By Clarence Cromwell
Saratoga voters in November will decide whether they must continue to pay the city's general utility tax.
The City Council, in a Feb. 7 closed session, elected to put the matter to a vote on the November ballot, Mayor Paul Jacobs said.
But the council's action may not prevent a lawsuit by Pacific Legal Foundation because the city plans to collect the 3.5 percent tax on
residents' Pacific Gas & Electric
bills at least until the election.
A Jan. 11 letter from attorney Deborah La Fetra warned the city that the foundation would sue in 30 days unless the city both put the tax on a ballot and stopped collecting it temporarily until the election.
La Fetra said the vote alone won't necessarily stop the lawsuit.
"What it says to me is the City Council realizes they're in violation of the state constitution," La Fetra said. "I am heartened to hear that it's going to be on the ballot. I'm appalled that they're going to collect the tax. They're thumbing their collective nose at the voters."
The city maintains that the tax is legal, but Jacobs said the council put the item to a vote to avoid a suit by tax opponents.
"We decided that eventually it was going to have to go on the ballot," Jacobs said. "As the city attorney said, it was not a question of whether, it was a question of when. At this point, we're not convinced that's required by law."
City Attorney Michael Riback previously said the city doesn't have to put the tax to a vote because the tax was first levied before Proposition 62 passed. The proposition requires a majority vote for cities to charge any general tax.
Pacific Legal Foundation Litigation Director Tom Caso said the City Council was supposed to let voters decide the issue rather than voting in 1990 and 1995 to extend the tax beyond its expiration date.
A suit now could block the vote.
The council reserves the right, Riback said, to cancel the election if the foundation sues the city before the vote takes place or if any new state legislation makes a provision for general utility taxes without a vote.
Jeff Schwartz, one of the Saratogans who asked the legal foundation to confront the city, said the council's move amounted to a confession of guilt.
"If it wasn't illegal, they wouldn't put it on the ballot," Schwartz said.
Schwartz added that the city should have to pay back any taxes collected illegally, as well as letting citizens vote.
Riback said such a rebate is unlikely.
"The answer is simply that the actions taken by the city since Proposition 62 were consistent with the state of the law," he said.
This article appeared in the Saratoga News, February 14, 1996.
©1996 Metro Publishing, Inc. All rights reserved