SR-104-000-06 (2)
City Council Meeting 7-10-01 Santa Monica, California
TO: Mayor and City Council
FROM: City Staff
SUBJECT: Ordinance Adding Section 11.04.175 to the Municipal Code Relating to
Initiative Petitions
Introduction
The City Council has directed staff to evaluate various proposals for ensuring the integrity
of the initiative process. This staff report responds to that directive and is accompanied
by a proposed ordinance which would address the Councils concerns by mandating the
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preparation and disbursement of an Initiative Information Sheet intended to educate the
public in general, and potential petition signers in particular, of existing legal requirements,
including voters rights and circulators responsibilities. This staff report also responds to
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Councils questions regarding CityTV and Web coverage and, if applicable, electronic
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campaign disclosure during the signature gathering period and during the election cycle.
Background
During the last election cycle concerns were expressed about certain tactics allegedly
used by persons circulating initiative petitions. Some of these circulators were apparently
paid significant amounts per signature, giving them a substantial financial incentive to
communicate misleading information about the proposed measure.
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In response to these concerns, the Council directed staff to evaluate various possibilities
for protecting and regulating the initiative process. Generally speaking, these possibilities
fell into two categories: regulating circulators and adopting new regulations relating to
financial disclosure. This report addresses both categories and includes a summary of
applicable law.
Law on Regulating Circulators
Suggestions for regulating circulators have included both prohibiting or restricting paid
circulators and requiring affirmative disclosure of compensation agreements. The former
approach is legally problematic because the United States Supreme Court has recently
invalidated two laws imposing qualifications on petition circulators.
In Meyer v. Grant, 486 U.S. 414 (1988), the Court reviewed a Colorado law banning paid
circulators. Colorado argued that the law was necessary to protect the integrity of the
initiative process and ensure grass roots support for ballot measures. The Court rejected
these arguments and invalidated the law reasoning that it imposed an undue burden on
core political speech by reducing the number of voices who will convey . . . the
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message. The law thereby diminished the size of the audience [proponents] can reach.
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486 U.S. at 422.
In Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999), the Court
applied the same rationale to strike down a Colorado statute which required all circulators
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of statewide initiative petitions to be registered Colorado voters. As in Meyer, the statute
was found to violate the First Amendment because it diminished political speech and
because the states rationale for the requirement was not compelling.
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Based on Buckley, the Attorney General reviewed California Elections Code Section 9209.
That section governs municipal initiatives and requires circulators to be voters of the city.
The Attorney General concluded that Section 9209 is unconstitutional under Buckley.
Therefore, circulators of municipal initiative petitions need not be city voters or city
residents. 82 Ops. A.G. 250. Additionally, the Attorney Generals office has informally
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reached the same conclusion regarding circulators of referendum petitions.
These decisions illustrate the proposition that restrictions on the circulation process will be
very strictly scrutinized by the courts. Existing protections will be seen by the courts as
adequate to preserve the integrity of the process given First Amendment principles
favoring maximum communication of political views.
In California, state law already protects the integrity of the circulation process in several
ways. Each initiative petition must include the ballot title and summary prepared by the
City Attorney, both of which must characterize the measure accurately and objectively.
Moreover, each petition must contain language advising potential signers that they may
ask the circulator whether he or she is being paid to collect signatures. State law also
prohibits the circulator from making false or misleading statements about the measure.
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Elections Code Section 18600 makes it a misdemeanor for the circulator to intentionally
misrepresent the content or effect of the measure to a potential signer. Section 18601
makes it a misdemeanor for a circulator to refuse to allow a prospective signer to read the
contents of the measure or the petition. Finally, any voter who signs a petition and then
decides to withdraw his or her signature may do so by filing a request for withdrawal with
the City Clerk before the petition is filed.
Law on Financial Disclosure
State law also extensively regulates financial disclosure. The Political Reform Act,
Government Code Section 87000, et seq., imposes numerous requirements. The Fair
Political Practices Commission has adopted detailed implementing regulations. Moreover,
both the integrity of the election process and campaign financing are matters of statewide
concern. County of Sacramento v. FPPC, 271 Cal. Rptr. 802 (1990). Therefore, cities
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powers to regulate in these specific areas are likely limited by state law.
Discussion
There are various options for protecting the integrity of the circulation process by
maximizing the accurate information available to voters.
Regulating Circulatorsand Disclosure
The Meyer and Buckley decisions, together with the California Attorney Generals opinions
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effectuating them, mean that disclosure requirements are a much better option for the City
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than attempting to restrict the use or percentage of paid circulators. However, even
requiring affirmative disclosure of whether a circulator is paid and the terms of payment
may be legally problematic. The City would need to identify and rely upon a compelling
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governmental interest. Moreover, the Council would likely need to specify why present
protections in state law are inadequate. As noted above, those protections include
criminal sanctions for circulators misrepresenting a measures intent. They also include a
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notification on the petition that the potential signatory may ask the circulator if he or she is
paid. In addition to constitutional concerns (including First Amendment rights and privacy),
the possibility exists that the state notification requirement preempts additional local
requirements such as affirmative disclosure. Moreover, as a practical matter, the
existence of these statewide protections may enable the City to address any problems
which arise through education and enforcement, at least in the first instance. If such
efforts prove unsuccessful, that endeavor would presumably help establish the Citys need
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to adopt local measures.
In reviewing state law relevant to the Councils concerns, staff noted that the efficacy of
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several of the state safeguards depends upon potential signers reading the petition before
deciding to sign. In fact, this may not occur. Many petitions are very long. The print is
small. The circulator may approach the potential signer under circumstances antithetic to
careful consideration of the petitions and measures content. Additionally, voters may be
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unaware of the existing legal requirements which safeguard their rights and the integrity of
the initiative process. Given these practical realities and the uncertainty of the Citys legal
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power to alter the circulation process, staff recommends a course of public education and
enforcement as a first step. If experience shows that more regulation is needed, that
experience may justify additional local enactments, including enactments regulating
circulators and their obligations to make affirmative disclosures regarding their own pay
and campaign financing.
Initiative/Charter Amendment Information Sheet
The proposed ordinance would require the preparation and disbursement of a simple
Initiative Information Sheet which would advise voters (and circulators) of the current
requirements of law. Attached is a draft of the proposed information sheet which defines
the term measure, gives a brief description of how a measure gets placed on an election
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ballot, explains why signatures are needed on a petition, and explains how to withdraw a
signature from a petition and where to get additional information on the process or on the
measure. Circulators would be required to make it available to potential signers, and it
could also be widely distributed to the public in other ways.
The City Clerk has provided the following information on CityTV programming on initiatives
and electronic campaign disclosure during the initiative process.
Programming on CityTV
CityTV could provide three types of programming on initiatives.
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Five minute statements by proponents and opponents of the initiative.
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five minute interviews could be conducted by CityTV with one five minute interview
with the proponent and one five minute interview with the opponent of the initiative.
Each side could discuss the strengths and weaknesses of the initiative and the
issues to be considered when voting for or against the initiative.
League of Women Voters discussion program.
? CityTV has in the past produced
a talk show format program on initiatives in cooperation with the League of Women
Voters. League members prepare statements about the initiative and summarize
what those who are for and against the initiative are saying.
News show format.
? As a pilot program for the last election, CityTV produced a
news style program on initiatives. Reporters produced news packages about each
initiative and included visuals, interviews and charts to explain the initiatives. The
packages contained interviews with those for and against the initiative. These were
tied together with an anchor in a studio.
The costs for these various options would vary depending on the number of initiatives in
any one election and whether the productions could be consolidated with other CityTV
election programming activities to achieve cost savings.
Electronic Campaign Disclosure
Council directed staff to analyze the possibility of providing for electronic filing of campaign
statements if the City were to consider implementing campaign contribution disclosure
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requirements during the signature gathering period of a measure. Staff analyzed the
Secretary of States existing electronic filing program and is presenting two options for
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establishing this policy, should it become feasible.
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States Filing Program
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The States program is interactive and, in addition to providing the information on-line
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quickly, it is also used to gather and compile data for reports and statistics published by
the State. In order to safeguard against fraud, each user is assigned an identification
number and a password. In addition, the committee is still required to file a hard copy
containing an original signature. The State is currently researching the possibility of digital
signatures on electronic filings.
On the down side, almost everyone using the interactive program requires technical
assistance and the State expects to receive at least three phone calls per user. Because
the deadlines for electronic filing are the same as for hard copy, when the deadline is
approaching, the requests for technical assistance overwhelm staff and the program. The
State created a division dedicated to maintaining the program, and includes 8 full-time
analysts, 1 full-time and 3 part-time technical employees, and the consultant who
developed the forms and program, who is on site. To date, the State has spent
approximately one million dollars to implement the program, and the maintenance costs
are on-going and permanent.
Scanning Option
If the main purpose of this project is to have the information accessible to the public on the
Citys website, a simpler option is to scan the campaign statements into the website as
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soon as they come in. The viewable information will be exactly the same as that printed on
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the hard copy, but will serve no other purpose. However, this option is relatively simple
and has minimum cost.
There is one issue for discussion in considering the scanning option. Campaign
statements contain the names and addresses of contributors, whether they are individuals,
businesses, or companies. Of course, because it is contained in a campaign statement,
this information is already public. However, it is a long reach from having it available to
members of the public in the City Clerks office, to posting this information on the world
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wide web.
Currently, when staff posts information to the website for board and commission members,
it does so only with permission of the member. Because of the logistics involved in
soliciting and receiving contributions, it is not feasible to expect that the candidate or
committee member will obtain the permission of all its contributors. Attached is a copy of a
disclosure page posted on the Secretary of States website (http://www.ss.ca.gov/) for
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Proposition 34. The contributors are only listed by name; their addresses are not included.
Finally, for your information, be advised that for the near future, there is no technology
available that would allow a visually impaired person to use a screen reader to read a
scanned document.
Financial Impacts
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Adoption of the proposed ordinance would, in itself, have no financial impact.
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Recommendation
Staff recommends that the Council introduce the attached ordinance for first reading and
approve the form of the proposed information sheet.
PREPARED BY: Marsha Jones Moutrie, City Attorney
Joseph Lawrence, Assistant City Attorney
ATTACHMENTS: Proposed Ordinance
Initiative Information Sheet
Website (NOT AVAILABLE
Disclosure Page from Secretary of States
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ELECTRONICALLY)
f:\atty\muni\laws\initiativeord-1.wpd
City Council Meeting 7-10-01 Santa Monica,
California
ORDINANCE NUMBER ____
(City Council Series)
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF SANTA MONICA ADDING SECTION 11.04.175 TO THE SANTA MONICA
MUNICIPAL CODE RELATING TO INITIATIVE PETITIONS
THE CITY COUNCIL OF THE CITY OF SANTA MONICA DOES HEREBY ORDAIN
AS FOLLOWS:
SECTION 1. Section 11.04.175 is hereby added to the Santa Monica Municipal
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Code to read as follows:
Section 11.04.175. Initiative Information Sheet.
(a) In order to ensure that any person considering signing an
initiative petition has information about the proposed measure and the
initiative process sufficient to exercise his or her rights in an informed
manner, the City Clerk and City Attorney shall prepare an Initiative
Information Sheet to accompany each petition.
(b) Each Initiative Information Sheet for a particular measure shall
include at least the following: (1) the ballot title prepared by the City
Attorney; (2) the text of the summary prepared by the City Attorney or a
condensed version of the summary; (3) notification of the right to request a
copy of the full text of the proposed measure from the City Clerk; (4)
notification that the signature gatherer may be compensated for gathering
signatures or may be a volunteer and that the potential signer has the right
to ask whether the gathering is a volunteer or is being paid; and (5)
notification that it is a crime for signature gatherers to misrepresent the
contents of the proposed measure or to refuse to allow the signer to read the
petition or proposed measure.
(c) Each person gathering signatures shall provide copies of the
Initiative Information Sheet to every signer of the petition. In addition, each
person gathering signatures shall make copies of the Initiative Information
Sheet readily available to prospective signer either by offering copies orally
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or by displaying them prominently in the same location where the signatures
are being gathered so that signers may readily see and take them.
SECTION 2. Any provision of the Santa Monica Municipal Code or appendices
thereto inconsistent with the provisions of this Ordinance, to the extent of such
inconsistencies and no further, is hereby repealed or modified to that extent necessary to
effect the provisions of this Ordinance.
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SECTION 3. If any section, subsection, sentence, clause, or phrase of this
Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court
of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this Ordinance. The City Council hereby declares that it would have passed
this Ordinance and each and every section, subsection, sentence, clause, or phrase not
declared invalid or unconstitutional without regard to whether any portion of the ordinance
would be subsequently declared invalid or unconstitutional.
SECTION 4. The Mayor shall sign and the City Clerk shall attest to the passage of
this Ordinance. The City Clerk shall cause the same to be published once in the official
newspaper within 15 days after its adoption. This Ordinance shall become effective 30
days from its adoption.
APPROVED AS TO FORM:
_________________________
MARSHA JONES MOUTRIE
City Attorney
INITIATIVE/CHARTER AMENDMENT INFORMATION SHEET
CITY OF SANTA MONICA
The following information is provided to all Santa Monica residents with the
intent of clarifying the initiative and charter amendment process and to answer the most
frequently asked questions. Please note that any person soliciting signatures for
an initiative must make this form available to any member of the public.
(At the end of this information sheet, please find the Ballot and Title Summary, as
prepared by the Santa Monica City Attorney, for the ______ measure currently
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being circulated in the City of Santa Monica.)
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What is a City Measure?
A Measure is any charter amendment or other proposition or initiative (ordinance)
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submitted to a popular vote at any election.
How does a Measure get on the ballot?
In order to qualify for placement on the ballot of regular or special future municipal
election, proponents of a measure must follow the process outlined in the State
Elections Code. Section 9200 provides for the initiative process and Section 9255
provides for the charter amendment process. In addition, Chapter 11 of the Santa
Monica Municipal Code provides clarification and local requirements for proposed
measures. You may obtain a copy of the full text of these laws from the Santa Monica
City Clerks Office.
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Why are the proponents asking me to sign the petition?
In order to qualify a measure for placement on the ballot, proponents must obtain either
10% or 15% of the signatures of the registered voters in the City for an initiative and
15% for a charter amendment. As of June 7, 2001, there are 60,192 registered voters
in the City. In order to qualify an initiative, proponents must secure at least 6,019
signatures. In order to qualify a charter amendment, proponents must secure at least
9,029 signatures.
What if I dont understand what the petition means or what will happen if it
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passes?
Proponents of a measure are required to print the full text of the measure, as well as
the City Attorneys ballot title and summary, on the petition above the signature lines.
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You have the right, and are encouraged, to read it completely and to ask questions
before you decide whether to sign the petition or not. In addition, you have the right to
ask the signature gatherer for any of the following information:
? are you a volunteer or a paid signature gatherer?
? are you being paid per signature or hourly rate, and if so, how much?
? if compensation is non-monetary, what kind of compensation are you receiving?
What if I sign the petition, but change my mind later?
Any voter who has signed any initiative or referendum petition, and who subsequently
wishes his or her name withdrawn, may do so by filing a written request for the
withdrawal of the signature with the City Clerks Office. This request must be filed prior
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to the date the proponents file the petition with the City Clerk. (Elections Code Section
9602.)
What other information can I obtain regarding a proposed measure?
If you would like a copy of the full text of the measure, or if you have any other
questions related to measures or elections, please call the City Clerks Office at (310)
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458-8211.
CITY ATTORNEYS BALLOT TITLE AND SUMMARY:
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An Initiative Measure Amending Various City Charter Provisions And Adding a Section
to The Municipal Code to Replace ____________________
This measure would amend the City Charter and Municipal Code provisions
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governing _____________________,
(The ballot title and summary would be printed in full.)
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f:/ctyclerk/elections/initiativereform/information.sheet.wpd
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