Claims Manteca mayoral candidate Lei Ann Larson made that the city illegally used public money to oppose her proposed ballot measure for a citywide vote on whether a homeless navigation center should be allowed in the Manteca have been batted down by City Attorney Dave Nefouse.

The city attorney also determined that Larson’s allegation that council members committed a felony by hiring outside counsel based on her interpretation it was the misappropriate use of public funds to question the wording of her proposed imitative was not based on fact.

A formal letter sent to Larson on Wednesday refuted claims she made at the Aug. 29 City Council meeting that city and elected officials had violated Government Code section 54964 and Penal Code 424 PC.

Government Code section 54964 expressly prohibits a local agency officer, employee or consultant from expending, or authorizing the expenditure, of agency funds to “support or oppose the approval or rejection of a ballot measure, or the election or defeat of a candidate.”  

Penal Code 424 PC makes it a crime for a public officer or a trustee of public funds to misappropriate the funds for improper use. A conviction is a felony punishable by up to 4 years in jail or prison, fines of up to $10,000, and permanent disqualification from holding public office.

Nefouse in his letter stated “that your legal analysis and conclusions are both misplaced and contrary to well-established case law on this matter.”

Nefouse cited two court cases to back up his conclusion.

“Other that the court action for declaratory relief filed by the city (regarding wording off the ballot measure), you allege no communication, expenditure, and/or conduct undertaken by the City (including individual city staff member, councilmember, and/or city consultant that could even remotely be considered a violation of Government Code 54964(a),” Nefouse wrote. “Even if such activity could be alleged, however, it is within the confines of the law since there is no pending or certified ballot measure. As such your claim fails as a matter of law.”

The City Council, on advice of Nefouse, secured outside legal counsel for an “impartial” analysis of whether language Larson submitted for a propose imitative she wanted to place in circulation passed legal muster.

The city’s issues center around whether what the ballot measure is calling for is legal under law adopted by the California Legislature to prevent communities from effectively banning homeless shelters within local jurisdictions.

Nefouse, noting the politically charged nature of the issue, recommended at  a council meeting on June 21 the city secure outside neutral counsel to advise them on legalities involved the actual petition wording.

The city then retained the law firm of Kronick, Moskovitz, Tiedemann & Girard on June 27 to address issues in the initiative

Among the issues is the wording of the proposed ballot measure that seeks to amend the Manteca Municipal Code to read  ”Low Barrier Navigation Centers shall not be permitted to operate in any location within the City of Manteca, including but not limited to areas zoned for mixed use and nonresidential zones permitting multifamily uses.”

California State Senate Bill 2 established right zoning for shelters.

The state law requires each jurisdiction to identify a zone or zones where shelters are permitted without discretionary approval (by-right) with sufficient capacity to meet the unmet housing need.  In Manteca’s case that would be 129 beds based on the latest point in time count conducted in January of this year.

Larson had argued that the constitutionality of the proposed ballot measure is an issue best settled after a vote is taken.

Assuming that could occur, the petition Mantecans4Change submitted also states “if any portion of this initiative is declared invalid by  a court of law or other legal body with applicable authority, the invalidity shall not affect or prohibit the force and effect of any other provisions or application of the initiative that is not deemed invalid.”

That is reference to the other substantive point in the proposed initiative dubbed the Protect and Preserve Mantecans’ Quality of Life Initiative.

That section reads, “Additionally, no shelter designed to house any person, whether designated a Low Barrier Navigation Center or not, shall be permitted to operate within the City of Manteca without first imposing barriers to entry including mandatory sobriety (on-site breathalyzers and drug screens); strict curfews; mandatory work program or career enhancement participation classes and criminal background checks.”

That means the measure, if passed and the constitutionality of whether a shelter can be blocked from being located anywhere in the city is found in question, there would be rules of operations imposed on a navigation center that may not reflect what the city has in mind.

City officials believe they would be remise and not performing their duties if they knew something in a ballot measure would not likely pass legal muster if they approved it for circulation, roughly 11,200 registered voters within the city limits signed it to qualify it for the ballot, the measure passed, and then only to see the courts negate the measure by declaring what it wants to do as unlawful under California law.

They opted not to simply pass on addressing the issue on the assumption the group wasn’t likely to obtain 11,200 signatures of registered Manteca voters as they viewed that as sidestepping the city’s legal and moral responsibility to citizens.

To contact Dennis Wyatt, email dwyatt@mantecabulletin.com