Prop D's ultimate question: Will extra services be worth extra cost?

Proposition D on next month's ballot would increase the sales tax in the city of San Diego for five years once the city's auditor certifies that the city has taken 10 steps toward fiscal restraint. This column won't advise you whether to vote for the tax increase or against it -- that depends largely on whether you think you'll get your money's worth from it.

I will, though, tell you that the auditor's certification won't mean anything because the 10 steps aren't binding. The problem is one of law.

This conclusion arises from some basic principles of government law in this state. One of these elementary principles bars the "contractual surrender of police powers." This means that the government cannot commit, by contract or otherwise, not to use its power to run our lives.

In some contexts, this is part of the broader principle prohibiting lawmakers from binding future lawmakers, which means that the city council can amend or repeal almost any ordinance it passes. Next, when a city enacts a law, it must only do what the law says, and need not do more. This means that, if the mayor or city council agree to consider something, their only duty is to think about it, not to do it. Finally, cities cannot dictate compensation to unionized employees.

None of the 10 conditions for Proposition D is a legally binding commitment to save money. The first condition requires the council to adopt an ordinance reducing the city's contributions to some pensions. The problem here isn't so much that the contribution wasn't reduced by much, as reported in the media, but rather that under the first two principles above, the council's action can be undone.

The second condition requires the city to adopt a "guide" "to implement a managed competition process." Here, the problem is what's been publicized -- all that the council must do is adopt a "guide," which it is free to ignore or evade. (When I've given seminars on land use law, the line from "Pirates of the Caribbean" that the pirates' code is more like guidelines than real laws usually gets a laugh.)

The third condition requires the mayor to complete a study showing that the "Deferred Retirement Option Plan" doesn't raise pension costs, and if it does, to "initiate 'meet and confer'" to make it cost-neutral. The problem here is that all that the city must do is perform a study, and if the results are bad all it must do is talk with its unions. Neither the city nor the unions must reduce costs.

And on and on, through the other seven conditions.

It is possible to work around these legal principles to some extent. The most effective workaround for Proposition D would have been to make the tax increase only effective while the conditions were in effect, suspending the increase if the council fell off the wagon. The council could have strengthened its commitment by having the city auditor certify continuing effects of council action, rather than merely their approval. That these simple steps are found nowhere in the proposition is rather remarkable.

Supporters of Proposition D will swear up and down that the council really means to save money. However, saying so doesn't solve the problem, which is that there is no legally enforceable commitment to do so. The public gets reminded of this distinction whenever it sees a politician (say, the school board) break what we thought was a promise. It would be fun to sue the city to force it to save $X from one of the conditions. The city would undoubtedly ask to have the case thrown out of court on the basis that none of the 10 conditions guarantees any particular savings. Zero is a number, of sorts, and zero savings is all that the council must provide.

This doesn't answer the ultimate question about Proposition D, which is whether the extra services will be worth the extra cost. But perhaps it will focus the debate a bit better. The law makes the 10 conditions to the tax increase meaningless.

Richard Schulman is a municipal lawyer and litigator with Hecht Solberg Robinson Goldberg & Bagley in San Diego. He can be reached at

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