Secret Ballots Required for “Property-Related Fee” Elections

Proposition 218 identifies three classes of monetary exactions imposed by local government agencies on property: taxes, assessments, and “fees” and “charges.” The latter category, referred to as “property-related fees,” includes rates for water, sewer, and refuse collection services and stormwater drainage, groundwater replenishment, and water-quality maintenance fees and perhaps some others. Before an agency may impose a new property-related fee or increase an existing one, the agency must hold a public hearing. If a majority of the property owners file written protests, the agency may not impose or increase the fee. If there is no majority protest, if the property-related fee is for a service other than water, sewer or refuse collection, the agency must also conduct an election and secure a majority vote of property owners or a two-thirds vote of the registered voters.

Concerning such elections, Proposition 218 provides only that “an agency may adopt procedures similar to those for increases in assessments in the conduct of elections.” Proposition 218 provides that the name of the property owner be written on the assessment ballot. Assessment ballots remain sealed until they are tabulated, but thereafter they are treated as public records. Nonetheless, in Greene v. Marin County Flood Control & Water Conservation District, (— Cal.Rptr.3d —, Cal.App. 1 Dist., March 11, 2009), the 1st District Court of Appeal has ruled that voting in property-related fee elections must be conducted by secret ballot.

The Marin County Flood Control and Water Conservation District had adopted procedures for an election to approve new storm drainage fees that included printing the voter’s name and an identification of the voter’s property on the ballot and requiring the voter to sign the ballot. These provisions are identical to those adopted by the Legislature in Government Code section 53753(c) for assessment ballots.

The Court focused on the fact that the terms “election” and “vote” were used in Proposition 218’s provisions on property-related fees and concluded that the secret voting requirements of Article II, section 7, of the California Constitution were thereby imported into Proposition 218. The Court noted that “It is a cardinal rule of construction that words or phrases are not to be viewed in isolation; instead, each is to be read in the context of the other provisions of the Constitution bearing on the same subject.”


If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Janet Goldsmith or Jon Cristy | 916.321.4500