Just when it seemed that the Measure I campaign was over and that the lawsuit would expire due to lack of service to the city, Michael Harrington, on behalf of John Munn and the group Yolo Ratepayers For Affordable Public Utility Services (YRAPUS), has filed an amended complaint, bringing forth new allegations.
In addition to the previous contention that the Prop. 218 process was unconstitutional under the provision’s proportionality clause, and the continued charge that the city has failed to pay for its own water use, the suit claims that in May of 2008, when the city established wastewater rates based on a “winter water usage” calculation, the rates established were “not rationally related to the amount of wastewater used by a particular property owner.”
They argue, “A substantial portion of the property owners use outdoor irrigation during the winter months, and the water thus used goes into the ground and is not returned to the system for wastewater treatment.”
Thus they contend, “The consumption of potable water during the winter months is not an appropriate basis to charge for treatment of wastewater that only flows from inside a home or commercial building.”
“The City has been well aware of this structural defect in its wastewater rate structure,” the suit charges. “Most recently, on or about December 2, 2012, the City received a Report from its consultants, Bartle Wells, concerning the wastewater rates being charged to residents of El Macero.”
In that report, the suit contends, “Bartle Wells made it clear to the City that it was inappropriate to charge El Macero residents for wastewater service based on the water usage during the winter months, and recommended that an adjustment be made for the residents of El Macero, making no adjustments for any of the residents of Davis.”
The suit notes that the ratepayers of El Macero successfully brought a Prop. 218 protest against Yolo County in 2008. This prevented the rate hike that was approved on May 20, 2008.
The suit charges that the city has been billing the county at the higher rates since 2008, but because of the Prop. 218 challenge, the county only receives the lower rate from El Macero.
“The County has refused to make up the difference, and the City has a growing receivable on its books,” the suit contends. “The difference is approximately $100,000 per year, and this City-County standoff means that the City has not been paid more than $500,000, still increasing.”
“The statute of limitations has probably expired on some of this debt,” they note. “Since the City is not enforcing the debt, there is a growing shortfall in the wastewater rates enterprise account, and the Davis wastewater ratepayers are effectively subsidizing via the County the property owners in EI Macero.”
“The failure to enforce the $500,000 in missing wastewater treatment money is a flat out giveaway of public money to political cronies in the County, and is actionable in and of itself,” Michael Harrington told the Vanguard. “The damages are whatever the City has lost due to statute of limitations defenses the County might have.”
A statement from City Attorney Harriet Steiner read, “It is often routine to file an amended complaint. Until we see it, it is impossible to say anything about it or its merits or lack thereof.”
The report from Bartle Wells notes, “The higher water use by El Macero residents in the winter months is used for irrigation purposes, and therefore does not return to the collection system for treatment but either infiltrates into soil, runs off or evaporates.”
“The current billing methodology employed by the City is based on winter water use,” the report continues. “While generally a more accurate and just methodology for cost recovery from individual customers, this process has several extra unique billing steps as applied to the CSA and eliminates much of the accuracy and resolution of the winter water use method’s intent.”
In short, the report argues that the winter water usage method is not suitable for “the City’s block use customers,” such as those in El Macero.
City Manager Steve Pinkerton noted that the method of billing for wastewater is both fairly common as an industry practice and generally more accurate for individual customers.
“The contention of the Bartle Wells study is that El Macero is unique and has a far higher amount of winter water usage than the typical Davis customer,” Mr. Pinkerton said. “It does not question the validity of our rates for Davis customers.”
“The City does not directly bill El Macero customers,” the City Manager said. “The City’s customer is Yolo County. It is the responsibility of Yolo County to conduct a Prop. 218 hearing and adopt rates for El Macero customers.”
The Bartle Wells report recommends a more effective billing methodology to mitigate the overcharging of El Macero residents.
After exploring three options, the report recommends charging the county for El Macero’s proportional share of sewer expenses based on population.
“(Population ratio) may be the best option for all parties involved. It is easy to calculate, simple to implement as a billing option and most efficiently recovers costs of service for a block user group, like the El Macero County Service Area,” the report finds.
Mr. Harrington indicated that the lawsuit, which has yet to be served according to city officials as of 5 pm on Friday, would be served sometime this week.
The other central contentions of the lawsuit remain in place.
The suit claims, “The Current Water Rates violate Proposition 218 and are unconstitutional and illegal in that, inter alia, they impose a fee or charge incidental to property ownership which exceeds the proportional cost of the services attributable to the parcel. The City knows this, and staff and/or paid city water consultants acknowledged such constitutional deficiencies at various meetings of the City Water Advisory Committee.”
The suit continues, “Plaintiff contends that Current Water Rates are in violation of Proposition 218 and therefore unconstitutional and illegal. The City disputes this contention.”
The suit also contends that the city is illegally not paying for its own water use, pointing to the 2010 case involving the city of Sacramento.
The city has acknowledged that it does not directly pay for the water use, but instead the balance of funds between the two accounts – enterprise and general fund – largely balance.
“The City knows how much water it is using,” a statement by the city received by the Vanguard in February. “Over the past decade, the City has been installing meters for all of its facilities, so that we can accurately measure our water use. The City has approximately 85% of its meters in place, and installation of the remainder is in process. The meters are read just like all other meters in the city. The water use for the areas that are not yet metered is estimated based on water use for similar facilities.”
The city claims, “The City’s water use and payment by the City is included in the current and proposed rate structures. Individual ratepayers are not subsidizing the City’s water use. If the City does not pay its bill, it is money owed to the Water Fund.”
The city manager told the Vanguard that claims of non-payment are “a gross oversimplification.”
Mr. Pinkerton said that while “no check’s been cut… we believe that once we do the final accounting that the taxpayers do not owe themselves anything.”
He added, “I don’t think the taxpayers are going to owe the ratepayers, I think it’s going to balance out.”
—David M. Greenwald reporting
Does amending the suit re-set the “shot clock” for serving the City with the suit?
Yes because it’s [i]de facto[/i] a new suit now.
Nice! So all they have to do is amend the suit about every 59 days, and this could go on for a year or two!
They can also re-file even if it expires.
Amend once without leave of court, Code of Civil Procedure, section 472
Highbeam… in words I understand…. “do over” once is a ‘freebie’, but then need to get court approval?
that’s about it!
I request that the local media (Vanguard and Enterprise, including Dunning) not give coverage to lawsuits until they are actually served and become actual lawsuits. This is a political campaign…timing the release of information so as to appear on Sunday, with multiple stories in various media sources. Mike could have used this energy to actually serve the City, but, as we learned earlier, this is not part of his strategy. He is using the Vanguard and the Enterprise and they are willing partners in Mike’s political campaign.
I can’t really do that. This was newsworthy. He says he’s serving it this week, and there is no campaign at this point so it is now really a legal matter or nothing.
Mike spent time making sure you all received notification of the filing, making himself available for sound bites, but he couldn’t serve the City with the lawsuit? Don’t enable him by giving him coverage until he actually serves the lawsuit. The City can’t respond until they see the the lawsuit. Your article and the Enterprise article were just big free campaign ads for Mike.
” but he couldn’t serve the City with the lawsuit?”
I wouldn’t use the word “couldn’t” – I think he had his reasons
“Don’t enable him by giving him coverage until he actually serves the lawsuit. The City can’t respond until they see the the lawsuit. Your article and the Enterprise article were just big free campaign ads for Mike.”
There is no campaign right now, so I’m not really following you on this.
Don’t forget that Mike has promised a referendum. Keeping it in the news is important for Mike. Just stop, until he actually serves the City and the lawsuit is real.
David, Mike Harrington’s actions are all part of the water and sewer story and I appreciate you keeping these stories at the forefront.
So what would be the impact on Yolo County’s budget, and the programs it provides, if the court found in favor of the plaintiffs?
hpierce, you are right. I thought i answered you around 8:30 but guess it did not post. And the FAC (first amended complaint) replaces the initial complaint.
Don, the answer to your question is that it would have no impact on the County’s general fund budget.
El Macero’s wastewater monies are subject to the same Enterprise Fund rules as any other water district’s monies are, segregating them from the County’s general funds.
I believe that if the court finds in favor of the plaintiffs, then the City/County’s account of billed/paid amounts would be reconciled against the amount calculated under the methodology the Court determines is compliant with Prop 218. Then the City and County would settle up the difference between the City’s billed amount and the Court’s mandated amount.
The County would then pass on that settlement amount to El Macero residents. The County would then be whole, because there is no difference between A) what the County has billed to El Macero since 2008 under the old rate structure, and B) the amount the County has paid the City during that same timeframe.
Anyone who wants to see the Bartle Wells wastewater report, it is available on the County website at
[url]http://www.yolocounty.org/Modules/ShowDocument.aspx?documentid=21407[/url]
Let me try that one more time.
The url is http://www.yolocounty.org/Modules/ShowDocument.aspx?documentid=21407
Matt, You are forgetting about attorney’s fees.
Fair enough Ryan. The El Macero County Service Area Committee also spent about $40,000 to pay for the independent report. Bartle Wells was selected jointly by the City and the County. The funding of the study was proposed to be split 50/50 between the City and the County, but I believe the City said they were comfortable with their position and saw no reason to pay for 50%, so the El Macero County Service area and El Macero Homeowners Association jointly recommended to the Supervisors on December 7, 2011 (see http://www.yolocounty.org/Modules/ShowDocument.aspx?documentid=18253) that they [i]”authorize the retention of Bartle Wells to conduct the sewer cost study at a cost not to exceed $32,000 plus County administration costs”[/i]
On January 12, 2012 (see http://yolo.granicus.com/MetaViewer.php?view_id=3&clip_id=462&meta_id=113127) as Item 31., the Supervisors approved committing to the agreement (which is available at http://yolo.granicus.com/MetaViewer.php?view_id=3&clip_id=461&meta_id=112902).
How the court will deal with the $32,000 and/or the County administration costs and/or the City’s administration costs is anybody’s guess at this stage.
Matt’s URL doesn’t like to post, for some reason: [url]http://www.yolocounty.org/Modules/ShowDocument.aspx?documentid=21407[/url]
http://www.yolocounty.org/Modules/ShowDocument.aspx?documentid=21407
So, just to clarify this, Michael Harrington is suing on behalf of El Macero residents, to collect money from the city or the county that he believes the county owes the residents of El Macero? Who is paying him to do this?
Until Mike serves the City, he is not suing anyone. Until he serves the City we cannot find out who he is representing. We may not even find this out, because he has set up an organization to hide who the individuals are. Until he sues the City, the City cannot respond, nor can we truly see the impacts.
“What’s Harrington gonna do now??”
Like, maybe have some Easter Lunch?
Don Shor said . . .
[i]”So, just to clarify this, Michael Harrington is suing on behalf of El Macero residents, to collect money from the city or the county that he believes the county owes the residents of El Macero? Who is paying him to do this?”[/i]
No Don, to the best of my knowledge what Michael is doing is wholly and completely separate from the ongoing County/City dispute over sewer rates/fees in El Macero. To the best of my knowledge Michael has spoken to absolutely no one who is involved in the County/City dispute over sewer rates/fees in El Macero. To the best of my knowledge there is no reason for anyone who is involved in the County/City dispute over sewer rates/fees to talk to Michael.
With all the above said, months ago here on the Vanguard (and I assume elsewhere) Michael made the assertion that the City’s sewer rates were in violation of Proposition 218. So the issues that are directly addressed in the Bartle Wells report posted on the Yolo County website were in Michael’s crosshairs long ago. In effect, the Yolo County Public Works Department El Macero Wastewater Cost Analysis functionally serves the same purpose in Michael’s suit as the Bob Dunning column did . . . as an exhibit supporting a specific cause of action.
Everyone, because the County URLs don’t end in “dot something” they appear to be causing the Vanguard software to choke. Here one more time is the url to the Bartle Wells created Yolo County Public Works Department El Macero Wastewater Cost Analysis (see http://www.yolocounty.org/Modules/ShowDocument.aspx?documentid=21407)
One more try
http://www.yolocounty.org/Modules/ShowDocument.aspx?documentid=21407
Mike Harrington should figure out how to pay his property taxes and stop relying on other people to subsidize his commercial ventures in Davis.
I hope that the County recovers any fees paid to Mike Harrington for taxes owed to the County.
Walk that tightrope Ryan.
To build or not to build that was the big question and its been settled. This is gadfly stuff. Maybe something will come of it but it will result in small changes if anything at all. The big vote was already held last month.