Imagine if elections were completely different. Imagine if ballots

# weren't secret, if not voting would count as voting "yes." Imagine an election where people who don't own homes can't necessarily vote at all.

Now stop imagining. Those are all characteristics of Proposition 218 votes, several of which are underway in San Luis Obispo County over rising water and sewer rates.

Although it was heralded as a way to empower taxpayers when it was first passed more than a decade ago, some observers say Proposition 218 has been almost entirely ineffectual since. And there are few signs that things are getting better.

Written by the Howard Jarvis Taxpayers Association and passed by California voters in 1996, Proposition 218 is known as "the right to vote on taxes act." But some local residents wish it were easier to exercise that right. In some cases--such as water and sewer rate hikes--there's not even a ballot, there's just the option of turning in a written protest.

"Proposition 218 is a different sort of beast. I call it sham democracy," said John Borst, a Paso Robles resident who opposed the Paso Robles City Council's decision to add a fee of $60 a month on each household's bill to pay for the Nacimiento Water Project.

"It would be nice if there were electoral safeguards," Borst said. "Without an independent audit agency to handle the process, the potential for abuse is there."

Over on the coast, residents of Cambria are facing a Proposition 218 vote on hefty rate increases for their water and sewer bills. Aiming to see Cambria become one of the first places in California to achieve a successful Proposition 218 protest vote, a citizens group has formed to oppose the rate hike and help residents navigate the Proposition 218 process.

It isn't easy.

"Proposition 218 isn't working very well here in Cambria," retired teacher Hilah Danell said on a breezy day at a recent Farmers' Market as she handed out protest forms the group created for residents to sign.

Hundreds of signatures that the citizens group already collected were thrown out by the Cambria Community Services District

# because they weren't in the proper format and were collected too early in the timeline spelled out under the Proposition 218 rules, she said. Then the CSD decided that renters and property owners would each have half a vote per parcel, making it more difficult to come up with the required 50-percent-plus-one majority protest.

"Because Proposition 218 was drafted in haste, there's a lot of confusion, as in Cambria," explained Michael Colantuono, an attorney who's the chairman of the League of California Cities Proposition 218 committee and who campaigned against the measure.

The law, he said, "works fairly well" in the case of property tax assessments, where the procedure is spelled out clearly to give each property owner the right to vote yes or no on a ballot, with their votes weighted according to the benefit their property receives.

That's the type of Proposition 218 vote that homeowners in Los Osos are currently facing, as they decide whether to agree to a property tax assessment estimated at around $200 a month to pay for a sewage system. Some Los Osos residents have criticized the 218 process because their votes will be a matter of public record under state law, and because renters aren't allowed to have a say on the controversial sewer issue. A protest hearing is set for Oct. 23.

Nipomo property owners faced a similar Proposition 218 vote last October for a property tax assessment to pay for maintenance of local levees and flood channels. A ballot was sent to each affected owner, asking for a yes or no vote. A file at the SLO County Clerk's office shows that 89 percent of the voters said yes to a new assessment of around $390 a year, while 11 percent voted no. Each homeowner's vote is recorded and is open for public inspection.

The law, though, is murky when it comes to monthly water and sewer bills, resulting in a decade of court battles over whether increases in these rates do or don't require taxpayer approval under Proposition 218.

But a year ago, the California Supreme Court finally handed down a decision in the case of the Bighorn-Desert View Water Agency, with a definitive finding that charges for water are now considered "property-related fees" under Proposition 218.

That's the reason the 218 process is suddenly in the local spotlight. People who live in San Luis Obispo and Paso Robles were recently given the opportunity under 218 to protest water rate hikes approved by the two city councils to help pay for the Nacimiento project. Cambria residents have the chance to protest CSD-backed water and sewer rate increases for studying desal and improving wastewater treatment. And more 218 protest votes are likely around the county in the future, as other cities upgrade their infrastructure and expect ratepayers to foot the bill.

"Cambria is not alone. Almost every water provider and sewer provider is going through this," Colantuono said.

For some Cambrians who are unhappy with the size of the rate increase, though, the 218 process has been difficult to fathom. The CSD sent out a 10-page explanation for the new rates, including complex charts listing water meter sizes and usage rates so residents--armed with recent bills--could theoretically calculate the amount their bills will increase. The notice also included information about filing "a written statement of support or protest," with a public hearing set for Oct. 25.

"That's the sad thing, when people are hit with this. How are they supposed to know what Proposition 218 is and how to protest? We felt people needed to be more informed," said Tina Dickason, a spokesperson for the Cambria citizens group.

Since no ballot is included in the notice of the rate hike, the group printed up its own protest forms for people to sign, with all of the appropriate information included. Then CSD attorney Art Montandon decided that tenants who pay the water bill would have half a vote, and owners also get half a vote, which Dickason said the group saw as a "roadblock," resulting in the need for more signatures for a valid majority protest.

"We don't disbelieve in rate hikes, but this is way out of line," said Tess Wright, a retired court mediator who was collecting signatures at Cambria's Farmers' Market along with Danell.

"The document they sent out is so full of confusion, it's impossible to decipher. The whole thing was cooked up behind closed doors. We want some transparency," Wright said.

Danell said she's worried about the effects on the town if the new water rates are implemented.

"The young families will leave, the Hispanics will leave, restaurants and hotels will shut down. Cambria will be an older folks' 'Leisure World by the Sea' with nothing to do but play checkers and pay your water bill," she said.

Dickason sought advice from Proposition 218 experts in Sacramento, where she found out about a new law signed by the governor on Oct. 5. The law, known as AB1260, clarifies the 218 protest procedure for water and sewer rates. Either a property owner or a renter who pays the water bill has the right to file a protest vote, rather than the half-and-half approach Cambria was taking.

Although the new law doesn't go into effect until January, CSD attorney Montandon said the CSD recently decided to comply with it now.

"If either a tenant or an owner files a protest, it will count," Montandon said.

"The experts disagree on 218, there's no question about that. That's the problem with explaining it to a community that wants a black-and-white law," he added.

According to Brian Weinberger, a consultant to the state Senate Local Government Committee who prepared an analysis of AB1260, the new law clears up "a gray area" of Proposition 218 regarding tenants and property owners. If a fee can be enforced through a lien on a parcel, the property owner must receive a notice. Otherwise the notice can be included in a billing statement.

"If either the owner or the tenant seeks a protest, their vote counts. There was a lot of confusion as a result of the court decision on Bighorn," Weinberger explained.

He pointed out that voting on a property tax assessment under 218--the way Los Osos is doing now--is easier than voting on a water rate hike.

"For an assessment, they actually mail out ballots, and you simply pop it in the mail. For fees, you have to take the initiative and write up your own protest," Weinberger said.

So far, the only successful rate-hike protest vote in California that the League of Cities' Colantuono is aware of occurred in a rural Northern California town of only 84 customers. Reaching the 50-percent-plus-one majority was easier with such a small population.

The Cambria citizens group needs 2,271 protest votes to overturn the rate increase, Wright said.

"Our intention is to shut it down, and then have a conversation on a realistic rate increase," she said.

That's eventually what happened in Paso Robles, even though the initial 218 protest over the $60-a-month Nacimiento fee wasn't successful. Confused residents didn't understand the 218 written protest requirement and simply showed up at a City Council meeting to voice their opposition to paying so much for Nacimiento water. Many at the meeting called for the Nacimiento fee to be proportional to actual water use, making it more affordable for households with low usage.

But too few Paso Roblans filed a written protest under the official rules of 218, and the City Council adopted the $60-a-month Nacimiento surcharge in spite of citizen opposition. That's when angry residents started to study their options under Proposition 218 and discovered that they could circulate petitions for a referendum on the water rates, just like old-fashioned American democracy.

"I think we did something very remarkable. Some people just grabbed the petition out of my hand to sign it. We needed 1,424 signatures, and we got 2,300 in just 10 days," Paso resident .Borst said.

The Paso Robles City Council backed down in the face of the citizens' referendum, and on Oct. 2 voted to adopt a consumption-based fee.

"Now we're starting another 218 process on a different rate structure approach," said Paso Robles City Manager Jim App.

This time, the three-page 218 notice was sent out by direct mail on Oct. 12, after concern that the former notice was buried in the water bill, App said, adding that he hopes the standard-size envelope marked with "water rate information" won't be tossed out as junk mail.

"From a community perspective, there's no way to find a fair rate for all. Fairness is in the eye of the beholder. We may go through a few 218 rounds if people are still upset," he added.

"I'm hopeful people are satisfied we've responded to their requests. There's a lot of confusion out there."

Opponents of San Luis Obispo's recent water rate hike for Nacimiento didn't muster enough protest votes to stop the charges, in spite of action by resident Terry Mohan, who sent out thousands of preprinted forms at his own expense to make it easier for people to protest.

Now Mohan is also relying on old-fashioned democracy: an initiative. He's circulating petitions and collecting signatures to put a rate rollback on the ballot.

"I don't think Proposition 218 gave enough power to the people. A protest has never been successful that I know of. It's written in such a vague way," Mohan said during a Saturday morning signature-collecting effort outside of a supermarket.

Proposition 218 allows citizens to establish a referendum to overturn new fees, with signatures required from five percent of the number of voters in the jurisdiction who cast votes in the last gubernatorial election. That's a fairly low signature requirement, according to Colantuono.

"The Howard Jarvis association considered the referendum rule as their ultimate weapon, and I think they're right," he said.

Technically, a 218 vote is not an election, it's a protest, he explained, "built on the historic tradition that said protests are public." Silence is consent in the case of fees for water, sewer, or garbage service.

The law has accomplished what its proponents wanted, according to Weinberger in Sacramento.

"It has placed constraints on financing mechanisms. That could mean that a lot of local governments don't make an effort to do projects if their perception is they won't be successful," Weinberger said.

In spite of the confusion and controversy surrounding Proposition 218, local officials are learning to live with it.

Cambria CSD attorney Montandon said that the 218 process provides people with the opportunity to participate in government by protesting.

"At the end of the day, it provides better local democracy," he added.

As Colantuono of the League of California Cities said, "There's the delay associated with the notice--45 days--and the cost of sending out the notice is not trivial. Then there's the political heat of having everybody come to the meeting. But the upside is communication about what local government is doing and why.

"It's 'OJT' with 218--on-the-job training. We don't know how to do it yet," he continued. "Don't assume that elected officials and their staff are evil and incompetent. We're learning by doing. We'll be better in a couple of years."

Freelance journalist Kathy Johnston may be reached at [email protected].