COMMENTARY – At the October 23 city council meeting, the council listened not only to the advice of its own City Attorney Harriet Steiner, who argued against a binding vote, but the city also brought in Iris Yang from Paso Robles, at city expense, to make the same case.
However, three weeks later, City Attorney Harriet Steiner was singing a completely different tune. Suddenly, hurdles that she presented as insurmountable were presented as no problem.
There was some discussion that Ms. Steiner believes that the voters cannot directly vote on the rates, that has to go through a Prop 218 process, but other than that there appears to be no legal reason why the council could not go forward with a binding ballot measure.
Contrary to the legal advice that the council received on October 23, the staff report makes it clear, “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.”
The October 23 report stated: “These outstanding implementation issues make 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.”
As the Vanguard noted multiple times, however, counsel here was just overly complicating the issue.
The Vanguard recommended that the council merely be given the authority to move forward. That eliminates the legal problems of specifics – the council would be bound, however, by the Prop 218 baseline rates.
This is completely at odds with what the council was told on October 23.
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 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.
Sure, if the voters approve or disapprove an advisory vote by a large margin, you will have a clear idea.
The problem, however, is in the more likely event that there will be a much more narrow vote margin.
This is a $119 million project – AT LEAST. City staff is going to be barking and there is going to be tremendous pressure to go forward with a close and undecisive vote. Council in a close no vote would have had a tremendous amount of pressure to find a path forward or risk losing out on a tremendously expensive project that has consumed a tremendous amount of staff time.
The council, in a relatively straightforward way, was able to fix this problem through a simplification of the ballot language.
The language reads: “Shall Ordinance … be adopted which grants permission to the City of Davis to proceed with the Davis Woodland Water Supply Project, to provide surface water to Davis water customers subject to the adoption of water rates in accordance with the California Constitution (Prop 218).“
It took Harriet Steiner about ten minutes to come up with the language after Brett Lee made his proposal. And it took the council another ten minutes to refine it.
Three weeks ago these were presented as insurmountable hurdles.
Harriet Steiner at that point argued, “If you make it mandatory even after the Prop 218 vote, you’re still going to have financing, you 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.”
At the time, we argued,:
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…
The irony is that this is exactly what the council did… three weeks later.
Legal counsel had told the city council to proceed with an advisory vote and had to be pressed to adopt viable language on a binding vote – it turned out that, despite their complaining on the city taxpayer’s dime, it wasn’t so hard after all.
—David M. Greenwald reporting
the legal advice coming from the city doesn’t make any sense. first we get the insistence that we can’t go binding – now it’s no problem?
In the hopes of having a substantive discussion with Ryan, ERM, the CC, medwoman, DOn Shor, and others who have commented on the water issues, I’d like to provide some thoughts on the big picture. I often just give short notes because I am on my iphone and pecking at it. Terrible strain on the eyes!
I am going to write this as an invitation for the CC members to really think this through, and stop blindly following Saylor’s plan like they did on Sept 6, 2011 and then again this week.
The Davis CC has a dilemma.
The basic problem is the CC is rushing this in order to accommodate Woodland.
The public is accustomed in the Measure J/R process is baseline features, with project description in detail, impacts, EIR, financial impacts, etc.
Here, the CC is rushing this and not getting its data and specifics together first, and putting it all on the ballot. Bob Dunning’s article today slamming the CC for not putting the specific rates into the ballot language is only the first ripple of the waves that are coming against the CC’s rush to the ballot.
That’s one of the best features of our upcoming initiative: larger utility projects will require a Measure J/R type of specific baseline description of what the public is buying, including the rates. Full transparency for the voters.
Did you know that the CC majority’s appointees on the WAC voted down Mark Siegler’s motion to send the fiscal analysis of this project to the Finance and Budget Commission? And that staff and the consultants are refusing members’ requests for the underlying data that support the pretty charts and graphs that are being used to produce that $116 million figure? That figure appears to be pulled out of thin air.
I completely understand the City Attorney’s concerns about binding language. Without the detailed baseline features of the project, she was rightly concerned that the CC was going to screw up the ballot measure, in a “binding” way.
The advisory language could have been far more specific and informative than the binding, but because the CC is rushing this, they lack the details that would be safe to put into a binding motion. So she recommended advisory. As an attorney who is going to own this thing with the CC, she probably took the legally correct path, but politically DOA.
As it is, the currently approved language says nothing about what the public is buying if they vote YES. You can put anything you want in a pretty glossy “informational” mailing, and ballot statement, but NONE of it is binding.
Dunning’s column talks about the rates, but there is so much more that should have been part of a package to inform the public that if they vote YES, they are buying THESE SPECIFICS and it will cost THIS.
So in the end, the ballot language is too vague, misleading, and the project as described today will be based on an unconstitutional rate system that exists today, more than a year after I pointed it out, and later confirmed by the WAC and its own rate consultant. The project as decribed is legally and politically DOA.
The ballot will most likely fail in March, and this posted opinion is not political posturing or sound bites. It’s based on what I consider to be an arms-length and objective analysis by an experienced litigator and political volunteer. It’s based on the data and analysis submitted to the WAC, and the comments and motions of the WAC itself. Last September and October 2011 I had to push the edges of the limits to get those signatures in what was effectively 3 weeks, but since then I have closely followed the WAC, data, outside authorities, and legal cases. I am rock-solid on this.
The CC this week had a dilemma before it: go with their City Attorney and call it advisory, and put the specifics in and hope like heck it passes, or go with “binding” due to political pressure and leave out the specifics, because the CC lacks them and has no real idea at this point what the true specifics and costs are going to be. They havent even bid the darned thing!
Either way, I think the ballot loses, because the CC is acting like somehow it has to obey Woodland’s demands for rushing the project. The CC is OUR fiduciaries, and owes Woodland nothing.
In any event, all of you are going to appreciate the initiative and its forward looking, positive establishment of good public policy and process for larger utility projects, and the current Saylor-conceived nightmare will be just a bad dream.
“The basic problem is the CC is rushing this in order to accommodate Woodland.”
a lot of people not liking harrington will dismiss this comment, i’m sure don shor will point out the years that this process has gone on, but it’s quite clear to me that this process has been rushed at the end to accommodate woodland. now whether that’s fatal is a key question.
Growth: nice to see we agree on the last rush to the ballot. I tried well over a year ago to get them to put together a package of baseline features and costs, but they havent done it. Not one of the five CC members was willing to require staff to put that package together with the rates for a binding vote.
Growth: “a lot of people not liking Harrington …” It’s not a question about that, and I am not running for High School Classmate of the Year. I can say and vote as I see fit. My business has very little Davis-centric income. It’s why Ramos and friends wanted me off the CC, and the Gidaro take-out campaign was run in 2004.
This water project is an issue-driven matter, and what is best for the ratepayers in Davis. If you want your side to prevail, you should analyze the facts, law, and political trends, and act accodingly. I’m just one person out of over 5,000 who signed the referendum. Argue to them, not me.
“Not one of the five CC members was willing to require staff to put that package together with the rates for a binding vote. “
and why is that? for one thing the timing did not work out. for another thing the ballot measure is tied to the Prop 218 which sets the rates.
“I am not running for High School Classmate of the Year. “
actually you are and until you recognize that you’re your own worst enemy. you can’t win this election and be the villain at the same time. it may be issue driven, but if you’re a distraction, you become the issue.
you’re not just anything… you bankrolled the referendum and like it or not you’re its face. you can’t afford to be this naive.
let me put it to you another way – you can’t get all high and mighty claiming you saved the city $60 million and in the next breath say that you’re only one guy. one of those two don’t go together – you need to figure which one.
Hmmm …. I think I usually say “we” to describe efforts to save the city ratepayers. Sorry if I inadvertantly took individual credit. It was the referendum committee and large numbers of circulators of the petitions, and the signers, that deserve credit. I’m just one of a large group. My apologies for the confusion.
If we vote on the project and include a rate structure, will we need to vote again and again, every time the rates need to be adjusted?
I would like to know what I would be paying before I vote, but I don’t know if I think it is wise to include the rates in the ballot language.
There would need to be a new Prop 218 every time the rates get raised.
So why can’t that process work here? If the rates were written into the ordinance that we vote on, can it be changed by a 218 process sand, if so, why bother to include it?
Ryan: it’s complicated, but the CC is not handling it right. Read Dunning today? He’s not even warmed up yet.
I am going to make just two general philosophic points with regard to Michael’s comments :
1) Philosophically, I tend to favor collaborative approaches over competitive or hostile processes. Michael and others have frequently framed
this as an issue of kowtowing to our evil neighbors to the north. I do not see it this way. I this as a collaborative project between two
communities with some shared needs and some varying needs and that the goal should be to obtain a safe sustainable water supply for all
concerned in the most advantageous manner for all concerned. I do not perceive an us vs them framing of the issue as helpful.
2). I believe that Michael’s demand for the minutiae of every financial contingency to be predetermined and spelled out on the initial binding ballot
is unrealistic. Michael as a lawyer , I am sure is aware that both in project costs as well as in politics, change is a constant and reliable factor.
I might be completely wrong, and I am sure Michael will correct me if I am, but this looks to me like merely another delaying tactic in a
political and legal game from someone, who does not support a surface water project at all and will use any legal means available to delay
and block. It may be that the majority of Davis voters agree with this position. But I would find it very refreshing to just hear Michael come out
and say, “no development, no water project, no way” instead of the ongoing vilification of our own CC, staff, attorneys, county supervisors,
Woodland mayor and council members, and basically anyone who does not agree with him as either greedy, lying, purveyors of fraud, or the
dupes of the former.