2010 Public Disclosure of Assessment Ballots Opinion

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In 2009 and earlier this year, this Office advised the Clerk of the Council that the ballots were protected by provisions of the California Elections Code and Evidence Code, and based on that advice, has in the past rejected requests for those records. In response to another request for review and copying of the ballots, we have reviewed provision of the Omnibus Act related to the conduct of the assessment protest election and its treatment of the balloting process. The Omnibus Act was enacted by the Legislature in response to passage of Proposition 218 in 1998, and its revisions to the protest processes for property-based assessment districts. While still formally characterized as a protest process traditionally found in assessment procedures, Prop 218 imposed a balloted election process for approval or rejection of a proposed assessment. It was this election concept upon which we previously based our advice that the ballots should be given the protections afforded to all other election ballots under California statutory and case law. However, close review of Section 54753 of the Omnibus Act requires us to reverse that advice. In describing the process for review and counting of assessment ballots, Section 54753(e)(2) provides as follows: "(2) The governing body of the agency may, if necessary, continue the tabulation at a different time or location accessible to the public, provided the governing body announces the time and location at the hearing. The impartial person may use technological methods of tabulating the assessment ballots, including, but not limited to, punchcard or optically readable (bar-coded) assessment ballots. During and after the tabulation, the assessment ballots and the information used to determine the weight of each ballot shall be treated as disclosable public records, as defined in Section 6252, and equally available for inspection by the proponents and the opponents of the proposed assessment. The ballots shall be preserved for a minimum of two years, after which they may be destroyed as provided in Sections 26202, 34090, and 60201." (emphasis added). Based on the foregoing, it is the opinion of the City Attorney's Office that the assessment ballots submitted and tabulated for the Downtown Community Management District should be treated as disclosable public records and therefore be made available for review and/or copying, as requested. 2