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Sr-112707-1M~_ ~;,Yof City Council Report Santa Monica City Council Meeting: November 27, 200h7~ Agenda Item: 1 ~ I'' s To: Mayor and City Council From: Mona Miyasato, Deputy City Manager Subject: Approval of survey research for a potential ballot measure Recommended Action Staff recommends that the City Council approve survey research to assess community attitudes and support for a potential ballot measure to modernize the City's Utility Users Tax regarding telecommunications. If approved, staff would enter into a professional services agreement with Fairbank, Maslin, Maullin and. Associates for $35,000 plus contingencies. Executive Summary Staff is evaluating options to modernize the City's Utility Users Tax as it relates to telecommunication technology. The City's current ten percent tax applies to all telecommunication services, including wireless communications. Several legal, legislative and technological challenges recently have threatened the validity of UUT ordinances in other jurisdictions. Santa Monica's ordinance is valid, and has been clarified twice in the last several years to address these challenges. Nevertheless, the ordinance should be updated to address 21St century modes of communication. Such changes would require voter approval under Proposition 218, as new definitions would potentially expand the tax base. Opinion research conducted in the next several months would measure public support for a potential November 2008 ballot measure. If Council agrees with this approach, staff has administrative authority to enter into professional services agreement with Fairbank, Maslin, Maullin and Associates for $35,000 to conduct this research. 1 Discussion The City's ten percent Utility Users Tax (UUT) is applied to electricity, natural gas, telephone, cable, water and wastewater services. The tax, which has been applied for 14 years at this rate in Santa Monica, constitutes 13 percent of the City's General Fund revenue. These revenues pay for general city activities such as police and fire service, community and recreational programs, library services, planning and community development expense, as well as other General Fund expenditures. Recent federal legislative changes and legal challenges in other jurisdictions regarding the utility users taxes on wireless telecommunications have raised concerns statewide. These other jurisdictions' ordinances vary from the City of Santa Monica's ordinance and have been more or less vulnerable to these changes and threats. While the Santa Monica ordinance is valid, unpredictable court decisions or legislative changes could threaten the City's continued flow of UUT revenue, potentially reducing .the City's general fund revenue by $8 to $12 million annually. Therefore, a change could further protecYthe City's revenue. This potential loss has been imbedded into the City's five- yearforecast and has been discussed with Council several times over the last year. Additionally, there could be advantages to modernizing the language of the ordinance. Since it was first adopted, new technologies have been developed. The present wording of the ordinance is broad enough to cover them. However, modernizing the language would likely make its application clearer. Proposition 218 requires a majority voter approval (50% plus 1 vote) for actions that would impose, extend or increase any general tax, such as the UUT. The measure under consideration would not increase the tax rate; however, depending upon the exact language of the measure and the expansion of technologies, it could potentially expand the tax base, in which case voter approval would be required. Proposition 218 requires that the approval be sought in an election consolidated with a regularly scheduled general election of City Council members. 2 Consultant Selection To adequately plan for a potential November 2008 ballot measure, staff needs survey research conducted in the next few months to gauge community support for a measure, in the context of understanding voter attitudes, priorities and concerns regarding city services. Staff has selected on a sole source basis Fairbank, Maslin, Maullin and Associates, who recently conducted similar research for the City on Measure V, the Clean Beaches and Ocean Parcel Tax initiatives in 2006, as well as the Santa Monica Malibu Unified School District in its facility bond (Measure BB). FMMA, who are based in Santa Monica, have extensive experience in working with cities statewide on UUT measures and are currently working with the cities of Los Angeles, Hermosa Beach, Pasadena, San. Bernardino and Inglewood to explore options. FMMA's UUT experience, familiarity and knowledge of Santa Monica, and availability to complete the assignment quickly, uniquely qualifies them for this assignment. Staff has the administrative authority to enter into a professional services agreement should Council approve this approach. Previous Council Actions Council has not previously approved survey research for a UUT ballot measure. In 2000 and 2006, Council clarified the existing ordinance and made other minor changes. Next Steps If approved, staff would proceed with the survey research and report the surveys general findings to the Council in early spring for consideration of future actions leading to a November 2008 ballot measure. Alternatives Staff could proceed as described above. One risk is waiting until November 2008 should other legislative or legal actions occur. If is difficult to predict what actions could occur and what degree of risk they could impose at this time. Another option is for staff to proceed with the survey research and accelerate the initiative by holding a special election in the summer. Council could do this by declaring 3 a financial emergency, which would allow a Proposition 218 ballot measure to be considered at a special election. The City of Los Angeles, which has $270 million potentially at risk, is proceeding in this way and will be holding a special election in February 2008 to coincide with the state's presidential primary election. Staff recommends against this option. A special election would not draw the largest voter turnout and would be costly ($150,000 to $170,000). Lastly, Council could request that staff not conduct the survey research at this time, and instead, wait until legal challenges to other jurisdictions' ordinances have been finalized to assess our legal or legislative risks. Financial Impacts and Budaet Actions The cost of entering into a contract with FMMA is $35,000 plus contingency, available in the City Manager's budget at account # 01202.555060. A successful ballot measure that could result from this survey research. may assist the City in fortifying its future UUT tax revenue stream. The City's five-year forecast currently assumes a loss of $4.8 million next fiscal year, and approximately $7 million thereafter, due to potential threats to the UUT's application on telecommunication services. This risk may be significantly reduced should a ballot measure be successful. The modernization of the ordinance and applicability to new technologies could potentially capture additional revenue in the future, although the amount cannot be determined at this time. Prepared by: Mona Miyasato, Deputy City Manager Approved: Forwarded to Council: ~_ Mona Miyasato (f P. L'a ont Ewell Deputy City Manager Ci anager Reviewed by: Carol Swindell, Finance Director Joseph Lawrence, Assistant City Attorney 4