WATER BOARD STIRS FLOOD OF CONTROVERSY: ALLEGED VIOLATIONS, SECRECY FUEL THREATS OF LEGAL ACTION; SPECIAL MEETING SET MAY 22 TO ADDRESS LEGAL CHALLENGES

Kristin Kjaero alleges that Helix Water District violated sunshine laws requiring public notice and input, She has asked the Board to rescind a rate hike vote and threatens legal action if the Board does not comply.

A special joint investigative report by East County Magazine and Channel 10 News

10news.com story

By Miriam Raftery

May 18, 2009 (La Mesa)—A water board controversy has sparked public outcry in East County. No, we’re not talking about a torture tactic—though many ratepayers fear pain from steep rate hikes in the Helix Water District. The local “water board” controversy centers around allegations that the Helix Water Board voted on hefty rate-hikes and eliminating irrigation meters for homeowners without adequate public input, possibly violating state law.

Two cure and correct letters (PDF 160 kb) sent to the district allege that the board failed to provide adequate notice of hearings, did not follow proper meeting procedures, appointed an ad-hoc committee after adjourning a public meeting and then reconvened to take action after some citizens had left. The Board has called a special meeting for Friday, May 22 at 10 a.m. specifically to address the legal issues raised.

Transparency issues raised

Helix is accused of violating Brown Act and Proposition 218 sunshine laws, which require public access in the political process. Signers of the letters, including local citizens and an attorney for the public interest group Californians Aware, ask the Board to rescind recent votes. The letters also threaten legal action if the Board refuses. In addition, a Board member has complained that staff withheld 68 letters from the Board until after votes were cast at a special meeting on April 27 called with just 24 hours notice.

“It’s apparent that the Helix Water District, in my opinion, is really not aware of the transparency that the public deserves,” said Dexter Levy, signer of one of the letters. “They really are not making the information available. They are doing it to potentially minimal standards, at best…They are a shadow government group,” added Levy, a certified plumbing instructor and nephew of Rube Levy, co-developer of the California Water Project and an original director of the Helix Water Board. “Their responsibilities are to respond and work for the public good. They’re not dictators. They’re not listening.”

District manager Mark Weston said that rates were developed “to all legal standards that we know of” but acknowledged that “any follow-up action will be based on the recommendation of our attorney.”

68 citizens’ letters withheld from Board member(s)

Kathleen Coates-Hedberg, Helix Water Board director, believes rates should be equal for homeowners and commercial water users

One member of the Board, Kathleen Coates Hedberg, told East County Magazine that staff failed to provide her with 68 letters from ratepayers before the April 27 vote was taken. “After the meeting, I asked the general manager [John Weston] why we had not been receiving them,” she said. Following her letter to Weston on April 29, Hedberg said she received copies of the letters and that Weston has since agreed to forward all correspondence to Board members as letters arrive. Weston indicated the letters were to be sent to Board members before a final decision was slated on May 27. However, he added, “We’re giving them all the letters now at least weekly, if not multiple times during the week.”

ECM has obtained and published excerpts of those 68 citizens’ letters, all of which opposed the rate increase proposals. Most objected to 38% increases on owners of large residential lots, even if owners have already conserved water. Many objected to commercial water users, such as golf courses, getting lower rates than families with children. Some were from seniors on fixed incomes; a high number expressed fear that they would have to let landscaping die, including fruit trees and gardens used for foods. Many expressed concern about fire danger if landscaping dies.

Board member John Linden said he read all 68 letters before the meeting, but later said he could not recall exactly when he received them and that he may have been remembering e-mail messages that were forwarded to all board members in advance of the vote.

La Mesa Mayor Art Madrid criticized Helix Water Board’s management staff for withholding the letters. “If that had happened at the City, that would have been subject for termination,” he said in an exclusive interview with ECM. “You lose confidence because you don’t know if they are feeding you information that they want you to see, and denying you information that they don’t want you to see.”

When ECM requested copies of all correspondence related to the rate increases addressed at the April 27 meeting, the two cure-and-correct letters were withheld until we revealed our awareness of both. E-mails and at least one letter hand-delivered to the Board were also not turned over. May said she believed the cure-and-correct notices were “not about rate increases” and said the Board is not required by law to turn over correspondence that is not mailed to the agency.

Lack of notice, mid-meeting recess, adjournment and vote after reconvening may have broken the law; corrective action sought in legal demand letters

Hedberg and others have criticized the board for voting on rate increase issues as a single block, following a mid-meeting recess.

“I was frantically making motions saying, ‘Let’s postpone the irrigation meter ban until we contact people who have those irrigation meters and let them know what we are doing,” said Hedberg, who sought individual discussion on Agenda (PDF 32 kb) items 5 a-g at the April 27 meeting.

The two cure and correct letters allege that the Board:

• Raised rates for single-family irrigation meter customers on April 27 without providing notice to affected customers or posting in a public notice that the issue would be acted on;
• Significantly altered a rate hike proposal without providing new notice for an upcoming May 27 meeting at which action will be taken;
• Called a five-minute recess in the middle of an agenda item on rate increases, during which time three Board members “disappeared together behind closed doors” ;
• Adjourned the April 27 meeting, then reconvened after some members of the public had left and appointed an ad hoc committee.

The letters ask that the board cancel the May 27 hearing and issue a new notice clearly reflecting the current proposal for rate increases. The board is also asked to rescind its vote on single-family irrigation meters and to redo its appointment of an ad hoc committee, both with full public notification as required by state law. In addition, both letters have asked the District Attorney to investigate whether Board members met behind closed doors during the recess.

District responses

Asked whether Board members met behind closed doors during the recess, Weston replied, “I think the accusation is silly.”

Helix Board President Richard K. Smith did not respond to our request for an interview. However, Board Secretary Donna Barlett May said the five-minute recess was called for a “bathroom break.”

Asked about the recess, board member John Linden said, “I don’t remember that specifically.”

Asked if board members met behind closed doors mid-meeting, he replied, “No, that’s illegal. We never did that.”

As for adjourning and reconvening, however, Linden admitted, “That’s true.”

The adjournment and reconvening were not included in minutes of the April 27 meeting. May said the adjournment was 22 seconds and provided documentation as proof. But she acknowledged, “There was a lot of the public in the audience. They all started talking. When he [Chairman Smith] said `Oh, sorry, we forgot the ad hoc,’ some of them walked out of the room,” she said, adding that it’s possible some did not realize that the meeting had been reconvened.

Weston acknowledged that the crowd was noisy during the brief adjournment and noted that “Mr. Smith could have gaveled them to be quiet,” but insisted that the reconvening to address a missed item was “not unusual, it happens often in public meetings.”

May insisted that Prop 218 notification procedures have been met for the May 27 public hearing.

Why was the April 27 meeting was convened on short notice without clearly stating in the agenda beforehand that a vote could be taken to raise rates for homeowners with irrigation meters? We asked May if the April 27 meeting was considered a public hearing. “They are all public hearings, but the May 27 meeting is the official public hearing,” she said. May contends that new notification for the May 27 meeting is not required despite major modifications to rate hike proposals made at both the April 27 and May 6 meetings.

Weston defended the short meeting notice. “On April 23, the Water Authority had told us what our allocation was going to be under our Metropolitan reduction program. It was apparent that these high domestic class rates that we had proposed were not necessary,” he said. The board reduced the highest level of domestic rates from about 90% to 50%, he said. The ad hoc committee has recommended a further reduction to 38%.

Another reason for the short notice was because “we discovered a little disparity on the use of irrigation meters,” he said. A little-known rule allowed residential customers to request irrigation meters at far cheaper cost than domestic rates. “We likely could have had hundreds or even thousands of single family residents apply for the conversion. We could have run out of water,” he told ECM.

Public access lawyer takes aim at Helix Water Board

Dexter Levy Channel 10 News

In an interview with Channel 10 news, general counsel Terry Francke of Californians Aware, who signed a cure-and-correct letter, explained that the Brown Act directs government agencies to “do everything they can with maximum advance notice to give the public an opportunity to come in and testify,” while Proposition 218 aims to protect ratepayers from agencies taking action to raise rates without adequate public notice and input.

If a public agency “changes fundamentals without adequate notice or with secrecy,” he said, any member of the public who is impacted may ask for a “cure and correct” action or take the agency to court. The court can then declare the agency’s actions null and void. If a citizen wins a Brown Act case, “a court can order the agency to pay your attorney fees,” he said. Alternatively, citizens can ask a district attorney to warn an agency that its actions need correction.

Asked specifically about the April 27 Helix Water Board meeting, Francke told Channel 10, “I do not hear of many cases where a water agency simply raises rates without notice.” Taking a break in the middle of a meeting and disappearing, as well as adjourning and reconvening after some citizens have left, are also highly unusual, he observed. “These kinds of developments in a single meeting seem to me to be extraordinary,” he said.

D.A. investigation, revocation of ad hoc committee sought

Francke believes that the board’s recess in the middle of an agenda item and subsequent vote with similar language offered by the three members who disappeared “is enough basis for skepticism” to warrant a D.A. investigation. Further, any action taken by the ad hoc committee could be declared null and void—if a citizen who left believing the meeting was adjourned objects to not having input when the committee was named.

The ad hoc committee issued a May 1 report supporting the proposed rates and structures for multi-family, commercial and irrigation classes. The report called for irrigation rates to be set at a higher price and praised the elimination of tier 5 and removal of higher Drought Levels II, III and IV pricing as a “significant improvement.” The committee also recommended adoption of new rates effective on bills received after August 1, in effect applying to water sold after a customer’s July or August bill.

Interestingly, although the cure and correct letters were not sent until May 13 and 15, the ad hoc committee report states that “The Committee and the staff have received comments questioning the legality of the rate structure. The water district has prepared a rate structure and rate system that meets the legal requirements of California State Law.” However no comments questioning the legality of the rate increases were included among correspondence turned over to ECM following a public records request.

Board’s motives questioned by citizens and La Mesa’s Mayor

“My reaction to the Board is they will do whatever they want, because they are in charge,” said Robert T. Petruzzo, M.D., who says he left believing the meeting was over. “Little people like us have no say-so.” He also objected to rates being hiked this summer when Helix won’t have to actually pay for rate increases imposed on it by the County Water Authority until January. “Although it’s being done under the guise of a drought, these are permanent rate changes,” he said. “I’m just wondering what their true agenda is?”

Petruzzo, who owns horses, believes the Board’s tiered system is discriminatory against larger lot owners. “You can’t tell horses not to drink water in the middle of the summer,” he said. “We sacrificed the lawn and a lot of landscaping to save our livestock.” Now he fears even more dire consequences. “If there’s a fire and Schwarzenegger can’t fix things and he wants to cut back on the fire agencies, too, then we will all burn.”

Madrid, who has served as La Mesa’s Mayor for 25 years and is also a member of SANDAG, said he has “never” seen a public board take a recess in the middle of an agenda item. “It is hard for me to understand why a policy board will recess the meeting, take a break and then come back and answer all the questions,” he said, adding that in La Mesa, recesses are not called for restroom breaks. “A question rises in people’s mind…it raises the specter of what were you doing, caucusing? It raises the speculation of `What the hell is going on?’”

Madrid praised Smith for being cordial during the meeting, but faulted the board for failing to heed concerns of Hedberg and denying Hedberg’s request to serve on the ad hoc committee. “In this particular case, one of the board members who is a subject matter expert on water issues is very concerned about the structure and the data and how it’s been compiled,” he said.

An ad hoc committee does not hold public meetings and by law cannot have a majority of the full board’s voting members. In this case, since Helix has five members, no more than two could serve on the ad hoc committee. Hedberg wanted the full board to participate and open all meetings to the public. She has also argued that residents should not be charged higher rates than commercial water users. “How can we be giving cheaper water to some classes and not to others?” she said.

Holding a vote on the ad hoc committee after the meeting had officially adjourned “raises the question of whether or not you are trying to structure an outcome and whether you are trying to cover yourself,” Madrid noted. “All public agencies should operate as openly as they possibly can and also take into consideration the concerns of residents…When you are a provider of a finite resource that is highly essential for survival, what you really have to do is listen to the public, but also by the same token, maintain a level of trust,” he concluded.

Kristin Kjaero of La Mesa co-signed a cure-and-correct letter after the Board voted to eliminate irrigation meters for residential customers with just 24 hours notice of the April 27 meeting and murky language on the agenda that she believes obscured the Board’s intent. Kjaero has previously reported on water issues for ECM, but recused herself to write the cure-and-correct letter when her own property was impacted by board actions which she believes were illegal.

Historically, the Helix Water District has been considered an irrigation district since 1886 and has always allowed residents the option of requesting an irrigation meter. Irrigation meter customers are billed at a lower rate for outdoor watering, but also save by not having to pay sewer fees on irrigation water used.

Kjaero called the Board’s lack of transparency “appalling.” She added, “We’ve been water-boarded!”

She suggests that the Board Chair had his mind made up prior to the vote. “As we walked out of the boardroom, Chairman Smith remarked to the receptionist in the foyer, `It was a long hard meeting, but we prevailed,’” Kjaero told ECM. “In indicating a predetermined outcome, it shows he misses the point entirely. The Helix Water District Board exists to serve the community, and by not listening or pursuing an open, transparent process, ‘we’ do not prevail; ‘we’ lose together,” she concluded.

Equity issues vs. conservation needs

Linden, who also sits on the County Water Authority, defended the Board’s rate hikes as necessary, noting that hefty fines could be levied against Helix Water District by the Metropolitan Water Authority if water conservation does not improve. “When we started the 20-gallon challenge, we were looking for a 10% reduction. Over the last 18 months we’ve gotten 4%. What does that tell us? We do not get people’s attention until they start seeing the price change,” he said.

Linden added that scientific studies are “shocking—they’re saying we will never fill up our reservoirs again. They’re less than half full. This is really serious stuff and it’s all the seven western states.” He noted that an original rate hike of 90% proposed for large residential lot owners has been reduced to 38% in the proposal.”

Weston said the District has learned it will face an 8% reduction from its water wholesaler that will cost the district 15.4% more for water starting September 1st. “Their estimate for next year is nearly 20% for the entire year,” he added. “The challenge is trying to come up with a rate increase to run the district…No matter what we do, there are going to be some people who are going to feel that they are bearing a heavier share than others.”

Asked about the impact on people with large lots, large families or orchards, Linden noted that in the Central Valley, 50,000 people are unemployed due to a cut-off of water to farmers and insists the plan is fair. “The North County Groves are cutting down 30% of their trees,” he concluded. “Nobody wants to pay more for water.”

Weston insisted that having residential customers with large lots or large families pay more per unit than commercial water users is “absolutely” equitable. “All of the water we sell in commercial class, we recover the amount of water delivered so no one class is subsidizing any other class,” he said, noting that there are no tiered rates for commercial users. “Over the next year we will be looking for more ways, but a 24% increase across every commercial user is pretty significant.”

Meanwhile many homeowners have complained that they can’t afford rate hikes of up to 38% or even 50% under one proposal, let alone replacing landscaping or orchards on large lots with xeriscaping or hardscaping. Asked if it is the district’s intention for owners in such situations to let orchards and other landscaping die, Weston replied, “If we do not have enough water to give to all of our customers, there have to be choices made to use less water in some areas of the district.”

Fire dangers raised

Asked about area residents’ concerns that dead trees and brush could increase fire danger, Weston replied, “All vegetation, whether watered or not, is a fire hazard…We’ve seen many neighborhoods burn with large trees that appeared to be healthy.” Homeowners concerned about fire danger should work with their fire districts on how to reduce their fuel loads, he added.

High water rates are leading some landowners to let fruit trees die

August Ghio, chief of the San Miguel Fire District said he is concerned and has heard from residents in his district who are worried about heightened fire danger from landscaping dying when they can’t pay higher water bills. “We’ve seen the water issue coming for years but we’ve held on as Southern Californians to our love of our landscaping,” Ghio said. “Our concern is you’re going to have to take your shower and wash your clothes and dishes,” he noted, adding that some homeowners won’t be able to afford the cost of watering landscaping or installing new landscaping. “It’s not going to be an easy solution for some of our residents. Unfortunately , relandscaping costs a small fortune…I’m not aware of any programs that will help them.”

He suggested cutting down weeds, removing dead plants switching to artificial lawns or xeriscaping if possible. “Go down to the Firewise, Waterwise Garden at Cuyamaca College,” he said, then suggested that community members help those in financial need. “Maybe relatives instead of giving other types of gifts can do a piece of landscaping…Let’s get families helping families again.” He also suggested forming work parties to help neighbors who can’t otherwise afford to replace water-thirsty landscaping.

New water supplies

Levy and others have questioned why the Board has not sought to explore more new water sources instead of simply jacking up rates. For example, he said several businesses near Spring Street in La Mesa have had to remove water from their basements. “Why isn’t the District drilling a well?” he asked. Other options might include desalinization or grey water for irrigation. (The latter would require County approval).

The district is actively looking at a water recycle project in El Monte Valley to take money from Padre Water and percolate it into a basin east of Lakeside. “It would create 10 to 15% of our water demand,” said Weston, but noted that all new water projects are expensive.

Citizens advisory committee

Levy wants to see the Board approve formation of a citizens advisory committee to address equity issues and help determine whether exceptions to the high rates should be made in some circumstances. Such advisory boards are common in other jurisdictions, such as the City of La Mesa. Asked why the Board has not considered creating a citizens advisory committee, Weston responded, “I don’t know of any board member who has brought that idea forward.”

Upcoming Hearings and Public Comment Deadline

The special meeting on legal challenges will be held Friday, May 22 at 10 a.m. at the Helix Board Room (address below). The Board is expected to make a final decision on rate hike proposals at the May 27 meeting at the same location, absent a directive from legal counsel to postpone.

Members of the public wishing to submit comments on the proposed rate increases prior to the May 27 meeting must send or hand-deliver a signed letter, with your address, to Helix Water, attention Clerk of the Board, 7811 University Ave, La Mesa, CA 91941. Letters must also indicate that the writer wishes to protest the proposed rate increases, the board secretary indicated.

For additional information, visit the Helix Water District site at http://www.hwd.com/index3.htm.