Fresno County moves to rid racist clauses from old property records. Who will pay for it?

A plan to begin reviewing almost 170 years worth of property deeds and other property records for racially discriminatory clauses or conditions was approved this week by the Fresno County Board of Supervisors.

But the supervisors unanimously rejected a request from county Assessor-Recorder Paul Dictos to authorize a new $2 fee on recorded documents to cover the cost of finding, and then redacting, the illegal and unenforceable clauses from the property records to comply with a state law that took effect in July 2022.

As supervisors balked at the document fee, Dictos and board members – some already irked by the recorder’s recent press statements on the issue – butted heads briefly over how his office should pay for implementing the compliance plan without the fee.

For decades, it was not uncommon for property deeds and other records to include “racially restrictive covenants,” or RRCs, conditions that forbade the sale or transfer of property to individuals based on race, ethnicity, gender or other demographic characteristics. Some examples lodged within records in Fresno County include barring “Armenian, Mexican, Japanese, Korean, Syrian, Negros, Filipinos or Chinese” people from buying or even occupying certain properties.

Assembly Bill 1466, a state law signed by Gov. Gavin Newsom in September 2021, requires county recorders throughout California to develop a plan to actively identify and “redact” any unlawfully discriminatory covenants in property records. It also provides for county boards of supervisors to authorize the collection of a $2 fee for recording deeds and other property documents to help pay for the program.

Had supervisors given preliminary approval Tuesday to an ordinance change for the new fee, the proposal would have come back for a final vote on March 28.

Fresno County’s plan to address racial covenants

What Fresno County’s plan includes to comply with the law is a systematic search of its trove of an estimated 6.5 million property records dating to 1854, said Gina Luna, recording manager for the Assessor-Recorder’s office. Those discovered to contain RRCs will be pulled from archives and submitted to the Fresno County Counsel’s office for review. If illegal clauses are identified, a modified document will be prepared to be re-recorded rather than actual deletion, redacting or blacking out material in the original document.

“Though the term ‘redacted’ may be used, the Recorder’s Office is strictly prohibited from altering, changing, obliterating or inserting new matters into any historical documents that have already been recorded into official public records,” the implementation plan states.

None of the supervisors objected to the need to do something about old documents with the racially discriminatory conditions – some of which were filed and recorded in Fresno County as late as the 1950s, years after a U.S. Supreme Court opinion deemed such conditions illegal and unenforceable.

“We have a historical, horrible component to this deal,” said Supervisor Steve Brandau. “Some of these old documents have horrifying language to them, which we acknowledge is really terrible.”

Supervisors criticize assessor-recorder

Two other supervisors, Brian Pacheco and Nathan Magsig, expressed frustration with statements released by Dictos in recent weeks that they interpreted as suggesting that the board was responsible for delaying or obstructing the implementation of the program almost nine months after the law took effect on July 1, 2022. The law places responsibility for developing the plan with county recorders.

“What I have issue with (is) I think we’re late to the party on this. … It’s almost a year after the fact and it’s just now coming to the board,” Pacheco said. “The board has nothing to do with that other than to raise the fee. This process could have been started in July of last year with a plan that (the recorder’s) office could have created without any interaction form the board.”

“A source of my concern is some of the perceptions created by (Dictos) somehow pitting (the recorder’s) office against this board of supervisors, and I don’t appreciate that,” Magsig said.

Magsig asked Assistant Assessor-Recorder JoAnn Ebisuda why a plan wasn’t brought forth earlier. “This board hasn’t slowed this down,” he said.

“As with other counties, to put the plan together has taken some time,” Ebisuda said. “There are some counties that are still going to their boards (with their plans), so I don’t really think we’re that late in the game. It has just taken some time to put our plan together.”

How to pay for it: raise fees or tap existing fund?

Both Pacheco and Magsig indicated that Dictos’ office could tap a $13.5 million modernization fund from within his department’s budget to cover the costs of the redaction program. “I don’t think we need to raise our fees in order to do that,” Pacheco said. “It’s always easy just to tax our people before we even know if it’s necessary.”

“Right now you can tap into that fund to begin to make these changes,” Magsig added.

Ebisuda said her office estimates that about 5,000 documents are recorded each month for which the proposed $2 fee would be assessed, generating about $10,000 per month or $120,000 per year. “That would cover the cost of probably one person, and we do have an extra-help person helping us do this right now,” she said. “This would cover the cost of having staff to do this full time.”

Dictos argued to supervisors that the modernization fund is intended to pay for upgrades to equipment, software and facilities and to digitize records for the Assessor-Recorder’s department. The fund paid for the purchase and conversion of the former Noble Credit Union building on a new location on Van Ness Avenue at Merced Street as a new site for the department several years ago, and another $700,000 was spent in 2022 to upgrade computer software, Dictos said. He added that he expects to use another $10 million in the coming years to build a new 20,000-square-foot warehouse to store more than 100 pallets of books of recorded documents.

“All of this comes out of the savings; those are not really savings available for operations,” he said.

The county’s attorney, however, disagreed with Dictos. “Out of 16 or so counties we have consulted, most are not implementing the fee,” County Counsel Daniel Cederborg told supervisors. “It’s about two to one against implementing the fee. Those that are not implementing the fee are using that modernization fund, and we believe the modernization fund could be used for this purpose.”

How will county handle search?

Dictos was displeased as the discussion continued. “Now you are asking me to do a lot of work, go out and fish out 6.5 million documents at no cost?” he asked. “ It’s going to cost me money. If you are not going to give me the money, I am not going to do it.”

Supervisors ultimately voted 5-0 to approve the implementation plan but refused to adopt the fee increase. “Now after a while you undertake the process and you feel you need more money, then come to us at that time and do it,” Pacheco said.

Magsig said, “I do believe that it is going to be necessary (to include the fee) at some point, maybe sooner rather than later, to make some changes. I recognize making modifications to 6 million documents is going to take many many millions of dollars, and it’s going to take time.”

Following the board’s vote, Dictos clarified his intentions for working without the fee to cover the costs. “I will do it in a limited way, as I have the time, as I have the staff that can spend some time,” he told The Fresno Bee on Tuesday. “As title companies send me documents, we will redact. In the meantime, I will do the minimum as I can under the constraints.”