Look, Ma, Lemmings! Let’s Jump, Too!
The smell of fear in the room was palpable. Fear fed on half-truths, untruths, fragmented truths and sheer made up stuff that was woven into grand End of the World scenarios and breathtakingly inventive “What Ifs” that were then presented as “real.”
I’m speaking, of course, of the Thursday, Nov. 3rd. Los Osos CSD meeting right here in beautiful downtown Sewerville. The State Water Board had pulled the low cost loan and rejected the CSD/SWB’s tentatively agreed to, negotiated “Deal.” Yes, the old wallet tied to a string trick.
If you ever wanted to see how easily people can be buffaloed and herded, if you ever wanted to see how quickly people will change their convictions and directions, abandon their choices to rush into the arms of whatever appears to be “safe” when threatened, how easy it is to spook people into running, then that meeting was a perfect place to witness the process.
Luckily, after some hyperventilating, a few interesting bits of information slowly emerged.
Our new General Manager, Daniel Blesky, self-identified himself as primarily being “A Contract Guy,”and as such he has written a little billet doux to the State Water Board. He read pertinent sections that pointed to parts of the contract for the State Revolving Fund Loan, a contract that the State Board wrote and that they and the previous CSD signed for the State Loan, the parts of that contract that the State Water Board apparently violated when they stopped the already-agreed upon last payment installment. Mr. Blesky pointed out that contracts always have in them “remedies” which must be followed. Indeed, contracts ARE little more than a set of “remedies” organized in a logical fashion – basically, an agreement that if I do X you must do Y and if I don’t do X, you must do A first, then if that doesn’t work, you move to B and so forth – all spelled out. What you cannot do is to go from X to immediately shooting my dog. Doing so puts you in breach of contract, which Mr. Blesky says the State did in their unseemly haste to terminate the town (That’ll show ‘em!)
In short, the State didn’t do A, followed by B. They just shot our dog. Apparently, that’s a legal no-no. (I presume the state will argue that they shot our dog because they thought we MIGHT do X and they weren’t gonna wait around to see if we actually did. But I don’t think contract law provides for anticipatory dog-shooting. Of course, I could be wrong.)
More interesting still is this: All contracts have “wiggle room,” that’s what they’re all about – encompassing a scope of work and setting forth the best way to get it done at an agreed upon price & etc. All contracts (good ones) have built into them the ability to be modified as things change on the ground, i.e. prices change, physical situations on or in the ground turn up, etc. Again, that’s what good contracts are all about. In short, if all parties agreed that what this contract was all about was building a sewer treatment system and the only thing to be modified was the treatment plant and its site, and IF that modification failed, the original plan and site would be back in play, then IF all parties agreed, then the contract could be modified as to the scope of the work. This sort of thing happens all the time IF ALL PARTIES ARE AGREED. So, there’s the question for the State: The CSD agreed to modify the original contract. The State refused. Why?
Also of interest, according to Mr. Blesky, the CSD first agreed to all terms required by the state to enter into formal negotiations. The CSD brought a proposal to the negotiating table. They all considered that proposal and then the State came back with their non-negotiable Proposal, as a “counter offer.” The CSD voted to accept the counter-offer, which the State then promptly dumped. As per Mr. Blesky, that’s effectively another breach of “contract,” another “deal” broken by the state, not the CSD.
At present, Mr. Blesky said he’d try to get the letter he’s sent off to the state posted on the CSD website so folks can read the pertinent info themselves.
Furthermore, according to Mr.Blesky, the contract written by the State Water Board clearly states that everyone signing on to the contract MUST obey all laws and regulations and statutes & etc. And when Measure B passed it was considered law, and until it’s formally overturned by the courts, it still IS the LAW, so everyone, including the CSD and the contractors and the State Board itself had to abide by Measure B, or be put in jeopardy of being charged with criminal activity. (Oddly enough, the way the Measure is written, it appears as if the collection pipes could have continued to be laid – the “Deal” the CSD agreed to – without running counter to the Measure, since the Measure only concerned the site of the sewer plant itself.)
As for measure B, there’s a December 14 hearing in the appeals court, after which the court has 90 days to render a ruling, which can be appealed to the State Supreme court. Not known is whether the CSD is required to defend the case in court (it’s forbidden to spend money to defeat the measure in court, but I don’t know if it’s required to defend and appeal.)
Also not known, is whether or not the State violated Proposition 218 when they originally issued the loan (increased vastly) without having the community vote on whether or not they wanted to be encumbered with that loan and agree to repay it & etc. Also not known is whether any Federal rules were broken in the way the original loan was set up, since Federal money was also involved.
Even more interesting was a Mr. Fergus who got up to note that according to the Regional Water Quality Board’s documents, fines are base on ability to pay. Ability to pay? What’s that? The previous CSD Board refused to do an “affordability study” for pricing out the sewer, so nobody knows what the “ability to pay” of the prohibition zone folks is. Wouldn’t it be ironic if the RWQCB was required to do what the previous CSD Board refused to do and that is to at least find out our “ability to pay” by having to do an “affordability” study in order to fine us?
And what would happen if such a study found out that the folks in the prohibition zone only had the ability to pay $100 a month? How then, were they expected to have the ability to pay $200 a month for the Tri W Sewer? Ability to pay? I can hardly wait to find out what that means and see those numbers.
Meantime, the CSD and/or the Advisory Committees, which are being re-started, will hopefully be making public the crunched numbers for the out-of-town plans that were presented and examined in the negotiating room. It’s critical that this community take a good, long hard look at those numbers. The previous CSD repeatedly told us that they had examined ALL options, that any out-of-town site would be waaaaay more expensive and simply couldn’t be done, that the Tri-W site was the ONLY option. It’s important that this town know just what those negotiators were looking at when they arrived at their preliminary “deal” that indicated that not only would the out of town site be cheaper and/or give more bang for the buck, but could be “permitted” and work started within the two-year window.
Meantime, folks in the community need to take a deep breath and stop thinking that Roger Briggs of the RWQCB will come to their door and hand them an individual fine for $11 million. From some of the fearful comments made Thursday night, I have an awful feeling some people out there think that’s what’s going to happen.
Which is why it’s critical for everyone in the community to be very, very careful about what they hear and from where and whom. For example, one of the “Dreamers” announced that there’s a petition circulating to dissolve the CSD. When certified, the CSD must call another election and the voters can vote on the matter. What wasn’t said was whether or not such a de-certification process requires that LAFCO sign off on the deal, a process I’m told can take a year or more to complete. Nor did the “Dreamer” indicate whether the county would even take on the burden. Instead, what was clearly implied by the speaker is if the election was held and the CSD dissolved, then POOF! the State Loan would arrive the next day and the Tri-W sewer site would begin a-building overnight!
If the community isn’t to be Lemmingized by fear and rumor and snappy misleading campaign slogans, then everyone better keep a pound of salt handy, start attending the CSD meetings (or catch them on TV), and/or take a gander at all the various original documents kept on file in the Giant Big Huge Board Books in the CSD office.
Otherwise, there’s the cliff. Start your furry little engines! Bwa-aaaaaaaa-ieeeee!