Lawyers tussle over the role of the Peninsula mayors’ authority in the desal mess.
Thursday, November 1, 2012
The fledgling Monterey Peninsula Regional Water Authority further crowded the alphabet soup of water agencies in Monterey County when it signed a joint powers agreement in February. Now, one lawyer is suggesting there are too many cooks in the kitchen – and the county wants the state Attorney General to weigh in.
An Oct. 11 letter from attorney Richard Glenn of the Monterey-based Thompson Law Office to MPRWA attorney Don Freeman questions whether the authority, which comprises the mayors of the six Peninsula cities served by California American Water Co., is operating legally. The letter also lays out a number of suggested changes.
In response, a county attorney is asking the AG’s office to review legal questions that could impact how the authority does business.
First, Glenn advises that Sand City Mayor David Pendergrass cannot legally sit on both the authority and Monterey Peninsula Water Management District boards because it constitutes a conflict of interest. “The validity of any MPWMD board action since Mayor Pendergrass’ appointment to the authority becomes problematic,” Glenn writes.
The Sand City mayor, who’s served on the district board for 15 years, says his attorneys have assured him that’s hogwash. “There’s no conflict,” Pendergrass says.
Glenn also claims the authority can’t add Monterey County as a member agency, and a county supervisor can’t join the authority’s board. His reasoning: The county Board of Supervisors is the governing board for the Monterey County Water Resources Agency, so any participation in the authority would introduce a conflict of interest.
“We are taking that matter seriously,” says Monterey Mayor Chuck Della Sala, the authority board chair.
The question also concerns County Counsel Charles McKee. The Board of Supervisors voted Sept. 11 to join the authority, as about one-third of Cal Am’s ratepayers live in unincorporated areas.
In an Oct. 31 letter to the AG’s office, McKee asks if adding a county supervisor or district director to the authority board would be problematic.
McKee says there are many exceptions to state conflict-of-interest rules, including one that allows agencies to advocate as members of other boards. For example, a county appointee to the Monterey-Salinas Transit board is expected to stick up for the county’s interests.
“I think that’s an exception that would apply here,” McKee says.
Still, he adds, the county will hold off before inking the agreement to join the authority. “We will probably wait until we have some clarity on the question to make the decision uncontroversial,” he says.
Glenn further claims that the authority’s joint-powers agreement requires a mayor to serve as the head of its Technical Advisory Committee. At the time of Glenn’s letter, Monterey Peninsula Water Management District General Manager David Stoldt was the TAC chair.
The authority board agreed he had a point. On Oct. 22, Stoldt stepped down as TAC chair and Carmel Mayor Jason Burnett was appointed to replace him.
Finally, and most dramatically, Glenn suggests the authority has neutered the water district’s role in securing a future water supply for the Peninsula cities. In other words, he argues, the two agencies are redundant – and the authority stepped up because the district failed to deliver.
“MPWMD no longer exclusively occupies the water supply field on the Peninsula,” Glenn writes.
The authority was drafted to fulfill a number of ambitious purposes, including bringing one or more water projects to fruition and ensuring they are accountable to the cities’ water users. “There certainly is some overlap,” Della Sala says. “We don’t see them in conflict, however.”
Stoldt says it’s silly to compare the 10-month-old authority, which has a $245,000 annual budget and hasn’t yet hired an executive director, to the 34-year-old district with a $14.2 million budget and a staff of 28.
“They have no staff, no technical expertise, no experience with integrated resources planning,” Stoldt says. “On paper, it may look like they have that authority. But in practice… You can’t just wish it into place.”
Rather than competing for relevance, the district and the authority are collaborating. For example, the authority has commissioned a study comparing the three competing desalination proposals, which allows the district to take that task off its plate.
“We want them to be successful,” Stoldt says. “If we can coalesce as a community around a water project, there is a significant role [for the authority] as a collection of political leaders.”
Pendergrass says the authority respects the powers of the water district and other local agencies. “Our [authority] will not interfere with any of that,” he says. “The purpose is to stand behind valid water projects and have not just a voice, but Cal Am needs to put us at the table.”
Glenn says he did not write the seven-page letter on behalf of any particular client. Asked for comment, he offers only that the letter speaks for itself and is intended as a friendly note to Freeman “as a personal gesture.”
The letter does, however, close with what can be read as an appeal for employment in an endless water saga that, so far, seems to have only benefitted consultants and an endless parade of lawyers.
“Our office,” Glenn writes, “is available to assist you.”
For all the background you never wanted on the Monterey Peninsula’s impossibly wonky but critically important water-supply issue, visit www.mcweekly.com/desal