Measure A, which asks Atherton’s voters whether they are willing to spent more public money on a new town center, is clearly marked on the ballot as an “advisory measure.”
That means voters will tell the City Council what they think, but their vote won’t bind the council to do what is recommended.
What isn’t so clear is whether the 2012 measure it seeks to overturn was also an advisory measure.
The town has, until now, treated the vote on 2012’s Measure L as if it is binding. The measure, which received 73.5 percent “yes” votes, asked: “Should the Town of Atherton primarily use private donations to construct and design a new Town Center?” It said building fees or future grant money could be used, but not general fund or parcel tax money.
The town has followed those guidelines as it has designed the civic center, with library funds paying for all library design work, and donations and some building money being used for the design of other facilities.
But Atherton City Attorney Bill Conners recently opined that the 2012 measure was also an advisory measure, and an opinion from a Los Angeles attorney has backed him up.
Mr. Conners told the council in February that a 2016 California Supreme Court ruling says measures put on the ballot by a legislative body must either be in the form of an ordinance, or law, to be binding, or be nonbinding advisory measures, he said.
Since the 2012 measure wasn’t an ordinance, it’s not binding, he said.
Opponents of the current advisory measure say they think he’s wrong, and that the court ruling he refers to did not apply to local elections.
In April, the town received a legal opinion from Los Angeles attorney Craig A. Steele, that backs up Mr. Conners’ opinion, but for different reasons. “I believe … the Measure is not legally binding because the voters do not have the authority to restrict the City Council’s authority over fiscal matters,” Mr. Steele wrote in an April 14 letter. He also said: “… the voters did not actually adopt a law for the City Council to follow, and the wording of the Measure was suggestive and not mandatory” because it used the word “should” instead of “must.”
Mr. Steele suggested that the matter is not crystal clear, however, since the 2012 measure was not marked as an “advisory measure” as required for non-binding measures. He suggested the town “seek a clarifying vote of the people or, as an alternative, the opinion of the court in a validating action.”
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