Risk and Ruin: The Measure P battle for money, the ballot box, and the courthouse

To win with Measure P, parks advocates sought the deep pockets of Bay Area billionaire Tom Steyer and planned ahead for a post-election courthouse brawl.

Read Part I and Part II of this SUNLIGHT Series on Fresno’s Measure P.

If recent history has been any guide, Fresno ballot initiatives that pit David versus Goliath have decidedly been won by the little guy.

Measure P would be no different, and proponents of the 30-year tax were ready for all eventualities.

After two years of crafting a signature issue, planning to deliver on it, and recruiting advocates and public surrogates, the highest stakes campaign over Fresno’s taxpayer dollars would finally be waged at the polls in November of 2018.

It would be an expensive and intense race to convince Fresnans to commit 30 years of tax revenue to fund an ambitious vision with parks as a civic cure-all.  

Long before Election Day, advocates for a parks tax had a number of logistical, political, and legal hurdles to clear.

First, they still had to build a local base of support for the idea. Simultaneously, they worked to enlist high caliber allies to fund the effort.

Couched in a cacophony of bureaucratic buzzwords, names of community leaders continued to be added to the local team supporting the eventual parks tax.

Now, Team Swearengin was looking to execute the timetable laid out by its primary consultant, San Francisco-based TBWB Strategies.

Up first: establishing a campaign apparatus and hiring a firm to gather signatures for the tax.

Before Team Swearengin could get that far, it would begin a long, circuitous process of negotiating with Mayor Lee Brand.

Brand hadn’t forgotten the city’s chief responsibility nor his tent-pole promise while running for Mayor just a year prior.

Fresno needed 1,000 sworn police officers. Much of the city’s ills, including dilapidated parks overrun by vagrancy, could be resolved with the right balance of law enforcement, Brand argued during the 2016 campaign.

In October 2017, Brand sat down with Swearengin and a few other proponents of the measure at City Hall. The meeting was an opportunity for both sides to essentially draw battle lines for the next 13 months.

The message from Team Brand was clear: any tax measure would need to be balanced for the city’s public safety needs.

A month later at the north Fresno offices of Swearengin’s Central Valley Community Foundation, the stakeholders would meet to start laying the groundwork for an initiative.

A memo distributed by Swearengin’s policy director, Danielle Bergstrom, to supporters set the table for various challenges – logistical and political – facing the group.

Atop the list? A need for a new poll.

By the Nov. 20, 2017 , the polling conducted by the Trust for Public Land was now a year old.

The memo also detailed political questions needing to be resolved – from whether the group should pursue a half-cent or quarter-cent and the length of time the tax should remain in effect.

Most importantly, however, the memo brainstormed sources of financing for signature gathering.

A consistent top target for funding was San Francisco billionaire (and current Presidential contender) Tom Steyer and his NextGen America political operation.

The group’s consultant, TBWB Strategies and another person, denoted as “TB” and believed to be former Fresno City Council member Tom Bohigian, were tasked with contacting the billionaire activist for funding.

Steyer’s NextGen America is a 501(c)(4) corporation, often referred to as “dark money” political groups. As such, its funding and itemized expenditures are not disclosed to the public.

Just one month later, Team Swearengin’s big money funding targets would create more strange bedfellows.

Aside from seeking funding from Steyer, the hedge funder-turned-climate change activist, parks advocates were also considering targeting oil giant Chevron and PG&E for funding the initiative.

After the November powwow, Team Swearengin added a list of legal queries to address.

One would have long range implications for advocates of Measure P: could a citizen-led tax initiative be approved with a simple majority rather than two-thirds majority?

By the time the team reconvened in December, another route would be explored – whether California’s Board of Equalization would enact the sale tax via administrative action.

In Team Swearengin’s memo, it denotes the Board was “open to legal arguments” and that the team needed to “figure out if we need the Gov Office to weigh in,” ostensibly referring to Gov. Jerry Brown’s administration.

The Board of Equalization route would be moot by Election Day, as the California Legislature and Gov. Jerry Brown stripped all of its authority over sales tax issues.

In February 2018, nine months before Fresno voters would reject Measure P, supporters provided one last update to their punch list memorandum.

A a new note was added to the item asking whether the tax hike could be approved with a simple majority.

The note was two words: “HIGH RISK.”

Teams Brand and Swearengin would have one final circuit on the carousel of compromises in March 2018.

The two sides met six times in that month with a rotating cast of characters representing Swearengin’s assembled coalition.

Up to that point Brand’s team focused on a half-cent tax that was evenly split between public safety and parks. Parks advocates and Team Swearengin, meanwhile, wanted all proceeds headed to parks.

By the end of March, parks advocates appeared to all-but-end negotiations with the city.

Mere weeks later, on April 4, 2018, the coalition assembled by Team Swearengin launched the “Fresno for Parks” campaign at Lafayette Park to put a parks tax on the ballot in November.

The P Pitch

Most may know the basics of Fresno for Parks’ pitch: a three-eighths of a cent sales tax lasting 30 years. Proceeds of the tax were to be deposited in a special account in Fresno’s treasury.

As far as spending the proceeds? Here’s the breakdown from the 25-page measure:

46 percent of tax revenue would be spent on improving and maintaining existing parks. Of that share of tax revenue, at least half (or 23 percent of total parks tax revenue) would be dedicated to the “highest-need neighborhoods.”

Determining those high-need neighborhoods would rely on census data through 2019. In 2020, the City’s parks commission (another creation of the initiative) would determine the high-need neighborhoods based on a battery of criteria, including park acreage per 1,000 residents.

21.5 percent of tax revenue would be spent on new parks and facilities. Similarly, at least half (10.75 percent of total parks tax revenue) would have to be spent in high-need neighborhoods.

12 percent of tax revenue would fund grants for “arts and cultural programming” from nonprofits. The arts grants would be doled out by the parks commission with consultation from the Fresno Arts Council.

11.25 percent of tax revenue would fund biking and walking trails, street beautification, and improvements in the San Joaquin River Parkway.

8.5 percent of tax revenue would go to after school programs, senior recreation programs, and job training for youth and veterans.

The initiative placed a number of prohibitions on the city, two of extreme importance. The first was a bar on issuing bonds secured against the 30-year tax revenue.

In short, this restricted the City of Fresno’s ability to borrow incredible sums of money in 2019 to be paid off using the initiative’s future tax revenue during its 30-year lifespan.

The second was a prohibition against using eminent domain to acquire property using parks tax funds.

While Fresno for Parks and Team Swearengin fleshed out its language, it would still have to reckon with its City Hall-based rival.

From Stumble to Rumble

Lee Brand wouldn’t cough up the ballot box so easily.

Looking to score consensus, he pitched his own ballot measure – a sales tax aimed at funding parks and public safety equally for 15 years – on June 25, 2018.

The effort was short-lived. Unlike Fresno for Parks, Brand opted to skip signature gathering and seek approval from five of the seven Fresno City Council members to put his initiative on the ballot.

Three days after announcing his proposal, it was dead. For various reasons, Council members Oliver Baines, Steve Brandau, Garry Bredefeld, Clint Olivier, and Esmeralda Soria came out in opposition.

They’d face the wrath of Damon Kurtz, then the president of Fresno’s police union.

“I have often heard the blame belongs to Sacramento and the elected there. ‘It’s their fault the Fresno is struggling.’ We can pass blame if you like, but how many of you have lobbied as our representatives in Sacramento?” Kurtz wrote in an open letter to the Council.

“How many of you have ventured out of your comfort zone of the [C]entral [V]alley and your Facebook followers to try and effect change in this state and in Fresno for the better?”

After Brand’s unilateral attempt at a compromise plan failed, the Fresno Chamber of Commerce held a last ditch mediation on June 12, 2018.

In a dining room at Joe’s Steakhouse in downtown Fresno, retired Fresno County Superior Judge Robert Oliver would serve as mediator with Ashley Swearengin and Brand’s chief of staff, Tim Orman, stepping up as representatives of the two camps with many more attendees looking on.

The mediation failed to yield a compromise. For Swearengin, it wouldn’t matter: she had the signatures to get her initiative on the ballot.

Six days after the failed mediation, Fresno For Parks would hand deliver nearly 35,000 signatures to the City Clerk.

The initiative would eventually be designated as Measure P.

Ballot Box Brawl

The bumpy ride for Measure P wouldn’t cease just because the initiative was headed to the ballot.

As absentee ballots were being sent to voters, Yes on P officials noticed the ballot language omitted details of the initiative approved by the Fresno City Council.

The omitted language included the various aspects description of actions to be undertaken with parks tax dollars – including specific facilities improvements, after-school and job training programs, among others.

The City would resolve to send out a postcard correcting the language error at a cost of $85,000, a costly mistake in financial and fairness terms.

The Fresno for Parks team, which had long been enlisting community leaders to join the cause, continued to build out their robust roster of surrogates and supporters to endorse and advocate for the parks tax.

Their internal database of support would also denote leaders who would wind up opposing Measure P in darker colors.

Editor’s Note: the above PDF is a condensed version of an Excel file. To view the unabridged endorsement file, click here.

Meanwhile, claims of Measure P’s impact became a significant donnybrook in the campaign.

Mayor Lee Brand, continuing to push back at the initiative’s timetable and inflexibility for funding other priorities, argued that passage of Measure P would eliminate the city’s ability to fund public safety needs.

In post-election polemics, supporters of the initiative countered that Brand’s public statements about the tax’s impact on funding public safety were lies that led to the measure’s downfall.

The two sides, already heated, were in the midst of an air war unmatched in Fresno’s history.

Prior to 2018, the last major citywide initiative was the ill-fated Measure G, a 2013 initiative that would have privatized Fresno’s residential trash collection.

Cumulative spending of both sides of Measure G clocked in at $1.26 million.

Swearengin, the driving force of the failed Yes on G effort, accounted for the lion’s share with $737,000 spent to support that campaign.

Measure G proponents would ultimately outspend union efforts by a 3-to-1 margin, only to lose.

By election day 2018, Measure P would dwarf Measure G. Both sides in the parks war spent more than $2.5 million.

In total, the Yes on P committee would raise roughly $2.1 million in funds to advance the initiative.

David McDonald, the late CEO of security firm Pelco, led the charge in funding the measure, committing $850,000 of his own wealth behind the effort.

Swearengin’s Central Valley Community Foundation would put more than a half-million dollars behind Measure P, largely through staff assistance.

Other big funders included former Guarantee Real Estate boss Paul Gibson, the San Joaquin River Parkway and Conservation Trust, the Sacramento-based Central Valley Foundation, and the Trust for Public Land, each committing $30,000 or more to the cause.

Opponents of Measure P gathered a more modest haul, totaling $453,814.12.

Funding the opposition to Measure P was led by a vast array of enterprises managed by the Assemi family, exceeding $160,000.

Fresno’s firefighters union pitched in $30,000 in opposition to the measure and Fresno’s police union added another $25,000.

Measure P would fail to reach the necessary two-thirds threshold for approval, garnering roughly 52 percent of support from voters.

The margin of support would become the next battleground for parks advocates.

Lawsuits and Loose Ends

With more than $2 million dollars invested in the now-failed measure, Fresno Building Healthy Communities (BHC) initiated a lawsuit over the required margin of victory to enact a tax in February.

Much of the rules related to required margins for tax increases were proscribed in California’s 1996 Proposition 218, which states that general taxes (i.e. taxes that go directly into the general fund of a government entity) require a simple majority for approval.

Meanwhile, Prop. 218 requires that specific taxes (such as Measure P, which dedicate funds for a specific purpose and not the general fund) reach a two-thirds majority.

However, BHC argued that a 2017 California Supreme Court case – California Cannabis Coalition v. City of Upland – changed the interpretation of Proposition 218.

The Court held that a citizen-led initiative (such as Measure P) did not need to conform to the same Prop. 218 rules as government-placed initiatives when it came to scheduling elections. It did not address margins of victory

BHC would argue that logic extended on the margin of victory for citizen-led initiatives. And by filing the suit, Fresno BHC would take on the lawsuit that Pro-P campaigners had long internally acknowledged was “high risk.”

Fresno County Superior Court Judge Kimberly Gaab is expected to issue a ruling on the case on Aug. 14. She delayed issuing her ruling after a similar case, originating out of San Francisco, sided with the argument proffered by BHC.

However, the San Francisco and Fresno cases are two different scenarios about voter expectations. In San Francisco, County elections officials declared the threshold needed for approval was 50 percent plus one vote, owing to the Upland case.

In Fresno, however, the situation is reversed. Fresno for Parks and Fresno’s City Clerk placed Measure P on the November 2018 ballot under the two-thirds majority threshold.

All litigation appears to be riding a one-way ticket to the California Supreme Court.

While legal processes continue, Mayor Lee Brand sought to bring opponents back the table for a compromise plan ahead of the 2020 election.

In a March sit-down with some of the leaders behind Fresno for Parks, though devoid of Swearengin and former Asm. Juan Arambula, the idea of pursuing a split tax was once again broached.

Parks advocates pushed the Brand administration commission a feasibility study on public safety funding, akin to that of the parks tax undertaken by the Trust for Public Land in 2016.

Meanwhile, the Fresno City Council initiated its own committee to evaluate a parks and public safety tax in May.

With Fresno Mayor Lee Brand opting against running for re-election, a new tax initiative to fund Fresno’s basic priorities will undoubtedly cooked up.

Though the question remains, what will the tax pay for and how much will be set aside for the various priorities?