‘The Prop 218 Vote Is Illegal,’ Top California Elections Attorney Says

The protest for the Proposition 218 vote has expired. On December 18, the Board of Supervisors adopted staff recommendation “to overrule all protests submitted prior to and at the public hearing on October 23, approve the engineer’s report as amended, levy the assessments and direct the due diligence review of the wastewater project as directed by AB 2701.”
    
Hundreds of pages of protest letters were filed by the close of the Proposition 218 vote at 5 p.m., October 23. The strongest protest letter submitted—and the only letter the County addressed—was by attorney David Howell of the Santa Cruz-based law offices of Timothy J. Morgan on behalf of a dozen or so homeowners.
    
Los Osos Prohibition Zone homeowner Pam Ochs hired Morgan’s firm to write the protest letter. ”I am not opposed to a project, nor to the County having the project, but I feel strongly that the ‘Prohibition Zone’ homeowners shouldn’t have to pay exclusively for what benefits the entire District. Government agencies aren’t exempt from paying their fair share under the 218 law. The State and federal benefit because it’s the State’s groundwater and federal bay. It’s an illogical, impossible financial responsibility for just the 4,500 homeowners in the PZ to bear alone, especially for the highest priced sewer in the country. It makes no sense.
    
“The County should have to do a proper and legal 218 vote with general benefits,” Ochs said. “Homeowners should be allowed to have the most affordable, cost-effective project available to them that meets the RWQCB’s requirements. Preferably this would be a ‘green’ project. But the project and cost should be fair for everyone in the District who receives the benefit of clean drinking water and bay.”
    
Said David Howell, the attorney with Timothy J. Morgan who wrote the protest letter: “Our main reason for taking the case, and I explained (to the Tribune, in an interview they refused to print), is that we wanted to fight the ruinous expense the County was trying to foist off on taxpayers, including elderly and fixed-income residents, and that such an action was unconscionable.”
   
When Morgan’s firm considered taking the case and wrote the protest letter, they did not know at that time that the Howard Jarvis Taxpayers Association (HJTA) had been actively working with the County, Assemblyman Sam Blakeslee and the RWQCB on the takeover. The attorneys didn’t know at the time the extent of the HJTA’s strong involvement and support of the County’s project. Morgan’s firm has had and continues to have a close working relationship with the HJTA. In fact, Morgan’s firm wanted HJTA named on the suit along with the Los Osos homeowners. The firm recently worked with HJTA on a half-billion-dollar 218 case in Santa Clara.
    
Ochs suspected that getting HJTA on their team would be a problem. HJTA’s Director of Legal Affairs, Timothy Bittle, wrote Ochs in October, “Our legislative director at the time, Jennifer Abreu, who no longer works for HJTA, was involved in discussions with Assemblyman Sam Blakeslee’s office, the RWQCB, and the County of San Luis Obispo, and commented on the drafting and amending of AB 2701. We supported the county take-over of the sewering issue, and were willing to remain neutral on the authorization to levy an assessment provided we received assurance that the state fines would be waived if the voters passed the assessment.
    
“Blakeslee’s office determined (based, I believe, on advice from Leg (sic) Counsel) that the fine waiver could not be included in the text of the bill without overstepping the separation of powers. The RWQCB assured us, however, that they had every intention of waiving the fine and, in fact, planned to use waiver of the fine as an enticement to encourage people to approve the assessment,” wrote Bittle.
    
(It should be noted here that even after the 218 passed, the RWQCB obviously changed its mind and decided not to vacate the CDOs.)   

When Morgan and HJTA realized this suit was not in the best interest of their working relationship Morgan declined to participate in the suit, even as Howell, his right hand, expressed strong belief in the suit and that there was no special benefit to PZ homeowners.
    
“I think you have a solid case on the equities,” Howell later wrote Ochs, “that is the notion of what’s fair and just. Sometimes, however, that is not enough.”
    
From the time Ochs approached Morgan to the time Morgan decided not to take on the case, weeks had elapsed. Because of the short protest period, Ochs was left with a few weeks to find another attorney.
    
While Morgan agreed to take on the case, after realizing that HJTA couldn’t fight what they helped create, Morgan backed out over the objections of his closest advisor.