Following is a letter I sent to Antioch Mayor Harper and Council Members, City Manager Steve Duran and City Clerk Arne Simonsen, in response to a column in the Antioch Herald.
Dear Mayor Harper and Council Members,
It has now been more than three weeks since the June 23rd Council Meeting and more than two weeks since I sent to you all the Appellate Court Cases Mayor Harper requested at that meeting (copies attached, below). As of this date I have received no correspondence from the City, the Council, any Council Member, the City Manager or the City Clerk concerning the illegal activities of the City of Antioch involving the Sewer and Water Funds transfers and tiered billing.
Let me begin by saying that conservation, drought or no drought, is a good idea and the recycling and the maximum use of natural resources is worthwhile.
Not just for human beings but for all the creature of the Earth.
However noble an idea or desire may be including water conservation it does not rise to the circumvention or shredding of the California State Constitution. Irrespective of Governor Brown’s belief that he can persuade or browbeat the elected officials at the County or Municipal level he does not have the executive authority or right to sidestep the California State Constitution. Neither do you.
More than two hundred years ago we abandoned an authoritarian form of government and while democracy is often imperfect in many ways it represents the will of the citizen’s desires best.
I will not stand by and watch the Antioch City Council violate recent California Case Law, the California State Constitution and your Oaths of Office. This is unacceptable and you need to move not later than your next Council Meeting, July 28th, to correct the City’s position concerning transfers from the Water and
Sewer Funds and the tiered water rates placed in effect only to promote conservation. You will need to agenda these items for the Meeting, July 28th and correct your and previous Councils errors. As part of that correction the General Fund must be immediately required to repay and restore the illegal transfers from the Water and Sewer Funds and diverted to the Police Department during the past several years.
From information provided by the Finance Director, Dawn Merchant an initial transfer from the Water Fund began in 2010 with no transfer from the Sewer Fund. In 2011 both Funds were affected by transfers, with the Water Fund amount being transferred reduced from $265,000 to $240,000. When I asked Ms. Merchant for the Nexus Calculation Formula applied to the Water and Sewer Funds I was informed it is a percentage of the Police Budget (see attached email and accounting of transfers). There is no Legal Nexus or Formula according to your Finance Director.
Under Proposition 26 Cities are limited when transferring utility receipts into the General Fund. There must be a Nexus. In Citizens for Fair REU v. City of Redding, a State Court of Appeal held this year that the transfer of funds from the utility was a tax not approved by the voters as required by Proposition 26. Proposition 26 is an Amendment to the California State Constitution. Part of the reasoning by the Court was that the City of Redding was simply billing the utility a percentage and there was no connection to the cost of the service.
This case in facts and evidence closely parallels what is being done by the City of Antioch. Let me be clear. Billing the Sewer and Water Funds a percentage of the Police Budget is illegal, violates case law, violates the State Constitution and in voting to continue this illegal process of taxing the voters without a voter approval you are all and each individually violating your Oath of Office.
Tiered Water Rates:
Proposition 218, another amendment to the California Constitution in 1996, requires that government agencies charge only the cost of providing the service. Arbitrary tiered rates that do not correspond to the actual cost of providing the service are illegal. Not even in times of drought can you do this type of predetermined tiered billing. Not even at the browbeating of the current Governor of the State of California. Not at all.
In the case of Capistrano Tax Payers Association v. City of San Juan Capistrano a California appeals court ruled this year that tiered water rates must be based on cost. They cannot be based on predetermined usage.
The City of Antioch has adopted such a predetermined tiered usage plan in violation of California Case Law, in violation of Proposition 218 and in violation of the California State Constitution. In voting to approve and implement such a tiered billing process you all and each individually are violating your Oath of Office.
Oath of Office:
At the time each of you took office for the City of Antioch you swore or affirmed in part or whole the following:
ARTICLE 20 MISCELLANEOUS SUBJECTS
“I, ______, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States and the Constitution of the State of California against all enemies, foreign and domestic; that I will bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties upon which I am about to enter.
“And I do further swear (or affirm) that I do not advocate, nor am I a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means; that within the five years immediately preceding the taking of this oath (or affirmation) I have not been a member of any party or organization, political or other wise, that advocated the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means except as follows: __________________________________________________ (If no affiliations, write in the words “No Exceptions”) and that during such time as I hold the office of ______________________________________________ (name of office) I will not advocate nor become a member of any party or organization, political or otherwise, that advocates the overthrow of the Government of the United States or of the State of California by force or violence or other unlawful means.”
Therefore; be advised that on June 23rd, 2015 you were placed on notice prior to your vote that approval of the Budget, Item 7 of the Agenda without lining out the Water Fund and Sewer Fund transfers was illegal.
Know now that this action and each and every individual vote was a violation of your Oath of Office. A probable criminal offense against the voters and citizens of Antioch. Know also that your adoption by vote previously of the tiered water rates based on a predetermined usage was illegal. Also, a probable criminal offense against the voters and citizens of Antioch. Ignorance is not a defense and neither is pressure from the Governor of the State of California.
Bad advice and counsel comes in many forms and from many persons. Good intentions are sometimes corrupted. Absolute power corrupts absolutely. And, executives sometimes come to believe they are omnipotent. These all become challenges for democracy, the law and the citizens.
You are all being called to correct errors made by this Council and previous Councils. This is your opportunity to do what is right and just and to live up to your Oaths of Office and the California State Constitution. The citizens of Antioch expect nothing less from you.
Demand is made that you agenda not later than July 28, 2015, Transfers concerning the Sewer and Water Funds and Tiered Water Rates. Demand is made that you line out the transfers in the current Budget and terminate all transfers that have no basis in a Legal Nexus. Demand is made that the General Fund immediately repay all funds illegally transferred from the Water and Sewer Funds for all years including but not limited to 2010 through 2015. Demand is made that you revoke the predetermined Tiered Water Rates based on conservation and not on the cost of service and that amended water rates be immediately calculated for billing in August.
Should you fail to agenda the items noted above and should you fail to make the corrections outlined I would be significantly disappointed. The citizens of Antioch will be significantly disappointed. The challenge to our City would continue forward seeking a just solution.
This is not my first tussle with the City of Antioch concerning Constitutional rights. The result of that previous tussle did not go well for the City. Constitutional matters as in these issues tend not to be blurred on misunderstood and once adjudicated, as in Redding and San Juan Capistrano, become crystal clear to all. Is our City at that point of clarity yet?
I look forward to the City Council Meeting July 28th.
Citizens v City of Redding
Merchant & Jordan communication