Written by David Greenwald Monday, 12 November 2012 07:00
At the last council meeting, the Davis City Council voted by a 5-0 margin to proceed with an advisory vote that would be finalized at the November 13 council meeting. That move went against a 6-4 Water Advisory Committee (WAC) recommendation for a binding vote.
"Unfortunately, when presented with the latest incident of WAC/Staff disagreement on Tuesday night, Council chose to follow a different path and jettison the WAC recommendation in favor of Staff's recommendation," Matt Williams, an alternate on the WAC, wrote in an open letter to the Davis City Council on October 31.
"My opinion is that Council made a mistake in doing so, and at their next meeting, should step back from what it agreed to last Tuesday and return this issue to the WAC for some further open, thorough, transparent, collaborative, consensus building deliberation by Staff, Legal Counsel and the WAC at a WAC meeting."
Mayor Pro Tem Dan Wolk and Councilmember Rochelle Swanson met on Sunday with the Vanguard and explained that they had always believed that the binding ballot measure was the right way to go, but feared that if done improperly, they would open the city up to litigation by a number of parties just waiting for the opportunity, for a variety of different interests and reasons.
"Although we have always strived for a binding ballot measure, we have been cognizant of the legal and financial concerns that have been raised about it," the councilmembers said in a joint statement released to the Vanguard Sunday evening, following the meeting earlier in the day. "Since the October 23 City Council meeting, we have worked diligently with staff to fashion binding language that takes those concerns into account."
The statement continues, "As a result of those efforts, proposed language for a binding ballot measure is offered in the staff report. We are pleased with this, and we look forward to discussing it with our colleagues on Tuesday."
The staff report indicates, "In order for the measure to be binding, careful thought would need to be given to just how 'binding' the requirement to move forward with a surface water project was."
There are many steps needed to complete the project, beyond the issues that would be presented to the voters. Staff argues that this uncertainty and "outstanding implementation issues makes it difficult to write a measure that would mandate that the City move forward if the measure precluded off ramps or modifications to best serve the City and the rate customers."
On the other hand, they argue, "An advisory measure would inform the Council of the voters' desires and still provide flexibility to handle the upcoming policy issues and the final 'go or no go' decisions."
While working toward a workable binding vote, Dan Wolk and Rochelle Swanson made it absolutely clear that they would view an advisory vote as binding.
Nevertheless, there is legitimate concern that the message an advisory measure would send would be uncertainty.
As Matt Williams put it during the October 23 meeting, "I think there is no question that the community wants a binding vote. I think the challenge is how to make the binding vote not have the problems that have just been outlined."
"This is really what the community wants, for the community to speak as to whether this is a project that we want," he said. "I think that if we go with an advisory vote, it's going to engage people to be talking in the election about things that have very little to do with the project, but have to do with the process of democracy."
"What I'd really like to make sure is what we have is a vote in March that is about the project and the fiscal aspects of it, not whether or not people are getting to talk about the project," he added.
This was the same point that Dan Wolk and Rochelle Swanson raised in their meeting. They want the vote in March to be about the merits of the project not the process.
"There were Council members who were interested in further discussions regarding the necessary steps to bring forward a binding ballot measure before voters for March 5, 2013," the staff report indicates. "Staff has concluded that in order for the measure to be binding, the limitations of the language must not render the project infeasible, impede desirable procurement methods, preclude advantageous financing options and recognize that final design, final costs and final rates (approved by the rate customers) are not yet available."
Staff indicates that there are still outstanding implementation issues making it difficult to write a measure that would mandate that the City move forward - especially, as indicated, if the measure precluded off ramps or modifications needed to serve the city and the rate customers.
Staff is still getting too wrapped up with the concept that the measure would "mandate" the city to move forward, rather than to give the council the authority from the voters to use their discretion to move forward as they see it as necessary. Under those terms, the parameters would be set by the vote, but the specifics could be negotiated and hammered out at a later date.
Staff does offer language for a binding ballot initiative: "Shall Ordinance No. XXXX, to direct that the City shall participate in the Davis Woodland Water Supply Project to provide 12 million gallons per day of surface water to Davis water customers and use groundwater as necessary, at an estimated construction cost of to Davis of approximately $120,000,000 and subject to approval of increased water rates by the water customers of Davis following a full Proposition 218, be adopted?"
Staff then would create the ordinance that the voters would approve.
Mayor Pro Tem Wolk and Councilmember Swanson were clear that their hope was that having a binding ballot measure will move the process forward to the point where the election would have a discussion about the merits of the project and not the process.
"As important as the 'advisory versus binding' issue is, it is critical that, after Tuesday, our community moves beyond such discussions and onto considering the substantive merits of the proposed project itself," the councilmembers told the Vanguard.
They were clear on the importance of getting not only the project but the process right.
They concluded, "We face one of the most important decisions our community will ever make. We need to get it right. And we believe, as did the Water Advisory Committee on an overwhelming vote, that support of the proposed project is the right decision."
The critical question, moving forward, is whether they can get their colleagues to agree.
---David M. Greenwald reporting
Sidebar... yesterday there was a wonderful observance of Veterans' Day. Of CC members, Krovosa and Lee were conspicuously absent. Dan, Rochelle, and Louis were present. You don't have to be in favor of military action to respect those who put themselves in 'harms way' for this country.
God bless the veterans and their families.
"the bigger question still is why is the city paying half- a mil a year for bad legal advice... stay tuned as they say"
What most of us "already know" unless we happen to be lawyers with expertise in this area, is merely a reflection of our personal preferences.
I feel that at least part of the reason money is continuing to be spent on legal advice ( the quality of which cannot be judged before it is given) is that there are continued threats from some groups within the community to use legal challenges as means of obstruction of a surface water project which they wish to see blocked by any means possible.
Medwoman: when you go on and on about those horrible lawyers, threatening community groups, dishonest fiends, and generally malcontented community activists, remember the story last week in the Davis Enterprise: those same undesirables have saved the city about 25% of the cost of the project that was nearly approved last fall, or between $20-60 MILLION. That's not chump change, my friend. Wish I could get my lawyer's third, but it has been all volunteer so far.
By the time we are done with this, there will be far more savings, and a much better project, without Mayor Marbles and friends mucking around in our local Davis politics. I think it's outrageous that our electeds continue to try and dance the political tango with a group of five electeds whose basic philosophies of community and utility rate planning are fundamentally different than ours. And look what it's gotten them: a gutted Main Street and a nearly bankrupt city fisc.
hpierce: Maybe Lee was there. I can tell you that he was working hard on a vacation day on city business, with his young son off from school. Brett was zipping from meeting to meeting all day.
What about Lucas?
Sometimes I went to things while on the CC, and did not stand up front or otherwise make myself known and introduced. Both Brett and Lucas could have been there for the ceremony but kept it low key.