Is That A Xerox I See In Your Pocket, Or Are You Just Glad To See Me? Part Duh.
The May 30th Tribune front page story featured a look-see on various billing charges to the Los Osos CSD by several of the law firms it has contracted with, as well as billing for the services of Wildan management for the past few months. It was given big, front-page play, including the pull quote, “For a law firm to turn the fax machine and the photocopy machine into profit centers is unethical and is an embarrassment to the profession,” said Lisa G. Lerman, professor of law at Catholic University Law School. (The California State Bar wouldn’t comment on the story but did suggest lawyers “consider 11 different points when billing a client. Those include looking at the amount of the fee compared to the value of the service performed and the time and labor required.”
The Tribune noted that the law firm of "Burke, Williams & Sorensen billed the district $1 for each page it faxed, and 20 cents for each page it copied – almost three times what copy shops such as FedEx Kinko’s charge” (There was no mention of the wages to pay a law firm employee to drive to Kinkos to Xerox the pages. Presumably that would drive the price up a considerable amount?)
Interestingly, Copy Spot here in Los Osos charges $2 a page for a long distance fax for the first page and $1 each page thereafter, so clearly the CSD, in getting billed only $1 for all the pages, is getting a bargain. The county, on the other hand, charges 10 cents a page to Xerox simple stuff such as a BoS agenda, so clearly the CSD may need to discuss that with Burke, Williams & Sorensen. That extra 10 cents a page for Xeroxing could well offset the $1 a page savings on faxes.
What the Tribune story left out, of course, is something that I’ve been curious about for a long time: How much are the various Taxpayers Watch lawsuits costing the district and how much legal cost can be directly attributed to the old board recklessly starting the sewer project just weeks before the recall , and how much is simply run-of-the-mill legal, management and general operating costs that would occur even if there were no sewer issues?.
I suspect that the amount of the first two items will turn out to be considerably higher than the Xeroxing billing at 20 cents a pop. Of course, if you focus your story on the little stuff, that lets you avoid having to put the really big stuff into a larger context.
Much easier.
Wednesday, May 31, 2006
Friday, May 26, 2006
Are Those Domain Names In Your Pocket, Or Are You Just Glad To See Me?
Mother Calhoun is getting downright discouraged. She thought that through the years, people were actually paying attention to her Sage Advice For The Clueless. But clearly, nobody’s listening because there are people out there still Walking While Stupid.
I refer, of course, to the May 24th Bay News story, “Taxpayer’s Watch Decries Internet Skullduggery,” wherein we learn that back on Nov 29, 2005, CSD Interim Counsel John McClendon bought up several web addresses for $2.99 each. The web addresses he bought were variations on all things taxpayerswatch-ish, such as www.Taxpayerswatch.org and www.Taxpayerswatch.com and so forth. McClendon, no doubt with his tongue thoroughly set in his cheek, is quoted in the story as saying that he did his shopping “on his own time and paid the fees. He said he has nothing against the local Taxpayers Watch, but makes it a practice to pick up web addresses that may benefit future clients. He said there are Taxpayers Watch organizations in several communities. ‘I was depressed that night,’ he explained, ‘I went shopping and I’m Scottish. I’m cheap. I love a bargain.’”
So, what’s the problem here? People buy domain names all the time. No big deal, right? Well, to continue the Bay News story, “[McClendon] said he ‘parked’ the addresses to send people to the CSD site [instead]. He also indicated he was sorry that the CSD was being rapped’ for his actions.” In other words, when people typed in the domain names he owned, thinking they were going to the Taxpayerswatch site, they would be bounced over the official CSD site instead. Very funny?
Gee, you think?
Naturally, Joyce Albright, chairwoman for the local Taxpayers Watch group, jumped to the conclusion that this was all the responsibility of the CSD. Said she, “It’s just proof again of the methods of the current board. It’s duplicitous, underhanded and sneaky. I’m shocked at the low quality people they employ.” Which caused many people familiar with the published product and actions of Taxpayers Watch to roll their eyes and mutter, “Pots & Kettles, Pots & Kettles.”
Then, after being shocked – shocked – Joyce was quoted as saying that “As a result, the web address for Taxpayers Watch has been changed to: dissolvethelocalcad.org. Even though she was irked, Albright said the change did not cost them any money or cause them to do extra work. ‘I like the new one better,’ she said. ‘It says it all.’”
So, no harm, no foul? Really? Well, listen up everyone. Mother Calhoun will – once again – spell it out for you:
1. When you know a group of people have declared themselves to be your sworn enemy, hell-bent on destroying you utterly, and they have already proven to you that they have a shaky grasp on the difference between “fact” and Madison Avenue’s distorted version of Phony Phacts, and have no ethical compunction against employing such duplicitous, underhanded and sneaky tactics in all they do and say, you do not give them swords.
2. Perception IS reality. Public servants, working on the taxpayer’s dime, have a special duty to be like Casesar’s Wife: Not only do they have to be above suspicion, they must appear to be above suspicion.
3. Private citizens are free to lie, distort, play dirty tricks on one another and engage in other assorted japery. Public servants are not. I know. Unfair double standard. Tough. Deal with it.
On a happier note, the Bay News story did reveal, ta-DA- “According to documentation provided by McClendon, the Taxpayers Watch’s current Web site address – which he [McClendon] characterized as the ‘I’m still mad’ Web site – is owned by Michael Drake, the former CSD public information officer who was fired after the recall election.”
Mikeee’s baaaack!
Yep, the same Mike who was quoted using the word “we” as in “WE’VE been waiting THIRTY YEARS for this sewer plant,” & etc. when, in truth, he’d only arrived in town a few months before. And, I’m not sure the word “fired” is exactly accurate. “Fired” almost always has negative connotations – i.e. that the person in question is incompetent or had been discovered engaging in some sort of skullduggery. Mike’s contract as Public Information Officer was specifically tied to the Tri-W sewer project. No project, no contract. No contract, no Mike. So, unless something was uncovered during the new CSD’s Board during closed session discussions, it may be fairer to say Mike’s contract was terminated rather than he was “fired.”
Of course, during his tenure, there were many complaints that Mike had crossed the line between Public Information and political advocacy during the recall campaign. But here he is again, working with Joyce Albright and [recalled board member] Gordon Hensley and other supporters, members and associates of Taxpayers Watch. Ah, the old gang, back together again! What could be better?
The only question left is this: Who’s writing the Phacts that appear on Mr. Drake’s Taxpayer’s Watch website?
Mother Calhoun is getting downright discouraged. She thought that through the years, people were actually paying attention to her Sage Advice For The Clueless. But clearly, nobody’s listening because there are people out there still Walking While Stupid.
I refer, of course, to the May 24th Bay News story, “Taxpayer’s Watch Decries Internet Skullduggery,” wherein we learn that back on Nov 29, 2005, CSD Interim Counsel John McClendon bought up several web addresses for $2.99 each. The web addresses he bought were variations on all things taxpayerswatch-ish, such as www.Taxpayerswatch.org and www.Taxpayerswatch.com and so forth. McClendon, no doubt with his tongue thoroughly set in his cheek, is quoted in the story as saying that he did his shopping “on his own time and paid the fees. He said he has nothing against the local Taxpayers Watch, but makes it a practice to pick up web addresses that may benefit future clients. He said there are Taxpayers Watch organizations in several communities. ‘I was depressed that night,’ he explained, ‘I went shopping and I’m Scottish. I’m cheap. I love a bargain.’”
So, what’s the problem here? People buy domain names all the time. No big deal, right? Well, to continue the Bay News story, “[McClendon] said he ‘parked’ the addresses to send people to the CSD site [instead]. He also indicated he was sorry that the CSD was being rapped’ for his actions.” In other words, when people typed in the domain names he owned, thinking they were going to the Taxpayerswatch site, they would be bounced over the official CSD site instead. Very funny?
Gee, you think?
Naturally, Joyce Albright, chairwoman for the local Taxpayers Watch group, jumped to the conclusion that this was all the responsibility of the CSD. Said she, “It’s just proof again of the methods of the current board. It’s duplicitous, underhanded and sneaky. I’m shocked at the low quality people they employ.” Which caused many people familiar with the published product and actions of Taxpayers Watch to roll their eyes and mutter, “Pots & Kettles, Pots & Kettles.”
Then, after being shocked – shocked – Joyce was quoted as saying that “As a result, the web address for Taxpayers Watch has been changed to: dissolvethelocalcad.org. Even though she was irked, Albright said the change did not cost them any money or cause them to do extra work. ‘I like the new one better,’ she said. ‘It says it all.’”
So, no harm, no foul? Really? Well, listen up everyone. Mother Calhoun will – once again – spell it out for you:
1. When you know a group of people have declared themselves to be your sworn enemy, hell-bent on destroying you utterly, and they have already proven to you that they have a shaky grasp on the difference between “fact” and Madison Avenue’s distorted version of Phony Phacts, and have no ethical compunction against employing such duplicitous, underhanded and sneaky tactics in all they do and say, you do not give them swords.
2. Perception IS reality. Public servants, working on the taxpayer’s dime, have a special duty to be like Casesar’s Wife: Not only do they have to be above suspicion, they must appear to be above suspicion.
3. Private citizens are free to lie, distort, play dirty tricks on one another and engage in other assorted japery. Public servants are not. I know. Unfair double standard. Tough. Deal with it.
On a happier note, the Bay News story did reveal, ta-DA- “According to documentation provided by McClendon, the Taxpayers Watch’s current Web site address – which he [McClendon] characterized as the ‘I’m still mad’ Web site – is owned by Michael Drake, the former CSD public information officer who was fired after the recall election.”
Mikeee’s baaaack!
Yep, the same Mike who was quoted using the word “we” as in “WE’VE been waiting THIRTY YEARS for this sewer plant,” & etc. when, in truth, he’d only arrived in town a few months before. And, I’m not sure the word “fired” is exactly accurate. “Fired” almost always has negative connotations – i.e. that the person in question is incompetent or had been discovered engaging in some sort of skullduggery. Mike’s contract as Public Information Officer was specifically tied to the Tri-W sewer project. No project, no contract. No contract, no Mike. So, unless something was uncovered during the new CSD’s Board during closed session discussions, it may be fairer to say Mike’s contract was terminated rather than he was “fired.”
Of course, during his tenure, there were many complaints that Mike had crossed the line between Public Information and political advocacy during the recall campaign. But here he is again, working with Joyce Albright and [recalled board member] Gordon Hensley and other supporters, members and associates of Taxpayers Watch. Ah, the old gang, back together again! What could be better?
The only question left is this: Who’s writing the Phacts that appear on Mr. Drake’s Taxpayer’s Watch website?
Thursday, May 25, 2006
Calhoun’s Cannons, The Bay News, Morro Bay, CA, for May 24, 06
Yin & Yang
Help thy brother’s boat across and Lo! thine own has reached the shore.
Hindu proverb
Ron Crawford, former Bay News editor, has maintained a blog at http://www.sewerwatch.blogspot.com/ and has recently posted a stunning piece of blog theatre, titled “Contrast.”. If you ever wanted to know what some of your neighbors thought of you and moved heaven and earth to attempt to get rained down on your heads, do log on and take a gander at the nice selection of crunch and bite that Ron’s assembled for you. Selected readings for your contemplation. Bon appetite!
At my own blogsite (http://www.calhounscannon.blogspot.com/), a dedicated band of Sewergeeks have turned the Comment section into something akin to the old country store, with folks gathered around the internet’s version of the pot-bellied stove to yak and natter. But we were all brought up short by an anonymous cri de coeur posted by someone called “CDOer.”
Whether through denial (it won’t happen to me), or ignorance (what’s a CDO?), or fantasy (dissolution and “The County” will save me -- Wrong, it won’t, and the County refused to help you, even as an “Interested Party”), or apathy (I’ll think about that tomorrow), 45 of your friends and neighbors who have been randomly targeted for political punishment using Cease & Desist Orders by an incompetent, inappropriately emotionalized, ill-prepared, out-of-control Regional Water Quality Control Board, have spent months doing the heavy lifting for the whole community – that’s you, dear and gentle reader. “CDOer” had a few things to say to my blog kibitzers that bears repeating in this column. Please pay attention: The shoes this writer is walking in are your shoes.
“If I were a Zen master, I would whack you between the shoulder blades to bring you into the present and out of the daydream that prevents you from addressing the issues in front of your face.
“[when the 45 CDOs were issued] . . . You and every other citizen in Los Osos had the opportunity to request Interested Party status from the RWQCB in the matter of the CDOs. Designated Parties [The Los Osos 45] and Interested Parties have been meeting every week for months to invent the wheel, educating ourselves and supporting each other, as well as reaching out to the community with information and to ask for support. Remember the door hanger you got just before the [April 28 ] hearing? We who have much better things to do distributed 5,000 of those on foot [and], by hand.
“Had you been attending those meetings, you would know what Los Osos can do right now. As it is, everyone who comes after us with their own CDO will have to re-invent the wheel or beg us to please assist them, and we are so tired. You won’t know how tired that is until you have had your CDO for three months, [attended] meetings, research[ed] hundreds of pages of documents, walk[ed] door-to-door to 5,000 [Prohibition zone] homes, [spent time] writing legislators, writing objections . . . writing briefs.
“What can Los Osos do RIGHT NOW? Attend every meeting you can find – CSD meetings and sub-committee meetings. PARTICIPATE. . . .Los Osos has too many citizens sniping from the shadows. . . . Stay out of the back door. Walk in the front door. Show you face. Have the guts to attach your name to it and face those you disagree with. . . . Find out who your CDO neighbors are. Attend any community meetings you can find . . . Contact the [CSD] board members. . . . Try engaging instead of confronting. . . . And most importantly of all, start educating yourself for [your] CDO days to come.”
Right now, the CSD is in the process of formulating a Septic System Management Program that can offer to the RWQCB more effective interim mitigation options than the wrongly applied CDO plan calls for. A SSMP is a program that the RWQCB and the County have failed to implement for 20 years. But only the CSD and informed and engaged citizens of Los Osos can now finally make that happen.
Another informational meeting for the Los Osos 45 is planned for 7 p.m. on June 12 at Sunnyside School. For further information, call Rob Shipe at 528-6772 or Bill Moylan at 528-2324.
In all matters Sewerish, CDOish, and SSMPish, getting actively and openly involved in helping your friends and neighbors isn’t altruism. It’s pure enlightened self interest.
Yin & Yang
Help thy brother’s boat across and Lo! thine own has reached the shore.
Hindu proverb
Ron Crawford, former Bay News editor, has maintained a blog at http://www.sewerwatch.blogspot.com/ and has recently posted a stunning piece of blog theatre, titled “Contrast.”. If you ever wanted to know what some of your neighbors thought of you and moved heaven and earth to attempt to get rained down on your heads, do log on and take a gander at the nice selection of crunch and bite that Ron’s assembled for you. Selected readings for your contemplation. Bon appetite!
At my own blogsite (http://www.calhounscannon.blogspot.com/), a dedicated band of Sewergeeks have turned the Comment section into something akin to the old country store, with folks gathered around the internet’s version of the pot-bellied stove to yak and natter. But we were all brought up short by an anonymous cri de coeur posted by someone called “CDOer.”
Whether through denial (it won’t happen to me), or ignorance (what’s a CDO?), or fantasy (dissolution and “The County” will save me -- Wrong, it won’t, and the County refused to help you, even as an “Interested Party”), or apathy (I’ll think about that tomorrow), 45 of your friends and neighbors who have been randomly targeted for political punishment using Cease & Desist Orders by an incompetent, inappropriately emotionalized, ill-prepared, out-of-control Regional Water Quality Control Board, have spent months doing the heavy lifting for the whole community – that’s you, dear and gentle reader. “CDOer” had a few things to say to my blog kibitzers that bears repeating in this column. Please pay attention: The shoes this writer is walking in are your shoes.
“If I were a Zen master, I would whack you between the shoulder blades to bring you into the present and out of the daydream that prevents you from addressing the issues in front of your face.
“[when the 45 CDOs were issued] . . . You and every other citizen in Los Osos had the opportunity to request Interested Party status from the RWQCB in the matter of the CDOs. Designated Parties [The Los Osos 45] and Interested Parties have been meeting every week for months to invent the wheel, educating ourselves and supporting each other, as well as reaching out to the community with information and to ask for support. Remember the door hanger you got just before the [April 28 ] hearing? We who have much better things to do distributed 5,000 of those on foot [and], by hand.
“Had you been attending those meetings, you would know what Los Osos can do right now. As it is, everyone who comes after us with their own CDO will have to re-invent the wheel or beg us to please assist them, and we are so tired. You won’t know how tired that is until you have had your CDO for three months, [attended] meetings, research[ed] hundreds of pages of documents, walk[ed] door-to-door to 5,000 [Prohibition zone] homes, [spent time] writing legislators, writing objections . . . writing briefs.
“What can Los Osos do RIGHT NOW? Attend every meeting you can find – CSD meetings and sub-committee meetings. PARTICIPATE. . . .Los Osos has too many citizens sniping from the shadows. . . . Stay out of the back door. Walk in the front door. Show you face. Have the guts to attach your name to it and face those you disagree with. . . . Find out who your CDO neighbors are. Attend any community meetings you can find . . . Contact the [CSD] board members. . . . Try engaging instead of confronting. . . . And most importantly of all, start educating yourself for [your] CDO days to come.”
Right now, the CSD is in the process of formulating a Septic System Management Program that can offer to the RWQCB more effective interim mitigation options than the wrongly applied CDO plan calls for. A SSMP is a program that the RWQCB and the County have failed to implement for 20 years. But only the CSD and informed and engaged citizens of Los Osos can now finally make that happen.
Another informational meeting for the Los Osos 45 is planned for 7 p.m. on June 12 at Sunnyside School. For further information, call Rob Shipe at 528-6772 or Bill Moylan at 528-2324.
In all matters Sewerish, CDOish, and SSMPish, getting actively and openly involved in helping your friends and neighbors isn’t altruism. It’s pure enlightened self interest.
Sunday, May 21, 2006
Options First, Trial Later? Is that County Mummy Dearest I see standing there suddenly, all smiles and huggie-boos?
First, a May 12 letter to CSD General Manager, Dan Bleskey and Gail Wilcox, Assistant County Administrator, from Paul Hood, Executive Officer of LAFCO. This will be followed by my Nosey Parker Public Comment. And following that, a deliciously accurate recipe by Gail McPherson on just how one goes about dissolving a CSD.
The biggest puzzle to me in what appears to be Mr. Hood’s trial balloon proposal, besides it being curiously cart before horse-ish, is this: Why is the county being asked to play the role of the loving parent . . . now? I mean, the county was free to step up to “joint-partner” while the Great Blakeslee Compromise negotiations were underway. Indeed, they were free to “joint-partner” with various financing options even after the Blakeslee Compromise fell through, yet they said nothing. And when asked to sign on as either a Designated Party or an Interested Party for the CDO’s, their response was Talk To The Hand.
So far as I know, the only “county” response to the CSD efforts to move the sewer came in the form of an Oct 20th letter from Supervisor Shirley Bianchi to State Water Board Chair Arthur Baggett assuring him that “This is a particularly difficult situation since the current District Board either will not or cannot understand any government process. At one point I was asked if the political will exists here in San Luis Obispo County to assume the management of the project [Tri-W] if, for whatever reason, the District were unable to continue with it. Let me assure you that you have my full support, and I believe that the other Supervisors would give great weight to my position.”
In other words, screw the voters and since the newly elected CSD Board was too stupid to “understand any governmental process,” then they certainly weren’t an elected body that needed to be treated as a co-equal governing body. No, indeed. Instead, Mummy Bianchi could be relied on to go behind their backs and take matters into her (and Water Board Chair Baggett’s) own hands.
Oh, did I forget to tell you, Supervisor Bianchi is one of the LAFCO Commissioners, and to my knowledge, she has not excused herself from voting on the dissolution of The Good Old Too Stupid To “Understand Any Governmental Process” Los Osos CSD. Ah, yes, unbiased Mummy Dearest Redux.
So, pass the cheese, please. I smell something cooking here. Rats en brochette, perhaps? Which is why I have to wonder if The County now loves Los Osos ---like a glutton loves his lunch?
LAFCO’s letter:
Subject: Collaborative Options to Dissolving the District
Dear Mr. Bleskey and Ms. Wilcox:
As you know, a proposal to dissolve the Los Osos community Services District has been filed with the Local Agency Formation Commission (LAFCO). LAFCO staff is in the process of evaluating several different options regarding the Dissolution proposal. In analyzing this application, two options have been identified that would call for the cooperation of both the County and the District. These collaborative options could help resolve the situation if the County and District are willing to work together. The options are described as follows:
Option A: Divesture of the Sewer Power from the District. The LOCSD would voluntarily divest itself of the power to provide wastewater and sewer services and the County would voluntarily agree to provide this service. LAFCO approval of this action is required for this option to be implemented.
Discussion. If the District chose to divest the sewer power, they would continue to provide other services to the community of Los Osos; i.e. water, fire, street lighting, garbage, etc. The District would remain as the local agency that provides services to the community and may be able to manage the sewer at some point in the future, subject to LAFCO approval. The sewer power could be transferred to the County through the activation of this power under County Service Area 9. The County would not be obligated to assume the responsibility for the other services. The County appears to be in a better position in terms of resources and financial standing to complete the sewer project. Moreover, this action could be conditioned by LAFCO to limit the liability that would be transferred to the County. Current liabilities, loans, bonds and lawsuits would remain with the District because the CSD still exists, subject to LAFCO conditions for the divestiture as permitted by statute.
Option B: County and District enter into a Joint Powers Agreement. This option would give the LOCSD and the County the opportunity to develop an agreement that would create a “Board” or “Authority” to construct and operate the sewer. The County and District could work out the details of such an agreement that may limit liability and increase the chances that the sewer would be constructed in a timely and more cost effective manner. LAFCO approval of this action is not required for this option.
Discussion: A Joint Powers Agreement (JPA) would create a new governmental structure that may be able to obtain financing at a reasonable interest rate while limiting the liability to the County and the District. Through the Joint Exercise of Powers Act public, agencies may agree to assist one another using a Joint Powers Agreement that establishes a board, commission other agency to provide governance for the project. A joint Powers Agreement identifies roles and responsibilities for the agency. Under Government Code 6546, revenue bonds may be issued by the joint powers entity for the construction of wastewater facilities (6546(g)). It may be possible for a Joint Powers Agreement to be written contractually in such a manner as to limit the liability that might be incurred by the County or the District. The precise details of the JPA would be addressed if the County and the District decide to enter into such an Agreement.
LAFCO is interested in hearing from the District and the County with regard to the potential and feasibility of the above options. These options provide a way to work together to complete the sewer project in a manner that could be more cost effective and time efficient. It may be that after the sewer project is completed the facilities are transferred to the District for operation and maintenance.
We will be including a discussion of these options in the June 15, 1006 Staff Report to the Commission. An immediate response from the District and County regarding these alternatives would be helpful. If you wish the Commission to consider your input on these options, please provide a written response by May 22, 1006.
Thank you for your assistance in this matter. Please don’t hesitate to call me at 805-781-5795 if you have any questions.
Sincerely,
[Paul Hood]
And My Nosey Parker Public Comment to Mr. Hood’s letter
May 19, 2006
Paul Hood, Exec. Director
LAFCO
Commissioners & Staff
County Courthouse Complex, Admin
1042 Pacific St. Suite A
San Luis Obispo, CA 93402
Dear Mr. Hood,
I wish the Commission and all interested parties to consider this my public input on your May 12 letter re the Collaborative Options to Dissolving the District:
Your May 19 letter offers two options to resolve the question of Dissolving the CSD. I’m afraid I’m missing something. Aren’t there four or more options? 1) deny the dissolution petition for lack of substantiated and sufficient grounds to shut down a functioning CSD; 2) substantiate all the charges as sufficient reason for dissolving a functioning CSD; 3) Separate certain functions, i.e.”sewer power;” and 4) some alternative joint power or lead agency or some other negotiated and voter approved system; 5) some other option.
Since what LAFCO decides must be based on criteria that applies to all past, present, and future CSDs equally, I am deeply concerned that “options” are premature at this stage, and would caution that the LAFCO board needs to seriously think about precedent here.
It is no secret that a certain group of individuals wanted a particular type of sewer plant in the middle of town and when the community disagreed with that, these folks moved immediately to dissolve the CSD in hope that The County would immediately re-start a particular type of sewer plant in the middle of town. That they used LAFCO as a political tool to accomplish this one particular goal should give everyone involved with this matter cause for concern. The criteria for dissolving a functioning CSD needs to be based on solid, neutral ground, not political pique or hidden agendas.
So far as I know, the judge who has ordered an audit of the CSD’s books still hasn’t assigned an auditor to complete that task. In her March 24 letter, Gail Wilcox notes that before she can make a recommendation to the BoS “we would need further reliable information as to the true state of affairs at LOCSD.” . . . including various real and actual liabilities (not made up un-hatched chickens) and so forth. If you don’t have information from the audit yet, isn’t a “collaborative option” premature? If you don’t yet have accurate information, (and in the various contractual mediations, things can change quickly, one way or the other), I would strongly suggest, as Ms. Wilcox suggests in her March 24 letter, “that LAFCO take advantage of the provisions of Government Code section 56666, which allows for up to a 70 day continuance of the hearing.”
In Option A, of your May 12 letter, you state, “The county appears to be in a better position in terms of resources and financial standing to complete the sewer project.” THE sewer project? What sewer project? The CSD is now in the middle of a process of updating the wastewater report and depending on what the report says, THEN they’ll know what kind of project will be the preferred one to be presented to the community. Right now, there is nothing that can be called “The” project, unless, of course, you are referring to The [old] Tri-W Project?
In Option B, you again state that “an agreement that would create a “Board” or “Authority” to construct and operate the sewer.” THE sewer? Again, what project are you talking about?
In Option A, you note that divesting the sewer power would be done only if the action “could be conditioned by LAFCO to limit the liability that would be transferred to the County. Current liabilities, loans, bonds and lawsuits would remain with the District [emphasis mine] because the CSD still exists . . . . . .” while Option B notes that the Joint Powers Agreement would “be written contractually in such a manner as to limit the liability that might be incurred by the County or the district.” [emphasis mine.]
Why would Option A stick the district with all liabilities while Option B somehow limits that same District liability?
Option A notes that “The LOCSD would voluntarily divest itself . . .” while Option B says nothing about “voluntarily” entering a joint powers agreement. In presenting the options here, at this time, before the hearings even take place, are you really presenting the community with Hobson’s Choice? i.e. choose one of these options NOW, or else we will go ahead and vote to dissolve the entire CSD?
If that’s what’s really at work here, then shouldn’t LAFCO first offer the full case for dissolution on June 15 (if the proper audited financial information is in hand by then), with full opportunity to rebut their case, and only then suggest or offer options before or as part of a final recommendation?
Once again, I have serious concerns that what LAFCO may be considering must be done in such a way so as not to set an awful precedent – that of using LAFCO as a partisan political tool when the ballot box fails one particular group or another.
Sincerely,
Ann Calhoun
And now, on a lighter note. Some delicious thoughts to munch on by Gail McPherson. What the Irish call “joking on the square.” Or is it? [copy edited for blog posting with permission of author]
While the [recall] vote represented a rejection of the project at Tri W and the lack of acceptance of the exceedingly high cost of the sewer project, and lack of confidence in the [old] board majority, what would it take for the ousted board and a handful of spiteful supporters to dissolve the CSD and regain power?
Lost Credibility, Lawsuits, Claims and Debt, Frozen Funds/ Bankruptcy, and Individual Fines….That and more are the necessary in”greed”ients for a Taxpayers’ Watch Dissolution Recipe. Herewith a 10 point plan of how it works: (keep in mind that a CSD Success spells Failure to Albright and her ousted cronies)
You must ensure the CSD is embroiled in lawsuits and controversy from the first day they are sworn into office. Taxpayers’ Watch (formed from those who lost the election) filed the first of numerous lawsuits the day after the election, before the first ‘post recall’ CSD meeting.
Assure cooperation by Briggs and the Water Board to fine the CSD into bankruptcy. Public records documents between Briggs and members of Taxpayers’ Watch confirm they lobbied and got the Water Board to draft actions for $11 million in fines and individual CDOs as the election was being certified.
Stop the Funds -Assure a preemptive strike by contacting the SWRCB and informing them the board is thumbing their nose at the State and flaunting “they will never pay you back.” Use the 218 requirement to confirm CSD intentions. Request SWRCB pull funds and default on the contract, before speaking to the “lawfully elected lead agency” because they “know nothing about government.”
Project funding that could be reassigned to a project out of town must be aborted: The CSD had the authority to revise the project and the loan with SWRCB approval. Lobbying before the recall election would convince the SWRCB not to listen to the public outcry against the [Tri-W] project, which gave the SWRCB confidence that if they played ball with the old CSD the recall would fail and Voila! an unwanted sewer project would be funded and built.
Stop Negotiations to preserve funding and forward motion on the project. Torpedo-Blakeslee’s compromise-. A lower cost plant out of town was presented, and several parcels were identified. The CSD would be building now, No fines, No default, No lawyer’s fees. NO DISSOLUTION?? This recipe can’t let that happen!
Minimization and usurping lawful authority: Lobbying efforts to assure the SWRCB would NEVER recognize the new CSD as the lawfully elected LEAD agency for negotiations. Launch and maintain huge lobbying efforts to forever etch “anti-sewer-obstructionists” and Los Osos crazies into the SWRCB collective mind.
Announce dissolution and make promises that once the County takes over, there would be no claims or debt, no CSD fines, resumed low interest funding, agency “respect’ and peace will return to the people’s lives. Keep repeating “the recall was close, and not everyone voted”...get the fear factor with headlines about fines and loan default working and go gather signatures. Promise anything…dreamers never delivered on a single promise before except to promise that the CSD would be annihilated if they lost the election!
Anti Sewer Perception, Board is unqualified, inept and naive: Media and public agencies must never view the new board as being capable, (current board is made up of scientists, engineers, planners-all 5 with extensive government experience)
The CSD must never be perceived as in favor of a wastewater project, or capable of delivering one. Assign the 30 years of delays to them as well as millions in wasted public funds.
File more lawsuits against each one, and then claim it’s a waste of public funds to use attorneys to defend the district-as required by law.
Litigation must erode both the public funds and the confidence of the public.
Ratchet up the expenditures for required District legal defenses and then publicly announce the huge waste.
Make up the numbers, a few million on the construction claims, more on litigation. No one will stop to imagine it all can be tracked back to actions by the recalled board before the election to assure this very outcome.
Hide that the ousted Board had active litigation against agencies and individuals, before the election, which the new CSD fiduciary duty required and obligated them to settle at the lowest cost to taxpayers.
Exploit that positive settlement as wasteful and file another lawsuit for waste. Hide this CSD’s lack of fiduciary responsibility. Taxpayers’ Watch will grab the settled Measure B lawsuit, and drive up the cost again.
Keep the media and press focused to assure the perception by the courts and public is the CSD is “anti sewer” and then drum beat the rumor that the CSD was paying “friends” with settlement money.
Claims settled and debt reorganized stops bankruptcy. Freeze CSD funds so the board can’t defend the district against Taxpayers’ Watch myriad lawsuits. Better, assure they can’t deliver a project, settle claims or reorganize debt. How? Get the contractors who worked hand in glove with Taxpayers’ Watch to torpedo the compromise, to lobby the SWRCB and RWQCB against working with the CSD. (Also, do hide their substantial campaign contributions to help the old Board and hope nobody notices). Best of all, the contractors’ loyalty to the old board will be promised payments in the form of full claim recovery. Millions to the contractors, on a bid 45% over estimates, on contracts front loaded to drive up the debt. Yes, millions instead of the pennies on the dollar they’d get in a CSD settlement with the new Board. Reason enough for a Dissolution Recipe. Dinner is served.
First, a May 12 letter to CSD General Manager, Dan Bleskey and Gail Wilcox, Assistant County Administrator, from Paul Hood, Executive Officer of LAFCO. This will be followed by my Nosey Parker Public Comment. And following that, a deliciously accurate recipe by Gail McPherson on just how one goes about dissolving a CSD.
The biggest puzzle to me in what appears to be Mr. Hood’s trial balloon proposal, besides it being curiously cart before horse-ish, is this: Why is the county being asked to play the role of the loving parent . . . now? I mean, the county was free to step up to “joint-partner” while the Great Blakeslee Compromise negotiations were underway. Indeed, they were free to “joint-partner” with various financing options even after the Blakeslee Compromise fell through, yet they said nothing. And when asked to sign on as either a Designated Party or an Interested Party for the CDO’s, their response was Talk To The Hand.
So far as I know, the only “county” response to the CSD efforts to move the sewer came in the form of an Oct 20th letter from Supervisor Shirley Bianchi to State Water Board Chair Arthur Baggett assuring him that “This is a particularly difficult situation since the current District Board either will not or cannot understand any government process. At one point I was asked if the political will exists here in San Luis Obispo County to assume the management of the project [Tri-W] if, for whatever reason, the District were unable to continue with it. Let me assure you that you have my full support, and I believe that the other Supervisors would give great weight to my position.”
In other words, screw the voters and since the newly elected CSD Board was too stupid to “understand any governmental process,” then they certainly weren’t an elected body that needed to be treated as a co-equal governing body. No, indeed. Instead, Mummy Bianchi could be relied on to go behind their backs and take matters into her (and Water Board Chair Baggett’s) own hands.
Oh, did I forget to tell you, Supervisor Bianchi is one of the LAFCO Commissioners, and to my knowledge, she has not excused herself from voting on the dissolution of The Good Old Too Stupid To “Understand Any Governmental Process” Los Osos CSD. Ah, yes, unbiased Mummy Dearest Redux.
So, pass the cheese, please. I smell something cooking here. Rats en brochette, perhaps? Which is why I have to wonder if The County now loves Los Osos ---like a glutton loves his lunch?
LAFCO’s letter:
Subject: Collaborative Options to Dissolving the District
Dear Mr. Bleskey and Ms. Wilcox:
As you know, a proposal to dissolve the Los Osos community Services District has been filed with the Local Agency Formation Commission (LAFCO). LAFCO staff is in the process of evaluating several different options regarding the Dissolution proposal. In analyzing this application, two options have been identified that would call for the cooperation of both the County and the District. These collaborative options could help resolve the situation if the County and District are willing to work together. The options are described as follows:
Option A: Divesture of the Sewer Power from the District. The LOCSD would voluntarily divest itself of the power to provide wastewater and sewer services and the County would voluntarily agree to provide this service. LAFCO approval of this action is required for this option to be implemented.
Discussion. If the District chose to divest the sewer power, they would continue to provide other services to the community of Los Osos; i.e. water, fire, street lighting, garbage, etc. The District would remain as the local agency that provides services to the community and may be able to manage the sewer at some point in the future, subject to LAFCO approval. The sewer power could be transferred to the County through the activation of this power under County Service Area 9. The County would not be obligated to assume the responsibility for the other services. The County appears to be in a better position in terms of resources and financial standing to complete the sewer project. Moreover, this action could be conditioned by LAFCO to limit the liability that would be transferred to the County. Current liabilities, loans, bonds and lawsuits would remain with the District because the CSD still exists, subject to LAFCO conditions for the divestiture as permitted by statute.
Option B: County and District enter into a Joint Powers Agreement. This option would give the LOCSD and the County the opportunity to develop an agreement that would create a “Board” or “Authority” to construct and operate the sewer. The County and District could work out the details of such an agreement that may limit liability and increase the chances that the sewer would be constructed in a timely and more cost effective manner. LAFCO approval of this action is not required for this option.
Discussion: A Joint Powers Agreement (JPA) would create a new governmental structure that may be able to obtain financing at a reasonable interest rate while limiting the liability to the County and the District. Through the Joint Exercise of Powers Act public, agencies may agree to assist one another using a Joint Powers Agreement that establishes a board, commission other agency to provide governance for the project. A joint Powers Agreement identifies roles and responsibilities for the agency. Under Government Code 6546, revenue bonds may be issued by the joint powers entity for the construction of wastewater facilities (6546(g)). It may be possible for a Joint Powers Agreement to be written contractually in such a manner as to limit the liability that might be incurred by the County or the District. The precise details of the JPA would be addressed if the County and the District decide to enter into such an Agreement.
LAFCO is interested in hearing from the District and the County with regard to the potential and feasibility of the above options. These options provide a way to work together to complete the sewer project in a manner that could be more cost effective and time efficient. It may be that after the sewer project is completed the facilities are transferred to the District for operation and maintenance.
We will be including a discussion of these options in the June 15, 1006 Staff Report to the Commission. An immediate response from the District and County regarding these alternatives would be helpful. If you wish the Commission to consider your input on these options, please provide a written response by May 22, 1006.
Thank you for your assistance in this matter. Please don’t hesitate to call me at 805-781-5795 if you have any questions.
Sincerely,
[Paul Hood]
And My Nosey Parker Public Comment to Mr. Hood’s letter
May 19, 2006
Paul Hood, Exec. Director
LAFCO
Commissioners & Staff
County Courthouse Complex, Admin
1042 Pacific St. Suite A
San Luis Obispo, CA 93402
Dear Mr. Hood,
I wish the Commission and all interested parties to consider this my public input on your May 12 letter re the Collaborative Options to Dissolving the District:
Your May 19 letter offers two options to resolve the question of Dissolving the CSD. I’m afraid I’m missing something. Aren’t there four or more options? 1) deny the dissolution petition for lack of substantiated and sufficient grounds to shut down a functioning CSD; 2) substantiate all the charges as sufficient reason for dissolving a functioning CSD; 3) Separate certain functions, i.e.”sewer power;” and 4) some alternative joint power or lead agency or some other negotiated and voter approved system; 5) some other option.
Since what LAFCO decides must be based on criteria that applies to all past, present, and future CSDs equally, I am deeply concerned that “options” are premature at this stage, and would caution that the LAFCO board needs to seriously think about precedent here.
It is no secret that a certain group of individuals wanted a particular type of sewer plant in the middle of town and when the community disagreed with that, these folks moved immediately to dissolve the CSD in hope that The County would immediately re-start a particular type of sewer plant in the middle of town. That they used LAFCO as a political tool to accomplish this one particular goal should give everyone involved with this matter cause for concern. The criteria for dissolving a functioning CSD needs to be based on solid, neutral ground, not political pique or hidden agendas.
So far as I know, the judge who has ordered an audit of the CSD’s books still hasn’t assigned an auditor to complete that task. In her March 24 letter, Gail Wilcox notes that before she can make a recommendation to the BoS “we would need further reliable information as to the true state of affairs at LOCSD.” . . . including various real and actual liabilities (not made up un-hatched chickens) and so forth. If you don’t have information from the audit yet, isn’t a “collaborative option” premature? If you don’t yet have accurate information, (and in the various contractual mediations, things can change quickly, one way or the other), I would strongly suggest, as Ms. Wilcox suggests in her March 24 letter, “that LAFCO take advantage of the provisions of Government Code section 56666, which allows for up to a 70 day continuance of the hearing.”
In Option A, of your May 12 letter, you state, “The county appears to be in a better position in terms of resources and financial standing to complete the sewer project.” THE sewer project? What sewer project? The CSD is now in the middle of a process of updating the wastewater report and depending on what the report says, THEN they’ll know what kind of project will be the preferred one to be presented to the community. Right now, there is nothing that can be called “The” project, unless, of course, you are referring to The [old] Tri-W Project?
In Option B, you again state that “an agreement that would create a “Board” or “Authority” to construct and operate the sewer.” THE sewer? Again, what project are you talking about?
In Option A, you note that divesting the sewer power would be done only if the action “could be conditioned by LAFCO to limit the liability that would be transferred to the County. Current liabilities, loans, bonds and lawsuits would remain with the District [emphasis mine] because the CSD still exists . . . . . .” while Option B notes that the Joint Powers Agreement would “be written contractually in such a manner as to limit the liability that might be incurred by the County or the district.” [emphasis mine.]
Why would Option A stick the district with all liabilities while Option B somehow limits that same District liability?
Option A notes that “The LOCSD would voluntarily divest itself . . .” while Option B says nothing about “voluntarily” entering a joint powers agreement. In presenting the options here, at this time, before the hearings even take place, are you really presenting the community with Hobson’s Choice? i.e. choose one of these options NOW, or else we will go ahead and vote to dissolve the entire CSD?
If that’s what’s really at work here, then shouldn’t LAFCO first offer the full case for dissolution on June 15 (if the proper audited financial information is in hand by then), with full opportunity to rebut their case, and only then suggest or offer options before or as part of a final recommendation?
Once again, I have serious concerns that what LAFCO may be considering must be done in such a way so as not to set an awful precedent – that of using LAFCO as a partisan political tool when the ballot box fails one particular group or another.
Sincerely,
Ann Calhoun
And now, on a lighter note. Some delicious thoughts to munch on by Gail McPherson. What the Irish call “joking on the square.” Or is it? [copy edited for blog posting with permission of author]
While the [recall] vote represented a rejection of the project at Tri W and the lack of acceptance of the exceedingly high cost of the sewer project, and lack of confidence in the [old] board majority, what would it take for the ousted board and a handful of spiteful supporters to dissolve the CSD and regain power?
Lost Credibility, Lawsuits, Claims and Debt, Frozen Funds/ Bankruptcy, and Individual Fines….That and more are the necessary in”greed”ients for a Taxpayers’ Watch Dissolution Recipe. Herewith a 10 point plan of how it works: (keep in mind that a CSD Success spells Failure to Albright and her ousted cronies)
You must ensure the CSD is embroiled in lawsuits and controversy from the first day they are sworn into office. Taxpayers’ Watch (formed from those who lost the election) filed the first of numerous lawsuits the day after the election, before the first ‘post recall’ CSD meeting.
Assure cooperation by Briggs and the Water Board to fine the CSD into bankruptcy. Public records documents between Briggs and members of Taxpayers’ Watch confirm they lobbied and got the Water Board to draft actions for $11 million in fines and individual CDOs as the election was being certified.
Stop the Funds -Assure a preemptive strike by contacting the SWRCB and informing them the board is thumbing their nose at the State and flaunting “they will never pay you back.” Use the 218 requirement to confirm CSD intentions. Request SWRCB pull funds and default on the contract, before speaking to the “lawfully elected lead agency” because they “know nothing about government.”
Project funding that could be reassigned to a project out of town must be aborted: The CSD had the authority to revise the project and the loan with SWRCB approval. Lobbying before the recall election would convince the SWRCB not to listen to the public outcry against the [Tri-W] project, which gave the SWRCB confidence that if they played ball with the old CSD the recall would fail and Voila! an unwanted sewer project would be funded and built.
Stop Negotiations to preserve funding and forward motion on the project. Torpedo-Blakeslee’s compromise-. A lower cost plant out of town was presented, and several parcels were identified. The CSD would be building now, No fines, No default, No lawyer’s fees. NO DISSOLUTION?? This recipe can’t let that happen!
Minimization and usurping lawful authority: Lobbying efforts to assure the SWRCB would NEVER recognize the new CSD as the lawfully elected LEAD agency for negotiations. Launch and maintain huge lobbying efforts to forever etch “anti-sewer-obstructionists” and Los Osos crazies into the SWRCB collective mind.
Announce dissolution and make promises that once the County takes over, there would be no claims or debt, no CSD fines, resumed low interest funding, agency “respect’ and peace will return to the people’s lives. Keep repeating “the recall was close, and not everyone voted”...get the fear factor with headlines about fines and loan default working and go gather signatures. Promise anything…dreamers never delivered on a single promise before except to promise that the CSD would be annihilated if they lost the election!
Anti Sewer Perception, Board is unqualified, inept and naive: Media and public agencies must never view the new board as being capable, (current board is made up of scientists, engineers, planners-all 5 with extensive government experience)
The CSD must never be perceived as in favor of a wastewater project, or capable of delivering one. Assign the 30 years of delays to them as well as millions in wasted public funds.
File more lawsuits against each one, and then claim it’s a waste of public funds to use attorneys to defend the district-as required by law.
Litigation must erode both the public funds and the confidence of the public.
Ratchet up the expenditures for required District legal defenses and then publicly announce the huge waste.
Make up the numbers, a few million on the construction claims, more on litigation. No one will stop to imagine it all can be tracked back to actions by the recalled board before the election to assure this very outcome.
Hide that the ousted Board had active litigation against agencies and individuals, before the election, which the new CSD fiduciary duty required and obligated them to settle at the lowest cost to taxpayers.
Exploit that positive settlement as wasteful and file another lawsuit for waste. Hide this CSD’s lack of fiduciary responsibility. Taxpayers’ Watch will grab the settled Measure B lawsuit, and drive up the cost again.
Keep the media and press focused to assure the perception by the courts and public is the CSD is “anti sewer” and then drum beat the rumor that the CSD was paying “friends” with settlement money.
Claims settled and debt reorganized stops bankruptcy. Freeze CSD funds so the board can’t defend the district against Taxpayers’ Watch myriad lawsuits. Better, assure they can’t deliver a project, settle claims or reorganize debt. How? Get the contractors who worked hand in glove with Taxpayers’ Watch to torpedo the compromise, to lobby the SWRCB and RWQCB against working with the CSD. (Also, do hide their substantial campaign contributions to help the old Board and hope nobody notices). Best of all, the contractors’ loyalty to the old board will be promised payments in the form of full claim recovery. Millions to the contractors, on a bid 45% over estimates, on contracts front loaded to drive up the debt. Yes, millions instead of the pennies on the dollar they’d get in a CSD settlement with the new Board. Reason enough for a Dissolution Recipe. Dinner is served.
Tuesday, May 16, 2006
Whose Ethics?
The following is a formal letter of complaint from LOCSD Board Chairperson Lisa Schicker. A few caveats are in order:
First, formal letters of complaint are like lawsuits; Both can be full of allegations that may or may not be true, so Caveat lector.
That said, this complaint does raise some interesting questions:
First, violations of state law and/or contract violations are clear: They either occurred or they didn’t, and as such need to be investigated by the proper authorities – in the case of state law, the DA needs to be involved; contract violations will require a hearing in a civil court, no doubt.
So, that leaves “ethics,” an interesting grey area the raises some questions. For example, as a professional independent contractor/consultant, who does MWH work for and answer to? Themselves? A Board Majority (3 votes)? The General Manager? The citizens whose tax/service-fee dollars are paying their bills? To whom, then does the consultant owe their due diligence, best ethical and professional practices, and fiduciary duty?
Since elected boards are, in almost all cases, “amateurs,” (if they weren’t, they would have no need of professional services by outside consultants), they are always at a disadvantage. How are they to know, for example, if their consultant is truthful, fair, objective, and is rendering the best possible service to the community? Does the consultant have an ethical duty to speak truth to power? Or is the consultant behaving like an unethical used car salesman and adding all kinds of unnecessary bells and whistles onto a project in order to jack their fees? Who, in short, has the knowledge and expertise to watch the consultant? And if a Board shuts down citizen advisory committees, thereby limiting a variety of “public eyes on the page,” . . . . and refuses to listen to and take seriously public input regarding contracts or costs and so forth . . . . ?
And if a consultant violates all manner of professional and ethical behavior and/or legal matters, thereby sticking taxpayers with excessive fees and costs, for example, who has the responsibility to see to it that legal remedies are applied? Individual citizens? The CSD Board? Right now, the CSD is in contractual/arbitration-type “discussions” with MWH, that may or may not resolve these issues and may or may not result in a satisfactory outcome, or may end up in court. But, if the CSD itself is dissolved, will legal remedies be left up to individual citizens? Will the County take over the matter or simply let it drop, thereby leaving the residents to forever wonder if they have been stuck with paying unnecessary? excessive? unethical? illegal? costs?
And, finally, regarding the $10,000 MWH contributed to the anti-recall effort, if MWH’s client was the community (certainly all property owners within the prohibition zone who were going to pay for this project, thereby paying MWH’s salaries), could it ever be considered ethical for such a firm to use what is, in reality, the citizens’ own money to get involved in any way in what was clearly a partisan political dogfight?
As for complaints to professional Associations, it’s been my experience that such Associations that even bother to have Codes of Conduct in the first place, have them as a piece of feel-good, for-public-consumption-only, CYA public relations ploy. When asked to seriously investigate a member, their usual response is, Talk to the hand. Our ethical standards are “voluntary,” and my, isn’t it unfortunate, what a sad world we live in, sigh, perhaps you need to see an attorney, thanks for writing to share your concerns with us, have a nice day.
Which is why God invented lawyers.
The letter:
May 10, 2006
Bruce D'Agostino
Executive Director
Construction Management Association of America
7918 Jones Branch Drive, Ste. 540
McLean, VA 22102
Subject: Formal Complaint Regarding Montgomery watson harza’s Conduct In Managing The LOs Osos Wastewater Project
Dear Mr. D’Agostino:
This letter is submitted as a formal complaint against Montgomery Watson Harza (MWH) regarding their behavior and performance related to the Los Osos Community Services District’s Wastewater Project. We are requesting that the Construction Management Association of America, which MWH is a member, be investigated for their egregious behavior that completely failed their client, the Los Osos Community Services District and the Citizens of Los Osos.
MWH was hired by the District in September 1999 to be the Project Manager for a planned wastewater treatment system in the community of Los Osos, which is serviced by a Community Services District. This initial assignment was a contract for $288,000.
The first project programming step was to develop a Wastewater Facilities Plan, and the District prepared an RFP for this scope. Oswald Engineering was selected for this task in summer 1999 and MWH was the firm that was hired in the fall to manage Oswald’s work. As described below, it is apparent that MWH failed in their oversight of this portion of the work and undermined Oswald’s efforts. It late 1999, less than one year after MWH was hired, MWH succeeded in taking over Oswald’s portion of the work. MWH then completed the Facilities Plan under the terms of Oswald’s original contract, which was amended at least six times for an additional amount paid to MWH exceeding $1.5 million. MWH had replaced Oswald in less than one year. Oswald was working on a ponding project, the scope of which was developed under MWH’s management. The Central Coast Regional Water Quality Control Board (RWQCB) refused to approve the MWH managed ponding design, due to site size limitations. Instead of reworking the ponding system with Oswald or relocating the plant site, MWH assisted the District in removing and suing Oswald. Recent documentation obtained by the District clearly indicates that MWH colluded with RWQCB staff to work against the Oswald design. Furthermore, MWH inappropriately postured itself to take over the preparation of the Facilities Plan from Oswald. This is a clear ethics violation in that MWH not only failed in its responsibilities to objectively evaluate alternatives, but removed oversight controls that have resulted in significant damages to the District and citizens of Los Osos.
MWH completed the Facilities Plan for an entirely different project. The original MWH contract, which was amended at least six more times, raised the MWH’s fees five-fold. MWH’s efforts in recommending against the community preferred system more than doubled the estimated project construction costs. The amendments and the billings are difficult to track, and in some cases not sequential. Subsequent investigation has revealed that MWH overcharged the District and in numerous instances doubled charged the District.
When MWH completed the Project Facilities Plan (Plan), the District issued an RFP that was prepared by MWH, for the design of the project recommended in the MWH Facilities Plan. The Facilities Plan prepared by MWH was clearly biased against any technology that was different from treatment systems previously designed by MWH for other clients. MWH’s selection criteria were grossly skewed towards a specific treatment process. MWH’s failure to objectively and ethically evaluate all available treatment systems, as well as collection systems, significantly increased the project costs to the citizens. MWH failed to openly inform the District and citizens of other options available that would have been to the community’s preferences and been the environmentally preferred option at a significant savings in capital construction and maintenance and operations.
MWH, serving in their role as the Project Manager, should not have competed for the design phase of the project. MWH clearly had a conflict of interest in developing and assisting with the design proposal phase of the project since they competed for the design contract. MWH wrote the language for the design request for proposal. This gave them a significant advantage during the design competition. MWH’s role as the Project Manager and then performing the design was not only inappropriate but clearly denied the District the object oversight of the design that a Project Manager would have provided. Investigations into the design work project clearly indicate that there was a significant amount of design work that required rework. MWH’s role as the Project Manager allowed MWH to cover up these design errors and omissions. MWH clearly violated its fiduciary responsibility to the District and the citizens of Los Osos to assure that payment was only for acceptable quality work. MWH’s breach of this fiduciary duty as the Project Manager was also flawed because as the Project Manager, MWH was not only responsible for the design reviews but also would review all requests for payment by the design firm to make sure the invoices were correct and reasonable. MWH clearly had a conflict of interest and their objectivity in performing these reviews at a minimum does not meet an acceptable level of performance and certainly did not provide an independent review of the design.
MWH competed with DMJM and Corrolla Engineering for the design assignment in mid 2001, and was awarded the contract in 2002. MWH developed the design, prepared bidding documents into three separate construction packages, and issued these documents to the construction community for bid.
MWH then assisted the District in conducting all phases of the pre-construction activity in the capacity as the District’s technical representative. They assisted with and/or prepared the Invitation for Bid, established the contractor prequalification criteria, facilitated the contractor prequalification process, assisted in the bidding process, reviewed the bids, recommended to the District what bids should be accepted, and assisted in the construction contract awards and the Notice(s) to Proceed.
In 2004, MWH advised the District that it was necessary to pre-qualify contractors bidding on the three contract phases. The project consisted of a conventional MBR plant with micro filtration along with two contracts for the installation of a conventional gravity collection system. Although there may be some justification to pre-qualify the treatment plant contractor, there is no justification to pre-qualify the gravity collection system pipeline contractors. MWH sized the pipeline contracts to such a level that it limited the construction bid capability of prospective bidders to only larger firms. The sizing of the pipeline contracts coupled with the extraordinary pre-qualifications of the pipeline contractors clearly limited the ability of small to medium size contractors to bid the gravity collection system. This act by MWH limited bid competition and exposed the District to increased expense due to the limited competition. A similar argument regarding the pre-qualification of the treatment plant contractors also exposed the District to limited bid competition and was a significant factor in the excessively high bids received.
As a result of the stringent pre-qualification criteria drafted by MWH, there was only one bidder on two of the construction contract packages, and two bidders on the third package. The bids received were substantially above the Engineer’s Estimate that had been prepared by MWH (bids were 24% - 57% over the Engineer’s Estimate).
At the bid opening, a MWH representative remarked to at least two of the District Directors (one of them being me) that the project should be re-bid, due to the lack of competition and because the bids were so high above the Engineer’s Estimate. They also made these statements and prepared a report that also strongly recommended that the project should be rebid due to the high bids. This reported was formally presented to the District Board and the Citizens of Los Osos at a District Wastewater committee meeting and at a District business meeting (tapes available.) Mysteriously, only one week later, after MWH was awarded a $7.685 million (sole sourced) amendment to their design contract for construction management services (total MWH contract value was increased to approximately $14 million), MWH then reversed their opinion about rebiding the construction of the project and recommended that all construction contracts be awarded. This resulted in a total project bid price of approximately $128.2M (MWH =$14M; Whitaker = $24.5M; Barnard = $43.5M; Monterey Mechanical = $46.2M). The Engineer’s Estimate was $78.2M (Whitaker = $19.8M; Barnard = $29.1M; Monterey Mechanical = $29.3M).
The cost of construction was $36M more than the Engineer’s Estimate. MWH’s negotiated fee for the construction management services was 18% of the Engineer’s Estimate. MWH’s motivation for accepting the bids was due to the fact that they would be paid more because their sole source construction management contract was based on a percentage of these higher construction bids. MWH did not compete for this lucrative and excessive Construction Management phase of the work. It is interesting to note that given MWH’s sole source construction management contract and the 740 day duration of the contract this would mean that MWH would be billing at a rate of over $10,000 per day for a team of 5 MWH employees.
This brought the project cost for construction to average of over $50,000 per property owner. Other costs not reflected in the $50,000 amount did not include the decommissioning of individual septic tanks and the installation of residential lateral lines, estimated at $2000-$6000 more per household or the construct of over $30 million in deferred capital facilities. Add to that the cost of financing, real estate purchase, and operating cost, and the monthly cost to the property owner is extremely high for a moderate income community, with 5000 households being required to hook up to the sewer. In addition, because of the land constraints (which MWH ignored), plant expansion to accommodate any additional properties outside the project area, also known as the “Prohibition Zone”, would be impossible. This would likely mean that if there was any growth, or if the remaining residences who were not being sewered (approx. 800 more homes) would choose to hook up at a later date, another treatment plant would be needed at significant additional costs.
The current LOCSD Board contends that MWH colluded with the Central Coast Regional Water Quality Control Board staff, staff of the California State Water Resources Control Board and the construction contractors to accelerate the construction contract awards less than a month before a scheduled recall election that would have significant impact on the location of the treatment plant portion of the work. The project funding, in the form of a State Revolving Fund Loan, was good until December 20, 2005; so there was no reason to rush. MWH, despite no contractual provision to do so, issued an illegal “conditional” Notice to Proceed (NTP). The “conditional” NTP was issued prior to the project being funded and contractually required permit being procured. MWH failed to notify the LOCSD that its recommendation to issue a “conditional” NTP which would permit the contractor to incur significant costs, was not provided for in the contract terms, violated contractual prohibition against front loading the contract and violated state and federal laws prohibiting unauthorized commitments.
As one of two of the seated dissenting Board members at the time of issuance of this “conditional” NTP, I personally protested in writing and at public meetings in May-September 2005, alleging such illegality – I was overruled. I also have numerous email correspondences with our past General Manager Bruce Buel and Steve Hyland, MWH engineer, protesting the use of this “Conditional” NTP notice, clearly and unequivocally pointing out that MWH’s actions violated the contract provisions, and State and Federal law.
Both of the minority Board members (one of them being me) were physically barred from one bidder’s conference MWH conducted in February 2005 (tapes available) and two construction kick-off meetings MWH conducted that were held in late July 2005, (photos available). MWH also refused to video tape the construction meetings, although both Directors and members of the public requested this taping.
It is our Board’s opinion that a violation of state law did occur when the District issued this “conditional” Noticed to Proceed (NTP) to the contractors on July 6, 2005. Because this “conditional” NTP allowed the contractors to incur costs, and because the District did not have the funds or the funding authority it needed to cover these incurred costs. It is clear that MWH’s actions wantonly violated State and Federal laws prohibiting unfunded obligations. Furthermore MWH’s actions clearly violated contractual clauses that specifically prohibited the contractors from front loading construction expenditures. It is incredibly ironic that the contract language prohibiting this act was written by MWH.
It is our opinion that a violation of state and federal law did occur when the “conditional” NTP was issued by MWH to the contractors on July 6, 2005. Project funding by the SWRCB Division of Financial Assistance did not obligate the project funding until August 8, 2005, nearly one month after MWH issued the “Conditional Notice to Proceed”. The required Coastal Commission permit and the site grading permit were required prior to the SWRCB funding the project. These permits were approved and the SWRCB funded the project on August 22, 2005.
The mandatory San Luis Obispo County (SLO) grading permit required that the District obtain a site restoration bond prior to the commencement of any and all grading activities. SLO County Public Works required the bond due to the pending recall election and pending voter initiative that could have halted work at the treatment plant site. Because of the County’s bond requirement, the District Board authorized staff to obtain the required grading bond specifically from “Insco Dico”. However, when Insco Dico refused to issue the bond (due to MWH’s failure to disclose the project risks and significant environmental impacts). MWH colluded with Monterey Mechanical, the treatment plant contractor, to arrange an alternate bond that not only covered the restoration of portions of the treatment plant site but also the restoration of the pipeline contractor’s sites. MWH’s action was not allowed under the contract terms and was in direct violation to the District Board’s authorization.
The District did not have the approved Coastal Commission permit (not issued until August 18, 2005) which was the necessary authority to allow the SWRCB to issue the funds (funds were not released until August 22, 2005) from the SRF Loan fund.
In addition to the improper bond and the illegal “conditional NTP”, MWH colluded with two of the three contractors to improperly pay the contractors at least 30 and possible 60 days early. On August 22, 2005, MWH issued an NTP in accordance with the contract documents. On August 28, 2005, the District requested disbursement of the first draw of funds from the SWRCB SRF loan. The first disbursement of SRF loan funds was specifically required to reimburse the District for all pre-design work and establish a construction contingency fund, as required under the terms of the SRF Loan Agreement. MWH was directed by the District Board to immediately draw down the full amount of the first disbursement, $10,968,984 from the SRF loan as authorized in the SRF contract documents. MWH, without cautioning the former District General Manager and in direct violation of the District Board’s direction, only requested an initial disbursement from the SWRCB of $6,486,144, MWH’s collusion with the former General Manager gives the perception that MWH was working with the former General Manager to cause the most financial damage to any newly elected Board, should the recall succeed.
It is worth noting that MWH worked with the contractors to accelerate the construction contractors’ financial commitment to the project in an effort to influence the voter recall election and/or make the outcome of the election a moot point. It was said by District staff, who MWH was advising, that any financial obligations incurred prior to the recall election would make it too costly to “change course”.
On August 24, 2005, two days after the formal NTP, the contractors invoiced the LOCSD for $1.616M. The construction contract has specific requirements that must be met before MWH could recommend approval of the invoices. In an egregious violation of the payment provisions, MWH did not require the contractors to submit the required construction schedules, certified payrolls, a work payment schedule and other mandatory required documents and certifications. Instead of using the contractually provided seven day progress payment review period provided for MWH to review the submitted payment requests, MWH immediately approved the invoice the same day and without any of the required support documentation or payment justification. In light of the recent disclosure of MWH’s $10,000 contribution to the anti-recall effort and the fact that MWH would have financially benefited if termination of the project had not occurred, it is apparent that MWH seriously and egregiously breached its fiduciary responsibility to protect the citizens of Los Osos from any and all actions that could potentially or reasonably be expected to do so.
It is worth noting that MWH and one of the three contractors (Barnard Construction) also donated $10,000 each to the campaign committee called “Save the Dream” to fight against the recall election, in a further effort to influence the outcome of the vote – both would have benefited financially if the recall had not been successful.
The contractors invoiced the District for $1.616M on August 24, 2005, two days after the August 22 formal NTP was issued; and MWH immediately approved the invoices the same day, without MWH performing their contractually required review of the invoices. MWH, working in cooperation with the former General Manager, then rushed the payment through. MWH blatantly ignored the contract requirements that all invoices are due and payable no earlier than 30 days after invoice approval. The contract documents and daily logs clearly show that the first payment clearly should have been due for payment on October 27, 2005. All of these expedited actions were done prior to the recall election held on 9/27/2005 and were intended to make termination of the project extremely costly and difficult. MWH would have benefited financially if termination of the project had not occurred. MWH’s rush to get those payments through solely benefited the contractors, was grievous to the District’s financial security, violated numerous contractual protections and was solely designed to influence the outcome of the pending recall election.
MWH was the only District consultant with the necessary technical expertise to assess the merits of the various technical issues that arose on the project. The District relied on MWH’s professional advice and representations that they were the subject matter expert on all aspects of the project. The District morally and contractually expected MWH to act in District’s best interest. As such, it is obvious that MWH has egregiously failed in their fiduciary obligation to represent the best interest of the District and the Citizens of Los Osos.
It is the District’s contention that MWH had a clear conflict of interest when they made recommendations or took actions which they knew or should have even minimally known were in clear violation of contract provisions, their fiduciary responsibility and State and Federal statutes. Most of all, MWH’s actions were patently not in the best interest of their “client”. MWH’s actions and repeated disregard for their client’s best interest were knowingly and willingly designed to expedite the award of the controversial construction contracts in advance of the recall election. It was in MWH’s financial interest to see the project go forward, but it clearly was to the absolute detriment of the District and the Citizens of Los Osos.
We strongly request that you investigate MWH’s actions in the matter. Our staff has voluminous additional proof of MWH’s shameful actions and ethics violations (correspondence, emails, board meeting tapes and minutes). I am available for additional questions at any time.
Sincerely,
Lisa Schicker, President
Board of Directors
Los Osos Community Services District
The following is a formal letter of complaint from LOCSD Board Chairperson Lisa Schicker. A few caveats are in order:
First, formal letters of complaint are like lawsuits; Both can be full of allegations that may or may not be true, so Caveat lector.
That said, this complaint does raise some interesting questions:
First, violations of state law and/or contract violations are clear: They either occurred or they didn’t, and as such need to be investigated by the proper authorities – in the case of state law, the DA needs to be involved; contract violations will require a hearing in a civil court, no doubt.
So, that leaves “ethics,” an interesting grey area the raises some questions. For example, as a professional independent contractor/consultant, who does MWH work for and answer to? Themselves? A Board Majority (3 votes)? The General Manager? The citizens whose tax/service-fee dollars are paying their bills? To whom, then does the consultant owe their due diligence, best ethical and professional practices, and fiduciary duty?
Since elected boards are, in almost all cases, “amateurs,” (if they weren’t, they would have no need of professional services by outside consultants), they are always at a disadvantage. How are they to know, for example, if their consultant is truthful, fair, objective, and is rendering the best possible service to the community? Does the consultant have an ethical duty to speak truth to power? Or is the consultant behaving like an unethical used car salesman and adding all kinds of unnecessary bells and whistles onto a project in order to jack their fees? Who, in short, has the knowledge and expertise to watch the consultant? And if a Board shuts down citizen advisory committees, thereby limiting a variety of “public eyes on the page,” . . . . and refuses to listen to and take seriously public input regarding contracts or costs and so forth . . . . ?
And if a consultant violates all manner of professional and ethical behavior and/or legal matters, thereby sticking taxpayers with excessive fees and costs, for example, who has the responsibility to see to it that legal remedies are applied? Individual citizens? The CSD Board? Right now, the CSD is in contractual/arbitration-type “discussions” with MWH, that may or may not resolve these issues and may or may not result in a satisfactory outcome, or may end up in court. But, if the CSD itself is dissolved, will legal remedies be left up to individual citizens? Will the County take over the matter or simply let it drop, thereby leaving the residents to forever wonder if they have been stuck with paying unnecessary? excessive? unethical? illegal? costs?
And, finally, regarding the $10,000 MWH contributed to the anti-recall effort, if MWH’s client was the community (certainly all property owners within the prohibition zone who were going to pay for this project, thereby paying MWH’s salaries), could it ever be considered ethical for such a firm to use what is, in reality, the citizens’ own money to get involved in any way in what was clearly a partisan political dogfight?
As for complaints to professional Associations, it’s been my experience that such Associations that even bother to have Codes of Conduct in the first place, have them as a piece of feel-good, for-public-consumption-only, CYA public relations ploy. When asked to seriously investigate a member, their usual response is, Talk to the hand. Our ethical standards are “voluntary,” and my, isn’t it unfortunate, what a sad world we live in, sigh, perhaps you need to see an attorney, thanks for writing to share your concerns with us, have a nice day.
Which is why God invented lawyers.
The letter:
May 10, 2006
Bruce D'Agostino
Executive Director
Construction Management Association of America
7918 Jones Branch Drive, Ste. 540
McLean, VA 22102
Subject: Formal Complaint Regarding Montgomery watson harza’s Conduct In Managing The LOs Osos Wastewater Project
Dear Mr. D’Agostino:
This letter is submitted as a formal complaint against Montgomery Watson Harza (MWH) regarding their behavior and performance related to the Los Osos Community Services District’s Wastewater Project. We are requesting that the Construction Management Association of America, which MWH is a member, be investigated for their egregious behavior that completely failed their client, the Los Osos Community Services District and the Citizens of Los Osos.
MWH was hired by the District in September 1999 to be the Project Manager for a planned wastewater treatment system in the community of Los Osos, which is serviced by a Community Services District. This initial assignment was a contract for $288,000.
The first project programming step was to develop a Wastewater Facilities Plan, and the District prepared an RFP for this scope. Oswald Engineering was selected for this task in summer 1999 and MWH was the firm that was hired in the fall to manage Oswald’s work. As described below, it is apparent that MWH failed in their oversight of this portion of the work and undermined Oswald’s efforts. It late 1999, less than one year after MWH was hired, MWH succeeded in taking over Oswald’s portion of the work. MWH then completed the Facilities Plan under the terms of Oswald’s original contract, which was amended at least six times for an additional amount paid to MWH exceeding $1.5 million. MWH had replaced Oswald in less than one year. Oswald was working on a ponding project, the scope of which was developed under MWH’s management. The Central Coast Regional Water Quality Control Board (RWQCB) refused to approve the MWH managed ponding design, due to site size limitations. Instead of reworking the ponding system with Oswald or relocating the plant site, MWH assisted the District in removing and suing Oswald. Recent documentation obtained by the District clearly indicates that MWH colluded with RWQCB staff to work against the Oswald design. Furthermore, MWH inappropriately postured itself to take over the preparation of the Facilities Plan from Oswald. This is a clear ethics violation in that MWH not only failed in its responsibilities to objectively evaluate alternatives, but removed oversight controls that have resulted in significant damages to the District and citizens of Los Osos.
MWH completed the Facilities Plan for an entirely different project. The original MWH contract, which was amended at least six more times, raised the MWH’s fees five-fold. MWH’s efforts in recommending against the community preferred system more than doubled the estimated project construction costs. The amendments and the billings are difficult to track, and in some cases not sequential. Subsequent investigation has revealed that MWH overcharged the District and in numerous instances doubled charged the District.
When MWH completed the Project Facilities Plan (Plan), the District issued an RFP that was prepared by MWH, for the design of the project recommended in the MWH Facilities Plan. The Facilities Plan prepared by MWH was clearly biased against any technology that was different from treatment systems previously designed by MWH for other clients. MWH’s selection criteria were grossly skewed towards a specific treatment process. MWH’s failure to objectively and ethically evaluate all available treatment systems, as well as collection systems, significantly increased the project costs to the citizens. MWH failed to openly inform the District and citizens of other options available that would have been to the community’s preferences and been the environmentally preferred option at a significant savings in capital construction and maintenance and operations.
MWH, serving in their role as the Project Manager, should not have competed for the design phase of the project. MWH clearly had a conflict of interest in developing and assisting with the design proposal phase of the project since they competed for the design contract. MWH wrote the language for the design request for proposal. This gave them a significant advantage during the design competition. MWH’s role as the Project Manager and then performing the design was not only inappropriate but clearly denied the District the object oversight of the design that a Project Manager would have provided. Investigations into the design work project clearly indicate that there was a significant amount of design work that required rework. MWH’s role as the Project Manager allowed MWH to cover up these design errors and omissions. MWH clearly violated its fiduciary responsibility to the District and the citizens of Los Osos to assure that payment was only for acceptable quality work. MWH’s breach of this fiduciary duty as the Project Manager was also flawed because as the Project Manager, MWH was not only responsible for the design reviews but also would review all requests for payment by the design firm to make sure the invoices were correct and reasonable. MWH clearly had a conflict of interest and their objectivity in performing these reviews at a minimum does not meet an acceptable level of performance and certainly did not provide an independent review of the design.
MWH competed with DMJM and Corrolla Engineering for the design assignment in mid 2001, and was awarded the contract in 2002. MWH developed the design, prepared bidding documents into three separate construction packages, and issued these documents to the construction community for bid.
MWH then assisted the District in conducting all phases of the pre-construction activity in the capacity as the District’s technical representative. They assisted with and/or prepared the Invitation for Bid, established the contractor prequalification criteria, facilitated the contractor prequalification process, assisted in the bidding process, reviewed the bids, recommended to the District what bids should be accepted, and assisted in the construction contract awards and the Notice(s) to Proceed.
In 2004, MWH advised the District that it was necessary to pre-qualify contractors bidding on the three contract phases. The project consisted of a conventional MBR plant with micro filtration along with two contracts for the installation of a conventional gravity collection system. Although there may be some justification to pre-qualify the treatment plant contractor, there is no justification to pre-qualify the gravity collection system pipeline contractors. MWH sized the pipeline contracts to such a level that it limited the construction bid capability of prospective bidders to only larger firms. The sizing of the pipeline contracts coupled with the extraordinary pre-qualifications of the pipeline contractors clearly limited the ability of small to medium size contractors to bid the gravity collection system. This act by MWH limited bid competition and exposed the District to increased expense due to the limited competition. A similar argument regarding the pre-qualification of the treatment plant contractors also exposed the District to limited bid competition and was a significant factor in the excessively high bids received.
As a result of the stringent pre-qualification criteria drafted by MWH, there was only one bidder on two of the construction contract packages, and two bidders on the third package. The bids received were substantially above the Engineer’s Estimate that had been prepared by MWH (bids were 24% - 57% over the Engineer’s Estimate).
At the bid opening, a MWH representative remarked to at least two of the District Directors (one of them being me) that the project should be re-bid, due to the lack of competition and because the bids were so high above the Engineer’s Estimate. They also made these statements and prepared a report that also strongly recommended that the project should be rebid due to the high bids. This reported was formally presented to the District Board and the Citizens of Los Osos at a District Wastewater committee meeting and at a District business meeting (tapes available.) Mysteriously, only one week later, after MWH was awarded a $7.685 million (sole sourced) amendment to their design contract for construction management services (total MWH contract value was increased to approximately $14 million), MWH then reversed their opinion about rebiding the construction of the project and recommended that all construction contracts be awarded. This resulted in a total project bid price of approximately $128.2M (MWH =$14M; Whitaker = $24.5M; Barnard = $43.5M; Monterey Mechanical = $46.2M). The Engineer’s Estimate was $78.2M (Whitaker = $19.8M; Barnard = $29.1M; Monterey Mechanical = $29.3M).
The cost of construction was $36M more than the Engineer’s Estimate. MWH’s negotiated fee for the construction management services was 18% of the Engineer’s Estimate. MWH’s motivation for accepting the bids was due to the fact that they would be paid more because their sole source construction management contract was based on a percentage of these higher construction bids. MWH did not compete for this lucrative and excessive Construction Management phase of the work. It is interesting to note that given MWH’s sole source construction management contract and the 740 day duration of the contract this would mean that MWH would be billing at a rate of over $10,000 per day for a team of 5 MWH employees.
This brought the project cost for construction to average of over $50,000 per property owner. Other costs not reflected in the $50,000 amount did not include the decommissioning of individual septic tanks and the installation of residential lateral lines, estimated at $2000-$6000 more per household or the construct of over $30 million in deferred capital facilities. Add to that the cost of financing, real estate purchase, and operating cost, and the monthly cost to the property owner is extremely high for a moderate income community, with 5000 households being required to hook up to the sewer. In addition, because of the land constraints (which MWH ignored), plant expansion to accommodate any additional properties outside the project area, also known as the “Prohibition Zone”, would be impossible. This would likely mean that if there was any growth, or if the remaining residences who were not being sewered (approx. 800 more homes) would choose to hook up at a later date, another treatment plant would be needed at significant additional costs.
The current LOCSD Board contends that MWH colluded with the Central Coast Regional Water Quality Control Board staff, staff of the California State Water Resources Control Board and the construction contractors to accelerate the construction contract awards less than a month before a scheduled recall election that would have significant impact on the location of the treatment plant portion of the work. The project funding, in the form of a State Revolving Fund Loan, was good until December 20, 2005; so there was no reason to rush. MWH, despite no contractual provision to do so, issued an illegal “conditional” Notice to Proceed (NTP). The “conditional” NTP was issued prior to the project being funded and contractually required permit being procured. MWH failed to notify the LOCSD that its recommendation to issue a “conditional” NTP which would permit the contractor to incur significant costs, was not provided for in the contract terms, violated contractual prohibition against front loading the contract and violated state and federal laws prohibiting unauthorized commitments.
As one of two of the seated dissenting Board members at the time of issuance of this “conditional” NTP, I personally protested in writing and at public meetings in May-September 2005, alleging such illegality – I was overruled. I also have numerous email correspondences with our past General Manager Bruce Buel and Steve Hyland, MWH engineer, protesting the use of this “Conditional” NTP notice, clearly and unequivocally pointing out that MWH’s actions violated the contract provisions, and State and Federal law.
Both of the minority Board members (one of them being me) were physically barred from one bidder’s conference MWH conducted in February 2005 (tapes available) and two construction kick-off meetings MWH conducted that were held in late July 2005, (photos available). MWH also refused to video tape the construction meetings, although both Directors and members of the public requested this taping.
It is our Board’s opinion that a violation of state law did occur when the District issued this “conditional” Noticed to Proceed (NTP) to the contractors on July 6, 2005. Because this “conditional” NTP allowed the contractors to incur costs, and because the District did not have the funds or the funding authority it needed to cover these incurred costs. It is clear that MWH’s actions wantonly violated State and Federal laws prohibiting unfunded obligations. Furthermore MWH’s actions clearly violated contractual clauses that specifically prohibited the contractors from front loading construction expenditures. It is incredibly ironic that the contract language prohibiting this act was written by MWH.
It is our opinion that a violation of state and federal law did occur when the “conditional” NTP was issued by MWH to the contractors on July 6, 2005. Project funding by the SWRCB Division of Financial Assistance did not obligate the project funding until August 8, 2005, nearly one month after MWH issued the “Conditional Notice to Proceed”. The required Coastal Commission permit and the site grading permit were required prior to the SWRCB funding the project. These permits were approved and the SWRCB funded the project on August 22, 2005.
The mandatory San Luis Obispo County (SLO) grading permit required that the District obtain a site restoration bond prior to the commencement of any and all grading activities. SLO County Public Works required the bond due to the pending recall election and pending voter initiative that could have halted work at the treatment plant site. Because of the County’s bond requirement, the District Board authorized staff to obtain the required grading bond specifically from “Insco Dico”. However, when Insco Dico refused to issue the bond (due to MWH’s failure to disclose the project risks and significant environmental impacts). MWH colluded with Monterey Mechanical, the treatment plant contractor, to arrange an alternate bond that not only covered the restoration of portions of the treatment plant site but also the restoration of the pipeline contractor’s sites. MWH’s action was not allowed under the contract terms and was in direct violation to the District Board’s authorization.
The District did not have the approved Coastal Commission permit (not issued until August 18, 2005) which was the necessary authority to allow the SWRCB to issue the funds (funds were not released until August 22, 2005) from the SRF Loan fund.
In addition to the improper bond and the illegal “conditional NTP”, MWH colluded with two of the three contractors to improperly pay the contractors at least 30 and possible 60 days early. On August 22, 2005, MWH issued an NTP in accordance with the contract documents. On August 28, 2005, the District requested disbursement of the first draw of funds from the SWRCB SRF loan. The first disbursement of SRF loan funds was specifically required to reimburse the District for all pre-design work and establish a construction contingency fund, as required under the terms of the SRF Loan Agreement. MWH was directed by the District Board to immediately draw down the full amount of the first disbursement, $10,968,984 from the SRF loan as authorized in the SRF contract documents. MWH, without cautioning the former District General Manager and in direct violation of the District Board’s direction, only requested an initial disbursement from the SWRCB of $6,486,144, MWH’s collusion with the former General Manager gives the perception that MWH was working with the former General Manager to cause the most financial damage to any newly elected Board, should the recall succeed.
It is worth noting that MWH worked with the contractors to accelerate the construction contractors’ financial commitment to the project in an effort to influence the voter recall election and/or make the outcome of the election a moot point. It was said by District staff, who MWH was advising, that any financial obligations incurred prior to the recall election would make it too costly to “change course”.
On August 24, 2005, two days after the formal NTP, the contractors invoiced the LOCSD for $1.616M. The construction contract has specific requirements that must be met before MWH could recommend approval of the invoices. In an egregious violation of the payment provisions, MWH did not require the contractors to submit the required construction schedules, certified payrolls, a work payment schedule and other mandatory required documents and certifications. Instead of using the contractually provided seven day progress payment review period provided for MWH to review the submitted payment requests, MWH immediately approved the invoice the same day and without any of the required support documentation or payment justification. In light of the recent disclosure of MWH’s $10,000 contribution to the anti-recall effort and the fact that MWH would have financially benefited if termination of the project had not occurred, it is apparent that MWH seriously and egregiously breached its fiduciary responsibility to protect the citizens of Los Osos from any and all actions that could potentially or reasonably be expected to do so.
It is worth noting that MWH and one of the three contractors (Barnard Construction) also donated $10,000 each to the campaign committee called “Save the Dream” to fight against the recall election, in a further effort to influence the outcome of the vote – both would have benefited financially if the recall had not been successful.
The contractors invoiced the District for $1.616M on August 24, 2005, two days after the August 22 formal NTP was issued; and MWH immediately approved the invoices the same day, without MWH performing their contractually required review of the invoices. MWH, working in cooperation with the former General Manager, then rushed the payment through. MWH blatantly ignored the contract requirements that all invoices are due and payable no earlier than 30 days after invoice approval. The contract documents and daily logs clearly show that the first payment clearly should have been due for payment on October 27, 2005. All of these expedited actions were done prior to the recall election held on 9/27/2005 and were intended to make termination of the project extremely costly and difficult. MWH would have benefited financially if termination of the project had not occurred. MWH’s rush to get those payments through solely benefited the contractors, was grievous to the District’s financial security, violated numerous contractual protections and was solely designed to influence the outcome of the pending recall election.
MWH was the only District consultant with the necessary technical expertise to assess the merits of the various technical issues that arose on the project. The District relied on MWH’s professional advice and representations that they were the subject matter expert on all aspects of the project. The District morally and contractually expected MWH to act in District’s best interest. As such, it is obvious that MWH has egregiously failed in their fiduciary obligation to represent the best interest of the District and the Citizens of Los Osos.
It is the District’s contention that MWH had a clear conflict of interest when they made recommendations or took actions which they knew or should have even minimally known were in clear violation of contract provisions, their fiduciary responsibility and State and Federal statutes. Most of all, MWH’s actions were patently not in the best interest of their “client”. MWH’s actions and repeated disregard for their client’s best interest were knowingly and willingly designed to expedite the award of the controversial construction contracts in advance of the recall election. It was in MWH’s financial interest to see the project go forward, but it clearly was to the absolute detriment of the District and the Citizens of Los Osos.
We strongly request that you investigate MWH’s actions in the matter. Our staff has voluminous additional proof of MWH’s shameful actions and ethics violations (correspondence, emails, board meeting tapes and minutes). I am available for additional questions at any time.
Sincerely,
Lisa Schicker, President
Board of Directors
Los Osos Community Services District
Sunday, May 14, 2006
Ron Crawford's Yin & Yang over at www.sewerwatch.blogspot.com. Cause & effect, truth & consequences, Dreamies & Realities. If you ever wanted to know what some of your neighbors thought of you and moved heaven and earth to attempt to get, just for you, their dear and gentle fellow Los Ososians, do take a gander at the nice selection of crunch and bite that Ron's assembled for you. Selected readings for your contemplation. Bon appetite!
Saturday, May 13, 2006
I OBJECT!
In which Los Osos 45er, Beverly A. De Witt- Moylan, submitted Procedural Objections to the RWQCB at their May 11th procedural hearing. Bet you and all normal people in Los Osos, living your busy lives and going to work and raising your families, thought the CDOs and all things CDOish had been postponed pending getting a new prosecution team & etc. Bwahahahah. Nope. That’s how government agencies go about fooling all the people all of the time, when they wish. It’s called “fine print bureaucratic argle-bargle” and if you don’t understand it, you can have your rights slipped right out from under you and when you complain you’re told, “Oh, too bad, please see page 922, sub paragraph 27A, you had a chance to comment or amend or submit procedural matters but you didn’t show up so it’s now too late, heh-heh.”
Bev noted in an email that she, like most everyone else, also didn’t understand that the meeting was still on and so had to rush in her objections. Wrote Bev, “According to Bill, [her husband], Jeffery Young tried to get him to stop, but Bill continued to read my objections till he was done. Bill said about 35 people were in attendance . . . If I had more time,” said she, “I would have thought of more.” Duh.
RWQCB HEARING
PROCEDURAL OBJECTIONS
-I OBJECT TO THE RWQCB’s UTTER FAILURE TO PROPERLY NOTIFY ME OF A PROPOSED CDO, MAILING IT INSTEAD IN A PLAIN MANILA ENVELOPE THROUGH REGULAR MAIL WITH NO INDICATION THAT IT WAS IMPORTANT AND NEEDED TO BE OPENED IMMEDIATELY.
-I OBJECT TO BEING THREATENED WITH FINES OF $1000 PER DAY FOR NOT REVEALING THE NAMES OF EVERY RESIDENT AND TENANT ON MY PROPERTY WITHIN 5 DAYS OF RECEIPT OF THE PROPOSED CDO.
-I OBJECT TO BEING DENIED MY RIGHT TO DUE PROCESS BY BEING DENIED AN INDIVIDUAL HEARING
-I OBJECT TO BEING GIVEN NO MORE THAN 15 MINUTES TOGETHER WITH MY HUSBAND TO PRESENT OUR DEFENSE, WHEN THE DOCUMENTS WE RECEIVED STATED THAT EACH CDO RECIPIENT WOULD HAVE 15 MINUTES TO PRESENT THEIR CASE.
-I OBJECT TO ANY TIME LIMITATION ON OUR PRESENTATIONS GIVEN THE SERIOUSNESS OF THE CONSEQUENCES OF CONVICTION, NAMELY THAT, IF NO WASTEWATER TREATMENT SYSTEM IS AVAILABLE ON JANUARY 1, 2010, “YOU WILL HAVE TO VACATE THE PREMISES.” –Matt Thompson, April 28, 2006
-I OBJECT TO THE CHAIRMAN’S RULING THAT THE PROPERTY IS THE CDO RECIPIENT AS A JUSTIFICATION FOR COMBINING PRESENTATIONS BY SPOUSES. ACCORDING TO THE DOCUMENTS, THE PROPERTY IS NOT THE DEFENDANT, THE PROPERTY IS NOT THE POLLUTER, THE PROPERTY WILL NOT BE PAYING FOR BIMONTHLY PUMPING, THE PROPERTY WILL NOT “HAVE TO VACATE THE PREMISES.”
-I OBJECT TO THE GENDER BIAS BEING DEMONSTRATED BY THIS BOARD IN THAT ALL CORRESPONDENCE FROM THE RWQCB IS ADDRESSED TO MY HUSBAND ONLY. IN THE EVIDENCE I SUBMITTED PRIOR TO THE APRIL 5, 2006, DEADLINE I IDENTIFIED MYSELF BY MY FULL, LEGAL NAME. AT THE APRIL 28, 2006, HEARING I IDENTIFIED MYSELF AT LEAST THREE TIMES FOR THE RECORD BY MY FULL, LEGAL NAME. I HAVE BEEN ADDRESSED ONLY BY MY HUSBAND’S NAME, AND THE TWO MOST RECENT COMMUNICATIONS FROM THE RWQCB TO OUR PROPERTY HAVE BEEN ADDRESSED TO MR. BILL MOYLAN ONLY. NOT ONLY AM I COMPLETELY OVERLOOKED AS A CO-OWNER WITH MY HUSBAND OF THE PROPERTY, BUT THE RWQCB STAFF HAS ALSO DROPPED THE USE OF MY HUSBAND’S LEGAL NAME, AS WELL.
-I OBJECT TO BEING CALLED AWAY FROM MY JOB SERVING BLIND AND VISUALLY IMPAIRED CHILDREN IN THIS COUNTY, BEING UNABLE TO GET A SUBSTITUTE BECAUSE OF THE SPECIALIZATION OF MY CREDENTIAL, YET SUFFERING THE PENALTY OF FORFEITING ANY DEFENSE IF I DID NOT APPEAR.
-I OBJECT TO BEING ADVISED THAT MY HUSBAND COULD REPRESENT ME IN THE EVENT I COULD NOT APPEAR, WHEREAS, WHEN MY HUSBAND TOLD THE CHAIRMAN THAT HE WOULD BE OUT OF TOWN WERE THE HEARING TO BE CONTINUED INTO THE FOLLOWING WEEK, THE CHAIRMAN AGREED THAT WE COULD PRESENT AT THE BEGINNING AND DID NOT ASK HIM IF I WOULD BE AVAILABLE TO REPRESENT HIM. THE DOUBLE STANDARD FOR ONE SPOUSE REPRESENTING ANOTHER IS EVEN MORE EVIDENCE OF GENDER BIAS ON THE PART OF THE RWQCB IN DEALING WITH MARRIED COUPLES.
-I OBJECT TO BEING DENIED MY RIGHT TO EQUAL PROTECTION UNDER THE LAW IN BEING SINGLED OUT AS A TEST CASE FOR PROSECUTION WITH 44 OTHER FAMILIES WHO WILL HAVE TO PAY OUT MORE IN PUNITIVE COSTS, IF ANY ARE IMPOSED, THAN ANYONE ELSE IN THE PROHIBITION ZONE AND WHOSE SEPTIC SYSTEM WILL BE MORE ADVERSELY AFFECTED BY PUMPING THAN ANYONE ELSE IN THE PROHIBITION ZONE.
-I OBJECT THAT I HAVE NOT BEEN OFFERED THE SERVICES OF A PUBLIC DEFENDER.
-I OBJECT TO BEING REQUIRED TO DEFEND MYSELF AGAINST UNSUBSTANTIATED CHARGES AND BEING CRIMINALIZED FOR LIVING IN A SECTION OF LOS OSOS ARBITRARILY DEFINED BY THIS BOARD AS THE AREA WHERE THE POLLUTERS LIVE WHILE EVERYONE ELSE OUTSIDE THIS ZONE IS DEFINED AS CLEAN.
-I OBJECT TO THE AMOUNT OF MISINFORMATION, CONFUSING COMMUNICATION, CONFLICTING COMMUNICATION, REVISIONS TO COMMUNICATIONS, AND INCONSISTENCIES IN COMMUNICATIONS FROM THIS STAFF, INCLUDING OUR INABILITY TO GET A SIMPLE, CONSISTENT ANSWER REGARDING THE DATE THAT EVIDENCE WAS DUE IN SACRAMENTO.
-I OBJECT TO DISINGENUOUS STATEMENTS MADE BY THE PROSECUTION STAFF IN ITS REBUTTAL TO THE EVIDENCE THAT THEIR DOCUMENTS IN EVIDENCE WERE AVAILABLE DURING BUSINESS HOURS AT THEIR SITE. THE DELIBERATE INCONVENIENCE AND LACK OF AVAILABILITY OF THESE DOCUMENTS WITH NO CITATION OF RELEVANCE OF INDIVIDUAL DOCUMENTS FORCED CITIZENS TO TAKE TIME OFF WORK OR AWAY FROM FAMILY RESPONSIBILITIES DURING BUSINESS HOURS TO REVIEW IN LIMITED TIME THOUSANDS OF PAGES STORED IN A BACK ROOM IN A CARDBOARD BOX. AT THE SAME TIME PROSECUTION STAFF REQUESTED THAT OUR DOCUMENTS BE SUBMITTED IN PDF FORM, OSTENSIBLY SO THAT THEY COULD PERUSE THESE DOCUMENTS AT THEIR LEISURE.
-I OBJECT TO AND AM DISTURBED BY THE RWQCB SUBMITTING REVISED CDO’S ON THE DATE OUR EVIDENCE WAS DUE, WHICH WE DID NOT RECEIVE IN THE MAIL UNTIL APRIL 11, 2006.
-I OBJECT TO THE RWQCB’S SUBMISSION OF FURTHER REVISIONS TO THE CDOs, WHICH WE RECEIVED BY COURIER ON APRIL 26, 2006, LESS THAN TWO DAYS BEFORE THE HEARING, AND TOO LATE FOR US TO RESPOND TO, SINCE ANY EVIDENCE WE MIGHT HAVE PROFERRED WAS DUE NO LATER THAN APRIL 5, 2006, AND NO REVISION TO THAT DATE WAS FORTHCOMING.
-I OBJECT TO RECEIVING THE RWQCB OBJECTIONS TO EVIDENCE BY EMAIL TRANSMISSION LESS THAN 24 HOURS PRIOR TO THE HEARING AND BY HARD COPY THE DAY OF THE HEARING. RULES OF EVIDENCE FOR PURPOSES OF THIS HEARING IN WHICH 45 LEGALLY UNSOPHISTICATED FAMILIES WOULD BE PRESENTING THEIR EVIDENCE OUGHT TO HAVE BEEN CLARIFIED UPON ISSUANCE OF THE CDOS. SENATOR SUSAN COLLINS OF MAINE RECENTLY STATED THAT “THE FIRST OBLIGATION OF GOVERNMENT IS TO PROTECT OUR PEOPLE.” IN THEIR ZEAL FOR PROSECUTION THIS BOARD HAS COMPLETELY FORGOTTEN THAT THE CITIZENS LIVING IN THE PROHIBITION ZONE ARE “OUR PEOPLE.” THIS BOARD HAD AN OBLIGATION TO THE HARD-WORKING CITIZENS OF LOS OSOS WHO HAVE HAD TO MOUNT A DEFENSE IN WHATEVER SPARE TIME THEY MIGHT HAVE HAD BETWEEN WORK, FAMILY, AND COMMUNITY OBLIGATIONS. THIS BOARD OWED THE CITIZENS OF THE PROHIBITION ZONE THE COMMON COURTESY TO PROVIDE THEM WITH CORRECT INFORMATION AT THE OUTSET OF THIS ACTION, SO THEY WOULD NOT SPEND TIME ON EVIDENCE THAT WOULD BE REJECTED BECAUSE OF ITS SOURCE OR FORMAT.
-I OBJECT TO THE USE OF BIMONTHLY PUMPING AS THE REMEDY OF CHOICE WHEN, ACCORDING TO A PROSECUTION STAFF STATEMENT AT THE INFORMATIONAL MEETING IN FEBRUARY, THIS CONCEPT IS “UNHEARD OF.”
-I OBJECT TO THE WATER BOARD’S RECOMMENDATION OF A SOLUTION WHICH, IN THE WORDS OF ITS OWN STAFF, HAS NEVER BEEN TRIED AND YET IS BEING PROPOSED WITH CONFIDENT VEHEMENCE BY THE PROSECUTION AS THE ONLY POSSIBLE WAY TO KEEP UNSCIENTIFICALLY PROVEN POLLUTION FROM CONTINUING TO AFFECT THE GROUNDWATER.
-I OBJECT TO THE LANGUAGE IN THE RWQCB REBUTTAL ON PAGE 7 OF THE LEGAL OBJECTIONS STATING THAT “TAKING ENFORCEMENT ACTION IS APPARENTLY THE ONLY WAY THE WATER BOARD CAN PROTECT PUBLIC HEALTH AND SAFETY IN THIS CASE, GIVEN THE COMMUNITY’S “RAMPANT AND LONGSTANDING DISREGARD OF THE PROHIBITION.” THIS HYPERBOLE IS QUITE THE OPPOSITE OF THE WATER BOARD’S POSITION IN ITS STAFF REPORT FOR REGULAR MEETING OF JULY 9, 2004 IN ITS BACKGROUND SECTION WHERE IT CITES NUMEROUS CIRCUMSTANCES WHICH PUT OUR TIMELY CONNECTION TO A WASTEWATER TREATMENT SYSTEM OUT OF OUR HANDS. ON PAGE 2 OF THIS DOCUMENT THE RWQCB INDICATES THAT, “PROJECT DELAYS, AND NONCOMPLIANCE WITH THE TIME SCHEDULE ORDER, ARE CLEARLY BEYOND THE LOS OSOS CSD’S ABILITY TO CONTROL”. ON PAGE 3 “INDIVIDUALS HAVE VERY LIMITED MEANS OF EFFECTIVELY CEASING DISCHARGES UNTIL A COMMUNITY SEWER SYSTEM IS AVAILABLE.” AND ON PAGE 4 “IT SHOULD BE NOTED, HOWEVER, THAT THE VAST MAJORITY OF VOTERS IN LOS OSOS HAVE SUPPORTED THE PROJECT AT EVERY STEP.” I OBJECT THAT IN 2004 THE WATER BOARD REASONABLY AND PRUDENTLY ACKNOWLEDGED THE MANY OBSTACLES PREVENTING BOTH THE CSD AND INDIVIDUALS FROM SUCCESSFULLY IMPLEMENTING A WASTEWATER TREATMENT FACILITY, YET JUST TWO YEARS LATER RESIDENTS OF THE PROHIBITION ZONE ARE DRAMATICALLY CHARACTERIZED AS HAVING DEMONSTRATED “RAMPANT AND LONGSTANDING DISREGARD OF THE PROHIBITION.” THIS STATEMENT IS OFFENSIVE AND PATENTLY UNTRUE.
In which Los Osos 45er, Beverly A. De Witt- Moylan, submitted Procedural Objections to the RWQCB at their May 11th procedural hearing. Bet you and all normal people in Los Osos, living your busy lives and going to work and raising your families, thought the CDOs and all things CDOish had been postponed pending getting a new prosecution team & etc. Bwahahahah. Nope. That’s how government agencies go about fooling all the people all of the time, when they wish. It’s called “fine print bureaucratic argle-bargle” and if you don’t understand it, you can have your rights slipped right out from under you and when you complain you’re told, “Oh, too bad, please see page 922, sub paragraph 27A, you had a chance to comment or amend or submit procedural matters but you didn’t show up so it’s now too late, heh-heh.”
Bev noted in an email that she, like most everyone else, also didn’t understand that the meeting was still on and so had to rush in her objections. Wrote Bev, “According to Bill, [her husband], Jeffery Young tried to get him to stop, but Bill continued to read my objections till he was done. Bill said about 35 people were in attendance . . . If I had more time,” said she, “I would have thought of more.” Duh.
RWQCB HEARING
PROCEDURAL OBJECTIONS
-I OBJECT TO THE RWQCB’s UTTER FAILURE TO PROPERLY NOTIFY ME OF A PROPOSED CDO, MAILING IT INSTEAD IN A PLAIN MANILA ENVELOPE THROUGH REGULAR MAIL WITH NO INDICATION THAT IT WAS IMPORTANT AND NEEDED TO BE OPENED IMMEDIATELY.
-I OBJECT TO BEING THREATENED WITH FINES OF $1000 PER DAY FOR NOT REVEALING THE NAMES OF EVERY RESIDENT AND TENANT ON MY PROPERTY WITHIN 5 DAYS OF RECEIPT OF THE PROPOSED CDO.
-I OBJECT TO BEING DENIED MY RIGHT TO DUE PROCESS BY BEING DENIED AN INDIVIDUAL HEARING
-I OBJECT TO BEING GIVEN NO MORE THAN 15 MINUTES TOGETHER WITH MY HUSBAND TO PRESENT OUR DEFENSE, WHEN THE DOCUMENTS WE RECEIVED STATED THAT EACH CDO RECIPIENT WOULD HAVE 15 MINUTES TO PRESENT THEIR CASE.
-I OBJECT TO ANY TIME LIMITATION ON OUR PRESENTATIONS GIVEN THE SERIOUSNESS OF THE CONSEQUENCES OF CONVICTION, NAMELY THAT, IF NO WASTEWATER TREATMENT SYSTEM IS AVAILABLE ON JANUARY 1, 2010, “YOU WILL HAVE TO VACATE THE PREMISES.” –Matt Thompson, April 28, 2006
-I OBJECT TO THE CHAIRMAN’S RULING THAT THE PROPERTY IS THE CDO RECIPIENT AS A JUSTIFICATION FOR COMBINING PRESENTATIONS BY SPOUSES. ACCORDING TO THE DOCUMENTS, THE PROPERTY IS NOT THE DEFENDANT, THE PROPERTY IS NOT THE POLLUTER, THE PROPERTY WILL NOT BE PAYING FOR BIMONTHLY PUMPING, THE PROPERTY WILL NOT “HAVE TO VACATE THE PREMISES.”
-I OBJECT TO THE GENDER BIAS BEING DEMONSTRATED BY THIS BOARD IN THAT ALL CORRESPONDENCE FROM THE RWQCB IS ADDRESSED TO MY HUSBAND ONLY. IN THE EVIDENCE I SUBMITTED PRIOR TO THE APRIL 5, 2006, DEADLINE I IDENTIFIED MYSELF BY MY FULL, LEGAL NAME. AT THE APRIL 28, 2006, HEARING I IDENTIFIED MYSELF AT LEAST THREE TIMES FOR THE RECORD BY MY FULL, LEGAL NAME. I HAVE BEEN ADDRESSED ONLY BY MY HUSBAND’S NAME, AND THE TWO MOST RECENT COMMUNICATIONS FROM THE RWQCB TO OUR PROPERTY HAVE BEEN ADDRESSED TO MR. BILL MOYLAN ONLY. NOT ONLY AM I COMPLETELY OVERLOOKED AS A CO-OWNER WITH MY HUSBAND OF THE PROPERTY, BUT THE RWQCB STAFF HAS ALSO DROPPED THE USE OF MY HUSBAND’S LEGAL NAME, AS WELL.
-I OBJECT TO BEING CALLED AWAY FROM MY JOB SERVING BLIND AND VISUALLY IMPAIRED CHILDREN IN THIS COUNTY, BEING UNABLE TO GET A SUBSTITUTE BECAUSE OF THE SPECIALIZATION OF MY CREDENTIAL, YET SUFFERING THE PENALTY OF FORFEITING ANY DEFENSE IF I DID NOT APPEAR.
-I OBJECT TO BEING ADVISED THAT MY HUSBAND COULD REPRESENT ME IN THE EVENT I COULD NOT APPEAR, WHEREAS, WHEN MY HUSBAND TOLD THE CHAIRMAN THAT HE WOULD BE OUT OF TOWN WERE THE HEARING TO BE CONTINUED INTO THE FOLLOWING WEEK, THE CHAIRMAN AGREED THAT WE COULD PRESENT AT THE BEGINNING AND DID NOT ASK HIM IF I WOULD BE AVAILABLE TO REPRESENT HIM. THE DOUBLE STANDARD FOR ONE SPOUSE REPRESENTING ANOTHER IS EVEN MORE EVIDENCE OF GENDER BIAS ON THE PART OF THE RWQCB IN DEALING WITH MARRIED COUPLES.
-I OBJECT TO BEING DENIED MY RIGHT TO EQUAL PROTECTION UNDER THE LAW IN BEING SINGLED OUT AS A TEST CASE FOR PROSECUTION WITH 44 OTHER FAMILIES WHO WILL HAVE TO PAY OUT MORE IN PUNITIVE COSTS, IF ANY ARE IMPOSED, THAN ANYONE ELSE IN THE PROHIBITION ZONE AND WHOSE SEPTIC SYSTEM WILL BE MORE ADVERSELY AFFECTED BY PUMPING THAN ANYONE ELSE IN THE PROHIBITION ZONE.
-I OBJECT THAT I HAVE NOT BEEN OFFERED THE SERVICES OF A PUBLIC DEFENDER.
-I OBJECT TO BEING REQUIRED TO DEFEND MYSELF AGAINST UNSUBSTANTIATED CHARGES AND BEING CRIMINALIZED FOR LIVING IN A SECTION OF LOS OSOS ARBITRARILY DEFINED BY THIS BOARD AS THE AREA WHERE THE POLLUTERS LIVE WHILE EVERYONE ELSE OUTSIDE THIS ZONE IS DEFINED AS CLEAN.
-I OBJECT TO THE AMOUNT OF MISINFORMATION, CONFUSING COMMUNICATION, CONFLICTING COMMUNICATION, REVISIONS TO COMMUNICATIONS, AND INCONSISTENCIES IN COMMUNICATIONS FROM THIS STAFF, INCLUDING OUR INABILITY TO GET A SIMPLE, CONSISTENT ANSWER REGARDING THE DATE THAT EVIDENCE WAS DUE IN SACRAMENTO.
-I OBJECT TO DISINGENUOUS STATEMENTS MADE BY THE PROSECUTION STAFF IN ITS REBUTTAL TO THE EVIDENCE THAT THEIR DOCUMENTS IN EVIDENCE WERE AVAILABLE DURING BUSINESS HOURS AT THEIR SITE. THE DELIBERATE INCONVENIENCE AND LACK OF AVAILABILITY OF THESE DOCUMENTS WITH NO CITATION OF RELEVANCE OF INDIVIDUAL DOCUMENTS FORCED CITIZENS TO TAKE TIME OFF WORK OR AWAY FROM FAMILY RESPONSIBILITIES DURING BUSINESS HOURS TO REVIEW IN LIMITED TIME THOUSANDS OF PAGES STORED IN A BACK ROOM IN A CARDBOARD BOX. AT THE SAME TIME PROSECUTION STAFF REQUESTED THAT OUR DOCUMENTS BE SUBMITTED IN PDF FORM, OSTENSIBLY SO THAT THEY COULD PERUSE THESE DOCUMENTS AT THEIR LEISURE.
-I OBJECT TO AND AM DISTURBED BY THE RWQCB SUBMITTING REVISED CDO’S ON THE DATE OUR EVIDENCE WAS DUE, WHICH WE DID NOT RECEIVE IN THE MAIL UNTIL APRIL 11, 2006.
-I OBJECT TO THE RWQCB’S SUBMISSION OF FURTHER REVISIONS TO THE CDOs, WHICH WE RECEIVED BY COURIER ON APRIL 26, 2006, LESS THAN TWO DAYS BEFORE THE HEARING, AND TOO LATE FOR US TO RESPOND TO, SINCE ANY EVIDENCE WE MIGHT HAVE PROFERRED WAS DUE NO LATER THAN APRIL 5, 2006, AND NO REVISION TO THAT DATE WAS FORTHCOMING.
-I OBJECT TO RECEIVING THE RWQCB OBJECTIONS TO EVIDENCE BY EMAIL TRANSMISSION LESS THAN 24 HOURS PRIOR TO THE HEARING AND BY HARD COPY THE DAY OF THE HEARING. RULES OF EVIDENCE FOR PURPOSES OF THIS HEARING IN WHICH 45 LEGALLY UNSOPHISTICATED FAMILIES WOULD BE PRESENTING THEIR EVIDENCE OUGHT TO HAVE BEEN CLARIFIED UPON ISSUANCE OF THE CDOS. SENATOR SUSAN COLLINS OF MAINE RECENTLY STATED THAT “THE FIRST OBLIGATION OF GOVERNMENT IS TO PROTECT OUR PEOPLE.” IN THEIR ZEAL FOR PROSECUTION THIS BOARD HAS COMPLETELY FORGOTTEN THAT THE CITIZENS LIVING IN THE PROHIBITION ZONE ARE “OUR PEOPLE.” THIS BOARD HAD AN OBLIGATION TO THE HARD-WORKING CITIZENS OF LOS OSOS WHO HAVE HAD TO MOUNT A DEFENSE IN WHATEVER SPARE TIME THEY MIGHT HAVE HAD BETWEEN WORK, FAMILY, AND COMMUNITY OBLIGATIONS. THIS BOARD OWED THE CITIZENS OF THE PROHIBITION ZONE THE COMMON COURTESY TO PROVIDE THEM WITH CORRECT INFORMATION AT THE OUTSET OF THIS ACTION, SO THEY WOULD NOT SPEND TIME ON EVIDENCE THAT WOULD BE REJECTED BECAUSE OF ITS SOURCE OR FORMAT.
-I OBJECT TO THE USE OF BIMONTHLY PUMPING AS THE REMEDY OF CHOICE WHEN, ACCORDING TO A PROSECUTION STAFF STATEMENT AT THE INFORMATIONAL MEETING IN FEBRUARY, THIS CONCEPT IS “UNHEARD OF.”
-I OBJECT TO THE WATER BOARD’S RECOMMENDATION OF A SOLUTION WHICH, IN THE WORDS OF ITS OWN STAFF, HAS NEVER BEEN TRIED AND YET IS BEING PROPOSED WITH CONFIDENT VEHEMENCE BY THE PROSECUTION AS THE ONLY POSSIBLE WAY TO KEEP UNSCIENTIFICALLY PROVEN POLLUTION FROM CONTINUING TO AFFECT THE GROUNDWATER.
-I OBJECT TO THE LANGUAGE IN THE RWQCB REBUTTAL ON PAGE 7 OF THE LEGAL OBJECTIONS STATING THAT “TAKING ENFORCEMENT ACTION IS APPARENTLY THE ONLY WAY THE WATER BOARD CAN PROTECT PUBLIC HEALTH AND SAFETY IN THIS CASE, GIVEN THE COMMUNITY’S “RAMPANT AND LONGSTANDING DISREGARD OF THE PROHIBITION.” THIS HYPERBOLE IS QUITE THE OPPOSITE OF THE WATER BOARD’S POSITION IN ITS STAFF REPORT FOR REGULAR MEETING OF JULY 9, 2004 IN ITS BACKGROUND SECTION WHERE IT CITES NUMEROUS CIRCUMSTANCES WHICH PUT OUR TIMELY CONNECTION TO A WASTEWATER TREATMENT SYSTEM OUT OF OUR HANDS. ON PAGE 2 OF THIS DOCUMENT THE RWQCB INDICATES THAT, “PROJECT DELAYS, AND NONCOMPLIANCE WITH THE TIME SCHEDULE ORDER, ARE CLEARLY BEYOND THE LOS OSOS CSD’S ABILITY TO CONTROL”. ON PAGE 3 “INDIVIDUALS HAVE VERY LIMITED MEANS OF EFFECTIVELY CEASING DISCHARGES UNTIL A COMMUNITY SEWER SYSTEM IS AVAILABLE.” AND ON PAGE 4 “IT SHOULD BE NOTED, HOWEVER, THAT THE VAST MAJORITY OF VOTERS IN LOS OSOS HAVE SUPPORTED THE PROJECT AT EVERY STEP.” I OBJECT THAT IN 2004 THE WATER BOARD REASONABLY AND PRUDENTLY ACKNOWLEDGED THE MANY OBSTACLES PREVENTING BOTH THE CSD AND INDIVIDUALS FROM SUCCESSFULLY IMPLEMENTING A WASTEWATER TREATMENT FACILITY, YET JUST TWO YEARS LATER RESIDENTS OF THE PROHIBITION ZONE ARE DRAMATICALLY CHARACTERIZED AS HAVING DEMONSTRATED “RAMPANT AND LONGSTANDING DISREGARD OF THE PROHIBITION.” THIS STATEMENT IS OFFENSIVE AND PATENTLY UNTRUE.
Friday, May 12, 2006
A Dollar Short and Twenty Years Too Late
Oh, Hello, Tribune. Hope you had a nice twenty-year nap? Glad you could join us.
I see in your May 12 editorial, “A wise way for Los Osos to repay itself,” you’re now championing the formation of a septic tank maintenance district. Sez you, “A septic tank maintenance district is long over due for all of Los Osos – including those residents using septics outside the sewer’s zone of prohibition. It’s a fair and equitable approach that makes the whole community responsible for the quality of its water basin.”
Gosh, ya think?
Starting in the 80s, with the RWQCB’s Resolution 83-12, Citizens for an Affordable Wastewater System (CAWS, remember them?) and others repeatedly called upon the County, the Regional Water Quality Control Board and the first CSD board to form just such a district. Oh, and while they were at it, to please enlarge the prohibition zone to include all septics. And if a building moratorium was going to be imposed, slap it on everyone in the watershed. And so forth.
Here’s what the constant reply was, even from regulators who have the words “Water Quality” in their name: NO.
For twenty-some years, it’s been, NO to a septic management district, NO to updating the basin plan, NO to enlarging the prohibition zone (NOTE: Oops, someone who logged on to comment on this blog entry pointed out this muddlement: I meant to say that the original prohibition zone was always scientifically indefensible. Enlarging it was and is the only scientifically sensible thing to do, especially with the State septics rules in the form of AB885 coming down the pike), NO to dealing with the larger issues of water and watershed protection. NO to new technologies. NO to interim mitigation. NO to innovative solutions. NO. NO. NO.
It is a supreme irony that so many citizens of Los Osos were ahead of the curve on this one, yet, despite evidence to the contrary, it was the government agencies responsible who refused to deal proactively with growing problems and instead headed single-mindedly to the train wreck we see today.
Aided and abetted, of course, by the “newspaper of record” that has been asleep at the switch all along.
Well, all I can say is, From the Trib’s lips to God’s ears. Let’s hope the state Legislature is listening?
Oh, Hello, Tribune. Hope you had a nice twenty-year nap? Glad you could join us.
I see in your May 12 editorial, “A wise way for Los Osos to repay itself,” you’re now championing the formation of a septic tank maintenance district. Sez you, “A septic tank maintenance district is long over due for all of Los Osos – including those residents using septics outside the sewer’s zone of prohibition. It’s a fair and equitable approach that makes the whole community responsible for the quality of its water basin.”
Gosh, ya think?
Starting in the 80s, with the RWQCB’s Resolution 83-12, Citizens for an Affordable Wastewater System (CAWS, remember them?) and others repeatedly called upon the County, the Regional Water Quality Control Board and the first CSD board to form just such a district. Oh, and while they were at it, to please enlarge the prohibition zone to include all septics. And if a building moratorium was going to be imposed, slap it on everyone in the watershed. And so forth.
Here’s what the constant reply was, even from regulators who have the words “Water Quality” in their name: NO.
For twenty-some years, it’s been, NO to a septic management district, NO to updating the basin plan, NO to enlarging the prohibition zone (NOTE: Oops, someone who logged on to comment on this blog entry pointed out this muddlement: I meant to say that the original prohibition zone was always scientifically indefensible. Enlarging it was and is the only scientifically sensible thing to do, especially with the State septics rules in the form of AB885 coming down the pike), NO to dealing with the larger issues of water and watershed protection. NO to new technologies. NO to interim mitigation. NO to innovative solutions. NO. NO. NO.
It is a supreme irony that so many citizens of Los Osos were ahead of the curve on this one, yet, despite evidence to the contrary, it was the government agencies responsible who refused to deal proactively with growing problems and instead headed single-mindedly to the train wreck we see today.
Aided and abetted, of course, by the “newspaper of record” that has been asleep at the switch all along.
Well, all I can say is, From the Trib’s lips to God’s ears. Let’s hope the state Legislature is listening?
Thursday, May 11, 2006
Calhoun’s Cannons, The Bay News, Morro Bay, CA
for May 12.06
No, Thanks, I’ll just stab myself in the eyeballs for 12 hours instead
To be persuasive, we must be believable. To be believable, we must be credible. To be credible, we must be truthful.
Edward R. Murrow
If you want to understand how a scientifically challenged staff of a government agency planned to paralyze then destroy a whole community with a scientifically unsound, poorly planned scheme, and if you missed the actual hearings, then tune into Channel 20 for the 12 hour film entitled, “The Mad Hatter’s Tea Party Meets The Bataan Death March” aka “The CDO Trial of the Los Osos 45,” now being held-over by the Regional Water Quality Control Board.
You, too, can watch and wonder, as I did sitting in the audience, how in living hell they’re going to process and hear from 5,000 people at 15 minutes each, plus cross examination and questioning witnesses and you do the math in your head or on a little scrap of paper and it comes out a minimum of one hundred twenty five 10-hour days and you say, Sweet Jesus, didn’t RWQCB CEO Roger Briggs think about all this when he cooked up this insane scheme and realize he’s screwed up big time, especially when the Air Pollution Control Guy showed up to say, Nuh-huh, ya gotta do more research on all those diesel trucks, 82 pumps a day, 6 days a week, all going chugga-chugga, but then when he’s asked if he intends to continue processing not just the 45 but the whole town and his eyes squint down and he says Yes, thereby proving he is incapable of dealing with reality checks or informational feed-back loops, so you pray his Board will have enough sense to burst out laughing or jump up and cry THIS IS INSANE, STOP IT RIGHT NOW, WHO THOUGHT UP THE COCKAMAMIE SCHEME, ANYWAY, but they don’t, so they sit there hour after hour after hour, Prisoners of Folly.
Tune in to see the RWQCB’s own Mr. Staff Science Guy, whose lack of training on anything septic is cringe-makingly inadequate, whose grasp of the Los Osos water system makes it clear he thinks we’re all rolling around out here with pigs, like Moonbeam McShine, swilling down nitrate-laden drinking water that violates state standards, (it doesn’t, we aren’t), then watch in amazement when RWQCB’s CEO Roger Briggs is asked, under oath, if he has any direct empirical evidence (you know, like isotope tests) showing that the Los Osos 45 are actually polluting the waters of the State of California and he says, no, no actual, empirical evidence, he’s just acting on “presumption” and “common knowledge,” like in the old days when it was “common knowledge” that witches soured milk in barns so it would make sense to spend $200 million to string a witch-catching net all over a town, until Dr. Wickham, B.S. M.S. Ph.D, owner of ABG Wastewater Solution, the outfit that’s installed the Pirana System of bio-remediation at the firehouse, gets up there and blam-blam-blam, the Board and audience gets a non-stop detailed lecture on all things septic, including Dr. Wickham’s observation that pumping tanks 6 times a year will end up destroying the mature biological colonies that make the system work properly, that pumping that frequently will make discharges worse, will have no appreciable effect on the groundwater, will lead to leach field failures all over town within two years, and when asked if there were a safer plan than pumping, replied, Yes, NOT pumping.
And then a member of the RWQC Prosecution Staff asks, Are there any cost-comparable onsite systems that could be used to achieve a similar nitrate load reduction that pumping was supposed to achieve and he cheerfully replied, Oh, yes, many, and I had to ask myself, Why is that question being asked NOW?
Is it possible the RWQCB staff never asked and answered that question BEFORE terrorizing this town, before wasting gazillions of hours of taxpayer’s time and money, before wasting their Board’s time (twelve hours so far, ten years to go), and instead just ran with the stupidest, most destructive, most scientifically unsound, indefensible cockamamie scheme that popped off the top of their Mad Hatter heads?
The answer to that question is why you need to watch the proceedings. Pay attention, Los Osos, you are being played for fools by a dangerous, out-of-control, incompetent, ill-prepared regulatory staff playing at personal politics instead of acting on sound science and prudent public policy.
for May 12.06
No, Thanks, I’ll just stab myself in the eyeballs for 12 hours instead
To be persuasive, we must be believable. To be believable, we must be credible. To be credible, we must be truthful.
Edward R. Murrow
If you want to understand how a scientifically challenged staff of a government agency planned to paralyze then destroy a whole community with a scientifically unsound, poorly planned scheme, and if you missed the actual hearings, then tune into Channel 20 for the 12 hour film entitled, “The Mad Hatter’s Tea Party Meets The Bataan Death March” aka “The CDO Trial of the Los Osos 45,” now being held-over by the Regional Water Quality Control Board.
You, too, can watch and wonder, as I did sitting in the audience, how in living hell they’re going to process and hear from 5,000 people at 15 minutes each, plus cross examination and questioning witnesses and you do the math in your head or on a little scrap of paper and it comes out a minimum of one hundred twenty five 10-hour days and you say, Sweet Jesus, didn’t RWQCB CEO Roger Briggs think about all this when he cooked up this insane scheme and realize he’s screwed up big time, especially when the Air Pollution Control Guy showed up to say, Nuh-huh, ya gotta do more research on all those diesel trucks, 82 pumps a day, 6 days a week, all going chugga-chugga, but then when he’s asked if he intends to continue processing not just the 45 but the whole town and his eyes squint down and he says Yes, thereby proving he is incapable of dealing with reality checks or informational feed-back loops, so you pray his Board will have enough sense to burst out laughing or jump up and cry THIS IS INSANE, STOP IT RIGHT NOW, WHO THOUGHT UP THE COCKAMAMIE SCHEME, ANYWAY, but they don’t, so they sit there hour after hour after hour, Prisoners of Folly.
Tune in to see the RWQCB’s own Mr. Staff Science Guy, whose lack of training on anything septic is cringe-makingly inadequate, whose grasp of the Los Osos water system makes it clear he thinks we’re all rolling around out here with pigs, like Moonbeam McShine, swilling down nitrate-laden drinking water that violates state standards, (it doesn’t, we aren’t), then watch in amazement when RWQCB’s CEO Roger Briggs is asked, under oath, if he has any direct empirical evidence (you know, like isotope tests) showing that the Los Osos 45 are actually polluting the waters of the State of California and he says, no, no actual, empirical evidence, he’s just acting on “presumption” and “common knowledge,” like in the old days when it was “common knowledge” that witches soured milk in barns so it would make sense to spend $200 million to string a witch-catching net all over a town, until Dr. Wickham, B.S. M.S. Ph.D, owner of ABG Wastewater Solution, the outfit that’s installed the Pirana System of bio-remediation at the firehouse, gets up there and blam-blam-blam, the Board and audience gets a non-stop detailed lecture on all things septic, including Dr. Wickham’s observation that pumping tanks 6 times a year will end up destroying the mature biological colonies that make the system work properly, that pumping that frequently will make discharges worse, will have no appreciable effect on the groundwater, will lead to leach field failures all over town within two years, and when asked if there were a safer plan than pumping, replied, Yes, NOT pumping.
And then a member of the RWQC Prosecution Staff asks, Are there any cost-comparable onsite systems that could be used to achieve a similar nitrate load reduction that pumping was supposed to achieve and he cheerfully replied, Oh, yes, many, and I had to ask myself, Why is that question being asked NOW?
Is it possible the RWQCB staff never asked and answered that question BEFORE terrorizing this town, before wasting gazillions of hours of taxpayer’s time and money, before wasting their Board’s time (twelve hours so far, ten years to go), and instead just ran with the stupidest, most destructive, most scientifically unsound, indefensible cockamamie scheme that popped off the top of their Mad Hatter heads?
The answer to that question is why you need to watch the proceedings. Pay attention, Los Osos, you are being played for fools by a dangerous, out-of-control, incompetent, ill-prepared regulatory staff playing at personal politics instead of acting on sound science and prudent public policy.
Wednesday, May 10, 2006
And now, another Letter (and see UPDATE posted below)
The following letter-to-the-editor appeared in the Tribune May 9th by Beverly A. De Witt-Moylan of Los Osos (She’s one of the Los Osos 45 served with a CDO) Her letter speaks to something that I found fascinating here in Sewerville: How quickly certain folks moved to dissolve the CSD that many of them, ironically, had struggled so hard to create in the first place when a recall didn’t go their way. No town meetings for them, no open debates, no compromise, no new candidates, no input or even new initiatives, no working on committees, no re-recalls (wouldn't that have been fun?), no use of any of the tools in the “democratic” tool chest except --- Blam! -- out of the box – dissolve the whole CSD. End game. No ninth-grade civics for them. Nosir!
It remains one of the most fascinating elements of this whole strange trip. Clearly, Sewervillers ain’t New Englanders, more’s the pity.
Growing up in New England, town meetings were a way of life for me.
Every week in March, my parents met our neighbors at the Town Hall to debate and vote on the town budget for the year. Into the night they amended and revised our local bylaws, item by item, with the Board of Selectmen, our town’s governing body.
This purest form of democracy continues to thrive in many communities across the Northeast. Though some have joked that we threw off the bonds of England only to be free to tax ourselves, the representative democracy that emerged from the American Revolution is the best embodiment of the concept in the world today.
Anyone who benefits from self-governance has a stake in democracy. Having only recently gained the right to local control, Los Osos struggles now with forces working to solve local problems by dissolving local government.
Ninth-grade civics teaches that the foundation of democracy is compromise, which can only happen if all sides represent themselves in the open where debate and resolution take place. Handed over to us instead of won through a difficult, bloody struggle, perhaps our local control came too easily for many to grasp its precious value. Easy come. Easy Go.
Beverly A. De Witt-Moylan, Los Osos UPDATE: (5/11) And Beverly notes . . . Being a California Girl, although married to a Boston Boy, I was aware of the tradition of New England town hall meetingS, as well as the annual big Town Meeting, but, like the Tribune, I didn’t catch the distinction (and had no idea the letter had been changed slightly by the Tribune editors.) A little history lesson for us all. The following excerpt from Bev’s email:
Dear Ann,
As long as you have posted my PUBLISHED letter to the editor, you might as well have THE REST OF THE STORY which I sent out today. Since I've already had my say for this month, and since they don't like printing criticism of themselves, this won't get into the TRIB, but people who like to argue on your web site might get something out of it. Use it or not... . . .
Blessings of peace,
Bev.
----- Original Message -----
From: MOYLANS
To: letters@thetribunenews.com
Sent: Wednesday, May 10, 2006 7:27 AM
Subject: correction
Thank you for printing my letter regarding dissolution of the Los Osos CSD in its entirety in the Tuesday issue. After my careful effort to hone it to 200 words, it was somewhat surprising to read the first sentence, which you edited by adding two letters to its length. "Town Meeting was," in your hands became, "town meetings were." While I am aware that few people outside New England would have any understanding of Town Meeting as an institution, it might have been instructive to trust that your readers would understand the term in context. Like anywhere else in the USA, meetings are held year round in my hometown. They are not, however, town meetings. They are Board of Selectmen (a term which has survived since colonial times) meetings, which citizens attend in the same way as they attend city council or CSD meetings in this county.
Town Meeting is a specific process, described in my previous letter to you, which happens every spring in those New England towns where it has survived. In my home town of Canton, Massachusetts, Town Meeting occurred in March when I was growing up. It is a proper noun, such as, "Are you going to Town Meeting?" or "Town Meeting begins at 7 PM."
Rather than changing my words to suit your paradigm, it might have been prudent to discover whether the specific phrasing used had merit and meaning. Though probably borne from innocent provincialism, it is insulting to be treated like an ignorant bumpkin by your presumption that I meant something I did not. Judging from the Trib's coverage of the RWQCB CDO prosecution hearings, however, it is not surprising. Your paradigm regarding citizens of Los Osos would not allow you to see it any other way.
Beverley De Witt-Moylan, B.A., M.Ed.
Los Osos
The following letter-to-the-editor appeared in the Tribune May 9th by Beverly A. De Witt-Moylan of Los Osos (She’s one of the Los Osos 45 served with a CDO) Her letter speaks to something that I found fascinating here in Sewerville: How quickly certain folks moved to dissolve the CSD that many of them, ironically, had struggled so hard to create in the first place when a recall didn’t go their way. No town meetings for them, no open debates, no compromise, no new candidates, no input or even new initiatives, no working on committees, no re-recalls (wouldn't that have been fun?), no use of any of the tools in the “democratic” tool chest except --- Blam! -- out of the box – dissolve the whole CSD. End game. No ninth-grade civics for them. Nosir!
It remains one of the most fascinating elements of this whole strange trip. Clearly, Sewervillers ain’t New Englanders, more’s the pity.
Growing up in New England, town meetings were a way of life for me.
Every week in March, my parents met our neighbors at the Town Hall to debate and vote on the town budget for the year. Into the night they amended and revised our local bylaws, item by item, with the Board of Selectmen, our town’s governing body.
This purest form of democracy continues to thrive in many communities across the Northeast. Though some have joked that we threw off the bonds of England only to be free to tax ourselves, the representative democracy that emerged from the American Revolution is the best embodiment of the concept in the world today.
Anyone who benefits from self-governance has a stake in democracy. Having only recently gained the right to local control, Los Osos struggles now with forces working to solve local problems by dissolving local government.
Ninth-grade civics teaches that the foundation of democracy is compromise, which can only happen if all sides represent themselves in the open where debate and resolution take place. Handed over to us instead of won through a difficult, bloody struggle, perhaps our local control came too easily for many to grasp its precious value. Easy come. Easy Go.
Beverly A. De Witt-Moylan, Los Osos UPDATE: (5/11) And Beverly notes . . . Being a California Girl, although married to a Boston Boy, I was aware of the tradition of New England town hall meetingS, as well as the annual big Town Meeting, but, like the Tribune, I didn’t catch the distinction (and had no idea the letter had been changed slightly by the Tribune editors.) A little history lesson for us all. The following excerpt from Bev’s email:
Dear Ann,
As long as you have posted my PUBLISHED letter to the editor, you might as well have THE REST OF THE STORY which I sent out today. Since I've already had my say for this month, and since they don't like printing criticism of themselves, this won't get into the TRIB, but people who like to argue on your web site might get something out of it. Use it or not... . . .
Blessings of peace,
Bev.
----- Original Message -----
From: MOYLANS
To: letters@thetribunenews.com
Sent: Wednesday, May 10, 2006 7:27 AM
Subject: correction
Thank you for printing my letter regarding dissolution of the Los Osos CSD in its entirety in the Tuesday issue. After my careful effort to hone it to 200 words, it was somewhat surprising to read the first sentence, which you edited by adding two letters to its length. "Town Meeting was," in your hands became, "town meetings were." While I am aware that few people outside New England would have any understanding of Town Meeting as an institution, it might have been instructive to trust that your readers would understand the term in context. Like anywhere else in the USA, meetings are held year round in my hometown. They are not, however, town meetings. They are Board of Selectmen (a term which has survived since colonial times) meetings, which citizens attend in the same way as they attend city council or CSD meetings in this county.
Town Meeting is a specific process, described in my previous letter to you, which happens every spring in those New England towns where it has survived. In my home town of Canton, Massachusetts, Town Meeting occurred in March when I was growing up. It is a proper noun, such as, "Are you going to Town Meeting?" or "Town Meeting begins at 7 PM."
Rather than changing my words to suit your paradigm, it might have been prudent to discover whether the specific phrasing used had merit and meaning. Though probably borne from innocent provincialism, it is insulting to be treated like an ignorant bumpkin by your presumption that I meant something I did not. Judging from the Trib's coverage of the RWQCB CDO prosecution hearings, however, it is not surprising. Your paradigm regarding citizens of Los Osos would not allow you to see it any other way.
Beverley De Witt-Moylan, B.A., M.Ed.
Los Osos
Tuesday, May 09, 2006
Press Release from the LOCSD
(for immediate release)
WATER BOARD CANCELS HEARING FOR LOS OSOS Citizen CDO’s
(Cease and Desist Orders)
NEW LEGAL COUNSEL for Prosecution Team TO BE OBTAINED
The latest twist in the long-fought battle between the Regional Water Quality Control Board and the 4500+ septic tank owners of Los Osos occurred late Friday afternoon when the Water Board announced that proceedings to issue Cease and Desist Orders to the first wave of 45 septic tank owners in Los Osos will be halted mid-stream, to allow the Water Board’s Prosecution Team to obtain new legal counsel. Such announcement comes on the heels of a vehement argument raised by the Los Osos Community Services District’s lawyers at the start of the hearings that the proceedings were tainted because two of the Water Board’s key advisors, attorney Lori Okun and Executive Officer Roger Briggs, were also key members of the Prosecution Team. The District’s lawyers moved to dismiss the proceedings, alleging that such practice was unconstitutional and resulted in a biased and unfair hearing. The District’s motion was denied at the Friday hearing, which continued from 10 am -10 pm and was to be continued on May 11-12.
But in a letter dated May 4, the Prosecution Team requested that the Water Board put a halt to proceedings to allow the Prosecution Team to obtain new legal counsel. On Friday, the Water Board granted that request and set a meeting for May 11 at 10 am at Water Board headquarters in San Luis Obispo to discuss what to do next.
When asked about the ruling, District lead counsel Stephen Onstot stated “it’s a good start, but doesn’t go far enough. The Prosecution Team already presented its case, so the damage has already been done. You can’t un-ring the bell. Mr. Briggs advises the Board as well and he, too, should be disqualified from being a prosecutor. The law is also clear that the Water Board members who heard Ms. Okun’s and Mr. Briggs’ prosecution case must now recuse themselves from participating in deliberations on whether to issue the Cease and Desist Orders.” If that is the case, the Water Board would be put in a difficult position, for it would not have enough eligible members to constitute the quorum necessary to proceed against the septic tank owners. END
Well, there’s a few new wrinkles. Replace the whole Board for this trial? Import new Board members? Move the trial to Kettleman City? Have 4,500 homeowners trek down Highway 46 aka “Blood Alley” for 12-hour hearings? Yikes.
Plus, I hate to keep sticking it to the Tribune but this one’s a true puzzle. The ruling pertains to the creation of a new state Office of Enforcement and there’s not a word about it in the Tribune. Clearly, the structure of the RWQCB is such that it inadvertently created this problem of bias with no independent checks or balances, a system that has been in force yet out of balance for years. And this is a statewide problem that could have wide-ranging consequences (are old cases going to be appealed? retried? thrown out? What??), yet there’s nary a peep out of the Tribune about any of this. The little blurb they did run made it sound like this was simply a minor, local matter arising only out of the recent CDOs, a matter that could be quickly settled so the whole mad CDO scheme could move rapidly forward. From this press release, there may be even more trouble ahead, even if The Grand Inquisitor General does ride into town. For example, there’s the little matter of GIGO. Unless the Grand Inquisitor General is also an expert soil scientist and expert in all things septic, he won’t know that the information the local staff is giving him may be fatally flawed, so the whole cockamamie thing could collapse in a heap when it winds its way through the “administrative” type hearings and lands in a “real” court of law. Then there’s the matter of . . . Roger Briggs. What ever shall we do about Roger?
Once again, what can I say except, It’s Sewerville. Stay tuned.
(for immediate release)
WATER BOARD CANCELS HEARING FOR LOS OSOS Citizen CDO’s
(Cease and Desist Orders)
NEW LEGAL COUNSEL for Prosecution Team TO BE OBTAINED
The latest twist in the long-fought battle between the Regional Water Quality Control Board and the 4500+ septic tank owners of Los Osos occurred late Friday afternoon when the Water Board announced that proceedings to issue Cease and Desist Orders to the first wave of 45 septic tank owners in Los Osos will be halted mid-stream, to allow the Water Board’s Prosecution Team to obtain new legal counsel. Such announcement comes on the heels of a vehement argument raised by the Los Osos Community Services District’s lawyers at the start of the hearings that the proceedings were tainted because two of the Water Board’s key advisors, attorney Lori Okun and Executive Officer Roger Briggs, were also key members of the Prosecution Team. The District’s lawyers moved to dismiss the proceedings, alleging that such practice was unconstitutional and resulted in a biased and unfair hearing. The District’s motion was denied at the Friday hearing, which continued from 10 am -10 pm and was to be continued on May 11-12.
But in a letter dated May 4, the Prosecution Team requested that the Water Board put a halt to proceedings to allow the Prosecution Team to obtain new legal counsel. On Friday, the Water Board granted that request and set a meeting for May 11 at 10 am at Water Board headquarters in San Luis Obispo to discuss what to do next.
When asked about the ruling, District lead counsel Stephen Onstot stated “it’s a good start, but doesn’t go far enough. The Prosecution Team already presented its case, so the damage has already been done. You can’t un-ring the bell. Mr. Briggs advises the Board as well and he, too, should be disqualified from being a prosecutor. The law is also clear that the Water Board members who heard Ms. Okun’s and Mr. Briggs’ prosecution case must now recuse themselves from participating in deliberations on whether to issue the Cease and Desist Orders.” If that is the case, the Water Board would be put in a difficult position, for it would not have enough eligible members to constitute the quorum necessary to proceed against the septic tank owners. END
Well, there’s a few new wrinkles. Replace the whole Board for this trial? Import new Board members? Move the trial to Kettleman City? Have 4,500 homeowners trek down Highway 46 aka “Blood Alley” for 12-hour hearings? Yikes.
Plus, I hate to keep sticking it to the Tribune but this one’s a true puzzle. The ruling pertains to the creation of a new state Office of Enforcement and there’s not a word about it in the Tribune. Clearly, the structure of the RWQCB is such that it inadvertently created this problem of bias with no independent checks or balances, a system that has been in force yet out of balance for years. And this is a statewide problem that could have wide-ranging consequences (are old cases going to be appealed? retried? thrown out? What??), yet there’s nary a peep out of the Tribune about any of this. The little blurb they did run made it sound like this was simply a minor, local matter arising only out of the recent CDOs, a matter that could be quickly settled so the whole mad CDO scheme could move rapidly forward. From this press release, there may be even more trouble ahead, even if The Grand Inquisitor General does ride into town. For example, there’s the little matter of GIGO. Unless the Grand Inquisitor General is also an expert soil scientist and expert in all things septic, he won’t know that the information the local staff is giving him may be fatally flawed, so the whole cockamamie thing could collapse in a heap when it winds its way through the “administrative” type hearings and lands in a “real” court of law. Then there’s the matter of . . . Roger Briggs. What ever shall we do about Roger?
Once again, what can I say except, It’s Sewerville. Stay tuned.
Monday, May 08, 2006
Call Mr. Shallcross. The Anti-Sewerite Los Osos CSD is Borrowing Money From Themselves To Move The Sewer Project Forward! Stop them! Haven’t They Been Listening To Mr. Shallcross and the RWQCB? We Los Ososians are all anti-sewer!
Yep, getting bizarre out there. Judge Piquet has frozen the district’s assets until an audit can be completed. Fair enough. (The various breach of contract lawsuits will probably turn into some version of Charles Dicken’s Bleak House, and the CSD will remain mired in The Courts of Chancery for generations!) The RWQCB claims they’re vitally interested in getting a sewer project built and so has slapped CDOs on the community, a move that does absolutely nothing to get a sewer project built, but instead drains away resources, time, money, community focus. The CDOs are presently on hold while the RWQCB sorts through a raft of “unintended consequences” deriving from their ill-considered, hasty actions. . A group calling themselves Taxpayers Watch claims, among other things, that the CSD is wasting money on too many legal bills, so it sues the district, thereby – yes, you guessed it -- causing them to spend even more money on legal bills. That same group has spearheaded a Dissolve the CSD movement, implying that if the county takes over Los Osos, everyone will be safe from the furies of the RWQCB’s CDO. (False, they won’t be, according to the RWQCB’s own official statements.) And further implying that the county will simply step in and Poof! Tri-W will magically appear in the giant hole in the ground and Los Osos will once again have a sewer plant in the middle of town and all will be well. All this implication going on, yet there’s no indication from the county that it wants its red-haired step child back, trailing all it’s woes and lawsuits and liabilities. And no indication that county engineering would even sign off on a re-started Tri W and no indication that any new State Revolving Fund Loan could be used since the new rules applying to any new loans require that wastewater treatment plants be “sustainable” and Tri W never was, so who knows how that would play out . . . . in court . . . . again, thereby delaying any treatment plant moving ahead for years. Is this all getting too deja vuish for you?
And now, the Tribune headline, “For sewer funds, Osos looks to itself.” WHAAAAATTTT? Why, what a novel idea. You mean Los Osos can get off the pot, so to speak, borrow money from “its water fund and solid-waste fund” to move ahead with the sewer project update, the amended EIR, the siting search, a Prop 218-type vote, and so forth, then vote to form some type of Septic Management District on its own (to start a variety of discharge mitigations, if nothing else), and do it all by either “using revenue generated from an as-yet-undeveloped community-wide septic tank management plan,” or sell revenue bonds, or get federal funding or -- why, here’s an absolutely novel thought – property owners in the prohibition zone could actually vote to tax themselves a modest amount now to move the sewer project forward while various alphabet soup agencies battle on and everyone else stays mired in the ditch, wrestling lawyers, for years.
Oh, wait, I must have fallen asleep and been dreaming to even suggest that last bit there. I mean, prohibition zone folks stepping up to declare that an utter failure of government and government agencies has clearly taken place, so now they’re gonna go move ahead on their own? Look to themselves for a way forward? All those anti-sewer folk out there in Los Osos that Mr. Shallcross wants to sing Kumbaya?
Now I know I was dreaming.
Yep, getting bizarre out there. Judge Piquet has frozen the district’s assets until an audit can be completed. Fair enough. (The various breach of contract lawsuits will probably turn into some version of Charles Dicken’s Bleak House, and the CSD will remain mired in The Courts of Chancery for generations!) The RWQCB claims they’re vitally interested in getting a sewer project built and so has slapped CDOs on the community, a move that does absolutely nothing to get a sewer project built, but instead drains away resources, time, money, community focus. The CDOs are presently on hold while the RWQCB sorts through a raft of “unintended consequences” deriving from their ill-considered, hasty actions. . A group calling themselves Taxpayers Watch claims, among other things, that the CSD is wasting money on too many legal bills, so it sues the district, thereby – yes, you guessed it -- causing them to spend even more money on legal bills. That same group has spearheaded a Dissolve the CSD movement, implying that if the county takes over Los Osos, everyone will be safe from the furies of the RWQCB’s CDO. (False, they won’t be, according to the RWQCB’s own official statements.) And further implying that the county will simply step in and Poof! Tri-W will magically appear in the giant hole in the ground and Los Osos will once again have a sewer plant in the middle of town and all will be well. All this implication going on, yet there’s no indication from the county that it wants its red-haired step child back, trailing all it’s woes and lawsuits and liabilities. And no indication that county engineering would even sign off on a re-started Tri W and no indication that any new State Revolving Fund Loan could be used since the new rules applying to any new loans require that wastewater treatment plants be “sustainable” and Tri W never was, so who knows how that would play out . . . . in court . . . . again, thereby delaying any treatment plant moving ahead for years. Is this all getting too deja vuish for you?
And now, the Tribune headline, “For sewer funds, Osos looks to itself.” WHAAAAATTTT? Why, what a novel idea. You mean Los Osos can get off the pot, so to speak, borrow money from “its water fund and solid-waste fund” to move ahead with the sewer project update, the amended EIR, the siting search, a Prop 218-type vote, and so forth, then vote to form some type of Septic Management District on its own (to start a variety of discharge mitigations, if nothing else), and do it all by either “using revenue generated from an as-yet-undeveloped community-wide septic tank management plan,” or sell revenue bonds, or get federal funding or -- why, here’s an absolutely novel thought – property owners in the prohibition zone could actually vote to tax themselves a modest amount now to move the sewer project forward while various alphabet soup agencies battle on and everyone else stays mired in the ditch, wrestling lawyers, for years.
Oh, wait, I must have fallen asleep and been dreaming to even suggest that last bit there. I mean, prohibition zone folks stepping up to declare that an utter failure of government and government agencies has clearly taken place, so now they’re gonna go move ahead on their own? Look to themselves for a way forward? All those anti-sewer folk out there in Los Osos that Mr. Shallcross wants to sing Kumbaya?
Now I know I was dreaming.
Saturday, May 06, 2006
Oh, Please, Pleeezzzeee, Dear God, Stop Them Before They Shoot Again!
Brief notice in the Tribune that the Los Osos 45 who were scheduled to proceed with the Mad Hatter’s Tea Party CDO Hearings on the 11th and 12 will have the hearings postposed until further notice. Seems the delay is “because of a request from the water board’s prosecutors, who will be changing legal counsel.”
In Jeffrey Young’s official notice, it notes the “Prosecution Team requested a continuance to accommodate a change in its legal counsel (see posting at: http://www.swrcb.ca.gov/rwqcb3/Los%20osos/Index.htm).” It also notes that at the May 11 hearing, beginning at 10:00 a.m., there will be a discussion item only. “Discussion will be allowed regarding procedural issues only, such as when to conduct subsequent proceedings. The Water Board WILL NOT hear testimony, cross examination or public comments regarding the proposed Cease and Desist Orders on May 11, 20066.” The board won’t take any substantive action either and when they figure out when they’ll proceed, they’ll post the date.
During the April 28 hearing, the CSD’s attorney, Steve Onstot, requested the hearing be postponed until brand new “prosecutors” could be found to try the case. He cited a recent ruling (Morongo Band of Mission Indians vs State Water Resources Control Board, Super. ct. Sacramento county 2006, No. 04C500535) , a case that found “inherent bias” in the way the RWQCB conducts it’s legal hearings and civil liability actions & etc.
Basically, the case went to “inherent bias” on the part of Regional Board members (i.e. the “judges” in any hearing) who regularly consulted with, had closed session meetings with, did “regular Board business” with the same folks who then would make up the “prosecution” team for any formal civil “trial/hearing.”
This is akin (in the real world) to a judge who regularly meets with the staff of the DA’s office, consults on other cases with them, discusses closed session strategy on many others issues and policies with them, THEN, when the same DA’s come before his bench to prosecute a particular case, suddenly claims that he’s fair and neutral and has no bias towards the prosecution team. A court said, Nuh-huh, the CSD’s attorney’s request to postpone was slapped down by RWQCB Chairman Young, who rather acidly noted that until it’s settled case law (the Morongo case can still be appealed and reviewed and reversed) it doesn’t really exist and so has no standing and the CDO hearings will go forward – but he would note the objection for the record.
Now, someone must have re-read the case and the case law it’s base on and figured – for prudence sake, if nothing else – to wait until they can assemble a brand-new “prosecution team.” I also would have to wonder what impact that particular Morongo case will have on all the other cases the various Regional Boards are presently involved in. And what impact any final ruling may have on past cases?
In the meantime, Do you suppose it would be too much to ask that maybe, if Los Osos finally get’s lucky, that a new prosecution team would arrive sans the baggage of the old team? Sans Briggs’ baggage, sans the “bad blood,” sans the refusal to deal with their own failed enforcement history and culpability in creating this train-wreck, sans all the “bad science,” sans, in short, everything that’s kept cooler heads from stepping back and negotiating a smarter way forward than CDO’s?
One of the hallmarks of great litigators is they hate Pyrrhic victories because they know how profoundly stupid and wasteful they are. Great litigators know how to win by cutting practical win-win, smart-win “deals” before they ever see the inside of a courtroom.
If Los Osos gets lucky, a really smart litigation team will arrive, sans all the baggage that keeps the present “prosecution” team blinded and stumbling, and will ask themselves some questions: What are the RWQCB and the LOCSD really trying to accomplish here? Are individual CDO’s the proper tool to get that done? What’s the difference between “cooperative dischargers” and “recalcitrant dischargers?” Are there several other regulatory ways to skin this cat that would be more cost effective and environmentally better than simply plodding blindly forward with some poorly thought-out scheme until everyone ends up in court thereby wasting gazillions of tax dollars while running the chance that, in the real world, somebody, including the RWQCB, may lose their case on some cockamamie minor procedural goof-up and the whole stupid game will have to start all over again?
Is that too much to ask for. Pleeeeze God? Well, as with all things Sewerish, stay tuned.
Brief notice in the Tribune that the Los Osos 45 who were scheduled to proceed with the Mad Hatter’s Tea Party CDO Hearings on the 11th and 12 will have the hearings postposed until further notice. Seems the delay is “because of a request from the water board’s prosecutors, who will be changing legal counsel.”
In Jeffrey Young’s official notice, it notes the “Prosecution Team requested a continuance to accommodate a change in its legal counsel (see posting at: http://www.swrcb.ca.gov/rwqcb3/Los%20osos/Index.htm).” It also notes that at the May 11 hearing, beginning at 10:00 a.m., there will be a discussion item only. “Discussion will be allowed regarding procedural issues only, such as when to conduct subsequent proceedings. The Water Board WILL NOT hear testimony, cross examination or public comments regarding the proposed Cease and Desist Orders on May 11, 20066.” The board won’t take any substantive action either and when they figure out when they’ll proceed, they’ll post the date.
During the April 28 hearing, the CSD’s attorney, Steve Onstot, requested the hearing be postponed until brand new “prosecutors” could be found to try the case. He cited a recent ruling (Morongo Band of Mission Indians vs State Water Resources Control Board, Super. ct. Sacramento county 2006, No. 04C500535) , a case that found “inherent bias” in the way the RWQCB conducts it’s legal hearings and civil liability actions & etc.
Basically, the case went to “inherent bias” on the part of Regional Board members (i.e. the “judges” in any hearing) who regularly consulted with, had closed session meetings with, did “regular Board business” with the same folks who then would make up the “prosecution” team for any formal civil “trial/hearing.”
This is akin (in the real world) to a judge who regularly meets with the staff of the DA’s office, consults on other cases with them, discusses closed session strategy on many others issues and policies with them, THEN, when the same DA’s come before his bench to prosecute a particular case, suddenly claims that he’s fair and neutral and has no bias towards the prosecution team. A court said, Nuh-huh, the CSD’s attorney’s request to postpone was slapped down by RWQCB Chairman Young, who rather acidly noted that until it’s settled case law (the Morongo case can still be appealed and reviewed and reversed) it doesn’t really exist and so has no standing and the CDO hearings will go forward – but he would note the objection for the record.
Now, someone must have re-read the case and the case law it’s base on and figured – for prudence sake, if nothing else – to wait until they can assemble a brand-new “prosecution team.” I also would have to wonder what impact that particular Morongo case will have on all the other cases the various Regional Boards are presently involved in. And what impact any final ruling may have on past cases?
In the meantime, Do you suppose it would be too much to ask that maybe, if Los Osos finally get’s lucky, that a new prosecution team would arrive sans the baggage of the old team? Sans Briggs’ baggage, sans the “bad blood,” sans the refusal to deal with their own failed enforcement history and culpability in creating this train-wreck, sans all the “bad science,” sans, in short, everything that’s kept cooler heads from stepping back and negotiating a smarter way forward than CDO’s?
One of the hallmarks of great litigators is they hate Pyrrhic victories because they know how profoundly stupid and wasteful they are. Great litigators know how to win by cutting practical win-win, smart-win “deals” before they ever see the inside of a courtroom.
If Los Osos gets lucky, a really smart litigation team will arrive, sans all the baggage that keeps the present “prosecution” team blinded and stumbling, and will ask themselves some questions: What are the RWQCB and the LOCSD really trying to accomplish here? Are individual CDO’s the proper tool to get that done? What’s the difference between “cooperative dischargers” and “recalcitrant dischargers?” Are there several other regulatory ways to skin this cat that would be more cost effective and environmentally better than simply plodding blindly forward with some poorly thought-out scheme until everyone ends up in court thereby wasting gazillions of tax dollars while running the chance that, in the real world, somebody, including the RWQCB, may lose their case on some cockamamie minor procedural goof-up and the whole stupid game will have to start all over again?
Is that too much to ask for. Pleeeeze God? Well, as with all things Sewerish, stay tuned.
Friday, May 05, 2006
Ron Crawford over at Sewerwatch (www.sewerwatch.blogspot.com) checks in again, taking aim at one of his favorite targets, the Tribune. Duck and cover.
Thursday, May 04, 2006
Letters, we got more letters . . .
The following letter was sent to the Tribune from the husband of the letter previously posted. He also spent 12 hours at the April 28th hearing and took issue with how the Tribune covered the story the next day. His letter is followed by a reply from the Tribune. Both Moylan’s letters and the reply are extremely instructive if you want to see how a story can be slanted, how headlines can be manipulated (written by somebody who wasn't even there) while all the time denying that any of those techniques are at work. Most interesting is the tactic of suggesting that a “remedy” for what may well be plain old bad reporting is to be had by writing an “opinion” viewpoint which may be printed in the editorial/”opinion” page, thereby clueing the reader in that this is merely “opinion,” while what appeared in the original story is “fact.” If you were at the meeting for 12 hours and/or watched the whole thing on Channel 20, and read the original Tribune story, I invite you to read these letters and reply and see if you understand what the Moylans are objecting to. To me, it’s a familiar complaint when it comes to Los Osos Sewer Reporting.[printed with permission of the Moylans]
April 29, 2006
Dear Chip Visci, Matt Lazier, and Nathan Welton,
Your front page article about the RWQCB hearing was slanted, untrue in parts and lacked ethical integrity.
The title on your front page, “Los Osos raises a ruckus at hearing with water officials,” suggested that there was a commotion or disturbance throughout the hearing. This was not the case. I attended the hearing for the complete 12 ½ hours. The general tone of the hearing was one of a very interested and concerned populace at a controversial meeting. Voices were raised perhaps 4 or 5 times during the entire 12 ½ hours.
The first sentence of your article stated, “Tempers flared for 12 hours…” This is patently untrue. A few people were upset and spoke emphatically.
No one lost their tempers. Occasionally people clapped because they agreed with a speaker. Overall, the people who attended the hearing were very respectful of procedural protocol.
Midway through your article, Nathan Welton wrote, “An armed San Luis Obispo police officer patrolled the room, ostensibly to control the often-rowdy crowd.” This statement is not true. The officer stood in one place most of the time and appeared bored and at times amused. There was no patrolling, and the crowd was not rowdy. One person who spoke candidly about the proposed CDO’s was asked to leave or else be removed. She did not leave and was not removed, and she did not need to be removed. For the record, the crowd was extremely interested in all comments. Ninety percent of the time it was quiet with occasional murmurs or even spoken words-but mostly, quiet.
Your newspaper article stated that Julie Tacker was admonished by Jeffrey Young for clapping. She was wrongly admonished; however, this was not stated in your newspaper. People who read your article might accept this piece of half-truth, unless of course they were at the hearing like I was. Julie never clapped and immediately told Mr. Young that. Your paper however failed to mention the second half of the truth. I know what happened, I was sitting across the aisle from Julie.
Several important facts about the hearing were either omitted by forgetfulness (a serious flaw), or worse, purposely left out (an egregious intentional act). The first huge omission was no mention of our honorable assemblyman Sam Blakeslee’s presence and 10 minute presentation to the Water Board. Sam, who is an excellent extemporaneous speaker, impressed both the Water Board and the attendees. He spoke about his continuing work on trying to have both sides of the sewer issue come together to work out a solution. He spoke of working on legislation to hasten the solution. And he spoke of an upcoming measure by the State Water Board that will affect future waste water management. Not one word was mentioned in your newspaper of Sam’s presence or his important speech. Yet his face is plainly visible in your 4 x 6 inch photo of the hearing on the front page.
Another serious omission was the failure to mention that 3 subpoenas by the people of Los Osos were quashed and not allowed by Mr. Young. These subpoenaed people could have given excellent testimony in cross-examination to support arguments by some of the people who had received proposed CDO’s. This was omitted in your article.
Shirley Bianchi, county supervisor for Los Osos, was at the hearing briefly. She publicly stated that she would only take questions from the board, not from her own constituents. Her self-imposed silence to the very people she represents speaks volumes. This is newsworthy, but Mr. Welton made no reference to Ms. Bianchi’s presence or her total lack of dialogue with the Los Osos citizens.
Overall, the tone of Mr. Welton’s article smacked of emotional drama that portrays the people at the hearing as a rowdy bunch of flaring tempered Los Osans. It is an article that barely gets the potatoes of the hearing and absolutely no meat. This is journalism at it’s nadir. You could have produced a fine piece that got some really important data in print. I resent the bungled attempt of reporting such an important meeting. I resent the stereotype of Los Osos citizenry this article conveys. And I regret that your newspaper can not do a better job at reporting the truth of what really transpires at such important public hearings. The people of Los Osos deserve an apology.
Sincerely,
William R. Moylan
And The Tribune’s Reply:
Dear Mr. Moylan:
Thank you for your submission. Our editors and our reporter have reviewed it and have some suggestions and responses. Normally, the editors would reply to you directly as this is their area of responsibility day in and day out. I’m stepping in because we’re short-handed today and I knew you wanted a prompt reply.
Based on their review, I’m suggesting you rewrite your remarks as a letter to the editor – 200 words is our limit, though if you need a few more, we’ll manage it.
What I’ve done below is cover the main areas of your letter and our response to it. I should note that we emphatically reject your notion that we lack journalistic integrity; we firmly believe we accurately captured the most important elements of the meeting. Reasonable people can disagree about what are the most important elements (e.g., you believe we should have mentioned Sam Blakeslee’s remarks; we disagree. You may be right, but we had to make a decision on deadline with limited space available.)
We decline to print your piece as written because we feel we’d have to rebut your rebuttal. We don’t like to do that. Rather, I encourage you to reconsider your piece and ask you to shorten it so that you can make some points that are important to you. I’ve indicated below some points that might contribute to a valuable discussion of the issues as a letter to the editor.
I hope you will find this approach satisfactory. Separately, please feel free to convey to Julie Tacker our invitation to write a Viewpoint on the overall issue. As you are no doubt aware, we’ve been very accommodating to the board, and I trust from remarks I’ve received from Lisa Schicker that she remains appreciative of The Tribune’s efforts and overall coverage.
Here is our view of the points of contention.
HEADLINE: Reasonable people can disagree about whether the word “ruckus” may have been too strong. The dictionary synonyms are “row” and “disturbance.” I believe “row” – defined in the dictionary as “a noisy disturbance or quarrel” – would cover it, and thus “ruckus” is defensible. But again, reasonable people could argue that words like “disruptive” or “heated” or “passionate” would have been more on the mark in the headline. As I explained to Mr. Martin, the reporter does not write the headline, and in fact he never used the word “ruckus” in his story. This certainly would be a reasonable point for you to make in a letter.
TEMPERS FLARED: Our reporter witnessed booing, hissing, clapping, snide and crass remarks, numerous interruptions (talking over other speakers) throughout the entire session. Our editors believe that justifies the lead sentence; tempers did indeed flare all day long.
ARMED POLICE OFFICER: Regarding the armed police officer: Our reporter witnessed him moving to various locations in the room throughout the day. We used “patrol” to mean the officer was there, and for certain, he did not stay in one spot the entire time. He moved around. Perhaps a better word than “patrol” could have been used, such as “on hand.” I think that is something you can cover in a letter.
SAM BLAKESLEE’S REMARKS: While Sam, whose efforts we have covered all along and given considerable editorial support to, did say he was working on a legislative remedy, he declined to disclose any specifics saying it would be premature to report. So we really had nothing to report.
TACKER CLAPPING: Our reporter did not himself witness her clapping, and did not report as a fact per se that she did. Rather, he reported that the board chairman, sitting in front of the entire group, did admonish her not to clap. He was in a good spot to see if she did or did not. He said she did, and that is what we reported. You suggest that we should have reported that she said she did not. I think that is something that you can cover in a letter to us.
SUBPOENAS: Mr. Martin said to me on the phone yesterday that this is a small point and somewhat beside several other issues. Mr. Martin could not satisfactorily explain to the board (nor to me on the phone) how the subpoenas related to the issue at hand, i.e., whether the families deserved cease and desist orders. So subpoenas were quashed because water board chair did not want to listen to 30 years of history, which was considered irrelevant. I recommend that we leave this issue to another day, when it’s clearer to all involved how this is relevant. Again, I’m merely invoking Mr. Martin’s own admission to me that the subpoenas are not the main issue right now.
I hope this helps and you can find a way to write a compact, trenchant letter to the editor.Sincerely,
Chip Visci
[President and Publisher, Tribune]
And the re-reply:
And here’s the requested 200 word re-write that may or may not appear on the “opinion” page as “opinion,” unlike the original story that appeared on page one and is considered “fact.” Journalism at its finest with the issues shoved off the table. Case closed.
LETTER TO THE EDITOR
The 4/29/06 Tribune headline, “Los Osos raises a ruckus with water officials,” along with the first sentence, “Tempers flared for 12 hours Friday,” convey the impression that throughout the 4/28/06 RWQCB hearing citizens were disorderly, noisy, angry, and unruly. The reporter noted that an officer patrolled the “often rowdy” crowd.
These statements convey an impression of irate citizens roaming the hearing room for hours with placards, chanting slogans, yelling down speakers, engaging in fisticuffs in the back of the room with anyone who dared to disagree, and being hauled off in handcuffs for refusing to relinquish the podium. Available day and night on channel 20 the hearing hardly does justice to the hyperbole, which merely supports and enlivens a broadly unfair stereotype of Los Osos citizens created by the media.
It was probably too much to hope that our county newspaper would afford us the dignity of reporting the RWQCB hearing as it happened. It is discouraging to discover that our own newspaper would use its influence to marginalize and demean Los Osos and its citizens by misrepresentation, by selective reporting, and by false statements and gossip depicted as news. Thank goodness for instant replay.
Beverley A. De Witt-Moylan
Cease and Desist Order Recipient and Defendant
The following letter was sent to the Tribune from the husband of the letter previously posted. He also spent 12 hours at the April 28th hearing and took issue with how the Tribune covered the story the next day. His letter is followed by a reply from the Tribune. Both Moylan’s letters and the reply are extremely instructive if you want to see how a story can be slanted, how headlines can be manipulated (written by somebody who wasn't even there) while all the time denying that any of those techniques are at work. Most interesting is the tactic of suggesting that a “remedy” for what may well be plain old bad reporting is to be had by writing an “opinion” viewpoint which may be printed in the editorial/”opinion” page, thereby clueing the reader in that this is merely “opinion,” while what appeared in the original story is “fact.” If you were at the meeting for 12 hours and/or watched the whole thing on Channel 20, and read the original Tribune story, I invite you to read these letters and reply and see if you understand what the Moylans are objecting to. To me, it’s a familiar complaint when it comes to Los Osos Sewer Reporting.[printed with permission of the Moylans]
April 29, 2006
Dear Chip Visci, Matt Lazier, and Nathan Welton,
Your front page article about the RWQCB hearing was slanted, untrue in parts and lacked ethical integrity.
The title on your front page, “Los Osos raises a ruckus at hearing with water officials,” suggested that there was a commotion or disturbance throughout the hearing. This was not the case. I attended the hearing for the complete 12 ½ hours. The general tone of the hearing was one of a very interested and concerned populace at a controversial meeting. Voices were raised perhaps 4 or 5 times during the entire 12 ½ hours.
The first sentence of your article stated, “Tempers flared for 12 hours…” This is patently untrue. A few people were upset and spoke emphatically.
No one lost their tempers. Occasionally people clapped because they agreed with a speaker. Overall, the people who attended the hearing were very respectful of procedural protocol.
Midway through your article, Nathan Welton wrote, “An armed San Luis Obispo police officer patrolled the room, ostensibly to control the often-rowdy crowd.” This statement is not true. The officer stood in one place most of the time and appeared bored and at times amused. There was no patrolling, and the crowd was not rowdy. One person who spoke candidly about the proposed CDO’s was asked to leave or else be removed. She did not leave and was not removed, and she did not need to be removed. For the record, the crowd was extremely interested in all comments. Ninety percent of the time it was quiet with occasional murmurs or even spoken words-but mostly, quiet.
Your newspaper article stated that Julie Tacker was admonished by Jeffrey Young for clapping. She was wrongly admonished; however, this was not stated in your newspaper. People who read your article might accept this piece of half-truth, unless of course they were at the hearing like I was. Julie never clapped and immediately told Mr. Young that. Your paper however failed to mention the second half of the truth. I know what happened, I was sitting across the aisle from Julie.
Several important facts about the hearing were either omitted by forgetfulness (a serious flaw), or worse, purposely left out (an egregious intentional act). The first huge omission was no mention of our honorable assemblyman Sam Blakeslee’s presence and 10 minute presentation to the Water Board. Sam, who is an excellent extemporaneous speaker, impressed both the Water Board and the attendees. He spoke about his continuing work on trying to have both sides of the sewer issue come together to work out a solution. He spoke of working on legislation to hasten the solution. And he spoke of an upcoming measure by the State Water Board that will affect future waste water management. Not one word was mentioned in your newspaper of Sam’s presence or his important speech. Yet his face is plainly visible in your 4 x 6 inch photo of the hearing on the front page.
Another serious omission was the failure to mention that 3 subpoenas by the people of Los Osos were quashed and not allowed by Mr. Young. These subpoenaed people could have given excellent testimony in cross-examination to support arguments by some of the people who had received proposed CDO’s. This was omitted in your article.
Shirley Bianchi, county supervisor for Los Osos, was at the hearing briefly. She publicly stated that she would only take questions from the board, not from her own constituents. Her self-imposed silence to the very people she represents speaks volumes. This is newsworthy, but Mr. Welton made no reference to Ms. Bianchi’s presence or her total lack of dialogue with the Los Osos citizens.
Overall, the tone of Mr. Welton’s article smacked of emotional drama that portrays the people at the hearing as a rowdy bunch of flaring tempered Los Osans. It is an article that barely gets the potatoes of the hearing and absolutely no meat. This is journalism at it’s nadir. You could have produced a fine piece that got some really important data in print. I resent the bungled attempt of reporting such an important meeting. I resent the stereotype of Los Osos citizenry this article conveys. And I regret that your newspaper can not do a better job at reporting the truth of what really transpires at such important public hearings. The people of Los Osos deserve an apology.
Sincerely,
William R. Moylan
And The Tribune’s Reply:
Dear Mr. Moylan:
Thank you for your submission. Our editors and our reporter have reviewed it and have some suggestions and responses. Normally, the editors would reply to you directly as this is their area of responsibility day in and day out. I’m stepping in because we’re short-handed today and I knew you wanted a prompt reply.
Based on their review, I’m suggesting you rewrite your remarks as a letter to the editor – 200 words is our limit, though if you need a few more, we’ll manage it.
What I’ve done below is cover the main areas of your letter and our response to it. I should note that we emphatically reject your notion that we lack journalistic integrity; we firmly believe we accurately captured the most important elements of the meeting. Reasonable people can disagree about what are the most important elements (e.g., you believe we should have mentioned Sam Blakeslee’s remarks; we disagree. You may be right, but we had to make a decision on deadline with limited space available.)
We decline to print your piece as written because we feel we’d have to rebut your rebuttal. We don’t like to do that. Rather, I encourage you to reconsider your piece and ask you to shorten it so that you can make some points that are important to you. I’ve indicated below some points that might contribute to a valuable discussion of the issues as a letter to the editor.
I hope you will find this approach satisfactory. Separately, please feel free to convey to Julie Tacker our invitation to write a Viewpoint on the overall issue. As you are no doubt aware, we’ve been very accommodating to the board, and I trust from remarks I’ve received from Lisa Schicker that she remains appreciative of The Tribune’s efforts and overall coverage.
Here is our view of the points of contention.
HEADLINE: Reasonable people can disagree about whether the word “ruckus” may have been too strong. The dictionary synonyms are “row” and “disturbance.” I believe “row” – defined in the dictionary as “a noisy disturbance or quarrel” – would cover it, and thus “ruckus” is defensible. But again, reasonable people could argue that words like “disruptive” or “heated” or “passionate” would have been more on the mark in the headline. As I explained to Mr. Martin, the reporter does not write the headline, and in fact he never used the word “ruckus” in his story. This certainly would be a reasonable point for you to make in a letter.
TEMPERS FLARED: Our reporter witnessed booing, hissing, clapping, snide and crass remarks, numerous interruptions (talking over other speakers) throughout the entire session. Our editors believe that justifies the lead sentence; tempers did indeed flare all day long.
ARMED POLICE OFFICER: Regarding the armed police officer: Our reporter witnessed him moving to various locations in the room throughout the day. We used “patrol” to mean the officer was there, and for certain, he did not stay in one spot the entire time. He moved around. Perhaps a better word than “patrol” could have been used, such as “on hand.” I think that is something you can cover in a letter.
SAM BLAKESLEE’S REMARKS: While Sam, whose efforts we have covered all along and given considerable editorial support to, did say he was working on a legislative remedy, he declined to disclose any specifics saying it would be premature to report. So we really had nothing to report.
TACKER CLAPPING: Our reporter did not himself witness her clapping, and did not report as a fact per se that she did. Rather, he reported that the board chairman, sitting in front of the entire group, did admonish her not to clap. He was in a good spot to see if she did or did not. He said she did, and that is what we reported. You suggest that we should have reported that she said she did not. I think that is something that you can cover in a letter to us.
SUBPOENAS: Mr. Martin said to me on the phone yesterday that this is a small point and somewhat beside several other issues. Mr. Martin could not satisfactorily explain to the board (nor to me on the phone) how the subpoenas related to the issue at hand, i.e., whether the families deserved cease and desist orders. So subpoenas were quashed because water board chair did not want to listen to 30 years of history, which was considered irrelevant. I recommend that we leave this issue to another day, when it’s clearer to all involved how this is relevant. Again, I’m merely invoking Mr. Martin’s own admission to me that the subpoenas are not the main issue right now.
I hope this helps and you can find a way to write a compact, trenchant letter to the editor.Sincerely,
Chip Visci
[President and Publisher, Tribune]
And the re-reply:
And here’s the requested 200 word re-write that may or may not appear on the “opinion” page as “opinion,” unlike the original story that appeared on page one and is considered “fact.” Journalism at its finest with the issues shoved off the table. Case closed.
LETTER TO THE EDITOR
The 4/29/06 Tribune headline, “Los Osos raises a ruckus with water officials,” along with the first sentence, “Tempers flared for 12 hours Friday,” convey the impression that throughout the 4/28/06 RWQCB hearing citizens were disorderly, noisy, angry, and unruly. The reporter noted that an officer patrolled the “often rowdy” crowd.
These statements convey an impression of irate citizens roaming the hearing room for hours with placards, chanting slogans, yelling down speakers, engaging in fisticuffs in the back of the room with anyone who dared to disagree, and being hauled off in handcuffs for refusing to relinquish the podium. Available day and night on channel 20 the hearing hardly does justice to the hyperbole, which merely supports and enlivens a broadly unfair stereotype of Los Osos citizens created by the media.
It was probably too much to hope that our county newspaper would afford us the dignity of reporting the RWQCB hearing as it happened. It is discouraging to discover that our own newspaper would use its influence to marginalize and demean Los Osos and its citizens by misrepresentation, by selective reporting, and by false statements and gossip depicted as news. Thank goodness for instant replay.
Beverley A. De Witt-Moylan
Cease and Desist Order Recipient and Defendant
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