The city’s campaign to promote its vision for downtown Livermore took an unusual step Monday when two members of the City Council floated the idea of putting a parcel tax measure on the November ballot in case voters do not support the city’s plan.

And while this was the first time a parcel tax was ever discussed in a public meeting, a campaign flyer sent to Livermore voters over the weekend appears to show its creator had advance knowledge of the council members’ intentions. The “Vote Yes on Measure P” mailer was paid for by Presidio Companies, Inc., whose hotel development agreement with the city is at the center of the March 3 referendum.

Communications about the parcel tax proposal between members of the City Council, sitting on an ad hoc committee, and the Presidio-backed “Yes” campaign, could violate open meeting requirements of the Brown Act, said Terry Francke, general counsel for CalAware, a nonprofit open government watchdog group.

The Brown Act is California’s law that requires legislative bodies, like city councils, to hold their meetings open to the public, to provide prior public notice, and to allow citizens to access related public records before meetings.

There are some exceptions to the open meeting requirement which allow certain closed-door deliberations. One is through the creation of so-called ad hoc committees. But there are restrictions on who can take part in discussions without triggering public meeting requirements.

Francke said it is not uncommon for city councils to exploit this exclusion and avoid open meetings by mislabeling as “ad hoc” what are really standing committees — more permanent sub-units that provide initial consideration and sifting of proposals in broad policy areas.

After the Central Park Plan Initiative qualified for the ballot last July, Councilman Bob Woerner said the City Council should consider putting its own competing ballot initiative or initiatives to a public vote. He suggested crafting measures to limit changes allowed under the Central Park Initiative, and to block public funding for a parking garage it allows next to the Bankhead Theater, where the city’s approved plan calls for a hotel.

An ongoing power struggle between the City Council and resident activists has intensified in recent weeks as the first of two critical elections involving clashing visions for the redevelopment of city-owned downtown land draws near.

Livermore voters on March 3 will have the opportunity to vote on Measure P, a referendum on whether to uphold or reject the city’s hotel development agreement with Davis-based Presidio to build a hotel next to the Bankhead Theater. A yes vote affirms the development contract between the City Council and Presidio. A no vote reverses the agreement.

Then, on Nov. 3, voters will decide whether to approve the Central Park Plan Initiative, with a hotel west of Livermore Avenue. It presents an alternative downtown development plan to replace the city’s eastside hotel plan, and amend parts of the city’s General Plan, Downtown Specific Plan, and Development Code.

At the Council’s July 23, 2019 meeting, Mayor John Marchand created the two-member ad hoc committee on initiatives. With the Council’s unanimous consent, Marchand appointed Woerner and Councilwoman Trish Munro.

The pair were tasked with exploring options for crafting Council-sponsored initiatives aimed at limiting the effectiveness and potential cost of the Central Park Initiative. No public meetings were held or announced since the committee was formed, according to the city’s public documents.

A city council’s ad hoc committee may be just as subject to the Brown Act as the City Council itself, depending on who created it, how, and who the members are, Francke said.

For example, the Brown Act’s public meeting, notice, and other requirements apply to ad hoc committees that include at least one member not on the council.

If there is communication with a third member of a five member city council—in other words a majority of the council is now involved in discussions of an ad hoc committee—this would also step into Brown Act violation territory if the committee is not meeting in public, Francke said. This type of prohibited communication need not be direct, and can include “meetings of the minds” arranged through intermediaries.

City Attorney Jason Alcala said because the Livermore City Council Subcommittee on Initiatives is comprised of less than a quorum of the panel, and because its work is limited to a defined task and duration of less than one year, it is not required to comply with the open meeting and prior notice requirements of the Brown Act. 

On Friday, the city posted its Monday meeting agenda simply mentioning the presentation of an oral report from the Subcommittee on Initiatives regarding potential City Council-sponsored measures for upcoming elections. There were no supporting documents, such as meeting minutes, reports or recommendations.

While initial discussion on the ad hoc committee’s task included potential land use initiatives, Woerner announced Monday it will likely just focus on potential revenue measures to pay for extra costs they claim the city will have to pay to implement the Central Park Initiative if it is approved in November.

“If nothing else, Council should ensure that the city remains fiscally sound. We’ve seen examples of cities that have gone bankrupt. It’s not a good look,” Munro said.

A parcel tax — a form of real estate tax — would make up for what Woerner predicted as a $35- to $50-million budget shortfall if voters approve the residents’ Central Park Initiative.

Munro suggested the council wait for the results of the March 3 election. “We do not recommend going forward with planning any parcel tax initiative immediately. We’d like to hold on that, reconsider, see where we stand sometime in late April,” she said.

Some supporters of the Central Park Initiative spoke in opposition to the City Council’s decision to begin discussing a possible tax measure, weeks before a vote on the hotel development. They also accused the council of excluding the public, yet giving the developer an inside track.

“It’s interesting that he seems to have been well-informed about it, and the public and the rest of us don’t know much about it… I’m just curious about how it was that the developer already has us out there with a parcel tax,” said Jeff Kaskey, a supporter of the Central Park Initiative.

Tamera Reus, president of Protect the Central Park Vote — the “No on Measure P” campaign — cited a financial study by Willdan Financial Services that projected taxes and fees of about $1.2 million generated annually by the Central Park Plan, which she said would readily offset any additional costs.

“A parcel tax is not needed to implement the Central Park Plan. It is an abuse of power for the City Council to mention a parcel tax tonight without providing any details to the public in advance,” she said.

Woerner said the City Council is being prudent. “I’m a trained financial analyst and the best thing I can say about this study that you’ve paid for is (that it’s) highly-speculative,” he said. “My real word for it is ‘bogus.’”