Local Ballot Title Update

By Lee Voorhees and Jim McNeill - Foster Pepper & Shefelman

As reported in the Foster Pepper & Shefelman June, 2000, Municipal and Public Finance Newsletter, the Washington Legislature by Chapter 197, Laws of 2000, enacted sweeping legislation (the "Act") that will change how local governments draft ballot titles for most future bond and levy elections. The Act became effective June 8, 2000, and therefore, applies to all elections, commencing with the September 19, 2000 election date.

We have identified several significant changes local governments must consider in drafting a ballot title for bonds or levies. During the recent months, we have prepared ballot titles for elections by cities, school districts and other special purpose districts around the State. Propositions for both bond and levy elections have been included.

In the course of this work, we have had the cooperation and assistance of Prosecuting Attorneys who review ballot titles for form and content. At the end of this article, we have provided examples of bond and levy ballot titles prepared in accordance with the new Act that have been approved by Prosecutors in King County, Pierce County and Spokane County and a number of other jurisdictions throughout Washington.

1. Some Prior Ballot Title Requirements Remain.

Under RCW 39.36.050, as already in effect, ballot titles for bonds are required to include the maximum amount and term of the bonds, a description of purpose, and whether excess property taxes will be levied to pay and retire such bonds. Under the Act, these requirements continue in effect.

Similarly, RCW 84.52.054 still requires the ballot title for excess levies authorized under Article VII, Section 2(a) of the Washington Constitution and RCW 84.52.052 to be set forth in terms of the dollar amount to be collected, together with an estimate of the dollar rate of tax levy that will be required to produce the dollar amount. For school districts, the dollar amount and the corresponding estimate of the dollar rate of tax levy must be set forth for each of the years affected. Significantly, excess levies authorized in RCW 84.52.052 and RCW 84.52.053 will still require the ballot title to be submitted in such form as to enable the voters favoring the proposition to vote "yes" and those opposed to vote "no." Few other ballot title forms will retain that feature under the Act.

2. New Ballot Title Requirements.

An overview of the Act reveals that the Legislature substantially altered the requirements for ballot titles on state measures, and local ballot measures by adding new sections to chapters 29.79 and 29.27 RCW, amending RCW 29.79.055 and RCW 29.27.067 and repealing RCW 29.27.060, which formerly governed the certification of ballot titles. New procedures are established for preparation and certification of such ballot titles, and for their review in court upon request.

Section 12(1) of the Act addresses local ballot measures and provides that the ballot title for any question submitted to the voters of a local government shall consist of three elements: (i) an identification of the enacting legislative body and a statement of the subject matter; (ii) a concise description of the measure; and (iii) a question. This usually will require three sentences. Section 12(1) further requires that the ballot title must conform with the requirements and be "displayed substantially as provided under Section 1" of the Act.

Section 1(1)-(4) of the Act prescribes a variety of forms for a ballot title, including forms for initiatives and referenda. No form, however, is expressly prescribed for local ballot measures. Nonetheless, because an election resolution submitting a bond or levy ballot title to the voters is initiated by the enacting legislative body and not the voters, we believe the ballot title should take the forms of a referendum bill submitted to the people by the legislature under Section 1(4) of the Act. This view is shared by County Prosecutors with whom we have spoken.

Further, Section 1(1) of the Act, which is incorporated by reference into the requirements for local measures in Section 12(1), also significantly modifies the 75-word limitation previously applied to ballot titles for bonds and levies. There is no word limitation for identification of the enacting legislative body. There is, however, a 10-word limit for a statement of the subject matter. There is a 75-word limit for the concise description of the measure. Finally, there is no word limitation for the question.

With the new word limitations in the Act, a routine ballot title may lawfully exceed 100 words. Additionally, as a practice tip, the statement of subject matter should contain a brief general description, such as "concerning a proposition to finance capital improvements." References to taxes or bonds may be avoided in the initial statement of subject matter because the concise description that follows will contain a detailed description of the bonds and excess taxes.

Section 12(1) also requires the Prosecuting Attorney to prepare the concise description in the ballot title for a district. As a practical matter, actual drafting likely will be done by a lawyer of the district's choice, subject to review by the Prosecuting Attorney. This requirement previously was contained in RCW 29.27.060, which is repealed. Section 12(3) of the Act provides that the new ballot title requirements do not apply if another provision of law specifies the ballot title for a specific type of ballot question or proposition. As a reminder, there are several statutes that prescribe either the entire content or a portion of the form of ballot title for a specific type of ballot question or proposition. Certain excess levy ballot title forms are affected.

Section 1 of the Act also expressly provides that to the extent possible the ballot title "must not create prejudice either for or against the measure." This prohibition will limit what safely can be said in ballot titles about the intended positive results or effects of particular propositions. This may present problems for many school districts that have, in recent years, grown accustomed to using such phrases in the ballot titles for maintenance and operations levies as "[t]o improve student learning" and "[t]o meet the educational needs of students." It is unclear whether Prosecuting Attorneys will view these phrases as violating the prohibition set forth in Section 1 of the Act.

3. Examples of New Ballot Titles.

PLEASE NOTE: The following ballot titles are provided only as descriptive or demonstrative examples for illustrative purposes and should not be used without the advice of bond counsel or other lawyers who are familiar with the Act and additional election requirements.

· CITY BONDS

CITY OF ____________, WASHINGTON

PUBLIC SAFETY FACILITIES

BONDS $___________

The City Council of the City of ________ Washington, adopted Ordinance No. ______ concerning a proposition for financing and constructing new public safety facilities. This ballot proposition, if approved, will authorize the City to construct and equip new fire protection and police facilities, issue no more than $__________ of general obligation bonds maturing within 20 years to pay costs of those facilities, and levy annual excess property taxes to pay and retire such bonds, all as provided in Ordinance No. ________. Should this proposition be:

APPROVED ·

REJECTED ·

· SCHOOL DISTRICT BOND AND LEVY PROPOSITIONS

________ SCHOOL DISTRICT NO. ____

HIGH SCHOOL CONSTRUCTION

BONDS - $_________

The Board of Directors of _________ School District No. ____ adopted Resolution No. _____, concerning a proposition to finance and construct a new high school. This proposition would authorize the District to construct and equip a new high school, issue no more than $_______ of general obligation bonds maturing within 20 years, to pay costs of the high school, and levy annual excess property taxes to pay and retire such bonds, all as provided in Resolution No. ____. Should this proposition be:

APPROVED ·

REJECTED ·

________ SCHOOL DISTRICT NO. ____

REPLACEMENT MAINTENANCE

AND OPERATION LEVY

The Board of Directors of _________ School District No. ____ adopted Resolution No. _____, concerning a proposition to finance maintenance and operation expenses. This proposition would authorize the District to levy the following excess taxes, in place of an expiring levy, upon all taxable property within the District, for support of the District's General Fund educational maintenance and operation expenses:

all as provided in Resolution No. _____. Should this proposition be approved?

LEVY . . . YES · LEVY . . . NO ·

4. Planning and Preparation for Elections.

The form and content for most bond and levy propositions submitted to the voters by local governments in Washington have been substantially changed by the Act. New issues and questions will have to be considered and resolved. Officials will have to adapt to the changes.

Local governments intending to submit bond and levy propositions this fall, or after the first of next year, should consult with bond counsel or local attorneys experienced in such matters who are familiar with the Act before proceeding. Allow ample time. It is not too soon to start preparation now. Under no circumstances should old ballot titles submitted at previous elections be used as models. They will not comply with requirements of the Act in many cases.

If you have questions, or believe we might be able to assist you, please call Hugh Spitzer (206-447-8965) or Lee Voorhees (206-447-8968) in our Seattle office, or Jim McNeill (509-777-1602) in our Spokane office.