The following open letter to the community was sent to the Piedmont Civic Association and the City Council on March 16, 2011 –

Dear Mayor, Vice Mayor and Council Members:

Re: Draft Sewer Asset Management Implementation Plan (AMIP) on City Council’s April 16, 2012 Meeting Agenda

This letter contains my detailed written comments on the City Council Agenda Report and attached AMIP for the Council’s Monday, April 16, 2012 meeting. (City Council Agenda Report from Chester Nakahara, Public Works Director, “Subject: Review an advanced copy of City’s Sewer Asset Management Implementation Plan prepared in response to the EPA [sic] Stipulated Order Compliance Requirement, Section XI, Subsection 73”. (The subject Stipulated Order is not, as incorrectly stated in the agenda report, an “EPA Stipulated Order”, but it is, instead, a Stipulated Order for Preliminary Relief issued by the United States Federal District Court in United States of America, et. al v. City of Alameda, et. al., Case No. C 09 05682 RS, and filed in that court on March 15, 2011. Herein I refer to the Stipulated Order as “2011 Court SO” and the advance copy of the City’s Sewer Asset Management Implementation Plan as “draft AMIP”.)

I request that this letter be made a part of the record.  The contemplation of things as they are:

“Without error or confusion
Without substitution or imposture
Is in itself a nobler thing
Than a whole harvest of invention.”
Francis Bacon

INTRODUCTION
I appreciate the opportunity to comment on the draft AMIP. I also very much appreciated Public Works Director Chester Nakahara’s taking his time, together with the City’s contract engineers, to meet with me and Piedmont resident Rick Schiller on Wednesday, April 11, to discuss city sewer issues. That is when we first learned that there was a draft AMIP and that it would be before the Council at its meeting of April 16, but we were not permitted to see the draft AMIP until it was posted with agenda on the City’s website.

This letter includes detailed comments on both the draft AMIP and very closely related matters.

First, I summarize (part I, pp. 3-5) my comments on (a) the draft AMIP and (b) conclusions resulting from the draft AMIP and the related events involving the Measure A sewer surtax that the voters rejected February 7, 2012.

Second, I provide more detailed comments (part II, pp. 5-7) regarding the draft AMIP.

Third, I provide more detailed comments (part III, pp. 8-17) on Measure A, how it has impacted the draft AMIP and the principles that should be followed for any possible new parcel tax, including any possible new sewer tax.

Fourth, in my conclusion I summarize my requests to the Council (part IV, p.17).

I. SUMMARY

1. The draft AMIP is merely a shell, missing essential information, the very heart of the plan for replacement required by the 2011 Court Stipulated Order:
1. It has no replacement schedule for either the 3-year or the 10-year periods.
2. It has no financial plan.
3. It has very questionable numbers.
2. The draft AMIP projects annual debt service for the already completed Phases I-IV mainline replacements as $682,614, but the City staff information in Exhibit 10 of the September 2011 MTRC Report projects annual debt service as $90,059 less, or only $592,555.
3. There is little more specifically to say except that the flawed draft AMIP is not what the Court ordered and provides no helpful guidance to the Council or the public.
4. If the Municipal Tax Review Committee of 2011 (MTRC) Report numbers are accurate, there was no basis for City administration to have suspended Phase V replacement. I request that you immediately investigate and order resumption of Phase V. City staff’s own numbers demonstrate there are adequate funds, without any tax, to complete not just Phase V replacement, but also Phase VI replacement.
5. In addition, if other suspect cost numbers are properly investigated, as detailed in this letter, there may also be sufficient funds to complete Phase VII replacement, the last phase of replacement, all within the City’s original target date of 2020. This must be addressed and reflected in the plan that comes back to you on June
6. “The City does not currently have ‘hot spot’ locations where pipe blockages or SSOs have occurred frequently …”, i.e., more than once sewer system overflow in a 12-month period or a determination there is a high probability of an overflow in a segment within the next 12 months in any of its sewer mainlines. (Draft AMIP, p. 12). Nevertheless, I support replacing the remaining city sewer main lines. It is the right thing to do. Phase V should not be delayed.
7. The City’s own numbers show that at least $430,000 annually is available right now for replacement. That more than covers the combined annual debt service of $378,553 for Phase V and Phase VI replacements.
8. I opposed Measure A. It would have authorized more than $11 million in new taxes. Your own City staff has stated that only about $5 million is required to carry out the new monitoring requirements. The $5 million number is high and suspect. And if the Council will open its minds to this letter, it should order an independent audit. There is probable cause to believe that an audit may show that existing sewer funds are fully adequate to complete all replacements by 2020.
9. I am not opposed in principle to any new City tax. But a new tax requires a reasonable and verifiable demonstration of need, which Measure A never had.
10. This letter details the many fatally deficient flaws in Measure A’s substance and process. It also sets out the specific and uncontrovertable facts that demonstrate the inconsistent and false representations made by City administration and illegal Measure A promotion activities. This is very important. I urge each of you to read it. I urge your City Attorney to read it, investigate and give you legal advice. Do not be taken later by surprise.
11. The Council should not countenance proposals for unnecessary, mostly non-income tax deductible parcel taxes, such as Measure A. They harm our residents. The Council should not countenance any more illegal City-funded promotion of ballot measures.
12. I and other Piedmont residents should get a reasonable fair opportunity to examine a real AMIP. I request that (a) the revised draft AMIP be made available to the public at least 10-days before the Council’s June 4 meeting and (b) that the agenda report accompanying the revised proposed AMIP specifically address the comments and questions raised by the public, including those raised in part II of this letter.
13. I and other members of the public, on behalf of City’s best interests, should be provided an effective opportunity to participate productively with the City on this matter.

 

II. DETAILED COMMENTS ON THE DRAFT AMIP
The following are my initial comments on the present draft AMIP. PP. 15-18, G., (Condition-Based Repair and Replacement)

• In very substantial respects, the draft AMIP fails to comply with para. 73.B.3 of the 2011 Court SO, because it does not even purport to plan to include a schedule of replacement beyond the first three years and it neither contains, nor state that it plans to contain, a financial plan, either for the initial three years or the full ten years of the plan.

Para. 73.B.3 of 2011 Court SO provides, in relevant part, as follows:  “The plan shall . . . address both short-term . . . and long-term repair, rehabilitation and replacement of the sewer pipes. The plan shall include the following: a) A schedule and a 10 year financial plan for repair, rehabilitation, and replacement of sewer pipes. This schedule shall identify pipe reaches presently planned as priorities for rehabilitation over the next three years, with the understanding that the identified priorities are likely to be further developed and revised through the inspection and assessment process, and as a result of changed conditions. The City shall develop its schedule for repair, rehabilitation and replacement of sewer pipes using standardized responses developed by the City to observed defects, taking into account available peak flow rate data; . . . .” (pp. 57-58)

• The draft AMIP states in place-holder language on p. 16 that the plan will later comply, at least as to the requirement for a 3-year schedule, in that it later will “identify pipe reaches presently planned as priorities for rehabilitation over the next three years”. There is similar place-holder language in Table 6 that, “table to be developed and inserted, listing the segments of mains to be rehabilitated each year for 3 years, totaling approximately $340,000 [should probably be more] per year . . . ” This makes the draft AMIP useless to the Council and the public.

• The draft AMIP does not, contrary to para. 73.B.3 of the 2011 Court SO, contain “A schedule and a 10 year financial plan for repair, rehabilitation, and replacement of sewer pipes”. That is, the draft AMIP does not contain:
• (1) a schedule, or even place-holder language for any schedule, for the full 10-year period;
  (2) any financial plan for repair, rehabilitation and replacement for the first three years; or
  (3) a 10 year financial plan for repair, rehabilitation and replacement. It is not a plan to simply state, as Table 4 does, that there will so much left over (giving an incorrect amount) in 2012-13 in Sewer Fund revenues for replacement after deducting sewer system expenses. What is the plan for financing and construction of replacement mainlines? Will the City seek another State loan?

• P.16, Table 4 (City Sewer-related Expenses)
  Table 4 raises questions about the accuracy of the numbers presented, particularly when comparing cost amounts in Table 4 with the cost amounts set out for several past and future fiscal years in the charts in Exhibit 10 of the September 2011 MTRC Report.

• Table 4 projects “SRF Debt Service – Phases I-IV (existing) ”for 2012-13 as $682,614. But each of the charts in Exhibit 10 of the MTRC Report state that the Debt Service for 2012-13, and for all fiscal years after until 2016-17 when Phase V Debt Service was projected to begin, is only $592,555, 90,059 less than on page 16 of the draft AMIP. What is the explanation for this discrepancy? How can a fixed annual debt service suddenly change in the less than 10 months after the MTRC Report was forwarded to the Council?

• According to Table 4, the other projected City expenses (Salaries
  & Wages, Material & Maintenance, Administration & Overhead, EPA
  Compliance, Sanitary Sewer/Trash Disposal) for 2012-13 total up to
  $1,682,310. But the MTRC Report Exhibit 10 charts show the other projected City expenses for 2012-13 as $1,957,200, or $274,890 less than Table 4. There should be an explanation for this large discrepancy.

• According to the March 2011 revised Sewer System Management Plan (SSMP) Salaries/Wages are listed as $360,000 estimated for 2000-10; but Table 4 of the draft AMIP shows them estimated for 2012-13 at $584,100, a $284,100 increase or 79%. I do not recall any salary increase since March 2011 and the last negotiations with the SEIU required employees to contribute $100/month/employee for a savings of about $30,000 annually to the city. Why is there a $284,000 discrepancy?

• According to Table 4, and without correcting for the apparent error in the SRF Debt Service for existing Phases I-IV, the total projected city expenses for 2012-13 are $2,364,924. After correcting for the apparent error in the SRF Debt Service ($90,059 too much), and using the number given in Exhibit 10 of the September 2011 MTRC Report, the Table 4 total city expenses would be reduced to $2,274,865. The result then, after correcting for the SRF Debt Service error in Table 4, is that the total expenditures for 2012-13 in Table 4 would be $2,274,865 compared to total expenditures for 2012-13 Exhibit 10 of the September 2011 MTRC Report of $2,549,755 (after subtracting the $2,000,000 estimated expenditure for Phase 5, a project for which all work has now been suspended.) What is the explanation for this discrepancy?

• P. 18, Table 6 (Proposed 3-year Priority Rehabilitation Project)  There is no table yet developed, but a parenthetical statement is included on p. 18 that “approximately $340,000 per year” would be available for “segments of mains to be rehabilitated each year for 3 years.”

• An explanation is required to the Council and the public how the $340,000 amount was derived.

• The $340,000 amount should be increased to at least $430,059 to account for the $90,059 excess included in SRF Debt Service for Phases IV in Table 4 (p.16). See my comments above regarding the errors in Table 4, p. 16. Also, the expenditure amounts, which presumably include the purchase of a non-required vactor truck and unverified and large transfers from the Sewer Fund to the General Fund for City employee costs, may be further significantly reduced after closely examining the reliability of the expenditure numbers used in Table 4, freeing significant additional amounts available for rehabilitation. (See comments in III(1)(b) below.)

III. DETAILED COMMENTS REGARDING MEASURE A

(1) Measure A Was Fatally Defective, Substantively and Procedurally, and The Council Should Take Corrective Action – Measure A on the February 7 City ballot would have imposed on city property owners a new sewer tax. It required an affirmative vote of 2/3rds of voting residents. It obtained only a 50.65% Yes vote, unprecedented in Piedmont and especially remarkable for such an at least historically, but after Measure A no longer, tax-tolerant population.

(a) The 4 Main Substantive Reasons Measure A Was Rejected by Voters Measure A failed for 4 main reasons:

• One, Measure A was based on the lie that an EPA order requires replacement of the sewer mainlines by 2020. No such EPA order exists, as EPA itself had confirmed in writing before the election;
• Two, Measure A authorized raising over twice as much, about $11 million, as City staff’s own bloated numbers stated was needed;
• Three, the Council’s own October 3, 2011 Ordinance 699 N.S. would have allowed the new tax to be siphoned off and diverted for non-sanitary sewer purposes having absolutely nothing to do with the 2011 Court SO; and
• Four, the City never considered any alternative, only more taxes.

 

It is appropriate to expand on reason Two above, because it is typical of the misrepresentations and conflicting statements made by City administration which could have been avoided by appropriate consideration of alternatives (reason Four above).

After Measure A was defeated, Mr. Grote, according to the article on p. 32 of the February 15, 2012 Piedmont Post, “reiterated that Measure A was to cover testing and monitoring of the sanitary sewer system . . .” During our Wednesday afternoon meeting with Mr. Nakahara and city engineers, Mr. Nakahara, who is responsible for sewer annual maintenance and capital project budgets (p.5 of draft AMIP), also repeatedly emphasized to us that Measure A was solely for the purpose of covering the costs of the new monitoring requirements. However, the City’s own cost charts in Exhibit 10 of the September 2011 MTRC Report asserted that the “EPA Compliance” costs through the 10-year period of the proposed Measure A surtax was only approximately $5 million, so, why, I asked Mr. Nakahara, did Measure A authorize a new tax of over $11 million, over twice as much as the City-staff asserted cost it was designed to pay? Mr. Nakahara’s answer was, “I have no idea”. But if Mr. Grote and Mr. Nakahara are correct, where is the explanation for why the $11 million tax was inconsistent with the City’s own $5 million cost estimates for monitoring? Why, if Measure A was designed solely to comply with the EPA monitoring mandates, did the Council’s October 3, 2011 Measure A implementing Ordinance 699 expressly allow all or any portion of the Measure A taxes to be used for other purposes, purposes that have nothing to do with the sanitary sewers or the 2011 Court SO monitoring mandates?

I, too, must say, like Mr. Nakahara, that “I have no idea”. But I am mightily suspicious of wrongdoing and I can say with confidence that it was very unwise to give voters only a choice between, on the one hand, an extremely excessive and unnecessary new Measure A tax, and, on the other hand, potentially inadequate funds to replace city sewer mainlines by the City’s previous 2020 target date.

During the campaign the 4 major issues discussed above were raised again and again by opponents of Measure A. Not a single factual response was made by anyone at the City to the issues raised. City staff simply ignored the facts and engaged in illegal, argumentative promotion and the Piedmont Post cooperated by repeatedly lying about the issues the opponents raised. But the voters were not fooled.

(b) Other Various Reasons Measure A Was Defeated (Vactor Truck and No Tracking Staff Time Spent on Sewers)  These 4 main issues are not an exclusive list of the problems with Measure A tax, and involve problems any potential future sewer tax, and indeed any future parcel tax, will encounter. Two examples are noteworthy and expand on the basis of lack of confidence and trust in the City administration, including, with respect to the sewer system, the vactor truck, and allocation of the cost of City staff time to the Sewer Fund. City staff has consistently claimed that the City is legally obligated by EPA to purchase a vactor truck, variously claimed to cost $400,000 or $338,000. In Chester Nakahara’s February 13, 2012 written report to Geoffrey L. Grote and Mark Bichsel, “Subject: Preliminary Status Update & Outlook for Sewer Work & EPA Compliance”, he stated on the 2nd page, first full paragraph, after referring to “our obligation to purchase a new vactor truck” that “Three years ago, we promised the EPA to purchase this truck in FY 2012/2013.”

This claim that the City has an obligation to purchase a vactor truck is patently untrue. Even EPA has denied in writing that Piedmont is obligated to purchase a vactor truck. Alexis Strauss, Water Division Director for EPA Region IX, wrote to Rick Schiller on October 11, 2011, that “Contrary to what was reported in the local paper a few months ago, we did not specifically require the City to purchase a vactor truck.”

At our April 11 meeting we questioned Mr. Nakahara about statements in his February 13, 2012 report and Ms. Strauss’s statement. Mr. Nakahara conceded that there was no legally enforceable contract or other legal obligation for Piedmont to purchase a vactor truck. Instead, he told us, he thought maybe his predecessor Public Works Director had “promised” an EPA staffer (a subordinate of Ms. Strauss, who denied any City obligation) in an email that the City would buy a vactor truck.

The Piedmont Civic Association (PCA) wrote a news article earlier this year which strongly suggests that the Sewer Fund may be employed as a conduit for subsidizing the General Fund for non-sewer activity. PCA states in its article:

“The Sewer Fund is currently funding two-thirds of the salaries and benefits [of]maintenance workers, as well as 30% of the cost of the Public Works Director. Large expenditures for emergency repairs and the charge for in house maintenance work have continued to increase as 60% of the sewer system has been rehabilitated.”

“Actual time spent on sewers and storm drains is not tracked. Six city employees repair, maintain and handle emergencies for the city’s parks, buildings, streets, street sweeping, and sewers and storm drains. Two work on parks the majority of the time. Staff estimates that 50% of the 4 non-park workers’ time is related to sewer and storm drains. All 6 maintenance workers plus an additional city employee may work on storm drains and sewers during emergencies and when needed to cover vacations, illness, etc. Supporting detail prepared for the FY 20111[sic] transfer out charge attributes 100% of the cost of 4 workers salaries and benefits to sewers and storm drains, rather than 50%. Two-thirds of the cost of maintenance worker salaries and benefits is funded by the Sewer Fund rather than the General Fund. In addition, 30% of the Public Works Director’s time is charged to sewers and storm drains. In addition, the supporting detail for FY 2011 totals $900,000, while the budgeted transfer out charge [to the General Fund] equals $1 million.

“The transfer out charge does not include emergency repair/reconstruction needs discovered when in-house maintenance is performed. Emergency repair work is performed by outside entities and charged separately to the Sewer Fund under “General Sewer Projects” expense. Though considered emergency work, these repairs have ranged as high as $1.3 million in recent years and tend to vary inversely with the amount of sewer rehabilitation work performed with state loan monies.”

Mr. Nakahara confirmed to me on April 11, 2012 that the Piedmont Civic Association report is correct that “Actual time spent on sewers and storm drains is not tracked”. He also told me that he knows of no validating study report that is available which supports or justifies the allocations of staff time made to the Sewer Fund. Those experienced working with public agencies and private organizations are familiar with the principle that accurate and effective personnel and fiscal management and oversight is very difficult without some reasonable tracking of time spent on various tasks, or at least some well-designed and accurately performed study that is periodically validated.  The need for actual proof is all the more important now that the sewer system management is coming under increasing scrutiny and questions are mounting regarding the validity of information used for setting tax amounts and budgets.  The Council should require a reasonable time tracking system for actual time spend on sewers and storm drains before seeking new sewer taxes.

(c) Serious Legal Issues With Process Involving Measure A
During the Measure A campaign, opponents obtained public records that provided evidence that a 3-member quorum of the Council – Mayor Barbieri, Vice-Mayor Chiang and Councilman Wieler – had engaged in non-public, non-agendized email meetings, also involving the City Administrator and City Clerk, on preparing pro-Measure A arguments for the ballot pamphlet. (See email records disclosed on February 3, 2012, to Rick Schiller that the City Clerk designed documents #101, #102 and #103.)

Such non-public meetings of a quorum of the Council violate the Brown Act and are illegal. In addition, the California Supreme Court has ruled that using City or other public resources to promote a tax measure coming before voters is an illegal use of public funds. Stanton v. Mott, 17 Cal. 3rd 206 (1976); Mines v. Del Valle, 201 Cal. 273(1927).

Two Council members – Mayor Barbieri and Vice-Mayor Chiang—filed arguments included in the ballot pamphlet. (See (1) Argument In Favor Of Measure A, referring to a non-existent “2011 EPA Order requiring additional rehabilitation” of the City’s sewer mainlines, and (2) Rebuttal To Argument Against Measure A.) California Elections Code Section 9282(b) provides that for a measure placed on the ballot by the Council, the Council may authorize a member or members of the Council to file a written argument for the measure. However, my review of City actions has disclosed that the Council gave no such authorization for any Council member to file an argument with respect to Measure A. (I also made a February 23, 2012 Public Record Act request for “ Any authorization by the City Council for any member of the Council to prepare or file a written argument in favor of the Measure sewer surtax on the February 7, 2012 municipal election ballot.” The City Clerk responded to my request by his letter dated March 5, 2012, that “The City has no records responsive to your request.”) Even had the Council authorized a Council member or members to file the arguments made in the ballot pamphlet in favor of Measure A, the Council members involved would not have been allowed to have email meetings in violation of the Brown Act to devise their arguments, or, as the emails that were disclosed to Mr. Schiller revealed, to enlist the resources of the City Administrator and City staff to help them craft arguments to promote Measure A.

In addition, other illegal actions were taken by the City to promote Measure A, which appear to have simply been an extension of the pro ballot argument writing. After the ballot pamphlet came out, an argumentative “COUNTERPOINTS TO ARGUMENTS AGAINST MEASURE A SEWER SURTAX” was released by email by Public Works Director Chester Nakahara to the Piedmont Post and The Piedmonter on January 10, 2012, but it was not provided to the author (Rick Schiller) of the ballot arguments against Measure A, Rick Schiller, or to me, against whom the Piedmont Post claimed in its newspaper the “Counterpoints” were directed. The “Counterpoints” was an argumentative and promotional campaign piece intended for media dissemination and to influence voters.

The law simply does not permit the City to use taxpayers’ resources to promote a tax measure on the City ballot. Such promotion activities are not authorized and are an illegal use of public funds. Moreover, because such promotion activities use the taxes of voters opposed to a ballot measure to promote the measure, they violate our constitutional rights to free speech. This may go on in non-democratic societies, where it might be lawful, but it has no place in Piedmont, which is governed by California law.

(d) The Combination of Substantive and Procedural Issues, As Well as Legal Issues, Has Seriously Eroded Public Confidence in the Administration of the City, Including Its Sewer System and Measure A
The chickens from the ill-conceived and disastrous Measure A diversion have now come home to roost. Time and resources have needlessly been wasted. A $5 million authorized tax, far more than was probably needed (if any extra tax of any amount was needed) to carry out the 2011 Court SO might easily have passed. The silver lining in this dark cloud is the resulting disclosure and highlighting of mismanagement by the City administration. Even if more taxes are not sought to meet the City’s previous 2020 target for total replacement, a thorough audit still should be made of City sewer finances and issues, including the legally non-required vactor truck, unsubstantial charges against the Sewer Fund for City employee costs and other unjustified transfers from the Sewer Fund to the General Fund (and they have occurred, such as the very recent Crest Road cost transfer from the Sewer Fund to the General Fund that was only reversed after Rick Schiller publicly complained about its illegality).

Faced with revelation of the many of foregoing defective actions, half of the sewer subcommittee on the MTRC who recommended the new Measure A sewer tax, Ryan Gilbert, publicly withdrew his recommendation before the election. In a My Word column in the Friday, January 27, 2012 The Piedmonter (p. A4), Mr. Gilbert wrote:

“Today, I am not convinced that Measure A is the best plan for Piedmont. It is unfortunately the only plan that the MTRC and Council considered.  Our Council should carefully review this new information and research alternative plans. The MTRC never considered alternative plans because we were advised that the single plan presented was the enforceable final plan.  We did not contact the EPA directly. Additional tax dollars may be required for our sewer system. However, should Measure A fail, the Council can direct the MTRC to reconvene and consider alternative options, as the EPA clearly allows. Going back to the drawing board on Measure A will win the confidence of Piedmont voters who later this year will again be called to the ballot box to vote on two additional parcel taxes.
Let’s be responsible and assess all reasonable options. Measure A does not measure up. “

The effort to scare city voters into voting to hang an $11 million unnecessary albatross of a new tax around our necks was terrible government and guaranteed to fail. What was the secret plan for the unnecessary taxes?

The Council is obligated to hold the City Administrator responsible. So long as the Council fails in its primary oversight obligation, I and many other Piedmont residents will not cease seeking to do so on our own. We will not relent. This has all been foolish wastefulness, repeated in many other areas of City government, and is particularly embarrassing and unbecoming of a city of Piedmont’s reputed stature. It needs to stop.

(2) Any New Sewer Tax, Or Other Parcel Tax, That May Be Proposed Should First Be Demonstrated To Be Appropriate By A Process Undertaken In Good Faith, Openly And Using Verified, Tested Financial and Other Data and The Process For Its Approval Should Be Undertaken In Accordance With The Law

It is clear from Measure A and the draft AMIP that it is necessary to underscore and be vigilant that any new sewer tax or other parcel tax proposed should first be demonstrated to be appropriate by a process undertaken in good faith, openly and using verified, tested financial and other data and special attention is required to assure that the process for its approval is undertaken in accordance with the law.  Reliable, verifiable and relevant facts should be shared with the public with a reasonable and full opportunity to inspect public records (see more below on this matter), ask questions and receive full and complete answers. And if any new sewer tax or other parcel tax might be so demonstrated to be appropriate, it should be limited by a carefully drawn City ordinance in duration and in maximum amount, and it should be limited with respect to
its specific purposes.

BASIC PRINCIPLES FOR ANY NEW PROPOSAL FOR ADDITIONAL PIEDMONT SEWER OR OTHER PARCEL TAXES
1. There Must Be A Fair and Open Public Process, Including Complete, Fully-Responsive and Reasonable Answers to Public Questions and Provision of Full Documentation, Before Any New Tax is Proposed

Before the Council passes any potential new tax implementing ordinance:
(a) As to any new sewer tax (similar guidelines would apply to any other parcel tax) there should be provided to the public for discussion and questions a fully-documented statement of the new 2011 Court SO requirements, and any subsequent, legal and regulatory requirements, that result in new and additional City costs with respect to the sanitary sewer system and, if new taxes are to be sought for any non-sanitary sewer (e.g., storm drain) purposes, then also with respect to any such non-sanitary sewer purposes, including complete, fully-responsive and reasonable answers to relevant public questions, with all supporting documents promptly made available to the public for inspection and copying, especially with respect to a member of the public who has requested the right to inspect or the right for copies under the California Public Records Act (PRA).
On February 23, 2012 I made a written California Public Records Act (PRA) request to the City Clerk to inspect (expressly not to obtain copies) 3 categories of public records, including those on and after March 11, 2011 comprised of both communications between Piedmont and the EPA regarding Piedmont’s sewer system, and intra-city records regarding EPA and the sewer system. I specifically requested to inspect all hard paper and computer files, including the file folders in which the records are maintained and all other records in such files. I have been denied my right under the PRA to inspect these public records.

(b) There should be provided to the public for discussion and questions a thorough and fully-documented demonstration, including complete, fully-responsive and reasonable answers to relevant public questions, that a new sewer tax (or other parcel tax) is required, and in the amount proposed, in addition to the existing sewer tax (or other existing parcel tax), to satisfy legal obligations.

(c) There should be a fair and open process to provide to the public for discussion and questions a fully-documented examination of all alternatives, including no new tax, and including complete, fully-responsible and reasonable answers to relevant public questions.

2. Any Implementing Ordinance For Any Tax Should Be of Limited Duration, With A Maximum Authorized Amount, and Provide that the Tax May be Used Solely for the Purposes For Which It Is To Be Levied
A Council ordinance implementing any proposed new sewer tax (or other parcel tax) should provide that the new taxes may be used for non-sanitary sewer purposes only to the extent that a specified limited amount
of such taxes identified in the ordinance have previously been publicly demonstrated as needed, in accordance with the process described above, at the time the ordinance is passed.

3. No City Resources Should Be Used to Promote Any New Tax Measure
Should a new sewer tax (or any other parcel tax) be proposed in the future, then from and after the Council’s adoption of an implementing ordinance (a) the City should not use public resources to promote the tax measure and (b) a Council quorum should must not, in violation of the Brown Act, communicate among members of the quorum by email or otherwise on the proposed tax in an effort to promote the new tax measure. If the Council wishes to authorize one or more Council members to file arguments in support of a new sewer tax, then the Council at an open and agendized meeting should specifically authorize the filing of such arguments as required by California Elections Code Section 9282(b).

IV. CONCLUSION AND REQUESTS

1. I request this letter be made part of the public record.
2. I request that you immediately investigate and order resumption of Phase V replacement.
3. I request that suspect cost numbers detailed in this letter be properly investigated by independent audit to determine if, in fact, there are sufficient funds to complete all remaining phases of replacement within the City’s original target date of 2020, and that the result of the investigation be reflected in the plan that comes back to you on June 4.
4. I urge each of you to read this letter and have the City Attorney read it, investigate and give you legal advice. Do not be taken later by surprise.
5. I request that the revised draft be made available to the public at least 10-days before the Council’s June 4 meeting.
6. I plead with the Council, on behalf of City’s best interests, to have an effective opportunity to participate productively with the City on this matter.

In any event, I, and other Piedmont residents, will continue participating in the AMIP process, even it requires objecting not just to this Council, but also before EBMUD, EPA, the other parties to the Federal Court lawsuit and, if necessary, the Federal Court.

Very truly yours,

Thomas D. Clark
PIEDMONT

Editors Note: The opinions expressed are those of the author and not necessarily those of the Piedmont Civic Association.

Leave a Comment