A synopsis is here, of the legal advice provided to the Davis City Council by City Attorney Harriet Steiner, who also brought in a colleague to discuss her experience. The stunning part of this legal advice is how little actual legal advice was actually contained in the presentations by Harriet Steiner and Iris Yang.
I see no compelling legal reason to go forward as they have, and I think both Ms. Steiner and Ms. Yang create straw men arguments for going with an advisory vote rather than a binding vote.
Iris Yang of Best, Best and Krieger, the city attorney for Paso Robles, told the council, “The problem with a binding measure is, one it’s difficult to know what the scope of that would be.”
She argued it was difficult in a yes or no question for the council to know what it meant if the voters said the council shall not participate in the water project. She argued the converse was also true, if the voters said the city shall participate, “does that mean under any circumstance?”
She argued that that the council has to consider many factors beyond the yes or no. Some of these are known, some are not known.
“Having a measure that purports to be binding really confuses the issue because it really doesn’t tell you what your limitations are,” she argued.
Going the non-binding route, she said that if 80 percent of the voters voted against the project, “and you went against them, then I think you would find out what would happen at the next election as to whether or not they appreciate the consideration that was given to the outcome of that vote.”
She said, “The same thing is going to happen a few weeks later when the property owners are going to vote on the rate increase, if you get a majority protest and the rate increase is not approved, then that’s going to restrict what you can do with respect to that project.”
“You’re going to have a pretty clear reading, it seems to me from those two ballot measures,” Ms. Yang said.
Matt Williams, an alternative on the WAC but speaking as an individual, told the council, “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.”
He suggested that the council simply run the Prop 218 process and then ask the public whether they should approve the rates for the given project. “I don’t think we end up with as much of a time horizon project if we do it that way,” he told the council.
“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.
Iris Yang was asked to respond to the notion of the ballot being a confirmation of the Prop 218 process.
She argued that we have a pretty good idea of what the cost of the project would be, and that would be what would be included in the ballot measure.
“That would be presented first, and then you would have the Proposition 218 vote,” Ms. Yang responded. She said at the end of the day, the project may come in at lower rates and the council could always reduce the rates after the fact. “The problem with reversing that order, if you have a Prop 218 rate and then you have the advisory vote, is that really informed because your advisory vote may not be reflective of what the revenues that generate the rate structure.”
Harriet Steiner jumped in to argue there is both a timing and a substantive issue with doing it as Matt Williams suggested.
“For a timing issue, you’d have to schedule the vote now, because you need a minimum of 88 days before a vote,” she said. “You’d have to have a vote scheduled now in order to do it after the Prop 218 notice, and the Prop 218 notice hasn’t even gone out yet.”
So she argued you either have to set things up in advance or wait another 88 to 100 days to have the vote afterwards.
“The other issues are that the rates are approved by property owners because they are the rate payers and the vote is by voters, so it’s a different constituency,” Ms. Steiner added. She argued that this raises some odd legal issues as she argues that Prop 218 is not set up as a voter approval of a water rate.
She added, “If you make it mandatory even after the Prop 218 vote, you’re still going to have financing, you’re still have DBO, you still have a whole lot of major decision making points…”
“It’s one thing to have this sort of direction from the voters to move forward on a project, but the council is still going to have to decide even with the 218 approval, if that’s the result, whether this project makes sense at this cost, at this time,” she continued.
She argues, “Even a mandate should not obviously be a mandate because I would assume the people of Davis would still want the council to be asking the questions each time, is this the right proposal.”
It becomes clear at this point, that Harriet Steiner has really morphed the notion of a binding measure into something that it was not and it was never intended to be.
To me, a binding measure would grant the council the authority to go forward with the project – it would not mandate them to go forward on a specific path for the project, however.
The binding nature is that the council could not go forward with the project unless the voters approved of the project. If the voters do not approve of the project, the council would have to revamp its project and come back with another alternative.
I do not see any reason why the voters could not be asked to give the council the authorization to move forward with a vote that asks the voter to give the council the authority to proceed with “participation in the Woodland-Davis Clean Water Project, to provide 12 million gallons per day of surface water to Davis water consumers and use groundwater as necessary, at an estimated construction cost to Davis of approximately $(subject to negotiations) and subject to approval of increased water rates by the water customers of Davis following a full Proposition 218 process?”
A yes vote would mean that the council could move forward. The issues of the DBO, and other major points would be made by the council within the framework of the authority granted by the voters.
A no vote would simply mean that the council would have to come forward with an alternative project that the voters would approve.
For Ms. Yang to say that she does not know what it means for the voters to say the council shall not participate, I think it’s pretty clear that means that the council shall not commence a surface water project without getting approval from the voters and that an affirmative vote would grant them the authority to do so.
I fail to see the compelling legal advice that is provided by Harriet Steiner or Iris Yang that would preclude a binding vote here. In fact, I do not see anything that is even remarkably that difficult to work around.
—David M. Greenwald reporting
Did we have to pay for Ms. Yang?
I’m sure we did.
So we already pay a City Attorney for advice that has to call in another attorney in for advice?
BTW, good morning. You wake up early to write and I wake up early because I did it for 30 years on my last job and can’t seem to change my hours.
Post from Montreal, so not quite so early !
I think that the credit for any lawyers fees and additional expenses beyond the cost of the project itself can be placed directly on those who choose to block the project.
Supposedly Iris Yang has more expertise in this area. In theory one of the advantages of hiring a firm like BBK is that you have your main City Attorney and then for the basic hourly rate have access to experts. The break down here is that I’m not sure what we actually gained from what Iris had to say.
I suspect in 30 years I’ll be in the same boat as you. I kind of like getting up early, the kids are still asleep and it’s quiet.
As a professional who frequently asks for sub specialist advice, I can tell you that often the advice merely confirms my initial plan. Sometimes, they point out why my plan would not have been the best option for the patient. The problem is that you do not know in advance which consultation will prove helpful and which will not. That certainly does not mean that you should not seek the advice of someone with more experience or expertise.
David, this is a carryover comment/question from yesterday’s thread to which you did not respond. From a practical perspective, what does it matter whether the vote is binding or not binding? “Yes” or “no”, the voters will have stated whether they want the project. Ms. Yang is absolutely correct, paired with the prop 218 vote, the will of the voters will be known and the will of of the voters will carry the day. Following both votes, the CC and Harrington’s group will have no choice but to respect the will of the people. That being the case, what’s the point of your commentary these past 2 days?
-Michael Bisch
The Prop 218 vote process is a joke and not a true barometer of how the populace really feels. An up or down March vote with the rate structure included is the only fair way to address this. If not, referendum here we go again.
“The Prop 218 vote process is a joke”
If you don’t like it, then change the law that mandates it. Whining about it at the local level is just…well, whining.
DT
“the CC and Harrington’s group will have no choice but to respect the will of the people.”
I wish that I shared the confidence and optimism of this statement. However, although the CC will be constrained to respect “the will of the people” Harrington has appointed himself and his group as representing the will of the people in past posts and has shared, or threatened, depending on your point of view, legal action if he does not get his way.
Mark West:
“If you don’t like it, then change the law that mandates it. Whining about it at the local level is just…well, whining.”
Mark you are so right about the law, that’s why if they don’t include the rate structure in the March vote and push new rates (that aren’t liked by the populace) through the Prop. 218 process I’m sure the LAW will be used to block it again with another referendum. And if you don’t like it then change the referendum law because whining about it at the local level is just….well, whining. (;
Medwoman: the law is the law, like Mark West wrote.
I don’t make threats. I tell people my views, with recommended actions, and the CC can follow them or not. It’s a free world, right ?
I sent a long and thoughtful proposal to the CC several weeks ago. The Vanguard reported on it. I never got a response from the CC. The Mayor eventually responded but only after the last CC Meeting’s vote; he wrote that he is proceeding with staff recommendations.
So i think our Referendum Committee has tried since Sept 2011 to work with the City.
We shall see if the developers who need the new water plant for fresh urban development between Davis and Woodland, east to the Sacramento River win this one, or not.
The Covell Village developers refused to negotiate, and we are still enjoying watching them farm that 440 acres.
Here, the developers, represented by Saylor and Krovoza, are again refusing to negotiate.
Rusty: I’m perfectly fine with the referendum process. In fact, I think we should have taken the last one to a vote. I am confident that the Herrington cabal will continue to obstruct this process no matter what the City Council chooses because obstruction is the goal. I just don’t buy into the false notion that being an obstructionist is a form of leadership.
MH
If you proceed with actions we do not like…..we will sue.
May sound like a “recommended action ” to you, reads like a threat to me. I guess we have an insurmountable difference of opinion over semantics here.
Medwiman
Is that a quote from me ? I wouldn’t say that
Joe Krovoza represents developers? I’m sure that is news to him and to any developers in town.
[i]I wouldn’t say that[/i]
Anybody who has read this blog for any amount of time knows that you have said that in many ways.
9/10/12:
Michael Harrington: “You all realize the burden is on the city to prove proportionality, right? The only thing interesting here is: can we force the city to disgorge the ill-gotten money and pay back the victims?”
Don Shor: “Only if you sue them. Are you planning to?”
David Greenwald: “In his letter the city in July, he seemed to be prepared to do that.”
Michael Harrington: “Don: I gave the CC the demand months ago to fix their rates.
Speaking of fun, a rates case will give me depositions of the staff and consultants who set us up for the rates in effect before September 6, 2011, though to current. Audit time!”
All interesting
Here, Saylor and Krovoza are toting them developer water buckets
Medwoman, if the majority of residents vote in favor of the surface water project, the Harrington group will be in an untenable position. Will Dunning still oppose the project even after a vote in favor of the project? I don’t think so. One can rail about the will of the people only up to the point the people actually have their say.
-Michael Bisch
DT
I would not be so sure.
In 2008, Obama was elected President. This was followed, not by the Republicans saying, that must have been the will of the people and offering to work with him, but rather by obstruction wherever possible. I see a similar response as a very real possibility here.
[quote]David, this is a carryover comment/question from yesterday’s thread to which you did not respond. From a practical perspective, what does it matter whether the vote is binding or not binding? “Yes” or “no”, the voters will have stated whether they want the project. Ms. Yang is absolutely correct, paired with the prop 218 vote, the will of the voters will be known and the will of of the voters will carry the day. Following both votes, the CC and Harrington’s group will have no choice but to respect the will of the people. That being the case, what’s the point of your commentary these past 2 days?
[/quote]
I have two concerns at this point. The first is that the advisory vote appears to be preceding rather than including the determination of the votes. The second is that there appears no compelling legal justification to not have a vote that is binding.
Measure J votes are binding, there are details that are not included in those votes, worked out in the development agreement. So I’m not following the attorney’s logic.
So part of my concern is that the will of the people is probably not going to be as clear under these conditions as it may be. The other concern is what happens in a very close vote, if the council will be inclined to save the project making cosmetic tweaks.
And finally, there is just a basic principle that is most important to me – the council has basically promised a binding vote and is now going back on that.
[quote]If you don’t like it, then change the law that mandates it. Whining about it at the local level is just…well, whining.[/quote]
You know full well that it’s far easier to fix the concerns locally through an additional process than to change the law at the state level, so that’s really a dismissive comment.
“I just don’t buy into the false notion that being an obstructionist is a form of leadership.”
So blocking a bad law isn’t a form of leadership? Forget this specific issue, pick a law that you oppose and think would ruin the country.