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Overview

For people who can remember back to 1997 when MOFD was formed as a consolidation of Orinda and Moraga Fire Districts; or who have read the media accounts of the “arguments” leading up to the vote to consolidate; or have read the voter’s pamphlet for the June 3 election in which the consolidation was approved by the voters; it is clear that from the Orinda voter’s perspective there were two main reasons for the merger:

1) Better emergency paramedic service (both on first-responder engines and a locally stationed paramedic ambulance).

2) Use all tax dollars paid by Orinda taxpayers earmarked for emergency service for services in Orinda and not elsewhere in the County (including Moraga).

There is no question that Objective #1 has been achieved with the majority of MOFD firefighters being paramedics and an ambulance stationed at each of Orinda’s three stations.

However, the status of Objective #2, which this paper will call “Tax Funding Equity”, is in doubt.

  • Some claim (mostly those from Moraga) that it was never an objective.
  • Some claim (again, mostly from Moraga) that even if it was an objective, that objective is being met.
  • But most of those (from Orinda) cognizant of the subject claim, at least from Orinda’s perspective, that
  1.             It was a clearly voiced objective by the framers of the merger.
  2.             It is not being met (Orinda is subsidizing service in Moraga with $2.5 million annually).
  3.             MOFD has the power to meet the goals that the framers set for MOFD.

What MOFD has to determine to clear this issue up is:

  1. From Orinda’s perspective, was Tax Funding Equity an objective of the creation of MOFD?
  2. Is Tax Funding Equity defined, prescribed or prohibited by MOFD formation documents?
  3. If it is not defined, how should it be defined?
  4. Once it is defined, what would be the mechanism to achieve it; short term and long term?

There are six basic documents that should be referenced in this discussion:

  1. Orinda City Council Resolution 48-96
  2. LAFCO Resolution 96-27
  3. Board of Supervisors (BOS) Resolution 97-16
  4. Board of Supervisors (BOS) Ordinance 97-1
  5. Language of the ballot measures themselves.
  6. The official voters’ pamphlet for the June 3, 1997 vote on (Orinda) Measures A, B & C

The Orinda City Council Resolution (adopted 9/3/96) requested of the County, via LAFCO, that the Orinda Fire Protection District and the Moraga Fire Protection District merge to form the Moraga-Orinda Fire Protection District. The terms of the merger were pretty much spelled out and had obviously been pre-negotiated as LAFCO agreed one month later to the request (in pretty much the same language) and the County agreed and called for the election for public agreement three months after that.

This was the “initiating” document along the path of merger. There was most likely a similar resolution passed by the Moraga Town Council. In the document, there was no stated reason given for the merger. There was no “condition” that “tax dollars paid in Orinda stay in Orinda” nor was there any restriction put on the new district to not allow this to happen. The topic was simply not addressed. The resolution did state that directors would be elected by (geographic) divisions.

There is one clause in the City’s resolution of interest: “The Moraga-Orinda Fire Protection District shall establish separate service zones coterminous with the boundaries of the existing Moraga Fire Protection District and Orinda Fire Protection District.” It spoke no more of what those zones were to be used for. Since the only difference between the two zones was the existence of separate Fire Flow Parcel Tax within each zone, maybe the sole purpose was to preserve the ability to maintain the Moraga tax. It was not necessarily to “carve out” part of Orinda and “deed it” to Moraga for emergency services or other tax revenue purposes (nor change the “tax funding equity” boundaries).

The main import of this document is that it shows that the Orinda City Council (in cooperation with the Moraga Town Council) was the “framer” of the new district. There may have been a bi-city commission formed to work out the details of the merger (as described by Dick Olsen), but it was on the City Council’s desk where “the buck stopped”. So if the City Council informed the electorate that the purposes of newly formed district were X, Y and Z, then those were the purposes of the new district. The language of the formation of the district did not work to guarantee the Council’s intent and to date circumstances have not allowed the intent to be fulfilled, but that does not mean the intent did not exist.

The LAFCO resolution (adopted 10/9/96) and the BOS resolution (adopted 1/14/97) are very similar to each other. They allow the Orinda Fire District and the Moraga Fire District to be merged into a single independent district (MOFD) by a vote of the people. The combined district would inherit the combined “assets and liabilities” of the predecessor districts including stations, personnel, service area, tax revenue, etc. The pre-existing Moraga Fire Flow Parcel tax would also be “inherited” and the district could put up for a vote of the people a similar “fire flow tax” for the area previously part of Orinda. The proceeds from the new tax are restricted for use “solely to fund activities of the Orinda Fire Protection District service area.”

Both documents state that “fire service zones” coterminous with the predecessor district (Orinda and Moraga) service areas should be established. Neither state what the purpose of creating these zones is.

Both documents state that MOFD will be governed by a five member Board of Directors directly elected by division (not at large). No reason for this is given.

Neither document mentions Tax Funding Equity by that name or any other name. They do not define it; they do not prescribe it; they do not prohibit it.

The LAFCO document identifies the City of Orinda and Town of Moraga as the “petitioners” for the merger. The merger was an official City action. It was not an action brought about by the citizenry.

The BOS document states “The purpose of the boundary change is to provide better and more efficient fire protection and emergency medical (paramedic) services to the affected territory.” Period. It does not state how those services are to be allocated across the territory.

The BOS Ordinance (adopted 1/14/97) defines the new Orinda Fire Flow Parcel Tax including:

  1.             It is to be used for (a wide variety; virtually any expense) services within the Orinda Service Zone (this may be the reason that the Zones needed to be defined in the BOS Resolution).
  2.             The formula for determining the cost per parcel include a defined cap on the “rate” 0f six cents.

Language of the Ballot Measures

On June 3, 1997 the question was put to the voters. In Orinda (the Orinda Fire Protection District; the Orinda Service Zone) there were three ballot measures: A, B & C. In Moraga (the Moraga Fire Protection District; the Moraga Service Zone) there were two ballot measures: AA & BB.

Measures A and AA were identical: “Shall the order adopted on January 14, 1997 by the Board of Supervisors of Contra Costa County to order the consolidation of the Orinda Fire Protection District and the Moraga Fire Protection District into a single district known as the Moraga-Orinda Fire Protection District be confirmed, subject to the terms and conditions specified in the order including the election of District directors by five geographical divisions.”

Measures B and BB were identical identifying the new district’s “special appropriations limit”.

Measure C on the Orinda ballot was to create the Orinda Fire Flow Parcel Tax. The passage of this tax was a condition for passing Measure A. Moraga already had a tax in place.

Neither Measure A nor Measure AA mentions Tax Funding Equity by that name or any other name. They do not define it; they do not prescribe it; they do not prohibit it. The only special “feature” prescribed in the election measure was “the election of District directors by five geographical divisions”. This paper contends the reason for this is that each division may have its own “special needs”, like securing Tax Funding Equity or fixing fire hydrants, that needs local representation.

Official Voters’ Pamphlet

            We have been able to obtain the official Orinda voters’ pamphlet but not the Moraga pamphlet. We tried the County elections office, the Town of Moraga and MOFD. No one had a copy of this document that we could find. The lack of a Moraga voters pamphlet may be irrelevant because it does not change what the Orinda voters were “promised” and who promised it. If the Moraga pamphlet said “Moraga taxpayers’ service cost will decrease because there will be a tax subsidy from Orinda”, then the divisions representing Moraga taxpayers would clearly have a different objective than those representing Orinda taxpayers’ interests. But we doubt such a promise was made.

What “promises” were made and who made them?

First, who made them? The arguments for the creation of MOFD (Measure A, B and C) to Orinda voters were submitted by a number of Orinda’s civic leaders including all five members of the sitting City Council (Littlehale [mayor], Tabor [mayor Pro-Tem], Hawkins, Abrams, Wheatland). It was the Orinda City Council (in conjunction with the Moraga Town Council) that petitioned LAFCO and the County to allow the merger. These were the “framers” of MOFD. There may have been an Orinda-Moraga commission to “iron out the details”, but as for overriding rationale; the buck stopped on the City Council’s desk. These were not simply engaged citizens but public officials who “called the question”. The Voters Pamphlet may not be a legally binding document (as Olsen pointed out), but it certainly is a valid source of intent by the framers. Maybe the framers should have been more rigorous in insuring the results of the merger (calling for audits; defining service; etc.), but they were “rigorous” with one point: election of Directors by division. All for one and one for all is fine, as long as my division is not harmed. And spending $2.5 million in Moraga rather than Orinda when Moraga can raise its own $2.5 million (or cut expenses a bit) is harmful to areas in Orinda (bad fire hydrants; no brush control; etc.).

What promises were made? Pretty clear, right at the top of the voters’ pamphlet:

  1.             Put paramedics on every Orinda fire engine (done)
  2.             Insure that fire protection dollars Orindans pay will stay in Orinda. By “stay in Orinda” we assume they meant “be used for services in Orinda”. As for “insuring”, other than defining parcel tax revenue as revenues to be used in Orinda, there were no means for “insuring” that ad valorem tax dollars stay in Orinda prescribed in the founding documents other than by locally electing directors and tasking them with this job.
  3.             Insure that Orinda has three fire stations and current staffing levels. So far so good. But what would have Station 46 have done? My contention was the Station 46 would have had to be accompanied by a paramedic station in Sleepy Hollow increasing the response units in Orinda from 3 to 4. Maybe not following the voters’ pamphlet to the letter, but providing better service and using Orinda dollars in Orinda.
  4.             Make local fire commissioners responsible for our local needs. That’s the voters’ responsibility.

Definition of “Tax Funding Equity”

It is very clear that the framers of MOFD (from Orinda’s side) envisioned and clearly stated to the community that Tax Funding Equity would occur; not “may” occur. They told the voters that the provisions in the formation documents, mainly representation by geographic area, “insured” that this would happen. Maybe they were overstating the case but there is certainly nothing in the documents preventing Tax Funding Equity from occurring. While they did not create a mechanism to track it or mechanically insure it (or even define it), neither did they allow anything to be put in place that would prevent the Directors from carrying out the promise to the voters. And they made sure that locally elected directors would be put in place to do just that.

The definition of equity was given by the framers: “Fire protection dollars Orindans pay will stay in Orinda.” Stated another way: The cost of services in Orinda will equal the taxes raised in Orinda, and conversely, the cost of services in Moraga will equal the taxes raised in Moraga.

What defines Orinda?

One question that must be answered before revenues and expenses are allocated between Orinda and Moraga is “where are the boarders separating Orinda from Moraga?” If “Orinda tax dollars” are to “stay in Orinda”, what defines “Orinda”?

99.99% of people asked to define “Orinda” would find a map with the boarders of Orinda clearly defined separating it from Moraga, Lafayette, Berkeley, Oakland and unincorporated Contra Costa County. Only a tiny percent would even be aware that there is something defined as “the Orinda Zone” by MOFD which excludes 750 Orinda households. However, that zone (and the associated Moraga Zone which includes those 750 households) was specified by all of the “founding” resolutions (City, County and LAFCO) noted above and was referred to in the Impartial Analysis contained in the Voters’ Pamphlet. It is no secret that 750 homes in South Orinda, defined as Tax Rate Area 18012, are part of incorporated Orinda but are included in MOFD’s Moraga Service Zone, not the Orinda Service Zone. So are these homes part of Orinda, for the purposes of determining Tax Funding Equity, or not?

Accompanying this paper is a more detailed discussion of this issue. The conclusion in that paper is that TRA 18012, and the $1 million of tax it provides to MOFD, is part of incorporated Orinda and should be considered part of Orinda from an emergency services perspective. The area is close to Moraga’s Station 41 but it is equally close to Orinda’s Station 44. Both stations are staffed with paramedic firefighters and both stations have an ambulance (this was not the case before MOFD was formed but it is now). Either station can provide 100% benchmark response times to this area. In other words, this area is double-served. It probably has the best service in Orinda. The fact that TRA 18012 is in incorporated Orinda is the tie-breaker when determining whether it should be considered part of Orinda or Moraga from a Tax Funding Equity perspective. Even though the people in this area did not vote for Orinda’s Measure A in 1997 (they were part of the Moraga Fire Protection District so they voted for Measure AA), they were still represented by the Orinda City Council which stated that fire protection dollars Orindans pay will stay in Orinda. Unless there is some use of the “Service Area” designations that we are not aware of, other than defining where the two parcel taxes are imposed, then we don’t see why this area of Orinda would be considered part of Moraga and why its tax dollars should be used to support Moraga’s emergency services when at least half the service to this area comes from Orinda stations.