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SLO 'unlawfully altered' special election ballot, county DA says

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Updated: 1:28 p.m., July 28
Correction: The original article misstated the District Attorney’s assertions about the SLO City Council and Measure B-17. New Times misinterpreted the
DA’s opinion to be about Measure B-17’s ballot title and summary. After reading through correspondence between the city and DA, the story was rewritten. In the interest of transparency, the original story is included below the updated story. Look for more on this story in our Aug. 3 paper.

The SLO County District Attorney Office’s has asserted that the city of SLO "unlawfully altered" its pending special election for Measure B-17, the initiative to repeal-and-replace the SLO Rental Housing Inspection Ordinance (RHIO), by enacting a repeal of the RHIO after the initiative was certified by the city.

In a June 13 letter responding to a criminal complaint by initiative supporter and financer Kevin P. Rice, Assistant DA Lee Cunningham said that the SLO City Council "effectively altered" the future special election that would determine the ordinance’s fate when it repealed the RHIO.

REPEALED. AND REPLACE? The SLO County DA's Office is claiming the SLO City Council "unlawfully altered" the Measure B-17 initiative by repealing the Rental Housing Inspection Ordinance.
  • REPEALED. AND REPLACE? The SLO County DA's Office is claiming the SLO City Council "unlawfully altered" the Measure B-17 initiative by repealing the Rental Housing Inspection Ordinance.

The city certified the initiative’s 5,419 signatures on March 13, and the City Council passed a second reading of the RHIO’s repeal on March 21.

Cunningham said the action constituted a violation of the state elections code stating that a legislative body may not alter a ballot-qualified citizen initiative.

"[The City Council] effectively altered the question to be posed from a 'repeal and replace' choice, to simply a 'replace' choice," Cunningham wrote in the memo, which was signed by DA Dan Dow and shared by Rice with New Times on July 25. "Although it appears that the City Council unlawfully altered the initiative, I don't believe their action was
criminal."

The initiative was circulated in the city between September 2016
and February 2017 by former City Councilman Dan Carpenter and attorneys Stew Jenkins and Dan Knight. It was submitted to the city clerk on Feb. 16.

On March 7, the City Council voted to repeal the RHIO in a first reading. The repeal's second reading, which set it into law, occurred eight days after the petition was certified.

Cunningham asserted that the City Council should not have taken action on the policy underlying the initiative after it had qualified for a special election.

"Had they repealed that ordinance while the petition was being circulated, no problem,” Cunningham told New Times. “The issue I saw was it fundamentally altered the question itself that was being put to voters.”

On July 27, SLO City Attorney Christine Dietrick responded by calling the letter “unfounded based on facts” and asked for Cunningham to "formally retract the statements.”

"The initiative ordinance in Measure B-17 remains unaltered from the proposed ordinance in the original petition,” Dietrick wrote. "The council took a separate and distinct action to repeal the program it had previously adopted.”

In her letter, Dietrick also attached an analysis from Los Angeles attorney Craig Steele, retained by the city as an election’s expert, who blasted Cunningham’s analysis as “incorrect,” “ridiculous,” and “irresponsible.”

“Given the unique timeline and circumstances, the City Council and city staff acted entirely within their authority to … repeal the RHIO,” Steele wrote.

Cunningham said he stands by his analysis.

"I still believe it was unlawful conduct,” Cunningham said on July 27.

Measure B-17 ballots are due back to the county clerk by Aug. 22. The measure proposes a repeal of the RHIO and replacing it with a "Non-Discrimination in Housing Ordinance,” which critics, like all five City Councilmembers and several prominent community groups like the Chamber of Commerce, warn will place other housing policies in legal jeopardy.

The SLO City Council officially called for the special election on May 16. The title and summary on the ballot included additional language that the City Council had repealed the RHIP on its own.

The ballot question reads: "Shall an ordinance be adopted to replace former Chapter 15.10 of the SLO Municipal Code, entitled, 'Rental Housing Inspection' (repealed by the City Council Ordinance 1632, effective April 20, 2017), with new Chapter 15.10 to be entitled 'Non-Discrimination in Housing'?"

Original article (July 27):

As San Luis Obispo voters' mailboxes get stuffed with the special election ballots for Measure B-17, the initiative to repeal and replace the Rental Housing Inspection Program (RHIP) with a "Non-Discrimination in Housing" ordinance, the SLO County District Attorney's Office is asserting that the city has "unlawfully altered" the wording in the ballot question.

On May 16, the SLO City Council finalized the special election ballot, spurred by a citizen-led petition, which added language to state that the City Council repealed the RHIP in a March 7 vote.

The ballot question reads: “Shall an ordinance be adopted to replace former Chapter 15.10 of the SLO Municipal Code, entitled, ‘Rental Housing Inspection’ (repealed by the City Council Ordinance 1632, effective April 20, 2017), with new Chapter 15.10 to be entitled ‘Non-Discrimination in Housing?’”

SLO resident Kevin Rice, a Measure B-17 supporter and financer, complained to City Attorney Christine Dietrick at the time about the added language, and Dietrick argued that, “the voters can’t repeal something that does not exist.”

"At this point, Chapter 15.10 no longer exists in the SLO Municipal Code," Dietrick wrote to Rice on May 11. "When the measure was titled, it did, so the title was accurate."

But, in a June 13 response to a complaint from Rice, Assistant DA Lee Cunningham wrote that the DA's Office agreed the city violated election law by amending the question, which he believed made it "inconsistent" with the petition and "effectively altered" the overall framework of the question.

“Although it appears that the City Council unlawfully altered the initiative, I don’t believe their action was criminal,” Cunningham wrote in the memo, which was signed by DA Dan Dow.

Cunningham told Rice and New Times that the phrase in parentheses constituted a violation of Election Code 9210, which prohibits the amendment of a filed petition except by court order.

He said the effect of the amendment was it reframed the ballot question as just a replacement ordinance for the RHIP—as opposed to both a repeal of the RHIP and a replacement ordinance. If passed by voters, Measure B-17 would make it unlawful for any City Council to adopt a RHIP in the future without voter approval.

“I don’t know how you could say that didn’t alter the issue that’s on the ballot,” Cunningham told New Times. “You’ve taken something that’s ‘repeal and replace’ and made it a ‘replace.’”

Rice said he believes the city added the language to influence voters to vote ‘no’ on the measure.

“I view it as an unlawful move by the City Council and city attorney to sway the outcome in their favor,” Rice told New Times.

City Attorney Dietrick did not respond directly to the letter from the DA’s Office before press time due to being on vacation.

“However, it remains my position … that the city acted lawfully and consistent with its obligation under the elections code to present truthful and accurate information to the voters,” Dietrick wrote in an email.

Cunningham said criminal charges for the ballot alterations require intentional fraud or willful neglect, which, “I doubt was the situation
here."

Organizations like the SLO Chamber of Commerce, People's Self-Help Housing, Housing Authority, and SLO U40 have joined the SLO City Council in opposition to Measure B-17. Its opponents believe that the replacement ordinance would place other housing programs, like the Inclusionary Housing Ordinance, which generates funds to build affordable housing, in legal jeopardy. 


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