On the ballot pamphlet, Santa Clara voters saw a Measure J ballot question, city attorney's summary, and a ballot measure - none of which disclosed how much the stadium will cost the taxpayers of Santa Clara, or the essential elements of the Term Sheet.
City Council members Will Kennedy and Jamie McLeod said that "the ballot language reads like an advertisement, promoting the benefits and barely mentioning the costs." (SJ Mercury News, April 7, 2010). Lisa Lang of the 49ers described the 49ers-written ballot initiative as an 'advocacy' piece.
How did this happen?
1) The Ballot Measure:
- The Santa Clara City Council was on track in Dec. 2009 to finish writing a ballot measure for the June 2010 ballot.
- The measure largely would have been written by city staff, and a city council sponsored measure would be open to critique by Santa Clara residents.
- But on Dec. 8, 2009, Lisa Lang of the 49ers jumped in front of Santa Clara citizens who had waited 5 1/2 hours to speak (until 12:30 am) to announce that a 49ers citizen's front group SCEP was going to circulate a petition to get an initiative on the ballot - an initiative largely written by the 49ers.
- Their initiative leaves out most of the stadium construction costs to Santa Clarans.
- The 49ers wrote the initiative to sound favorable to the stadium.
- The title of the ballot initiative is a misnomer: 'The Santa Clara Stadium Taxpayer Protection and Economic Progress Act'.
- Councilmembers McLeod and Kennedy called the 49ers initiative an 'advocacy' piece for the stadium.
- The San Jose Mercury News said that the costs are only 'lightly discussed'.
- The $67 million loss to the General Fund isn't mentioned.
- The $114 million in RDA property taxes, electric utility money and increased hotel taxes aren't mentioned.
- The $330 million contribution from the Stadium Authority isn't mentioned.
- The Term Sheet text is appended to give the 49ers ballot measure some credibility, but the text is only 1 part out of 16 parts, and the table of costs, Exhibit 14, is not included. Many important elements of the Term Sheet aren't mentioned.
- In addition, the 49ers initiative is not subject to challenge under CEQA (environmental impact report regulations). A city-sponsored ballot measure would have been subject to challenge.
- In January 2010, the 49ers moved to put their initiative on the ballot.
- They paid signature gatherers.
- The Santa Clara Plays Fair blog documents some of the instances of paid signature gatherers who lied to Santa Clarans when they said that the 49ers petition was the only way to get the stadium on the ballot (that our city council wasn't going to let us vote)-they also said that the 49ers are paying for almost 90% of the stadium. The 49ers share is really 53%.
- One of three former city Council Members (Aldythe Parle), one of the three signatories on the ballot petition from SCEP, withdrew her support because she said that she too was misled.
The result - the ballot initiative is an 'advocacy' piece written by the 49ers. The ballot initiative does not disclose the construction costs.
Worse - the Term Sheet is not binding. The only part of the ballot measure that is binding is the 49ers-written initiative-the part that reads like an advertisement.
2) The Ballot Question:
- The Santa Clara City Council had agreed that a committee of three Council Members would write an impartial 75-word question.
- The committee had two pro-stadium CMs (Matthews, Mahan), and one CM (Kennedy) who is opposed to the stadium subsidy.
- The 49ers front group SCEP had complained on television that they didn't like the question the committee had come up with.
- At the Feb. 9, 2010 City Council meeting, CM Matthews from the committee of three put forth his own question that pleased the 49ers front group.
- Apparently, while he was working with on the committee of three on the council-agreed upon process for coming up with a ballot question, he was also working to write his own ballot question, which he had already typed up before the council meeting.
- Council Members McLeod, Kennedy, and Kornder were quite surprised when CM Matthews put his own ballot question up on the screen.
- In a 'you had to be in Council chambers to witness this' moment, the chambers were packed with SCEP people who had come to the meeting with prepared statements thanking CM Matthews for his ballot question.
- How did they know in advance to thank him for his ballot question?
- Like the ballot measure, the ballot question is also written as an advocacy piece and does not tell Santa Clarans the cost.
- The new ballot wording passed with only a 4-3 vote.
- Opposing CM McLeod said the 'process continues to be hijacked', and
- CM Kornder changed his usual 'yes' vote to a 'no', saying that the process has 'lost its objectivity'.
- The $67 million loss to the General Fund isn't mentioned, and the $114 million direct subsidy and $330 million Stadium Authority share of construction costs aren't mentioned either.
- Many important pieces of the Term Sheet are not listed, while smaller items, like the $0.35 per ticket to go towards youth/senior programs, are mentioned.
The result - the ballot question reads like an 'advocacy' piece just like the 49ers-written ballot initiative. The ballot question does not disclose the costs to Santa Clarans.
3) The city attorney's 'impartial analysis':
- The city attorney is required to write a summary of the ballot measure in 500 words or less.
- Unlike state propositions, there is no requirement for financial disclosure for city ballot measures.
- The city attorney's summary doesn't mention the $114 million direct subsidy, the $67 million loss to our GF, the $330 million Stadium Authority contribution, or the sweetheart deal on the 49ers training facility rent.
- Neither the bond debt nor the loans from the 49ers at 8.5% interest are mentioned.
- In addition, because the Term Sheet is not binding, the city attorney's analysis tells Santa Clarans almost nothing about what's in the Term Sheet.
- Instead, the city attorney's summary focuses on summarizing the binding part of Measure J, which is the 49ers ballot initiative. Therefore, the summary reads like an advocacy piece just like the ballot initiative and the ballot question.
- The rent to be paid to the city is not given in net present value, today's dollars = $8 million, rather, it is given in 'nominal dollars' = $40 million over 40 years, which makes it look like the rent balances out the redevelopment bonds.
- The summary says the move of the Tasman substation as well as the hotel tax are optional - in contrast to campaign materials, Slide 35 of the city staff Term Sheet Presentation, and in Term Sheet Exhibit 14 that have always shown those items as part of the stadium construction costs.
- Just like with the ballot question, many important pieces of the Term Sheet are not listed, while smaller items, like the $0.35 per ticket to go towards youth/senior programs, are mentioned.
Santa Clarans - Please be aware of what you're voting on this coming June 8, 2010. The Term Sheet is NOT binding. The only part of Measure J that is binding is the 49ers-sponsored ballot initiative and the ballot question which advocate for the stadium.
The binding vote issue is of real concern because a phone poll of Santa Clara voters was conducted Feb. 11, 2010 by Mountain West Research of Idaho. They asked, 'Would you support or oppose using additional city money if the 49ers can't pay for their entire portion?' The city of Santa Clara does not conduct polls. The opposition group to the stadium does not conduct polls. The 49ers have been polling frequently and also conducting research focus groups.
- If we vote 'yes' the 49ers can try to negotiate a better deal with the city before the binding document is due (The DDA was due in July 2010 but as of Sept. 2010 is still being negotiated).
We have a right to full disclosure of the costs. We have a right to a ballot measure that is correct and complete in the information it provides-that's not what we have been given by the 49ers and our city council majority in Measure J. After 3 years of meetings and studies, $2 million of our city's money spent on consultants, and countless hours of staff time, we have a right to vote on the terms of the deal between our city and the 49ers. That's not what we're voting on.
Measure J Lawsuit Results
In March 2010, a Santa Clara resident filed a petition for a writ of mandate in SCC Superior Court that sought to change the Measure J ballot question and city attorney's summary to disclose costs. Two lawsuits were filed in an attempt to rectify the lack of financial disclosure on Measure J ballot materials. The first was filed against the ballot question and the city attorney's summary. The second was filed against the proponents' arguments (the 'pro' argument in favor, and the 'rebuttal to the con' argument). The petitioner tried to have the construction costs included on the ballot, but because the Term Sheet text does not cite the table of costs Exhibit 14, the table of costs could not be included.
In the Measure J lawsuit, the Santa Clara city attorney acknowledged to the judge that she is not required by law to perform a fiscal analysis in her summary like the legislative analyst is required to perform for state ballot propositions (Measure J lawsuit transcript, page 15).
Measure J defense attorneys agreed that costs were not discussed, "The ballot argument, however, does not talk about costs at all, in any terms."
In the Measure J lawsuit, the defense attorneys made comments in their court papers that deny that stadium cost figures even exist (The judge only had the Term Sheet text appended to the Measure J ballot ordinance, and the text does not disclose the costs; the judge did not have the rest of the Term Sheet with the table of costs). Defense attorneys made numerous statements that conflict with the elements of the Term Sheet Exhibit 14 and the Term Sheet Presentation Slides 34 and 35 made by Santa Clara city staff on June 2, 2009. The following statements were made by the defense attorneys in the papers they filed with the court. These statements suggest that the petitioner was making up numbers that are, in fact, in the Term Sheet:
"Petitioner refers to a $114 million "direct subsidy" by the City for the stadium. She says that this figure should appear in the City Attorney's analysis. That figure appears to have been plucked out of thin air." (On the contrary, this figure appears in Slide 35 of the city staff June 2, 2009 Term Sheet Presentation. It is the sum of the contributions from the city of $42 million, $20 million, $17 million, and $35 million.)
The Petitioner "claims that the Term Sheet requires the City to relocate an electrical substation, at a cost of $20 million. Of course the Term Sheet does not require anything at all." " And the Term Sheet makes no reference to any $20 million cost." (Yes, it does. The Term Sheet is composed of 16 exhibits, and Exhibit 14, a table of construction costs, lists the $20 million for the substation move to create parking stalls. Term Sheet Presentation Slide 35 also lists that cost).
"There is nothing in the Term Sheet that requires the Stadium Authority to provide $330 million (or any other amount) for stadium construction." (Yes, there is. See Exhibit 14 of the Term Sheet for the $330 million from the Stadium Authority, and slide 34 of the city staff Term Sheet Presentation.)
"There is no mention in the Term Sheet to a $17 million parking garage (or any parking garage, for that matter)". (Yes, there is. Term Sheet Exhibit 14 and Slide 35).
The defense attorneys wrote that, "Petitioner suggests that the City Attorney has selectively ignored elements of the Term Sheet. The Term Sheet is not on the ballot for voter approval. The ordinance is on the ballot. If the ordinance is passed by the voters, then it will be binding. The Term Sheet is not even a binding contract."
Santa Clarans, please be aware that you are NOT getting to vote on the Term Sheet or the stadium costs - the only part of your vote that is binding is the advertisement for the stadium written by the 49ers - the front part of Measure J.
Why do they want it both ways? The 49ers append the text of the Term Sheet to give the ballot measure some credibility, but then they say they don't want to use the details of the Term Sheet or include the costs in Term Sheet Exhibit 14 in the ballot question or the summary.
Youtube video of Lisa Lang of the 49ers cutting in front of Santa Clarans to announce the 49ers ballot petition:
Youtube video of Aldythe Parle withdrawing her support of the 49ers ballot petition:
Youtube video about the 49ers ballot petition:
Youtube video explaining that the 49ers want their own ballot initiative to avoid environmental concerns:
Youtube video of CM Jamie Matthews bypassing the council-approved procedure of having a committee of 3 write the ballot question:
Youtube video about the 49ers front group - it's not a grassroots group: