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Santa Barbara COG's Work On Sales Tax Measure Upheld

The Santa Barbara County Association of Governments did not illegally campaign for a ballot measure to fund transportation projects, the Second District Court of Appeal has ruled.

By preparing a transportation plan and making presentations to member agencies and the public about the benefits of a proposed sales tax extension, the Association of Governments was simply performing its duty, the court determined. The Government Code and a key state Supreme Court decision preventing campaign activities by public agencies concern measures that have been certified for the ballot not measures that are only being drafted and proposed, the court noted.

The ballot measure in question a 30-year extension of a half-cent sales tax in Santa Barbara County for transportation projects passed with 79% voter approval on November 4. It is unclear what would have happened to Measure A had the Court of Appeal ruled for the opponents.

In 2007, the Santa Barbara County Association of Governments (SBCAG) began work on a new transportation expenditure plan. After examining funding options, SBCAG recommended preparation of a measure to extend the half-cent sales tax, which was originally approved in 1989 and scheduled to expire in 2010. The association hired a consultant to identify the best arguments for the tax, likely opposing arguments and strategies to win voter approval. Staff from SBCAG met with civic groups to explain the plan and the importance of maintaining the sales tax beyond 2010.

In March 2008, a newly formed group called Santa Barbara County Coalition Against Automobile Subsidies sued SBCAG, arguing that the association's promotion of Measure A interfered with the electoral process and that the association improperly used public funds for a "government-sponsored political campaign." At the time the coalition filed the lawsuit, Measure A had not qualified for placement on the ballot.

A few weeks later, SBCAG filed a response, calling the coalition's lawsuit a SLAPP a strategic lawsuit against public participation that attempted to chill constitutionally protected activities. In June, Santa Barbara County Superior Court Judge Thomas Anderle upheld SBCAG's activities, finding they were within SBCAG's rights of free speech and petition.

On appeal, Measure A opponents first argued that government entities do not have free speech rights. The Second District Court of Appeal, Division Six, ruled otherwise. Government agencies and their representatives do have First Amendment rights and they are "persons" entitled to protection by the anti-SLAPP law (Code of Civil Procedure 425.16), the court ruled.

Measure A opponents argued that SBCAG's use of public funds to advocate for the sales tax violated the state constitution and state law. The opponents based their constitutional argument on Stanson v. Mott, (1976) 17 Cal.3d 206. In Stanson, the state Supreme Court ruled the State Department of Parks and Recreation had improperly spent public funds to advocate the passage of a park facilities bond. Without clear legislative authorization, the court ruled in Stanson, "A public agency may not expend public funds to promote a partisan position in an election campaign."

However, the appellate court noted, Stanson and similar cases involved measures that had already qualified for the ballot not the drafting of a measure. Here, SBCAG had been authorized by the Local Transportation Authority and Improvement Act to do exactly what the association had done.

"In essence," Justice Steven Perren wrote the court, "the [opponents'] complaint alleges that SBCAG was performing its statutory duty under the Act. SBCAG prepared a transportation expenditure plan and an ordinance necessary to place Measure A on the ballot in order to raise revenue necessary for the transportation program and projects set forth in the expenditure plan. It then circulated the plan to member agencies for approval, and made public presentations concerning the merits of the plan and extension of the county sales tax."

The statute at issue Government Code 54964 also addresses only partisan activity regarding a measure scheduled for the ballot. The law "does not prohibit the expenditure of public funds by local agencies to propose, draft or sponsor a ballot measure, including expenditures to marshal support for placing the measure on the ballot, or to inform the public of need for a sales or use tax or bond offering to provide revenue to pay for public improvements," Perren wrote.

The court also rejected arguments that SBCAG violated the state Political Reform Act, which concerns campaign expenditures, and the federal Hatch Act, which specifically limits public employees' official activities.

The Case:
Santa Barbara County Coalition Against Automobile Subsidies v. Santa Barbara County Association of Governments, No. B209525, 08 C.D.O.S. 13599, 2008 DJDAR 16290. Filed October 28, 2008. Modified November 5, 2008 at 2008 DJDAR 16555.
The Lawyers:
For the coalition: Eugene Wilson, (805) 683-4648.
For SBCAG: Jordan Sheinbaum, county counsel's office (805) 568-2950.