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Wednesday, September 07, 2005

Eeek! They’re “misappropriating my public funds!” Call the Fair Political Practices Cops! Oh, wait, they’re all out to lunch. Call the DA!. No, he doesn’t give a foodle. Call my lawyer! I’ll file a criminal complaint myself! Ah, now you’re talking.

Ah, yes, the CSD is at it again. On the local public TV channel, they’ve been using taxpayer money to run excerpts from one of the reeeeellly scary Regional Water Quality Control Board’s letters threatening Los Osos with FINES! FINES! FINES! if they don’t do as they’re told, doo-dee-dooo-doo, doo-dee-doooo-doo.

So, what’s wrong with that, you might ask, since it’s perfectly proper to use tax payer money to air “factual information” about an upcoming election? Ah, well, let’s listen to what Julie Hayward Biggs of Burke, Williams & Sorensen (Attorneys at Law) has to say about what the CSD is up to in a letter addressed to Jon Seitz, Esq. (The CSD's attorney) dated August 23, 2005:

“While superficially it [the ad]purports simply to recount portions of letters received by the District relating to the wastewater treatment facilities project, in fact it presents a one-sided view of the status of that project and is clearly designed to frighten and dissuade citizens from supporting the upcoming recall and initiative elections. Although the District has cleverly not made comments in that regard, the presentation of only these letters during the 30 days prior to the upcoming elections is disingenuous. The violation of the law exposes those individual employees and directors who have authorized or participated in the airing of the commercial to significant legal liability for misappropriation of public funds under the provisions of Penal Code Section 504.”

Disingenuous? Our very own CSD, Disingenous?? Why, we’re shocked – SHOCKED!

Ms. Biggs goes on, “While it has been argued by representatives of the district, including its Public Information Official [that’d be Mike Drake who, if you recall, promised NO SPIN, remember?], that the commercial that has been prepared by the District at District expense and direction is merely ‘informational,’ there can be no question that it is one-sided and biased and does not provide information on both sides of the issue.” . . . Furthermore, she notes that a “. . . legislative body can legally vote to support or oppose a measure or cause without engaging in illegal advocacy of a partisan position and without making an improper expenditure of public funds. . . . That is not what has happened here. The commercial has apparently been prepared without notification to the Board and represents a distinct change in programming. No debate is presented, simply purported negative consequences that the majority of the Board wish the public to believe will occur if the recall and initiative are passed. . . . The abuse of power represented by this latest attempt to threaten and intimate the public with misleading information is unfortunately the hallmark of the current District Board majority and management.”

She then goes on to note that the District Attorney, the Attorney General and the Fair Political Practices Commission will be notified in hopes that they’ll take some action.

Bwa-hahahahah. At least so far as the FPPC is concerned, they’ll take action somewhere around the year 3025, maybe. With luck, Ms. Biggs will get a bed-bug, boiler-plate letter from them, a letter that views with alarm and points with dismay and tisk-tisks that my, my isn’t it all unfortunate but alas, since the election is now over and is like, so moot, why then, we needn’t take any action at this time. Perhaps in the year 4075 or something.

And I won’t hold my breath waiting to hear from the DA’s.

On the 24th of August, Bruce Buel, the General Manager of the CSD, got a similar letter from “Californians Aware, The Center for Public Forum Rights.” It basically notes the same problem of using public resources for partisan, biased, not-really-informational informational commercials using public money. The author of that missive, Terry Francke, General Counsel of Californians Aware, states that he personally has no stake in this ballot measure, but does note that “any person holding a competing conviction could file a criminal complaint under Section 8314,” so Mr. Buel and the CSD Directors “may wish to reconsider using public resources to produce this selective alarm.”(The selective alarm being the EEEK!EEEK!FINES!FINES RWQCB letter excerpts intending to scare the panties off the community, do-deee dooo-doo, do-deee-dooo-do) but only in an “informational” way, mind you.)

In other words, if there’s someone out there in Los Osos Land who’s really ticked off that Mr. Buel and certain CSD Board members are misusing public funds, he or she should file a criminal complaint.

Gosh, I sure hope somebody does because that would be a wonderful example of the Laws of Karma at work. If you recall, dear and gentle blog-gazer, two members of the CSD Board filed a ridiculous, ginned up restraining order against a local businessman in order to shut him up, then withdrew it saying, oh, well, nevermind. Finding themselves on the service end of a criminal complaint would strike a nice balance, methinks.

Meantime, our well paid No Spin Public Information Officer needs to do a little No Spin ‘splaining, mainly how it's possible for such a well paid guy like him not to know the ad coming out of his office wouldn't set off alarm bells all over town. The law is very clear on this matter. Whatever tax money is spent on anything involving a political issue, bond campaigns, initiatives, etc. must not only be factual and accurate, but it must be fair and balanced.

Clearly, these commercials aren’t, hence two – count ‘em TWO – letters from two attorneys. But will our CSD pay any attention? Naw. Will our dear and gentle citizens be gulled by the misleading spin going out over the airwaves?

Ah, I can’t say. We’ll have to wait and find that out on Sept 27.

12 comments:

Shark Inlet said...

I suppose then that someone pursuing such a suit would be able to identify selections from RWQCB that indicate some sort of flexibility on fines.

Shoot, finding a lawyer who claims the CSD is presenting biased info isn't too surprising ... I can find a lawyer who will say that black is white and that oranges are apples.

Again, if you can find selections from state documents that indicate there won't be fines, great! "Show me the money!" If it is your contention that the CSD even mentioning the strong possibility of fines is somehow biased, I would strongly disagree. If the CSD did NOT make clear that the RWQCB has threatened us with fines would be negligent.

Maybe I missed your point ... where again is the bias?

Anonymous said...

There is no bias,

I suggest Ms. Calhoun review other districts and municipalities that have had to upgrade facilities. They mention and yes, they publicize, that fines as an action by the state as part of the background for a project.

Yes, it must be one big conspiracy by the sewer industry!

Churadogs said...

Dear Mr. Inlet & Commonsense,

You miss the point. The law is clear. Public moneys may not be spent on bond campaigns, elections etc. in an effort to persuade voters. In short, you can't use public money in a partisan manner. Instead, any information going out using public money must be informational, factual, it must include the good and bad, the consequences, the benefits, the drawbacks, etc. In short, it must be fair and balanced.

The ad showing the excerpts from the RWQCB's FINES! FINES! FINES!letter fails to note, for example, that the fines mentioned can only be imposed IF the present CSD Board votes to do something to deliberately delay the project. If there's an act of God, a lawsuit not under their control, or, oh, let's say, an election that votes in an iniative that puts the project on pause, or a recall that changes the board make up entirely, (all things out of the control of the present CSD) then the fines cannot be imposed. THAT information is missing from the ad, hence it's misleading and one sided and only a naif would claim that its intention was to inform fully, not persuade with selective ommissions.

Mr. Drake, as a professional IPO, should know this stuff. I learned it very well watching and reporting on the San Luis Coastal School District's Measure A campaign years ago. Watching how they skated right by the law (enforcement is a joke, the Fair Political Practices group a total hoot), I learned early on how that game is played and then blandly denied, "Who, us? Why, we're shocked -- SHOCKED -- you would think we're doing anything 'spinish!'"

Pleeeeeze, I didn't fall off the turnip truck yesterday. Neither did you two.

Anonymous said...

Your interpretation of items within the district's control is suspect. Are you actually saying that a district electorate can legislate matters & decisions(by either enacting laws or new board members) to avoid fines.

Maybe your not saying that. Are you sure you truly understand the legal implications?


I think everyone in LO has fallen off the turnip truck - they just hit different sides of the ground.

NewsstandGreg said...

Dear Turnip Truck Riders,

Including you, Mr. Anonymous! .."IF the present CSD Board votes to do something to deliberately delay the project...if there's an act of God, a lawsuit not under their control, or, oh, let's say, an election that votes in an iniative that puts the project on pause, or a recall that changes the board make up entirely, (all things out of the control of the present CSD) then the fines cannot be imposed. THAT information is missing from the ad.."

How much more clear does it have to be!

Maybe you are one of those lawyers who can make a case for an orange actually being an apple?

Anonymous said...

There are some obvious facts based on what has happened.

#1) The district (this board, any new board) does not seem to have a good case to protect itself. The circular logic that says that the electorate can keep changing boards and passing laws that somehow can keep protecting themselves (the district) from fines just seems absurd.

#2) The property owners in the prohibition zone are another matter. They voted for an assesment, and have a very good case to make to the state water board, that everything is beyond their control - which it is. They also have a potential case against the district (or future board) should the district delay, or enact new laws.

If people keep expousing uniformed or ignorant interpretations of laws, voters will likely make ignorant decisions.

Shark Inlet said...

As I understand it, the LOCSD is the group who will be fined for not taking action by the final "drop dead deadline" this fall. In particular, construction must begin. If there is another lawsuit to prevent the start of construction the RWQCB may choose to extend the deadline if they want.

However, if the composition of the board changes due to a whim of the public (even if beyond the control of the CSD) the LOCSD may be fined.

The RWQCB is under no obligation to re-set the date for start of construction just because the composition of the board has changed. If they were, they most certainly should have done so back in 2004 when Julie "I want the park back into the project" Tacker was voted in.

Have some common sense here, people! Why not read what the RWQCB has written and take it at face value rather than hopefully thinking it will just get better if we bury our heads in the sand.

Even if Ann and Ron are right and that the CSD has screwed things up right and left becuase of their lack of experience back in 1998-2002, do you think the solution is to vote in a new group of newbies who also lack experience? Even if Pandora and Stan and the rest back in 1998-2002 made every decision wrong, we are still better off moving forward now with a plan that has been finance and permitted than starting fresh but having $11M in fines and $20M in design costs over our heads. Shoot, the new plan would have to come in at $30-35M less than the current plan for us to save any money. Hard to do when construction costs are rising daily.

Who do I blame? Perhaps the CSD for some decisions years back (read Ron's sewerwatch blog for a biased but still interesting timeline) but most certainly people who have argued against the sewer for the last 20-30 years. Every delay and lawsuit (so far) has ended up costing us money. Why would any rational person now think that additional delay by a recall would do anything else?

I am still waiting for Ann or Ron or anyone to explain how the "move the sewer" and "THREEcall" solution will save us any money.

Anonymous said...

I doubt they'll be successfully sued, and particularly as individuals.

As an example, the CSD also posts notices about vacant lot development CC conditions. Since opponents have also gone out of their way to point out that vacant lot owners won't be able to develop, that information about vacant lot development can hardly be construed as electioneering any more than the RWQCB information is.

The fact is, the RWQCB & state board information have re-appeared at the time construction began, probably because the RWQCB & state's role in funding is in fact relevant to the project, and why the project is being performed. It is relevant to the average citizen, not just the infuriated activist (pro or against) who sees sinister plots wherever they look. The District is the administrator of the project, and thus has administrative responsibility to inform the public on the reasons for the project, and the funding. The information is relevant. It is not the District's job as an administrator to speculate on whether or not the RWQCB would fine or would not fine or would reduce fines or whatever with fines. It is only sufficient to relay the facts, and the fact is the RWQCB has the authority to fine the District if it does not follow through on it's administrative actions.

What public information about the RWQCB should the CSD present? Should they present a statement that says, 'Nah, even if we were to stop the project, we would probably get another 3-6-9 years off without penal action, because heh, we're Los Osos, and we can't afford what's mandated by EPA law'? Hey Chura, why don't you send that in to the PIO?

Just because the project started two months prior to the election as well does not make the information any more or less electioneering.

People can make all the allegations they want, but there is no reason to believe that any allegation would have legal merit.

Oh, and by the way, Ann, Lompoc is paying I believe about $40+million just for an upgrade. Lompoc, fortunately, has a tax base.

Los Osos is an overbuilt town on a compressed sand dune, in the coastal zone, subject to stringent state requirements, with a disparate economic strata, with no infrastructure, with a historically litigious populace, divided by prohibition zone, with a substantial rental populace, and no significant retail base. That is a formula for contention and failure for any substantial project. Face it, the sewer 'day of reckoning' has been looming for 30 years. Avoiding it for 3-6-9 more years will only make the next 'day of reckoning' worse. The project is not a 'bad' project, it is an expensive project, just as an out-of-town quest will result in another expensive project if in fact the CSD remains viable to pursue one.

Churadogs said...

Dear Mr. Works,

The electioneering laws governing the use of public monies are clear. I didn't write them. I am only obesrving that, more often than not, they are not observed for a very simple reason: The likelyhood that some citizen will actually sue is remote, the Fair Political Practices Commission is a joke, so who's gonna enforce the laws? Plus, laws governing elections are, shall we say, "time sensitive." A phony spun totally illegal "hit piece" a few days before an election (using tax money to carryit off) can be very effective and very illegal and everyone knows nobody will do anything about it and even though someone could prove that the illegal piece swayed the election, so what? Who ya gonna sue? Would any court in the land change an election? I doubt it.

What'fascinating to me is that apparently you have no problem with the CSD using tax money to "spin" an election campaign and then ingenuously get all wide-eyed and deny it all. That's o.k. with you? It isn't with me. I don't like my CSD pulling unethical crap like that. It shames them.

Anonymous said...

No, I don't have a problem with all the information, showing the waterboard meetings is certainly better because it shows a meeting conducted by better behaviour by the audience, and it helps to clarify in part the funding mechanism.

I'd actually rather not even have a PIO or have their duties delegated to a staff member if possible.

So here's a recommendation, if the candidates had indicated they would also make the proper cost/risk evaluation of stopping the project (NOT JUST STOPPING THE PROJECT, NO MATTER WHAT), then they would have credibility. But at this point, if they flip-flopped, well then I guess that might damage their credibility.


If voters make their choice based on what either the CSD tells them or what Candidates promise, then you'll get lousy electoral decisions.

Churadogs said...

Dear Public, If all the recall candidates clearly state that they think a sewer plant in the middle of town is a really bad idea, and they're campaigning on NOT having a sewerplant in the middle of town becasue they think it's a really bad idea, and people vote for them on the basis of their being opposed to having a sewer plant in the middle of town, in what way would that mislead the voters? That seems to be to be a platform clearly stated.

Now, if they told you repeatedly that they had thoroughly examined ALL possible alternatives to whatever sewer plan they were touting and you later found out, for example, that they NEVER priced out Ag Exchange, indeed had poo-poohed it as a workable option and never seriously evaluated it, then later when it showed up in a Water Report which they they officially voted to approve, would you have a basis of thinking, Hey, wait a minute. You told me you had examined ALL alternatives and yet you didn't cost out or seriously looked at Ag Exchange, what gives?

Now THAT, it seems to me would be an excellent basis for claiming that the community was snookered.

but then, that's just my opinion on what constitutes "snookering."

Churadogs said...

Spectator, please see the Cleath & Assoc Water STudy that was presented a few months ago. Ag exchange is listed as something to be seriously looked at to help- solve the water shortage problem (and possibly help with stopping sea water intrusion.)If I'm not mistaken, the CSD voted to "accept and implement" the report's findings and reccommendations. I'm not diddlying you at all. Please read the report. it's in the CSD office.