No On 412! Turn in Your Ballots by May 16!

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I’ll be voting NO on Prop 412, and I hope to persuade you to do the same. I don’t oppose it because it tries to bolster Tucson’s sustainability – I support that goal. I don’t oppose it because I have an unrealistic view of what we can accomplish policy-wise in a franchise agreement – I know we can’t do rate setting or impose renewable targets. I oppose 412 wholly on the grounds of progressive democratic values.

I don’t deceive myself that this screed will turn the tide – it probably won’t. I won’t win any friends by opposing 412 – the political establishment has almost completely closed ranks to endorse the passage of 412. I won’t feel myself in good company – most who have made a public case are people I despise politically. Luckily, I do have some good company in questioning the wisdom of Prop 412 in fellow Tucsonan Nick Arnold in his recent Tweetstorm on the subject, and Tucson City Council Member Steve Kozachik also thinks voters should reject 412. Notable local activist Sami Hamed also wrote against 412.  So my own reasons? Read on.

I will be voting NO on Prop 412 for two separate reasons, both of which are, in my opinion, sufficient reasons in themselves to vote NO: democracy and equity.

Democracy

Let me tell you a tale. There once was a for-profit company that needed the voters of the city they did business in to pass a law that kept them in business. The law was rather tedious – not very controversial – kind of boring, really. The company didn’t want to spend a long time, or a lot of money, explaining to the city dwellers why they should vote for it, so they instead sensibly sought to limit the number of voters who would be paying attention when the election happened. They figured it would be cheaper to pay a million dollars to have a vote right now than to spend even more trying to hold together the coalition they created to support the law, and to explain it to everyone and convince them that it benefitted them as well as the company. So they held the election in April, well before the city-wide elections in August and November, to ensure very few people would bother to vote and the new law did not get caught up or become an issue in the candidate elections to come.

So, you might have guessed that the heart of this fable is simply fact. TEP is paying a million dollars to hold the election now. You might believe the technocratic excuses as to why this has to be done – but I don’t. The brute and obvious political calculation is that TEP is paying a million dollars for a distracted and reduced electorate. If the Republicans had come up with such a scheme, we would rightly condemn it for what it is – voter suppression.

This cynical ploy alone is sufficient reason to vote NO. Why would we citizens acquiesce to disenfranchising our fellow Tucsonans just because they are not yet ready to seriously engage with municipal matters with city elections still 100 days away? We should not.

We have seen the evils of anti-democratic practices and ploys to suppress turnout, inconvenience voters, and turn away legitimate electors for any number of reasons: “because we need to start work before summer” is a new one for me, but it is no less pernicious. This is voter disenfranchisement on a massive scale, and I will not vote in favor of it.

I don’t have any control over the timing of this election, so the best I can do is vote NO. The result of that NO vote? Will TEP abandon Tucson, leaving us a powerless ghost town? No. TEP’s franchise agreement expires in April of 2026. The result is the vote must be held again when there has been ample time for citizen input on the franchise agreement (the week or so of notice of the public input process was truly insulting), there has been sufficient time for the public to study the issue and absorb the impacts (even I, and those in the rabidly political set in which I circulate, are still scrambling to read and absorb the agreement), and the city electorate is focused on the issues (like when we are voting in November after both supporters and detractors have been able to present their best case on the matter).

I actually respect and support the democratic process. Many are those who blow off the fact that voter participation will be lower saying that voters wouldn’t understand or care regardless of when the election is held. There may be a grain of cynical truth there, but I believe the margins matter. More time and more minds focused on an issue makes a real difference to the quality of social intelligence brought to bear on democratic decision-making. If I didn’t believe that, I would have no real reason to oppose the nonsense of the fascist bigots making the case that we aren’t really a democracy, but a constitutional republic, and what good is democracy anyhow?

You could stop reading here and decide that democracy really does matter, that voter suppression – no matter who does it – is unacceptable, and that lacking a good understanding of franchise agreement yourself, voting NO is the safest and most reasonable reaction.

Equity

The heart of the change to the franchise agreement is the addition of an additional increment of 0.75% to the franchise fee to utility users. This additional fee is almost entirely devoted to the cost of burying load-balancing transmission lines in a four-mile stretch at the heart of Tucson in the Campbell corridor. The contributions to Tucson’s sustainability plan are financially fairly minor and uncertain, and, really, rather beside the point.

Let’s analyze the new franchise fee on its main point: an infrastructural investment that TEP wants to make for engineering and business reasons, and that some politically powerful constituents in a certain fairly wealthy area of the city support on both practical and aesthetic grounds.

How equitable is that? Consider that EVERY part of the TEP service area will pay the new franchise fee, but the beneficiaries will primarily be a small minority in heart of one of the wealthiest areas of the city. That doesn’t seem terribly equitable to me, and some crumbs off the table for sustainability projects elsewhere doesn’t even begin to offset that inequity.

Now, my own ox won’t be gored – I live in the area and travel through that corridor nearly daily. But what kind of progressive only acts according to self-interest? This new franchise increment is simply not fair to most of Tucson. There are good reasons to make the investments TEP wants, no doubt, but then why can’t they just get them covered by the rate-setting process before the Arizona Corporation Commission, like any other utility? Why are they making this end-run around the AZCC (which is currently controlled by the Republicans – and firmly in the “give utilities everything they want” camp)? Why spend the additional revenue through a five-member board that anyone with even a whiff of political savvy knows that TEP will control through the joint appointment of the fifth member?

I don’t have all the answers, and when someone asks me a question I don’t know the answer to, I say “I don’t know,” not YES. I say, NO. This looks like a raw deal for most of Tucson. It looks like an end-run around the rate-setting process. Why would any of us say YES to that?

Finally, why 25 years? The new franchise fee increment is authorized for the ENTIRE 25 years, but really only accounted for or justified for the first 10. The final 15 years there is no promise as to what the additional funds will be spent on other than vague hand waiving about sustainability based on decisions the five-person board that TEP will surely control. Why not a 10-year franchise agreement? Some say that a 25-year agreement gives TEP the assurance and stability they need. I don’t really care about TEP interests, that’s their Board’s concern, not Tucsonans. We are living in a fast-changing climate emergency – how does it make sense to lock ourselves into long-term decisions about something as important to our civic life as our power supply for 25 more years after so little reflection and negotiation?

Given that I see at least two very good and self-sufficient reasons to say NO to 412, why would I vote YES?

Every con man knows that time pressure and scarcity are the best tools with which to fleece a mark: you have to decide now, time is running out!; this is last one, someone is going to buy it out from under you, act now! The pitch I’m hearing is sounding troublingly familiar for 412.

What will really happen if the electorate votes NO on 412? Nothing. Nothing at all. Nothing changes. Nothing ends. No disaster is courted. No debt ceiling is breached. TEP and the Tucson Administration will have to return to the negotiating table, and Tucson will likely have an even stronger hand for the electorate having rejected TEP’s offer.

That’s right: Tucson will be in a better negotiating position. There might not be a whole lot left on the negotiating table; there are things we simply can’t get with a franchise agreement. But rejecting TEP’s anti-democratic ploy and inequitable franchise increment will only strengthen Tucson’s position. Every day closer we draw to the April 2026 expiry of TEP’s franchise, the more leverage Tucson has for the continued use of our rights of way. Every time the Tucson electorate spits out what TEP tries to feed us, the more TEP gets the message that we are not patsies or marks to be bum-rushed into a sucker’s deal.

Now, don’t take any of this amiss. Those who are supporting this deal by endorsing 412 have good reasons for doing so. They sincerely believe that 412 is a progressive and positive deal for Tucson. I respectfully disagree. I hope you will join me in saying: NoOn412.com.

Please like and share this post on social media, and tell your friends and neighbors to please consider voting NO on 412. Send them to this post, which will also be posted at NoOn412.com. Please call your city council office and ask them to reconsider their support for this bad deal. Please call your county officials and ask them the same. There is still time to turn this around, even as signs for YesOn412 sprout on every corner, and as TEP spends what it takes to drive this deal home. It is fundamentally not a good one for Tucson, for democracy, nor for equity in our community.

Thank you for your time and attention.

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10 thoughts on “No On 412! Turn in Your Ballots by May 16!”

  1. Ward 6 Councilman Steve K was on the John C Scott radio show yesterday explaining his reluctance to support Prop 412: https://www.kvoi.com/saturday. He represents most of the neighborhoods affected by the proposed undergrounding of power lines.

  2. My first thought is when I go to the NoOn412 website, why has it been removed. I am not a political person, and don’t really understand words with more than 3 syllables, but I do vote, and this just rubs me wrong. Why the rush, why the 25-year commitment? I have not heard or read anything that would support this. We are living in scary times, and this is just a small portion. There are corporations all over Tucson that are trying to establish a monopoly. Anytime someone tries to rush me into something I gotta wonder, what’s the catch?

  3. Please stop referring to the neighborhoods that the electrical transmission will go through as wealthly high end real estate. It’s Jefferson Park, North University, Feldmans, Samos. Not wealthy. Mostly retired folks, young families, and students. We work hard to maintain our homes and the neighborhood.

    Come by and visit, see for yourself. We’re having a plant sale on May 5, 6th, and 7th to raise money for neighborhood projects. Great deals, all plants donated by the residents, clippings from the gardens. Corner of Warren Ave and E Waverly (1641 E Waverly).

  5. I was appalled at the 30-page so-called “Voter Information” mailing I received recently. This is completely out of step with ALL other informational mailings concerning propositions that I have EVER received from the city… and I moved here as a voting adult in 1976. The city sent this 30-page “tome” written in “legalese” on Prop 412 out to voters with NO analysis, NO summary, and NO pros or cons!

    Here are my concerns re: Prop 412, TEP’s proposed rate increase; how we should generate our electric power, and re part of the City’s Climate Action and Adaptation Plan (CAAP):

    Re TEP’s request for a 12% rate increase… Why should we pay more when according to KGUN 9, TEP has verified that they have had increasing profits for at least the past 3 years, from $191 in 2020 to $217 in 2022?

    If TEP were truly taking the climate crisis seriously, and were taking big steps to increase solar and wind sources to replace coal and natural gas at a really fast pace, then I would be far more willing to pay an extra amount on my bill to facilitate that. BUT that is NOT what I see TEP doing! While TEP CLAIMS they are increasing their use of solar and wind, just take a look at what their own chart actually shows:

    https://findenergy.com/providers/tucson-electric-power/ (scroll down to the chart titled “Tucson Electric Power Energy Makeup”)

    It shows that the percentage of total power TEP has been generating from solar has actually DECREASED from 2017 through 2021. In addition, it wasn’t until 2021, that wind was used to produce even 10% of the total power they generate. So as of the latest figures their chart shows, they are STILL BURNING FOSSIL FUELS TO PRODUCE 89% OF OUR POWER!

    We need to demand that our electric power company begin QUICKLY replacing fossil fuels with alternative green energy (solar & wind). For that I would be willing to pay more….. but NOT just to put even more profits into their wealthy investors’ pockets. So I think that… IF… we keep TEP as our electric utility, the least we should demand is to TIE ANY RATE INCREASE to their rate of replacement from fossil fuels to green energy sources! If they want more from us, then they must give us what we want… A MUCH FASTER TRANSITION TO GREEN ENERGY!

    More on the TEP topic below, but first I want to briefly address one part of the City’s Climate Action and Adaptation Plan (CAAP), which was addressed in 412:

    Regarding the proposed 0.75% increase in fees for the Community Resilience Fee, I agree that we definitely DO need to greatly decrease our city’s carbon footprint, and to achieve that will require greatly decreasing our vehicular traffic……

    HOWEVER…. I believe that the way to achieve that is to START with greatly increasing the EFFICIENCY of our EXISTING MASS TRANSIT. We should spend whatever it takes to make it entirely electric, free for all riders, and able to get riders to any destination within the city limits in 45 minutes or less. THAT is the way to get people out of their cars (carrots always work better than sticks). Only then should we begin looking at further actions like “road diets”. It is putting the horse in front of the cart to try to get people out of their cars BEFORE we have an up-and-running, truly-efficient mass transit!!!

    Now, back to the topic of TEP:

    In fact, I believe Tucson would do far better to BUY OUT TEP and transform it into a COMMUNITY-OWNED electric utility. In such a system, every customer is also an owner.

    Currently TEP’s profits are being sucked out of our community by their wealthy investors, most of whom do not live in AZ and many of whom do not even live in the U.S. TEP AND UNISOURCE ARE OWNED BY FORTIS, WHICH IS CANADA’S LARGEST INVESTOR-OWNED GAS AND ELECTRIC UTILITY HOLDING COMPANY.

    Contrast this with a COMMUNITY-OWNED electric utility, where profits are either reinvested into the electric infrastructure or distributed to the customers/owners. In cities/urban areas, this has proven to be the most cost-effective way to provide the highest quality service for utilities. Because the customers ARE the owners, the conflict of interest inherent in a system that is privately owned, is entirely eliminated.

    Homes and businesses in 2,000 communities across the U.S. — large cities like Austin, Nashville, Los Angeles, and Seattle, as well as small towns and the Navajo nation — get electricity from a public power utility. Collectively, these publicly-owned utilities serve 1 in 7 electricity customers across the U.S. and operate in 49 states — all except Hawaii — and the territories of American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. WHY NOT IN TUCSON????!!!!!

    You can read more about it here:
    https://www.publicpower.org/public-power

  6. Ward 6 Councilman Steve K says Prop 412 is flawed as well: https://tucson.com/opinion/local/tucson-opinion-we-can-do-better-than-prop-412/article_bcc81ec0-db12-11ed-b1d8-9f16018c9547.html. He represents most of the neighborhoods affected by the proposed undergrounding power lines.

    Steve K explains his position on the Buckmaster radio show: https://www.buckmastershow.com/2023/04/21/buckmaster-show-4-21-2023-whats-at-stake-in-the-city-of-tucson-special-may-election/

  7. Thanks so much for your well-thought-out critique. This is the kind of discourse we should be having over a several month period, not the rushed scene the Council has put forth. Here is another great perspective from Patrick Diehl, getting more into the weeds! He has given full permission to pass this on through emails, social media and websites.

    FATAL FLAWS OF PROPOSITION 412, PROPOSED 25-YEAR FRANCHISE AGREEMENT WITH TEP

    April 15, 2023

    Unacceptable presentation of the Proposition to the voters:

    When my partner and I got the City’s pamphlet for Proposition 412 in the mail, we were flabbergasted that a complex, 30-page contract was being presented to us voters with 1) no analysis, 2) no arguments pro or con, 3) no rationales, and 4) no figures for the amounts of money involved. How many voters are going to take the time to wade through the document? And if they do, how successful will they be in picking out the truly significant details from the sea of words?

    The title of the pamphlet is, “The Choice…Is Yours.” One asks, “How are the voters going to know what they’re choosing, when finding out is made so difficult?”

    The City needs to re-schedule the election and present the Proposition properly, with analysis, arguments pro and con, rationales, and dollar figures for the monies involved. The present situation is absurd.

    Entirely inadequate funding of climate measures in the midst of a climate emergency:

    The City of Tucson officially declared a “climate emergency” in 2020. Emergency. Not “problem.” Emergency. One would never know this from reading the proposed contract with its main supplier of electrical power, even though the generation and use of electrical power are absolutely central to both our present predicament and our hopes of solving it.

    The emphasis throughout the contract is on undergrounding of TEP power lines and other facilities. So far as the climate emergency is concerned, it makes no difference whether power lines etc. are undergrounded or not. And yet, one finds that the proposed contract specifies that approximately 90% of the “Community Resilience Fee” [CRF] will go to undergrounding for the first decade of the contract, with only about 10% of the CRF left over for the City’s “Climate Action and Adaptation Plan” [CAAP]—the plan that is the City’s response to the climate emergency it has declared. (See Section 10.e, pg 14, starting at line 10. According to this subsection, the CRF would be 0.75% of “applicable [TEP] revenues.” No dollar figures are given, of course, just a percentage. 10% of 0.75%–the bone that gets thrown to CAAP for ten years—is 0.075%, or less than a tenth of a percent of TEP “applicable revenues.”)

    In addition, CAAP will have to duke it out with two other “public benefits” for its share of the “Franchise Fee” [FF]–a different fee that amounts to 2.25% of “applicable revenues.” (See subsection 10(b) and subsection 10(d)—the reader is left to calculate that the “one-ninth” of the FF that “shall” be used for “public benefits” would be 0.25%, since the drafters of this contract don’t bother to say so.) The two other public benefits—one of them quite worthy, the other (IMO) not—would be “low income assistance” and “undergrounding.” According to Subsection 10.d(2), the City Council and Mayor will decide how the FF is allocated among these three objectives. We can’t now know what the results of that annual exercise would be, but if each “benefit” got a third of the 0.25% , that would mean about 0.083% of applicable TEP revenues would go to CAAP. Unless, of course, “undergrounding” demanded the whole 0.25%

    So, for the first decade of this contract, CAAP would likely end up with a total of about 0.16% of TEP applicable revenues per annum. Would that be a lot of money, or just a little? The proposed contract saith not, and there is no commentary, no proposed budget with dollar figures, to tell the voter how much money we’re talking about. One wonders whether the amounts for CAAP would turn out to be so inadequate that whoever decided to present the contact without analysis, arguments pro and con, rationales, and dollar figures thought it wiser to keep the voters in the dark.

    Contract is silent on how TEP will generate its electricity:

    There is nothing in the proposed contract about how TEP will move its generation of electricity away from fossil fuels to alternative energy sources. At this point, the majority of TEP’s electricity comes from the burning of fossil fuels, which (as every sane person knows by now, thanks to repeated IPCC reports) is something we need to stop doing ASAP. The City should use whatever leverage it has to hasten TEP’s abandonment of fossil fuels, and certainly the renegotiation of TEP’s franchise is a golden opportunity to apply pressure and get some binding commitments from what is still a major CO2-producer in the State of Arizona. “Electrification” of the economy doesn’t mean much if fossil fuels continue to produce the electricity.

    The three problems just described are more than enough to show that the City needs to postpone the current Proposition 412 special election and go back to the negotiating table. Surely it can do better than the proposed contract, and for certain it can do a far better job of presenting (and explaining!) a proposed 25-year contract to the voters! At this point, we’re being asked to accept or reject a pig in a poke—a pig with lipstick, the lipstick being the cosmetic provisions for CAAP and other “public benefits.”

    If the reader wants to get even more details about why the proposed contract is not acceptable, they can proceed to read the next (and last) section of this analysis.

    Additional problems with Proposition 412:

    1) The proposed contract is “non-exclusive” (see Section 3 and also Section 15), but TEP would have veto power over allowing access to its system (see Section 7.a(1)). The exception is for “Electric Service Providers holding a valid certificate of convenience and necessity from the Arizona Corporation Commission” (Section 7.b). Given that the ACC has become a bought and paid for subsidiary of Arizona Public Services, entities wishing to become a certified “Electric Service Provider” might have a problem getting their certificate.

    2) Either the City or TEP “may” ask to renegotiate certain sections of the proposed contract after 10 and after 15 years (Section 5.a). These sections include (no surprise) Sections 10.e and 16.5, both of which pertain to the monies that would flow to CAAP and other “public benefits.” (In addition, if the City or TEP refuses to renegotiate, the other party may give notice of termination of the agreement. This provision means that either party can essentially force renegotiation of the contract, IMO. One can speculate as to why Section 5.a is in here, but wouldn’t it be nice to have a stated rationale for it?

    3) Note that “Applicable Revenues” exclude wholesale sales and/or delivery of electricity (see Section 10.a)). I have no idea how substantial these are, and of course the pamphlet does not help.

    4) In Section 10.e we have a nine-point summary of CAAP’s objectives. Number two is stated as “promot[ing] distributed energy resources such as rooftop solar.” Given what many of us view as TEP’s “war” on “rooftop solar” (at least in its residential form), it’s interesting to see this claim turning up in a contract…with TEP.

    5) The end of Section 10.e asserts that the “Community Resilience Fee” is “not intended to be a payment to the City,” but if the courts determine that it is, the City and Company agree to renegotiate Section 10.e within 90 days of the court ruling. Rationale, please? That is, what is the basis for this concern, and how serious is it? Especially since Section 10.e is the part of the proposed contract that concerns TEP support for “public benefits,” including CAAP. In other words, just how solid is the argument that the voters should support Proposition 412 because of its benefits to CAAP, all of which could apparently disappear at the stroke of some “justice”’s pen?

    6) Note that any lien the City might hold for non-payment of the “Franchise Fee” would be “subordinate to any mortgages or deeds of trust securing any bona fide indebtedness” (Section 10.f). So, the City might be one of the last creditors in line in the event of a TEP bankruptcy. (See also Section 25.b.)

    7) Section 16.5.a states that the “Community Resilience Coordination Committee” will consist of five members: two from the City, two from TEP, and one from “either the City, the Company or a third party to be approved by the City and Company.” Obviously, if the fifth member were to be from TEP, that would give TEP an absolute majority on this committee, which is supposed (Section 16.5.b(5)) to “pass resolutions…directing [TEP] to use the Community Resilience Fund towards the Community Resilience Fee Purposes except where such purpose is undergrounding required pursuant to Section 21.” Note the exception for undergrounding, which Section 16.5(c) further enlarges upon. Note also that the “third party” might be a TEP surrogate. (Voters who watched what happened to the Arizona “Independent [sic] Redistricting Commission” in 2021, for instance, will share this concern.)

    8) Section 16.5.d lists the six factors besides CAAP that the “Community Resilience Coordination Committee” “may” consider when allocating funds. Obviously, CAAP could be facing a lot of obstacles to effective implementation, even if the City has control of the Committee.

    9) At last, we come to the issue of “severability,” in Section 29. All of the provisions of the proposed contract are to be “severable”—i.e., if one of the provisions is “adjudged invalid or unconstitutional,” the rest of the provisions still stand. Section 29.b leaves one exception, however: if “any part of Section 10 is adjudged invalid or unconstitutional, this entire Agreement will be deemed to be invalid and without effect.” Since Section 10 is precisely the section that specifies how much money goes to public benefits, including CAAP, the interested voter would like to know the rationale for this “exception.” Clearly, there is concern that Section 10 might be “adjudged invalid or unconstitutional.” What is the basis for that concern, and how serious is it? And (again), just how solid is the argument that the voters should support Proposition 412 because of its benefits to CAAP, all of which could apparently disappear at the stroke of some “justice”’s pen?

    –Patrick Diehl, Tucson resident and voter, Ward 3

  8. We got the Yes on 412 flyer from Mayor Romero, but there have been 3 guest opinions in the AZ Daily Star against it:

    https://tucson.com/opinion/local/local-opinion-prop-412-does-nothing-for-climate-change/article_99c3f488-d7ea-11ed-9a66-dbf1d3ce71a5.html

    https://tucson.com/opinion/local/oro-valley-opinion-prop-412-is-a-tragic-mistake/article_bd805754-d7e0-11ed-b1a0-631f744c825a.html

    https://tucson.com/opinion/local/tucson-opinion-yes-on-climate-plan-no-on-prop-412/article_44f4ce0e-db10-11ed-80d9-fb6f3a5d1e37.html

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