The Fresno City Council chamber on Thursday could see the latest battle in the Brian Whelan-Nelson Esparza political war.
If so, Fresno’s foundational blueprint will be the catalyst.
The council is expected to debate a resolution pitched by President Esmeralda Soria to tweak the City Charter. Such changes require voter approval. Soria wants the council to authorize putting three proposed Charter revisions on the November 6 general election ballot.
Soria in her resolution says her intent is to “modify or eliminate provisions that are contrary to and preempted by state or federal law.”
The resolution says the ballot question will go like this:
“Technical Charter Cleanup: Shall the Fresno City Charter be amended to remove or modify the following sections, which are contrary to and preempted by state or federal law?
“(1) Section 309, which prohibits ‘off-year’ campaign contributions, shall be removed as unconstitutional.
“(2) Section 701’s residency requirement for the City Manager shall be eliminated and the section made gender neutral.
“(3) Section 1225, which prohibits residential water meters, shall be removed as preempted by state and federal law.
“Yes or no.”
Soria’s brief report to the council doesn’t give an estimated cost for putting the measure on the ballot.
No. 3 is hardly an earth-shaking issue. Residential water meters are here to stay. No one of serious mien would suggest otherwise.
No. 2 is a head-scratcher. I’ve never come across anyone who gives a hoot about where the city manager lives. City Hall surely has better things to do than to keep track of where the city manager sleeps at night. And as to the editing of the Charter’s pronouns, leave such politically correct fussiness to the universities.
The action is with No. 1.
Whelan and Esparza were the top two vote-getters in the June 5 primary for the District 7 council seat currently held by the termed out Clint Olivier. Neither got 50% plus one, so they’ll square off in November.
Whelan, a conservative, is endorsed by Mayor Lee Brand and Olivier. Esparza is one of Fresno’s progressives, a powerful and growing bloc that includes Soria. In a nutshell, we’re talking Republican vs. Democrat fighting for a seat that, based on District 7’s demographics, would seem to be a lock for the latter.
The two sides have been playing political hardball for nearly a year.
The Whelan side in October 2017 appeared to get a big boost when the City Council in closed session voted to levy a $500 fine on Esparza for fundraising outside the time window authorized by Charter Section 309. The section limits campaign solicitations and contributions to a period between the election filing date and the end of that calendar year.
Esparza signed a settlement with the city. The settlement prohibited the parties from publicly discussing its terms.
The prohibition doesn’t apply to Whelan’s supporters. Esparza’s fundraising trouble figured to be used against him in the 2018 campaign.
Then the wheel of fortune continued to turn.
Sometime after the settlement, an appellate court in New Orleans heard a similar case. A former council member in Austin, Texas named Donald Zimmerman had run afoul of that city’s prohibition on early campaign fundraising. The circuit court said Austin’s law violated the politician’s First Amendment rights.
Esparza in some eyes suddenly went from villain to martyr. The council majority (I’ve heard that Soria behind closed doors was Esparza’s lone ally) suddenly looked out of step with the arc of justice.
Now we come to Thursday’s council meeting and Soria’s resolution.
It seems to me Soria, in asking for approval of the Charter Cleanup ballot measure, is leveraging her council colleagues to implicitly admit in open session (without violating the October settlement’s gag order) that the council did Esparza wrong. And if the council does vote to put the measure on the ballot, and the decision survives a possible mayoral veto, it seems to me that Esparza on the campaign trail could comment to his heart’s content about Section 309 since the council had already done so on June 21.
If the council rejects Soria’s resolution, or at least the part about Section 309, it seems to me each member will have to say why. There, again, is an implicit City Hall green light for Esparza to discuss Section 309 in the fall.
Then, again, if Soria makes the motion to approve her own resolution, there may not be a second. The debate would end without any other council member making a peep.
Or, a council majority early in the session could vote to remove Soria’s resolution from the agenda, thus nipping everything in the bud. A council majority did this to Garry Bredefeld in 2017.
Finally, there’s no guarantee that Section 309 is unconstitutional in the long run. City Attorney Doug Sloan in a Feb. 8 report to the council on the Zimmerman case said his office would no longer enforce Section 309 “unless and until a court having jurisdiction over the City of Fresno holds to the contrary or the Zimmerman holding is reversed or overruled.”
Practically speaking the City Charter’s prohibition of residential water meters is a dead letter. Perhaps Section 309 is, too.
Why should Fresno spend a single taxpayer dollar to clean up something that has become irrelevant?
We’ll find out on Thursday.