should specify an allocation scheme other than the 1992-3
statutory scheme specified in the Ordinance draft. Some possibilities are: 1) the State
allocation scheme of fiscal 1991-2, which gives schools a substantially lower amount of
property taxes than the 1992-3 allocations by avoiding the "confiscation" of property
taxes the State began in 1992-3, 2) the State allocation scheme of fiscal 1991-2 but
with modifications that would be better for specified local agencies (eg, the County)
than the 1991-2 State allocation scheme, 3) the State allocation scheme of fiscal 1992-
3 (specified in the current Ordinance draft), but with modifications that would be better
for specified local agencies (eg, the County) than the 1992-3 State allocation scheme
and 4) some combination of the above alternatives.
Fiscal 1991-2 was the last year before the State exceeded the apportionment
authority granted under Article XIIIA by impairing our right to home rule and confiscating
our property taxes to pay part of the State's Portion of school funding. In fiscal 1992-3
the State began the confiscation it now wants to dramatically expand for fiscal 1993-4.
Rather than proposing our own apportionment scheme, the Ordinance simply defaults
to apportioning 1993-4 property taxes in the manner done by the State for fiscal 1992-
3. The thinking is that this may be more legally defensible than a new apportionment
scheme, for which there is no statutory precedent or authority, and may be more
politcally acceptable because it would not take away the taxes given to the schools or
other agencies for 1992-3.
The 1992-3 allocation scheme might avoid some problems with schools, but
would still be confiscatory to some degree. If we adopt an allocation scheme other than
that specified in statute for 1991-2 or 1992-3, there are two potentially significant
problems. First, any other scheme would lack statutory precedent. Second, any other
scheme would risk complexities (and potential ambiguities) that may be very difficult to
avoid. The current law on property tax allocations (R+TC Secs. 95-100) covers
approximately 60 detailed pages and is meaningful only to a few who routinely work
with the detail of the law. While not all of this would need to be changed by departing
from the 1992-3 (or 1991-2) allocation scheme, the potential for real problems in a new
allocation scheme should not be ignored.
Some specific questions regarding alternative allocation schemes include:
1) Whether"enterprise districts" (districts that can raise a majority of funds from
user fees, notably sewer and water districts) should be excluded from the
allocation?
2) Whether districts in addition to enterprise districts also should be excluded
from allocations (eg, park and rec districts, flood control districts, multi-county
districts, such as BART)?
3) Should the Ordinance specify minimum funding levels for one or more of
County, cities, fire districts and schools?
--- If so, how (eg, where will the money come from to meet the minimum
funding level)?
cc: Ken Corcoran, Auditor
Phil Batchelor, CAO
c:tgcmem
Ordinance No.
The Board of Supervisors of Contra Costa County ordains as follows:
Section 1: Findings and Intent
The Board of Supervisors of Contra Costa County finds and determines
that:
a. As an essential element of the local agency home rule guaranteed by
the California Constitution, property taxes collected in a county have
always been intended for use in that county.
b. Proposition 13, as adopted in June of 1978 and amended thereafter,
allows the Legislature to specify how the the property taxes collected in a
county are to be apportioned among the county and the cities and districts
therein, but did not contemplate that property taxes would be taken for
State purposes or would be apportioned in a manner inconsistent with the
home rule provisions of the Constitution of California.
c. Proposition 98, as adopted in November of 1988 and amended by
Proposition 111 in June of 1990, provides that a county's portion of
school funding is the amount of property taxes provided to the schools in
the county for fiscal 1987-8, adjusted annually for cost of living increases.
Pursuant to Proposition 98, the State's Portion of school funding is the
amount that, when added to the counties' portion, will bring total school
funding up to the level specified in the Proposition.
d. The Legislature of California has expressed its intent to take
approximately $2,600,000,000 of the property taxes collected in California
counties in fiscal 1993-4 and use those funds to pay a substantial part of
the State's Portion of school funding or to pay other State expenses, in
clear violation of the letter and intent of Proposition 98 and Proposition
13.
e. For fiscal 1992-3, available revenues have fallen far short of the
expenditures necessary to meet the critical fiscal needs of Contra Costa
County, requiring that essential County services be cut substantially.
f. If the gap between available revenues and necessary expenditures
increases to any significant extent for fiscal 1993-4, the County will not be
able to fund State mandates and provide for the essential health, safety
and general welfare of its citizens that is requisite to meaningful home
rule.
g. If the Legislature acts upon its expressed intent to take approximately
$2,600,000,000 of the property taxes collected in California counties in
fiscal 1993-4 and use those funds to pay a substantial part of the State's
Portion of school funding or to pay other State expenses, this County
would lose a very significant part of the funding now used to provide
critical County services, would be prevented from providing for the
essential health, safety and general welfare of its citizens, and would be
deprived of meaningful home rule in contravention of the Constitution of
California.
h. Contra Costa County hereby finds that the aforesaid intended State
action would constitute an illegal confiscation of the property taxes of
this County, in that such action would prevent the County from providing
for the essential health, safety and general welfare of its citizens, would
prevent the meaningful home rule guaranteed by the Constitution of
California, would violate the schools funding scheme of Proposition 98 by
requiring this County to pay a substantial part of the State Portion of
school funding, and would be in excess of the power given to the
Legislature in Proposition 13 to lawfully apportion property taxes among
the county and cities and districts therein.
j. Contra Costa County, therefore, determines that it is necessary to take
action to prevent the intended State confiscation of the property taxes to
be collected in this County for fiscal 1993-4 and to insure the preservation
of the Constitutionally guaranteed powers of home rule, including the
power to provide for the essential health, safety and general welfare of
the citizens of the County. This Ordinance, therefore, provides for the
lawful apportionment among the county and cities and districts therein of
the property taxes collected in this County in fiscal 1993-4.
Section 2: Apportionment
Notwithstanding any provision of State law to the contrary, the
apportionment of property taxes among the county and cities and districts
therein shall be in the manner such apportionment was made for fiscal
1992-3 pursuant to Chapter 6 of Part 0.5 of Division 1 of the Revenue and
Taxation Code of California.
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Section 3: Collection and Disbursement
The Treasurer-Tax-Collector and Auditor shall collect, apportion
and disburse property taxes for fiscal 1993-4 in accordance with Section 2
unless the Board of Supervisors of Contra Costa County, by emergency
declaration adopted pursuant to four-fifths vote, specifies an alternative
apportionment.
Section 4: Circumstances Invoking Operation of This Ordinance
In accordance with the findings and intent of Section 1, this Ordinance will
become operative, and property taxes shall be collected, apportioned and
disbursed in accordance herewith, in the event the State enacts Legislation that
would result in the aforesaid confiscation of property taxes collected in Contra
Costa County in fiscal 1993-4.
Section 5: Effective Date
This Ordinance will become effective 30 days after passage, and within
15 days of passage, shall be published once with the names of the Supervisors
voting for and against it in the Contra Costa Times, a newspaper of general
circulation published in this County.
Passed this day of March, 1993,.,by the following vote:
Ayes:
Noes:
Absent:
Abstain:
Attest: Phil Batchelor, Clerk
,of the Board of Supervisors
and County Administrator
By: Deputy [Seal] '
OnN)rd
of
Ordinance No.
The Board of Supervisors of Contra Costa County ordains as follows:
Section 1: Findings and Intent
The Board of Supervisors of Contra Costa County finds and determines
that:
a. As an essential element of the local agency home rule guaranteed by
the California Constitution, property taxes collected in a county have
always been intended for use in that county.
b. Proposition 13, as adopted in June of 1978 and amended thereafter,
allows the Legislature to specify how the property taxes collected in a
county are to be apportioned among the county and the cities and districts
therein, but did not contemplate that property taxes would be taken for
State purposes or would be apportioned in a manner inconsistent with the
home rule provisions of the Constitution of California.
c. Proposition 98, as adopted in November of 1988 and amended by
Proposition 111 in June of 1990, provides that a county's portion of
school funding is the amount of property taxes provided to the schools in
the county for fiscal 1987-8, adjusted annually for cost of living increases.
Pursuant to Proposition 98, the State's Portion of school funding is the
amount that, when added to the counties' portion, will bring total school
funding up to the level specified in the Proposition.
d. The Legislature of California has expressed its intent to take
approximately $2,600,000,000 of the property taxes collected in California
counties in fiscal 1993-4 and use those funds to pay a substantial part of
the State's Portion of school funding or to pay other State expenses, in
clear violation of the letter and intent of Proposition 98 and Proposition
13.
e. For fiscal 1992-3, available revenues have fallen far short of the
expenditures necessary to meet the critical fiscal needs of Contra Costa
County, requiring that essential County services be cut substantially.
f. If the gap between available revenues and necessary expenditures
increases to any significant extent for fiscal 1993-4, the County will not be
able to fund State mandates and provide for the essential health, safety
1
and general welfare of its citizens that is requisite to meaningful home
rule.
g. If the Legislature acts upon its expressed intent to take approximately
$2,600,000,000 of the property taxes collected in California counties in
fiscal 1993-4 and use those funds to pay a substantial part of the State's
Portion of school funding or to pay other State expenses, this County
would lose a very significant part of the funding now used to provide
critical County services, would be prevented from providing for the
essential health, safety and general welfare of its citizens, and would be
deprived of meaningful home rule in contravention of the Constitution of
California.
h. Contra Costa County hereby finds that the aforesaid intended State
action would constitute an illegal confiscation of the property taxes of
this County, in that such action would prevent the County from providing
for the essential health, safety and general welfare of its citizens, would
prevent the meaningful home rule guaranteed by the Constitution of
California, would violate the schools funding scheme of Proposition 98 by
requiring this County to pay a substantial part of the State Portion of
school funding, and would be in excess of the power given to the
Legislature in Proposition 13 to lawfully apportion property taxes among
the county and cities and districts therein.
j. Contra Costa County, therefore, determines that it is necessary to take
action to prevent the intended State confiscation of the property taxes to
be collected in this County for fiscal 1993-4 and to insure the preservation
of the Constitutionally guaranteed powers of home rule, including the
power to provide for the essential health, safety and general welfare of
the citizens of the County. This Ordinance, therefore, provides for the
lawful apportionment among the county and cities and districts therein of
the property taxes collected in this County in fiscal 1993-4.
Section 2: Apportionment
Notwithstanding any provision of State law to the contrary, the
apportionment of property taxes among the county and cities and districts
therein shall be in the manner such apportionment was made for fiscal
1992-3 pursuant to Chapter 6 of Part 0.5 of Division 1 of the Revenue and
Taxation Code of California.
2
Y
Section 3: Collection and Disbursement
The Treasurer-Tax-Collector and Auditor shall collect, apportion
and disburse property taxes for fiscal 1993-4 in accordance with Section 2
unless the Board of Supervisors of Contra Costa County, by emergency
declaration adopted pursuant to four-fifths vote, specifies an alternative
apportionment.
Section 4: Circumstances Invoking Operation of This Ordinance
In accordance with the findings and intent of Section 1, this Ordinance will
become operative, and property taxes shall be collected, apportioned and
disbursed in accordance herewith, in the event the State enacts Legislation that
would result in the aforesaid confiscation of property taxes collected in Contra
Costa County in fiscal 1993-4.
Section 5: Effective Date
This Ordinance will become effective 30 days after passage, and within
15 days of passage, shall be published once with the names of the Supervisors
voting for and against it in the Contra Costa Times, a newspaper of general
circulation published in this County.
Passed this day of March, 1993, by the following vote:
Ayes:
Noes:
Absent:
Abstain:
Attest: Phil Batchelor, Clerk
of the Board of Supervisors
and County Administrator
By: , Deputy [Seal]
Board Chair
cATPOrd
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RECEIVES
MAR 16 19M
CLERK BOARD OF UPERVISORS 37 Holven Court
CONTRA COSTA CO.
Crockett, CA 94525
March 10, 1993
Grand Jury of Contra Costa County
1020 Ward Street
Martinez, CA 94553
Attention: Ms. Annemarie Goldstein, Foreman
Dear Madam Foreman:
The catalyst for my letter is the proposed fire suppression assessment by the county. Whether
or not that proposal has already received enough opposition to require a public vote is not at
issue. The issue, as I stated in my official protest against the tax (copy enclosed), is that I (and
I believe many other taxpayers share my opinion), am extremely sickened by the bureaucratic
methodology of treating the symptom of a political problem, rather than facing the harsh reality
of identifying and eliminating the cause(s) of the malignant political disease that results in waste
and necessitates levying additional assessments.
I will be directing this correspondence to the Board of Supervisors, asking that taxpayer elected
body to do the same that I wish to request of the Grand Jury, and that is, to conduct a thorough
investigation of county programs, management procedures, wasteful spending practices and
benefit and perquisite privileges that are excessive, unnecessary, wasteful and ill-conceived
abuses of taxpayer monies.
I have taken the time to do research in order to present a list of items that I believe require
investigation and analysis; and then, a response to the public as to why their tax money is being
spent\wasted on certain programs. Some of the data I present will be from county publications
(e.g. Contra Costa County Allocation Of Classes To The Basic and Exempt Salary Schedule, and
the 1992 - 1993 Final Budget for Contra Costa County) and newspaper articles, as well as
personal observation and information I was able to gather.
My list of areas of concern will certainly not be exhaustive, but rather a good beginning for
legitimate inquiry. The issues, programs and practices that I believe require investigation are:
1
f
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(1) The February 28, 1993 Contra Costa Times article regarding secret lawsuit
settlements is a perfect case in point. Our county officials ignored(allegedly were
not aware of - which brings into question their collective competence) the 1984
state Court of Appeal ruling which prohibited "confidential" settlements.
Now that the details of the secrecy have been exposed, all our officials vow to do
away with the practice. None of them were concerned with their practice prior
to the article. As a matter of fact, the comments by Mr. Batchelor, Mr. Harvey,
Mr. Westman, and most of the supervisors quoted, would have been laughable if
it was a "Keystone Cops" episode; however, it was a pathetic display of political
escapism! No one knew anything! Nothing originated or was controlled by
anyone's department! Mr. Harvey, whose Risk Management Division is reported
to have hired several outside attorneys, "...refuses to say who requested the
confidentiality..." The Board of Supervisors, who approved the secret settlements
"...in closed sessions...", would like the public to accept, as one of the excuses
for their irresponsible actions, the rationale that these settlements simply "...got
lost..." on a very crowded Tuesday meeting agenda. Or, as Supervisor McPeak
alleges in the Times article, county attorneys "...glossed over..." the issue of
confidentiality. These remarks and attitudes by our public officials are a travesty!
Even though there is now a vow never to permit this in the future, Supervisor
McPeak, and other supervisors, qualified that vow by reserving the prerogative
to make exceptions to that rule in "... extraordinary, unforeseeable
circumstances.." Another time tested political escape tactic. What does this
mean? This sounds like a giant loophole! if there are to be exceptions, they
better be prescribed, specifically expressed limitations, otherwise we will face this
situation again.
A large area of concern in this issue is the individual and collective competency
of our officials. For an organization the size of the county (approximately 6,818
employees) to settle the twenty (20) cases listed in the three year period (from
1990-1992) for a total $6,900,783 (payments $4,663,921; legal fees $2,236,862)
is outrageous! I feel confident suggesting that anyone in management in a private
company with this type of record would be dismissed for substandard job
performance. Plus, the cases reported in the Times article are only the "top 20
most costly". How much more is not yet known?!?
(2) In 1991, as reported in the Times, the Grand Jury concluded that mismanagement
of the county's First Choice Health plan by Mr. Cisterman, the Director of
Personnel, wasted at lea.t $1.25 million of taxpayer funds. Mr. Batchelor, to
whom Mr. Cisterman reports, removed the First Choice plan from Mr.
Cisterman's management control, at that time. Again, in private industry this
type of mismanagement of a fiduciary responsibility would have been, at least,job
threatening, if not cause for dismissal. _
2
What were the consequences to Mr. Cisterman? Since he had less management
responsibility was his income frozen, if not reduced'? , Was there at least an
official reprimand to his personnel file citing substandard job performance? Has
Mr. Cisterman received raises since 1991 for good performance? If yes, why!
And, shouldn't Mr. Batchelor be held to a higher standard of awareness of what
his senior executives are doing?
Also, what has the Grand Jury done to follow-up on its 1991 finding of
"...wasted..." taxpayer monies? Shouldn't the Grand Jury be a little more
strenuous in its "watchdog" role on behalf of the public? It doesn't appear that
anyone was truly held accountable for this outrageous "waste"! It was just
reported and forgotten!
(3) I would like the public to be made aware of Mr. Batchelor's employment contract
with the county, for which they provide the funds, but have no voice in the
conditions. Please correct me if I am inaccurate; however, it is my understanding
that Mr. Batchelor provides himself, through the approval of the Board of
Supervisors who appointed him, with a five year contract of employment, which
includes certain protections should he be removed from office. Is it true that pay
increases in this contract are not contingent on performance, but rather on
longevity?
The political rationalization that justifies contracts for "public servants" that is
based on anything but measurable performance criteria is corrupt and morally
flawed! Most of the working people Mr. Batchelor serves have to live their
work-life constantly pushing their job performance and productivity to a higher
and higher level just to retain their jobs. Yet public servants are permitted to
design themselves very attractive employment packages, which insulate them from
financial harm if they do not serve their public adequately or properly and are
removed from office.
I do not mean to imply that Mr. Batchelor's contract is the only one that should
be questioned. On the contrary, I believe that all public employee contracts
should be open to and approved by the public, and based on job performance.
The county has too many overly generous public official employment contracts.
I only focus on Mr. Batchelor because he is in charge of the departments at the
county that have some obvious problems in their management(e.g., Personnel and
Risk Management).
(4) 1 have compiled and attached, as "Exhibit A", a spreadsheet comparison of county
versus private sector jobs and pay ranges. This is clearly a very abbreviated
sample, since the county has approximately 1,264 job titles (approximately 915
non-exempt and 349 exempt).
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I draw attention to this comparison to demonstrate a point of concern. In virtually
all cases the county pay rates are higher than private employer rates in the Diablo
Valley area. Why?!
The age old political/public entity argument is that public employee benefits/perks
(which will be discussed later)must be better than private industry, because public
pay is less than private industry pay. Well, that worn out philosophy is simply
no longer valid! I could have kept going in my comparison with job after job and
the results would have been the same.
This entire area of pay structure needs investigation and re-vamping. 1 believe
that Cost of Living Adjustments (COLA) should be eliminated. The publicized,
county commissioned Pay Equity Study should be investigated for relevance,
especially in instances where this so called "study" authorizes "retroactive" pay
increases for certain job classes. Pay raises should be based on performance, not
longevity!
Local pay surveys should be used to establish county pay rates, not some costly
pay equity studies that provide whatever data the political sponsors of the study
want to see. Plus, any study that isn't based on the local market area, in which
the county is domiciled and the employees live and work, is irrelevant. Diablo
area private employers pay what this market area demands, not what's paid in San
Diego, New York, or even San Francisco, for that matter. Hence, the county
should not use data from other municipalities out of the local area.
An examination of "Exhibit A" indicates that in virtually every job listed in the
sample, the county pay rate structure is higher than private industry. Additional
information provided for the private sector shows that the "maximum" monthly
wage amount of the "Actual Monthly Pay Range" for private industry is usually
very similar to the county's "start rate". As a matter of fact, in several cases,
the private sector "maximum actual rate" is less than the county's minimum start
rate! This phenomenon is not unique to the sample jobs listed, it permeates the
county structure. It must be investigated and changed! There is no valid reason
for the taxpayers to fund this structure! Private employers find qualified people
for less - so can the county!
I can not think of a justifiable reason why county employees should receive higher
pay scales than their peers in local private industry. All county employees should
make a good and fair living, but they should not be leading the wage scale in their
local market/geographic area.
In this area, as in many others, the county officials have turned the concept of
"public service" inside out, to where it really is the "public serving the
"bureaucracy". _
4
Private employers can establish any pay scale they wish; they're working with
their own money. Public entities must be more moderate because they're working
with "taxpayer money"!
(5) Another pay issue is the "Comp Time" pay arrangement that I understand is
practiced for managers at the county. There may be a practice of providing a
week (40 hours) of "manager leave" to every management employee, every year,
to allegedly compensate for the possible "extra time" (overtime) they mU have
worked. There are no records kept, to the best of my knowledge, so who can
validate who should or shouldn't be entitled to this extra compensation.
This is another case of unnecessary and excessive benefits that cost taxpayers
money.
I would estimate that most private employers do not offer this type of "Comp
Time" arrangement to their exempt employees/managers. And, again, even if
some do, they are using their own funds, not taxpayer funds.
This excessive perquisite should be stopped immediately, if in fact it is practiced.
(6) The article in the San Ramon Valley Times on January 24, 1993, regarding "Car
Perks" brings another excess into focus.
If vehicles, and/or auto allowances and mileage are going to be provided, then the
only county employees that should have them are public safety employees (i.e.,
police and fire). Public funds should not be spent to provide either cars, or
allowances, to the Board of Supervisors, judges, managers, or any other
administrative staff. Only mileage for actual business related trips should be paid
to the administrators mentioned.
Public funding for county employees to commute to and from work is
preposterous!
(7) How does the county account for/report headcount of "Temporary" employees?
If the public is to be given a true picture of the county's efforts to reduce staff
and save revenue, then how the actual numbers of employees is calculated must
be fully disclosed.
According to information provided by the County's personnel department, there
are currently approximately 6,818 active county employees. In addition, there are
825 "temporary positions". Are these temporary positions reported in the fmal
budget as "headcount"?
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It would be unfortunate folly (not to mention devious) to allege to reduce staff
(such as in the Personnel and Probation Departments, pages 67 and 171
respectively, of the County's Final Budget) and then replace some of those
reductions with "Temporary" people that are sort of "invisible" to the budget, and
the public.
Additionally, I do not believe that a position listed as "vacant" should be
legitimately counted as a "staff reduction" if the vacancy is more than six months
old. At that point, and beyond, you really have an unnecessary position that you
probably never needed to begin with.
Another headcount related area to investigate is the necessity, or lack thereof, to
have so many "assistants" and "deputy" positions. Not to mention, all the job
classes that have levels I through III or IV as part of their structure.
Simply stated, the county is "too fat" with regard to job classes. The Grand Jury
should also evaluate the ratio of management employees to non-management
employees.
(8) It was reported in a newspaper article that at some point recently, if not currently,
taxpayer funds, at Mr. Cisterinan's recommendation, were being expended to
support staffing and subsidize the operation of a "health club" for county
employees.
If this is true I believe it should be ceased immediately. If it has already stopped,
but at one time was the case, then the fact that it was ever permitted to occur
should be investigated.
If some private employers provide this benefit for their employees, that's their
prerogative - it's their money! However, I believe most private employers do
not provide this benefit; therefore, most employees, if they choose to belong to
a health club, pay their own way - So should county employees!
(9) Several overly "rich" benefit policies and practices need to be changed and
moderated:
a) Holidays - the average total number of paid holiday (including "floating
days") that Contra Costa private employers provide is 9.7 days per year.
The county provides approximately 13 (including "floating days").
b) Vacation - county employees can "accumulate and carry-over" unlimited
vacation time. Then when paid, the rate of pay, in many cases, is
significantly higher than when the vacation was earned. Additionally, the
county allows employees to "sell back" vacation time (e.g. receive pay, _
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while working, for vacation time they believe they will not take off). This
creates an unnecessary "double" expense for taxpayers.
Only 61% of private companies permit vacation accumulation. Most limit
the amount that can be accumulated. 88% of private employers do no
allow employees to "sell back" vacation for additional pay.
(c) Sick Leave and Pay - the county offers 12 paid sick days per year. Also,
the county program allows unlimited accumulation, and pays employees
for sick time not used when employees leave the county's employ.
Private employers offer between 6 and 10 days of sick leave per year.
70% of these companies allow accumulation, 80% limit the maximum
accumulation to an average of 44 days. . The vast majority of private
employers do not pay for unused sick leave when an employee terminates.
These are just a few of the programs which the taxpayers should not be asked to
support. Especially in light of the fact that most wage levels at the county are
higher than private employer wage levels in the Diablo Valley area.
County officials need to abandon the long outdated cry of "pay parity" to justify
excessively generous benefit privileges for themselves and their staffs. Again,
taxpayers should not be asked to support a system of pay and benefits for public
employees that is more generous than the majority of private employers' systems.
I realize my letter is very lengthy, and that I have allowed myself the privilege of"editorializing"
on all my major points. However, there is a purpose in my methodology. I am hopeful that
some of the "emotions" expressed will cause other citizens to act and speak out against these and
other issues they believe need change. Public officials need to bear the emotions, as well as the
facts, so that they can understand the level of seriousness and urgency of the public's concerns.
Our elected representatives desperately need to "feel" the severe frustration of the people.
Sometimes just sticking to the facts doesn't go far enough. We need to pound our emotional fists
to get our politicians' attention.
I reiterate my request that the Grand Jury initiate an investigation into the issues contained in my
letter. And, I ask that corrective actions be taken if my allegations, in whole or in part, prove
valid.
7
Also, by sending a copy of my letter to each Supervisor, I ask that they individually, and as a
collective, give serious attention to all the issues raised, since they are all under the Board's
direct scrutiny. I ask that partisan politics does not become a cloud over these issues, but rather
each Board member, and the group, has the courage to act in an honest manner to make the
changes that are morally and professionally required.
Sincerely,
David J. Rossi
8
March 1 , 1993
Clerk
Contra Costa County Board of Supervisors
651 Pine Street, Room 106
Martinez , CA 94553
Re: Protest Against Proposed Fire Assessment Tax
Ladies and Gentlemen of the Board:
I , David J. Rossi, hereby issue my official protest against the
proposed fire assessment tax. My Parcel Number is: 354-361-010-3 .
My property is located at 37 Holven Court, Crockett, which is in
the Crockett-Carquinez Fire Protection District (Tax Rate Area
62054 ) . The owners of the property are David J. And Linda D.
Rossi .
I empathize with the funding requirements of our brave fire
fighters; however, I am sickened by the bureaucratic waste of
taxpayer monies which causes this issue to be before us.
Before I support the symptom of another funding shortfall , I want
local authorities to identify the malignant political disease
responsible for causing this symptom. And I do not mean the
obvious political rhetoric blaming the State of California for
cutting the county's funds. I mean uncovering and stopping the
myriad unwarranted and abusive expenditures by our own county
officials! Let me mention just a few: mismanaged benefit programs,
excessive legal settlement costs, unnecessary and excessive auto
allowances and mileage for county officials, excessively generous
employee pay, benefits and perks (e.g. , holidays, sick pay,
vacation, ratio of management employees to non-exempt employees,
etc. ) .
I shall detail my protest in a letter to the Grand Jury. I will
forward a copy of my letter to the Board of Supervisors, as well as
the County Administrator for their review and response.
Sincerel
David J. ssi
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RECEIVES �;:::
MAR 1 619M
CLERK BOARD OF SUMERVISORS 37 Holven Court
CONTRA COSTA c0.
Crockett, CA 94525
March 10, 1993
Grand Jury of Contra Costa County
1020 Ward Street
Martinez, CA 94553
Attention: Ms. Annemarie Goldstein, Foreman
Dear Madam Foreman:
The catalyst for my letter is the proposed fire suppression assessment by the county. Whether
or not that proposal has already received enough opposition to require a public vote is not at
issue. The issue, as I stated in my official protest against the tax (copy enclosed), is that I (and
I believe many other taxpayers share my opinion), am extremely sickened by the bureaucratic
methodology of treating the symptom of a political problem, rather than facing the harsh reality
of identifying and eliminating the cause(s) of the malignant political disease that results in waste
and necessitates levying additional assessments.
1 will be directing this correspondence to the Board of Supervisors, asking that taxpayer elected
body to do the same that I wish to request of the Grand Jury, and that is, to conduct a thorough
investigation of county programs, management procedures, wasteful spending practices and
benefit and perquisite privileges that are excessive, unnecessary, wasteful and ill-conceived
abuses of taxpayer monies.
I have taken the time to do research in order to present a list of items that I believe require
investigation and analysis; and then, a response to the public as to why their tax money is being
spent\wasted on certain programs. Some of the data I present will be from county publications
(e.g. Contra Costa County Allocation Of Classes To The Basic and Exempt Salary Schedule, and
the 1992 - 1993 Final Budget for Contra Costa County) and newspaper articles; as well as
personal observation and information I was able to gather.
My list of areas of concern will certainly not be exhaustive, but rather a good beginning for
legitimate inquiry.. The issues, programs and practices that I believe require investigation are:
1
(l) The February 28, 1993 Contra Costa Times article regarding secret lawsuit
settlements is a perfect case in point. Our county officials ignored(allegedly were '
not aware of - which brings into question their collective competence) the 1984
state Court of Appeal ruling which prohibited "confidential" settlements.
Now that the details of the secrecy have been exposed, all our officials vow to do
away with the practice. None of them were concerned with their practice prior
to the article. As a matter of fact, the comments by Mr. Batchelor, Mr. Harvey,
Mr. Westman, and most of the supervisors quoted, would have been laughable if
it was a "Keystone Cops" episode; however, it was a pathetic display of political
escapism! No one knew anything! Nothing originated or was controlled by
anyone's department! Mr. Harvey, whose Risk Management Division is reported
to have hired several outside attorneys, "...refuses to say who requested the
confidentiality..." The Board of Supervisors, who approved the secret settlements
"...in closed sessions...", would like the public to accept, as one of the excuses
for their irresponsible actions, the rationale that these settlements simply "...got
lost..." on a very crowded Tuesday meeting agenda. Or, as Supervisor McPeak
alleges in the Times article, county attorneys "...glossed over..." the issue of
confidentiality. These remarks and attitudes by our public officials are a travesty!
Even though there is now a vow never to permit this in the future, Supervisor
McPeak, and other supervisors, qualified that vow by reserving the prerogative
to make exceptions to that rule in "... extraordinary, unforeseeable
circumstances.." Another time tested political escape tactic. What does this
mean? This sounds like a giant loophole! if there are to be exceptions, they
better be prescribed, specifically expressed limitations, otherwise we will face this
situation again.
A large area of concern in this issue is the individual and collective competency
of our officials. For an organization the size of the county (approximately 6,818
employees) to settle the twenty (20) cases listed in the three year period (from
1990-1992) for a total $6,900,783 (payments $4,663,921; legal fees $2,236,862)
is outrageous! I feel confident suggesting that anyone in management in a private
company with this type of record would be dismissed for substandard job
performance. Plus, the cases reported in the Times article are only the "top 20
most costly". How much more is not yet known?!?
(2) In 1991, as reported in the Times, the Grand Jury concluded that mismanagement
of the county's First Choice Health plan by Mr. Cisterman, the Director of
Personnel, wastedto Least $1.25 million of taxpayer funds. Mr. Batchelor, to
whom Mr. Cisterman reports, removed the First Choice plan from Mr.
Cisterman's management control, at that time. Again, in private industry this
type of mismanagement of a fiduciary responsibility would have been, at least,job
threatening, if not cause for dismissal. _
2
1 What were the consequences to Mr. Cisterman? Since he had less management
responsibility was his income frozen, if not reduced'? Was there at least an
official reprimand to his personnel file citing substandard job performance? Has
Mr. Cisterman received raises since 1991 for good performance? If yes, why!
And, shouldn't Mr. Batchelor be held to a higher standard of awareness of what
his senior executives are doing?
Also, what has the Grand Jury done to follow-up on its 1991 finding of
"...wasted..." taxpayer monies? Shouldn't the Grand Jury be a little more
strenuous in its "watchdog" role on behalf of the public? It doesn't appear that
anyone was truly held accountable for this outrageous "waste"! It was just
reported and forgotten!
(3) I would like the public to be made aware of Mr. Batchelor's employment contract
with the county, for which they provide the funds, but have no voice in the
conditions. Please correct me if I am inaccurate; however, it is my understanding
that Mr. Batchelor provides himself, through the approval of the Board of
Supervisors who appointed him, with a five year contract of employment, which
includes certain protections should he be removed from office. Is it true that pay
increases in this contract are not contingent on performance, but rather on
longevity?
The political rationalization that justifies contracts for "public servants" that is
based on anything but measurable performance criteria is corrupt and morally
flawed! Most of the working people Mr. Batchelor serves have to live their
work-life constantly pushing their job performance and productivity to a higher
and higher level just to retain their jobs. Yet public servants are permitted to
design themselves very attractive employment packages, which insulate them from
financial harm if they do not serve their public adequately or properly and are
removed from office.
1 do not mean to imply that Mr. Batchelor's contract is the only one that should
be questioned. On the contrary, I believe that all public employee contracts
should be open to and approved by the public, and based on job performance.
The county has too many overly generous public official employment contracts.
I only focus on Mr. Batchelor because he is in charge of the departments at the
county that have some obvious problems in their management(e.g., Personnel and
Risk Management).
(4) 1 have compiled and attached, as "Exhibit A", a spreadsheet comparison of county
versus private sector jobs and pay ranges. This is clearly a very abbreviated
sample, since the county has approximately 1,264 job titles (approximately 915
non-exempt and 349 exempt).
3
I draw attention to this comparison to demonstrate a point of concern. In virtually
all cases the county pay rates are higher than private employer rates in the Diablo
Valley area. Why?!
The age old political/public entity argument is that public employee benefits/perks
(which will be discussed later)must be better than private industry, because public
pay is less than private industry pay. Well, that worn out philosophy is simply
no longer valid! I could have kept going in my comparison with job after job and
the results would have been the same.
This entire area of pay structure needs investigation and re-vamping. 1 believe
that Cost of Living Adjustments (COLA) should be eliminated. The publicized,
county commissioned Pay Equity Study should be investigated for relevance,
especially in instances where this so called "study" authorizes "retroactive" pay
increases for certain job classes. Pay raises should be based on performance, not
longevity!
Local pay surveys should be used to establish county pay rates, not some costly
pay equity studies that provide whatever data the political sponsors of the study
want to see. Plus, any study that isn't based on the local market area, in which
the county is domiciled and the employees live and work, is irrelevant. Diablo
area private employers pay what this market area demands, not what's paid in San
Diego, New York, or even San Francisco, for that matter. Hence, the county
should not use data from other municipalities out of the local area.
An examination of "Exhibit A" indicates that in virtually every job listed in the
sample, the county pay rate structure is higher than private industry. Additional
information provided for the private sector shows that the "maximum" monthly
wage amount of the "Actual Monthly Pay Range" for private industry is usually
very similar to the county's "start rate". As a matter of fact, in several cases,
the private sector "maximum actual rate" is less than the county's minimum start
rate! This phenomenon is not unique to the sample jobs listed, it permeates the
county structure. It must be investigated and changed! There is no valid reason
for the taxpayers to fund this structure! Private employers find qualified people
for less - so can the county!
I can not think of a justifiable reason why county employees should receive higher
pay scales than their peers in local private industry. All county employees should
make a good and fair living, but they should not be leading the wage scale in their
local market/geographic area.
In this area, as in many others, the county officials have turned the concept of
"public service" inside out, to where it really is the "public serving the
"bureaucracy". _
4
IC Private employers can establish any pay scale they wish; they're working with
their own money. Public entities must be more moderate because they're working
with "taxpayer money"!
(5) Another pay issue is the "Comp Time" pay arrangement that I understand is
practiced for managers at the county. There may be a practice of providing a
week (40 hours) of "manager leave" to every management employee, every year,
to allegedly compensate for the possible "extra time" (overtime) they may have
worked. There are no records kept, to the best of my knowledge, so who can
validate who should or shouldn't be entitled to this extra compensation.
This is another case of unnecessary and excessive benefits that cost taxpayers
money.
I would estimate that most private employers do not offer this type of "Comp
Time" arrangement to their exempt employees/managers. And, again, even if
some do, they are using their own funds, not taxpayer funds.
This excessive perquisite should be stopped immediately, if in fact it is practiced.
(6) The article in the San Ramon Valley Times on January 24, 1993, regarding "Car
Perks" brings another excess into focus.
If vehicles, and/or auto allowances and mileage are going to be provided, then the
only county employees that should have them are public safety employees (i.e.,
police and fire). Public funds should not be spent to provide either cars, or
allowances, to the Board of Supervisors, judges, managers, or any other
administrative staff. Only mileage for actual business related trips should be paid
to the administrators mentioned.
Public funding for county employees to commute to and from work is
preposterous!
(7) How does the county account for/report headcount of "Temporary" employees?
If the public is to be given a true picture of the county's efforts to reduce staff
and save revenue, then how the actual numbers of employees is calculated must
be fully disclosed.
According to information provided by the County's personnel department, there
are currently approximately 6,818 active county employees. In addition, there are
825 "temporary positions". Are these temporary positions reported in the final
budget as "headcount"?
5
It would be unfortunate folly (not to mention devious) to allege to reduce staff
(such as in the Personnel and Probation Departments, pages 67 and 171
respectively, of the County's Final Budget) and then replace some of those
reductions with "Temporary" people that are sort of"invisible" to the budget, and
the public.
Additionally, I do not believe that a position listed as "vacant" should be
legitimately counted as a "staff reduction" if the vacancy is more than six months
old. At that point, and beyond, you really have an unnecessary position that you
probably never needed to begin with.
Another headcount related area to investigate is the necessity, or lack thereof, to
have so many "assistants" and "deputy" positions. Not to mention, all the job
classes that have levels I through III or IV as part of their structure.
Simply stated, the county is "too fat" with regard to job classes. The Grand Jury
should also evaluate the ratio of management employees to non-management
employees.
(8) It was reported in a newspaper article that at some point recently, if not currently,
taxpayer funds, at Mr. Cisterman's recommendation, were being expended to
support staffing and subsidize the operation of a "health club" for county
employees.
If this is true I believe it should be ceased immediately. If it has already stopped,
but at one time was the case, then the fact that it was ever permitted to occur
should be investigated.
If some private employers provide this benefit for their employees, that's their
prerogative - it's their money! However, I believe most private employers do
not provide this benefit; therefore, most employees, if they choose to belong to
a health club, pay their own way - So should county employees!
(9) Several overly "rich" benefit policies and practices need to be changed and
moderated:
a) Holidays - the average total number of paid holiday (including "floating
days") that Contra Costa private employers provide is 9.7 days per year.
The county provides approximately 13 (including "floating days").
b) Vacation - county employees can "accumulate and carry-over" unlimited
vacation time. Then when paid, the rate of pay, in many cases, is
significantly higher than when the vacation was earned. Additionally, the
county allows employees to "sell back" vacation time (e.g. receive pay, _
6
,
while working, for vacation time they believe they will not take off). This
creates an unnecessary "double" expense for taxpayers.
Only 61% of private companies permit vacation accumulation. Most limit
the amount that can be accumulated. 88% of private employers do no
allow employees to "sell back" vacation for additional pay.
(c) Sick Leave and Pay - the county offers 12 paid sick days per year. Also,
the county program allows unlimited accumulation, and pays employees
for sick time not used when employees leave the county's employ.
Private employers offer between 6 and 10 days of sick leave per year.
70% of these companies allow accumulation, 80% limit the maximum
accumulation to an average of 44 days. The vast majority of private
employers do not pay for unused sick leave when an employee terminates.
These are just a few of the programs which the taxpayers should not be asked to
support. Especially in light of the fact that most wage levels at the county are
higher than private employer wage levels in the Diablo Valley area.
County officials need to abandon the long outdated cry of "pay parity" to justify
excessively generous benefit privileges for themselves and their staffs. Again,
taxpayers should not be asked to support a system of pay and benefits for public
employees that is more generous than the majority of private employers' systems.
I realize my letter is very lengthy, and that I have allowed myself the privilege of"editorializing"
on all my major points. However, there is a purpose in my methodology. I am hopeful that
some of the "emotions" expressed will cause other citizens to act and speak out against these and
other issues they believe need change. Public officials need to hear the emotions, as well as the
facts, so that they can understand the level of seriousness and urgency of the public's concerns.
Our elected representatives desperately need to "feel" the severe frustration of the people.
Sometimes just sticking to the facts doesn't go far enough. We need to pound our emotional fists
to get our politicians' attention.
I reiterate my request that the Grand Jury initiate an investigation into the issues contained in my
letter. And, I ask that corrective actions be taken if my allegations, in whole or in part, prove
valid.
7
Also, by sending a copy of my letter to each Supervisor, I ask that they individually, and as a
collective, give serious attention to all the issues raised, since they are all under the Board's
direct scrutiny. I ask that partisan politics does not become a cloud over these issues, but rather
each Board member, and the group, has the courage to act in an honest manner to make the
changes that are morally and professionally required.
Sincerely,
David J. Rossi
8
` March 1, 1993
Clerk
Contra Costa County Board of Supervisors
651 Pine Street, Room 106
Martinez , CA 94553
Re: Protest Against Proposed Fire Assessment Tax
Ladies and Gentlemen of the Board:
I , David J. Rossi , hereby issue my official protest against the
proposed fire assessment tax. My Parcel Number is: 354-361-010-3 .
My property is located at 37 Holven Court, Crockett, which is in
the Crockett-Carquinez Fire Protection District (Tax Rate Area
62054) . The owners of the property are David J. And Linda D.
Rossi .
I empathize with the funding requirements of our brave fire
fighters; however, I am sickened by the bureaucratic waste of
taxpayer monies which causes this issue to be before us.
Before I support the symptom of another funding shortfall , I want
local authorities to identify the malignant political disease
responsible for causing this symptom. And I do not mean the
obvious political rhetoric blaming the State of California for
cutting the county's funds. I mean uncovering and stopping the
myriad unwarranted and abusive expenditures by our own county
officials! Let me mention just a few: mismanaged benefit programs,
excessive legal settlement costs, unnecessary and excessive auto
allowances and mileage for county officials, excessively generous
employee pay, benefits and perks (e.g. , holidays, sick pay,
vacation, ratio of management employees to non-exempt employees,
etc. ) .
I shall detail my protest in a letter to the Grand Jury. I will
forward a copy of my letter to the Board of Supervisors, as well as
the County Administrator for their review and response.
Sincerel
r�
David J. ssi
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RECEIVED i
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MAR 15 I993
CLERK BOARD Op UPERV,SORS
CONTRA COSTA gyp,
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JEFF SMITH} SJPERV, FOR ORINDA �--
NdO
510 : 640 1396
44*
please take to Clerk of Board office
down the hall and have this stamped in "Rece:
by the Clerk of the Board of Supervisors"
Please mail onertamped in "Received copy to
me
HENRY SPAR
phone (UL) 510 254 4452 10- 6 pm
101 Cu,rino Don Miguel, Urinda
"' " •t Fatallv defective notice of hearing
for March 16 , hearing can ' t go .
Specifics , citation of authority
r ! ,
MAR 1�
The people insist on remaining informed so that they
retain control over the instruments they have created.
Someone ought to re- The bst sentence should be in the peoples quotes, for
flect, what is pub- it is California law: Scats . 1953, Chap 1588 , P. 3270,
lically gained or # 1. (now Section 54950 of the Government Code) .
privately advantaged
by violating Gov.Code
54950 . At a recent social meeting one Supervisor was totally
unable to say what Orinda wants ( ie. pay fully locally,
for its fire service, but have a very well and fully
What the central locally managed, locally specific, fire service in this
Orinda aim is : pay high wildfire area where currently structure fires are
fully locally, ger 3 .4 times fewer (in number than predicted for this area
well managed local by various factors such as slope density,topooraphy,
fire service "weather indexyl bulding materials and other features .
Please see, CONTRA COSTA SUN, "Wildfire . . . 260
Orinda homes burned?" , Wednesday, June 21, 1989)
Why this notice is If a1lember or Members of the Board of Supervisors and
needed t7eir dut-v bound staff and counsel, are not willin4 to
follow -minimum standards of aptlicable law, then this
notice is—appropriate and helpful for thi7future:
1 . The *basic Board "goodconduct" rule is in Section
What is an 54959 of the California Government Code (All references
"unlawful meeting"? are to this Code) . For any legislative body, it is a
misdemeanor to attend an"unlawful meeting"
2. Please read these comments in light of the
Bergenscn Bill, S .B. 1977 , which became effective this
year.
3 . The proposed March 16 meeting, for reasons cited
below, does not meet minimum requirements , and is
"unlawful" in Section 5495.09 terms . Specifics follow.
FATAL DEFECT IN FIRST FATAL DEFECT IN NOTICE (among many other,content
SERVICE OF NOTICE related zatal defects , Fescribed in detail below) :
This fatally defective service of the notice of public
hearing (siMply put, the mailing aspect o—F-The notice)
leads to a:, notice failing even if the office of the
clerk had not made this series of fatally defective
content ezrrors and omissions in the notice.
There is no clerk' s' certificate for "proof of service" ,
therefore the following is calculated from the clerk' s
most self serving postage meter mark on the rail cover
of "January 27 , 1993" as the date of mailing. Using
Code of Civil Procedure, Section 12 calculation , forty-
five days "is up" on MARCH 14, 1993, but, but (new in
1993) sub Para (D) of Government Code-7—e6tion 54954.6(2)
3 .
15 -.3 09:17 P.3
plainly requires differently:
11 — the notice requirements im osed
by this section shall be const rued
--
7is a ditional supersede
ex�_StIng provisions of law." (Emphasis
added) .
Therefore Code of CildProcedure, Section 1013, 1013a
have to be met , on "an act to be done" and requires
Under the new five additional days if the notice is just simply
amendment of Brown mailed: therefore the first day, without being a
Act, effective in misdemeanor violation of "attending" the meeting/
1993, your notice hearing, would be Friday, March 19 1993 . "Attending"
had to be 45 at any-time betore is a tor certaft ;isKmeanor
days plus 5 days violation of Section 54959 .
for mailing : so
no "lawful" hearing Everyone understands that one first puts money in the
possible before bank, then writes checks : it is no different with
March 19 notice and then hearing .
No matter what your "Notice of Public Hearing on Fire
Suppression . . ." had said, that notice would be
March to doomif legally -ineffectual for any purpose until March 19.
hearing before high at the earliest : : Yet Board MembeF (s) and parts of
noon ,March 16 the office of the clerk, march to their doom before
high noon on the March 16 .
Worse, in this process , the Supervisors now deny
the voters even a chance to express at election what
the true governors of this fire district want and may
very much need in way of more tax legislation.
Mailgate or
Watergate in Contra There was nearly a month to prepare to mail this notice
Costa County.Who, in legal and timely fashion .
When, what did?
Who, who made this mistake? When did other Members know,
and what did they do about it?
3 7
CALIFORNIA DAILY OPINION SERVICE, 7 :41, Wednesday,
Tia-rch 4, 1993 : Editorial Section: Summaries ; and
Dwayne McKee v. National Union Fire Insurance Company
of Pittsburg, PA. , 93 C'DOS 1457 at 1458 : In the con-
struction of statutes . . .Code of C-N-17-15r-ocedure 1859 ,
Kimmel v. 1voldand (1990) 51 Cal 3d 202 at 208:11 . . . look
first to the language of the statute, if clear and un-
ambigious , the court will give effect to its plain
meaning." Here the staute ordered this Board and Clerk
to comply with Section 54954. 6(2) (D) and "this shall
be construed as additional toand not supersede 'existing
4.
(ft. n . 3 .cont. .) provions of law ."
It is truely willful to fail to obey
(see sub para (D)) plain language of
1-4
Since tF—ei7�rice of the notice fail
fails and all fails that was to come
The fatally defective notice was dis
Supervisor with two other Members , b
yet all supervisors went publically
out "to lend" and to "deceive" (Plea,
language on these two words) the pub
fatally defective notice of hearing .
defect was publically noticed, pleas,
Saar filing with the Clerk, entered
Saar and Lamb filing with the Clerk
yet no ccrrective action was taken b,
$428 ,000 .00 cost By one non p-ablic estimate, $428 ,000 .
of mailing illegal of the mailing : which, since it was
notice. . should against public policy, should not re;
now be taken as a thousand being -)aid by the taxpayer,
personal expenditure, become a personal Expenditure.
not a public
expenditure against SECOND FATAL DEFEC IN YOUR NOTICE OF
public policy MOR-719-RCH 16 : the statutory plural
is not paid attenticn to with the res
notice as given is fatally faulty in
two meetings 45 days plus 5 for maili
the meeting / hearing dates . ,
SECOND FATAL NOTICE Please see the lower 1-eft hand toner,
DEFECT: Clerk ' s lines of the face sheet of your notic:
certificate of by the words and ending with these words
signed and sealed . . .by S/s (A photographic
deputy, is false Deputy -
the words which lead to a "false on i,
in your notice, are attached on the fc
The clerk' s certificate is false. PlE
the filed documentation inP-aTi5a– and E
recorded by the Clerk of the Board on
There is in fact no original nor is tl
certificate states , one signed and wit
There is no wax, wafer or even the wor
if this form is used) "seal" (CCP 14) ,
original or copy. Therefore the abilit
Board or the Clerk to a usual high sta
Signatures and oaths , seals , words lik
5 .
Mr R 15 32 1719 1:)
Communion , married, are words which do matter.
(Please see Cal Jur 3d, Seals" #2 et seq. ) .
If the Clerkclaimsthat the original notice was
in fact served then the notice may not mislead.
To certify that a (Please see, Clerk, Forged court documents case
deputy signed anU law) If there is no place where a deputy placed
placed -a seal of the seal or a "word" "seal" and signed as a deputy
office on a document clerk, then such may not be represented in a
has specific clerk' s certificate, which is as if sworn.
meaning:here notice
falls for certificate No non conforming copy may be served. The copy
is proven false served is claimed by the Clerk to be the original,
(See,Feb 9 filingl; - though it plainly places indica on it that a signed
supra.) and sealed copy exists , but does not in fact.
THIRD FATAL DEFECT IN NOTICE: A new section of the
Brown Act became effective nearly two months before
this notice of yours was mailed, yet your notice
fails to comply in the most Tnandetory provision:
notice of nio meeting.s. .
W'-,iat your attention is respectfully invited to is 4/
the legislative history of the Brown Act, which
provides the reasons for the new amended language.
Please note, that the plain language of the new
Two (2) meetings/ statute reads that the date,time, place of public
hearings required hearings (note the plural) is subject to the 45
45 day plus 5 for days noTice, and if mailed, 5 additional days (as
mailing: yet you counted under CCP 12) . Section 54954. 6(2) of the
even attempted only Government Code specifies so the notice you give is
to give notice on of two meetings/hearings : you only even attempted
0
one meeting/hearing to give code specified notice on onehearing/meeting,
5/
The mandetory parts of subsection (a) of Section
54954. 6 (2) ;' For the Orinda FPD not even the publication
section is met : the OFPD proper newspaper is Orinda
News , or Contra Costa Sun, (see sub (2) (b) (1) .Such
notice was not accompished either.
The plain statute reads ,"datesit ' "times" and
"locations" must be public hearings" which shall be
noticed. As to two Lneetinas,/heari-ngs , this wasnot
even atte7-ipte-T-r Dy rinie clerk.
4/
0o hart, 7rr-t7ur L : ESSAY IN JURISPRUDENCE.
'Cambridge, 1931 , at page 250 : "If the law mandates
the nit is n.aterial.
5/ Supra, and McKee v National, supra.
6 .
I Hr lc '93- 09:21
P.6
FOURTH FATA1. DEFECT IN NOTICE COMES FROM THE
MFULATIVE MECT OF ERRORS AND OMISSIONS :
(1) The cmimulative effect of these errors is
extrinsic and leads your notice to be constitutionally
vague . . .
Sec. 54954 . 6(c) (1) is not complied with since the
No return address "return address of the sender" is not on the "envelope
of sender on or the cover'=
. you do not comply, but place such
envelope . . .gives information on the inside not the cover or envelope
impression of with the effect tha—t--tFe—reader is mislead into taking
ignore this mail it as more junk mail which , on average, Orinda FPD
residents receive more than 14 per day.
(2) You imply in your notice that the protest has
to be personally "delivered" thereby leading the
Saying protest citizen notioexercise his or her civil rights because
to be "delivered" you might as well say it has to be delivered by walking
as if personally up Mt.Diablo. The law requires that the protest can
whereas code be mailed, no personal "delivery" is :required.
language is
"mailed'" (3) The fire benefit assessment 46ee;..changes costs of
real estate operation: therefore leads to the
CalConst Art I constiutional challenge for imparement of vested
Sec 9 in invoked constitutional rights , unless , you follow proper legal
and you must then procedure, including on not Plea-se see, U.S . Const
comply with Art. 1) Sec 10 ; Cal Const. Art I, Sec 9 .
procedure, you
do not. (4) Your notice misleads reader into believing that
some statements come from the Fire Chief" of Orinda,
who would know and ha,%.7e at heart the interests of this
community. The notice to Orinda FPD misleads , because
you have failed to appoint a Fire Chief of Orinda,
despite a City of Orinda Council Resolution asking you
No Fire Chief,yet to do so , and despite such Resolution from the local
notice puts words Board of Fire Commissioners . Dead men or non existant
into his mouth as people can hardly give advice to voters .
to believe an non
existent man. (5) Notice law, if subject to CCP 1013, requires
insciption of date if an act is to be performed: here
Not dated you are blank as to year, month or day.
(6) You can not njw even ask for response or in-
formation or "return" based upon ybur notice to
Defective notice, the taxpayer : you cant unless you comply with the
gives no authority notice requirement and you have not. Western Oil
to ask taxpayer to & Gas Association v. State Board of Equalization
act. (1987) 44 Cal 3d 208 .
7 .
'5,2 09:22
( 7) Because vour notice is fatally defective, any
"tax" you enact o-r-e-l-ecE, wili be void: -PTease' see
'
Now any tax is an early case: Eldorado v. Reed (LS 5 8) 11 Cal 130,
recoverable,, at 132.
Eldorado holding.
(8) Now with *three filed notices as to fatal defect
in notice , you -ca-n-Fe fully on notice. As a case of
Can not pass first mpression, you can not pass the $428,000 mailing
$428,000 mailing cost into OFPD taxpayers b-ecause the fatai error in
cost of fatally -no-t-Tce was something you were made aware of: the
defective mailing public can not be made to pay for expenses which
to OFPD taxpayers were illegal and aga-?*.nst public policy at the time
you did such act.
There are a number of political and other consequences
Consequences of the from the March 16 noticed hearing failing because of
fatally defective a fatally defective notice :
notice
(1) Primarily political : a confused con4ituency,
now unable to vote on the issue, becuase of specified
time requirements .
(2) Code of Civil Procedure, Sections 128.5, 121
(private attorney general provision) can be used to
IT
recover unlawfully","attending" ,"Members" . See also
writ of mandamus provisions in the Brown Act, Sec.
54960 and CCP 186, CC 3281. There are costs for the
great number of people who come out to attend such a
public hearing as announced for March 16.
(3) Tax collection matters would not normally go to
the courts
s-as a firs-t step, Calif Const Art XIII, Sec
32; na,� this section is abbrogated by the fatally
defective notice and courts would have to take these
cases from the start.
(4) With this defective notice any act at hearing
would be ourside of law. Macrodyne Industries v.
State Board of Equlization, (1987) 192 CAM 379,and
.ALS0,CRB Foods Inc. v. County of Los Angeles , 195
CAM 821) 241 CR 18.
Please re17iew your file, law and then act inaccordance
waw. This writing here establishes scienter and
you can not non obstante proceed. Most respectTully
you are invilt-eU To—review these matters, briefly
discussed here and then plan and issue a new notice for
a proper, legal and publicly needed hearings,
HENRY SSR
101 Camino Don Miguel,
Orinda
8 .
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MPR 115 153 09:24
to: (1) INDIVIDAULLY TO EACH MEMBER,,BOARD OF SUPERVISORS :
(2) TO THE CLERK OF THE BOARD, AND (3) BOARDS LEGAL
COUNSEL:
At the Offfice of the Board of Supervisors ,Contra
Costa County. Delivered hand - to hand by witnessed
service and filing.
subject: Why "attending" (Gov.C.54954) March 16 Board meeting/
hearing constitutes misdeusarrr violation of G.C5495'4. 6(a)
Please see same issue filings : Palma and Saar, Feb 9 ;
and Saar and Lamb, Mar 12, 1993 .
Margin summary
YOU ARE MOST RESPECTFULLY PUT ON NOTICE ABOUT AN
IMPENID-ING MISDEINEANOR VIOLATION BY BOARD—MEMBER
VIOLATING CALIFORNIA GOVERNMENT CODESECTION 54954. . .
Main pt: Impending AND RELATED.
misdemeanor (G.C.
54954) violation by PLEASE SEE THE KUNDATIONAL DCCU'?ENT : YOUR " NOTICE
Board Member : for OF PUBLIC HEARING ON FIRE SUPPRESSION . . .11 FOR
absent G.C.54954 . 6 TUESDAY, MARCH 16, 1993, which notice is fatally de-
iance fective 'G.C. 54954 . 6 (a)) and " false on its face
"attending" Mar 16) (in the specifics listed below) and therefore does
1993 meeting/hearing not allow (G.C.54954. 6(a) a meeting/hearing or a later
constitutes a general election vote.
misdemeanor
The need for writing here this notice arises from
public politics .
This notice to you concerns all fire districts , not
just Orinda district and this notice could be given
by anyone as to all districts, even by a stranger -
in - standing, because this notice merely invites
The barest minimum attention to a series of serious"imendin5 unlawful
amended new section acts ." This notice doeg not state it a tire assesment
of the Brown Act Fe—efit tax should or should not be enacted and
shouldbe fo=owed; collected; Merely that the barest minimum require-
listed consequences ments of law should be observed in t deEl'sion process
if not. which is o_ owe publice lly.
Many groups , over 28 of ther; were active in Moraga
and Orinda in opposing fire district consolidation-Some
2300 individual letters (the largest individual letter
2300 individual write in ever in C.C.Co) and over a dozen petitions
letters , petitions by groups were filed with various Supervisors . The
local interest in a well nanaged and community, sec
pific
fire service is still important tOrin a. This is
shown by the fact that every fifth home or house was
involved in the letter writing campaign.
1.
111P.P. 'IF, ,Q
30-z- :2-7
This current year, over 4. 15 million dollars is in
The central political =t collected as fire tax in the Orinda Fire Protection
issue: 4 . 15 million District the District's full budget would be 3.86
collected, 3.86 Thill, million dollars . Yet Or"I�nis told there is a budget
full budget, - yet short fall . This has led—to citizen group activity
-
If y
claimed" budget and interest as to what is going on . Where does the
short fall. money go?
"Where is the beef?"
For further details on conmuni.ty discussion and views
see CONTRA COSTA SUN: "Fire under Orinda''' Wednesday,
August 5, 1992, page 8; and " Politically dry fire
hydrants . . ." August 6, 1992, page 8 .
In response to the letters and petitions, mentioned
above, the Supervisors promised for over a year to
Orinda meeting was hold a long meeting in Orinda or Moraga to hear why
to give 4 hours not what is wanted by the citizenry: No such meeting was
3 minutes to develop ever held. (Please see, Lexis media index: McPeak
4. 15 million dollar promises to hold meeting) . A four million dollar
plans long term fire service issue can not appropriately be
discussed in 3 minutes before a Martinez meeting .
Even though t1he Supervisors "internal operating
procedure" provides that reports be available on the
Friday proceeding the Tuesday meeting, the disclosure
of reports to Orinda citizens were not even given at
Required reports not the start of the Tuesday meeting, Senior staff of the
made available Board joked in the presence of Orinda people that. . .
lets see what they say now, before the Supervisors . . .
let then talk without a clue as to what the staff will
propose. No one can comment usefully or intelligently
if the foundational report is with held till one is re-
quired to start to speak. Public input is defeated but
so is the public purpose.
"A just derision is half by the manner in which it was
derived." _/
l/ For Eis phrase, credit acknowledgement to: KPIX TV,
TRON TV, KGO TV ad for proprietary hamburgers .
2/ Cardozo, Benjamin N. : THE NATURE OF THE JUDICIAL
PROCESS, New Haven: Yale University Press, 1921 .At p.
41 .
2.
CONTRA COSTA COUNTY COUNSEL
651 Pine Street, 9th Floor
P.O. Box 69
Martinez CA 94553
(510) 646-2058
Fax (510) 646-1078
To: Board of Supervisors
From: Dennis C. Graves
Deputy County Coun
Date: March 11, 1993
Re: Ordinance Specifying Retention of Local Property Tax Revenues
Pursuant to request of Supervisor McPeak, we drafted the attached proposed
Ordinance regarding the retention of local property tax revenues in the event the State
proceeds with its attempt to take $2,600,000,000 (or some other large amount) of local
property tax revenues from the counties of California. In addition to consulting with
Supervisor McPeak, we discussed the proposed Ordinance with the Auditor.
The backbone of the proposed Ordinance is the first section, entitled Findings
and Intent, in which we set forth legislative findings that are intended to demonstrate a
prima facie case that the proposed State property tax "shift" would significantly impair
the County's ability to provide for the health, safety and general welfare of its citizens,
in contravention of the local agency home rule guaranteed by the California
Constitution. The findings also assert that the State's proposal would result in the
counties' paying part of the school funding that Proposition 98 contemplated the State
would pay. We conclude that the State's proposal would be beyond the power granted
to the State in Proposition 13 to pass legislation apportioning property tax revenues
among local agencies.
Policy Question
Supervisor McPeak would like the Board to address the policy question of
whether the Ordinance should specify an allocation scheme other than the 1992-3
statutory scheme specified in the Ordinance draft. Some possibilities are: 1) the State
allocation scheme of fiscal 1991-2, which gives schools a substantially lower amount of
property taxes than the 1992-3 allocations by avoiding the "confiscation" of property
taxes the State began in 1992-3, 2) the State allocation scheme of fiscal 1991-2 but
with modifications that would be better for specified local agencies (eg, the County)
than the 1991-2 State allocation scheme, 3) the State allocation scheme of fiscal 1992-
3 (specified in the current Ordinance draft), but with modifications that would be better
for specified local agencies (eg, the County) than the 1992-3 State allocation scheme
and 4) some combination of the above alternatives.
Fiscal 1991-2 was the last year before the State exceeded the apportionment
authority granted under Article XIIIA by impairing our right to home rule and confiscating
our property taxes to pay part of the State's Portion of school funding. In fiscal 1992-3
1 .
the State began the confiscation it now wants to dramatically expand for fiscal 1993-4.
Rather than proposing our own apportionment scheme, the Ordinance simply defaults
to apportioning 1993-4 property taxes in the manner done by the State for fiscal 1992-
3. The thinking is that this may be more legally defensible than a new apportionment
scheme, for which there is no statutory precedent or authority, and may be more
politcally acceptable because it would not take away the taxes given to the schools or
other agencies for 1992-3.
The 1992-3 allocation scheme might avoid some problems with schools, but
would still be confiscatory to some degree. If we adopt an allocation scheme other than
that specified in statute for 1991-2 or 1992-3, there are two potentially significant
problems. First, any other scheme would lack statutory precedent. Second, any other
scheme would risk complexities (and potential ambiguities) that may be very difficult to
avoid. The current law on property tax allocations (R+TC Secs. 95-100) covers
approximately 60 detailed pages and is meaningful only to a few who routinely work
with the detail of the law. While not all of this would need to be changed by departing
from the 1992-3 (or 1991-2) allocation scheme, the potential for real problems in a new
allocation scheme should not be ignored.
Some specific questions regarding alternative allocation schemes include:
1) Whether"enterprise districts" (districts that can raise a majority of funds from
user fees, notably sewer and water districts) should be excluded from the
allocation?
2) Whether districts in addition to enterprise districts also should be excluded
from allocations (eg, park and rec districts, flood control districts, multi-county
districts, such as BART)?
3) Should the Ordinance specify minimum funding levels for one or more of
County, cities, fire districts and schools?
---- If so, how (eg, where will the money come from to meet the minimum
funding level)?
cc: Ken Corcoran, Auditor
Phil Batchelor, CAO
c:tgcmem
Ordinance No.
The Board of Supervisors of Contra Costa County ordains as follows:
Section 1: Findings and Intent
The Board of Supervisors of Contra Costa County finds.and determines
that:
a. As an essential element of the local agency home rule guaranteed by
the California Constitution, property taxes collected in a county have
always been intended for use in that county.
b. Proposition 13, as adopted in June of 1978 and amended thereafter,
allows the Legislature to specify how the the property taxes collected in a
county are to be apportioned among the county and the cities and districts
therein, but did not contemplate that property taxes would be taken for
State purposes or would be apportioned in a manner inconsistent with the
home rule provisions of the Constitution of California.
c. Proposition 98, as adopted in November of 1988 and amended by
Proposition 111 in June of 1990, provides that a county's portion of
school funding is the amount of property taxes provided to the schools in
the county for fiscal 1987-8, adjusted annually for cost of living increases.
Pursuant to Proposition 98, the State's Portion of school funding is the
amount that, when added to the counties' portion, will bring total school
funding up to the level specified in the Proposition.
d. The Legislature of California has expressed its intent to take
approximately $2,600,000,000 of the property taxes collected in California
counties in fiscal 1993-4 and use those funds to pay a substantial part of
the State's Portion of school funding or to pay other State expenses, in
clear violation of the letter and intent of Proposition 98 and Proposition
13.
e. For fiscal 1992-3, available revenues have fallen far short of the
expenditures necessary to meet the critical fiscal needs of Contra Costa
County, requiring that essential County services be cut substantially.
f. If the gap between available revenues and necessary expenditures
increases to any significant extent for fiscal 1993-4, the County will not be
able to fund State mandates and provide for the essential health, safety
and general welfare of its citizens that is requisite to meaningful home
rule.
g. If the Legislature acts upon its expressed intent to take approximately
$2,600,000,000 of the property taxes collected in California counties in
fiscal 1993-4 and use those funds to pay a substantial part of the State's
Portion of school funding or to pay other State expenses, this County
would lose a very significant part of the funding now used to provide
critical County services, would be prevented from providing for the
essential health, safety and general welfare of its citizens, and would be
deprived of meaningful home rule in contravention of the Constitution of
California.
h. Contra Costa County hereby finds that the aforesaid intended State
action would constitute an illegal confiscation of the property taxes of
this County, in that such action would prevent the County from providing
for the essential health, safety and general welfare of its citizens, would
prevent the meaningful home rule guaranteed by the Constitution of
California, would violate the schools funding scheme of Proposition 98 by
requiring this County to pay a substantial part of the State Portion of
school funding, and would be in excess of the power given to the
Legislature in Proposition 13 to lawfully apportion property taxes among
the county and cities and districts therein.
j. Contra Costa County, therefore, determines that it is necessary to take
action to prevent the intended State confiscation of the property taxes to
be collected in this County for fiscal 1993-4 and to insure the preservation .
of the Constitutionally guaranteed powers of home rule, including the
power to provide for the essential health, safety and general welfare of
the citizens of the County. This Ordinance, therefore, provides for the
lawful apportionment among the county and cities and districts therein of
the property taxes collected in this County in fiscal 1993-4.
Section 2: Apportionment
Notwithstanding any provision of State law to the contrary, the
apportionment of property taxes among the county and cities and districts
therein shall be in the manner such apportionment was made for fiscal
1992-3 pursuant to Chapter 6 of Part 0.5 of Division 1 of the Revenue and
Taxation Code of California.
2
Section 3: Collection and Disbursement
The Treasurer-Tax-Collector and Auditor shall collect, apportion
and disburse property taxes for fiscal 1993-4 in accordance with Section 2
unless the Board of Supervisors of Contra Costa County, by emergency
declaration adopted pursuant to four-fifths vote, specifies an alternative
apportionment.
Section 4: Circumstances Invoking Operation of This Ordinance
In accordance with the findings and intent of Section 1, this Ordinance will
become operative, and property taxes shall be collected, apportioned and
disbursed in accordance herewith, in the event the State enacts Legislation that
would result in the aforesaid confiscation of property taxes collected in Contra
Costa County in fiscal 1993-4.
Section 5: Effective Date
This Ordinance will become effective 30 days after passage, and within
15 days of passage, shall be published once with the names of the Supervisors
voting for and against it in the Contra Costa Times, a newspaper of general
circulation published in this County.
Passed this day of March, 1993, by the following vote:
Ayes:
Noes:
Absent:
Abstain:
Attest: Phil Batchelor, Clerk
of the Board of Supervisors
and County Administrator
By: Deputy [Seal]
c:VrPOrd
3
DATE:
REQUEST TO SPEAK FORM
(THREE (3) MINUTE LIMIT)
Complete this form and place it in the box near the speakers' rostrum before
addressing the Board.
NAME: J6stp# NONE: YZS 33 5 /
ADDRESS: 13 7 4zL A/W CrIY: Ac',e,�
I am speaking formyself X q9 organization: eawmo &j-r �idivey �e�u �E c�„vEes.
Check one: (NAME OF ORGANI%aTION),gW,
I wish to speak on Agenda Item # 2 , 3
My comments will be: general for _X_ against
I wish to speak on the subject of
I do not wish to speak but leave these comments for the Board to consider.
3/d�f�f�i`Y�