Tuesday, January 29, 2008
O.k. kids, it's Math Time. Today's Tribune notes: "20,000 gallons of sewage flow from CMC out to Morro Bay." And in the story it also notes, "Before the upgrade, the prison's aged sewage system logged about 150 violations, resulting in hundreds of thousands of dollars in fines."
150 violations and hundreds of thousands in fines. Hundreds of thousands? Yet the Los Osos CSD gets slammed with a $6 mil + fine for spilling . . . .exactly what into the Bay? Hmmmm.
Even more interesting, remember when Tri W was being hustled along and some folks said, Woa, not a good idea to build a huge sewage plant so near to Sweet Springs and the Bay, what would happen with a spill? and the Powers that Be blared, "NONSENSE! We've built in redundancies. There will be no spills, ever! Not to worry."
So poor CMC upgraded it's old, cronically spilling plant and added on redundancies and doggone, when power was lost to the main plant, the dad-blamed back-up emergency generator didn't start and, voi la! sewage flowed into the creek and hence into the bay, which was a few miles away, not a few blocks away. Dang!
Well, no matter. Individual members of the Los Osos community -- The Los Osos 45 -- face higher fines (up to $5,000 a day retroactive to 1988 and possible jail time) for "polluting" the groundwater from their individual septic tanks, so the 20,000 gallons and potential fines (under a million dollars for a total of 150 violations over the years) now faced by CMC aren't anything to worry about.
Chump change, by comparison.
Hope for the Doggies & Miaows?
In today's Tribune, a follow up on a previous story: The Humane Society has been hired by the county to do a study of our Department of Animal Services. There's been some unhappy rumblings from the facility out on Highway 1, rumblings and complaints coming from the volunteers that the shelter's being mismanaged, there's been miscommunication problems, the staff is overburdened, and even Sheriff Hedges wants to push the joint off his table and maybe make it a completely reorganized, separate, better-budgeted, stand-alone department.
The study will be ready "by June or early July," and the consultants will be seeking community input. Stay tuned for any times and places where interested parties can add their two cents. And if you don't own any pets and think you aren't an interested party, please think again. Taxpayers all pay to deal with "animal" issues. It costs all of us a bundle to pick up, hold, kill and cremate and/or ship the bodies somewhere for rendering. A big bundle.
So the question before the public is this: Are there better, cheaper ways to deal with issues of pet overpopulation, irresponsible owners, irresponsible breeders, irresponsible pet stores, humane education, public outreach, volunteer coordination, private/public cooperation, fully funded spay-neuter programs, coordinated breed rescue groups, and etc., all of which are focused on pro-actively preventing problems from escalating and costing more when they reach the Great Big Mess stage?
Saturday, January 26, 2008
Calling all Sewer Fans. This email just in:
Two more draft technical memoranda have been released and posted on theProject Website at http://www.slocounty.ca.gov/PW/LOWWP.htm The TM's are on Decentralized Treatment Systems and Onsite TreatmentSystems.These items, and the previously released TM on Low Pressure CollectionSystems will be on the agenda of the next meeting of the project TechnicalAdvisory Committee, scheduled for Monday, February 4, 2008, at 7:00 pm atthe South Bay Community Center in Los Osos.
If you have input or want input or more info, plan to attend the TAC meeting for any updates and questions.
And now for The Department of, “ Oh, Dang, I Wish I Had Written That!”
Patt Morrison is one of the the L.A. Times best columnists. And her January 24th column was absolutely too dead on the mark not to share. The one missing part in this sad tale is this: Why did the American people deliberately choose this death-spiral again? And when offered (again) an opportunity for a serious, disease-stopping, veto-proof Congressional remedy, American voters opted again for the same useless treatment that would guarantee sure death, followed by a swift no-accountability-cover-up, with the national home looted of the silverware and valuable antiques before the first notes of the funeral march could even be heard? And by choice, not a single national Trustee in sight.
A National near-death experience
We’re getting closer to the light – the one at the end of the George Bush tunnel.
One year from this very moment, someone other than George Bush will be sliding behind that antique desk in the Oval Office. In embassies and outposts that fly the Stars and Stripes, photographs of a face other than Bush’s will be going upon the walls.
At long, long last. It is seven years since Bush plopped down behind that desk, seven years when hope and honor and good faith and goodwill died a little for me, for many other heartsick Americans who love this country, and for millions around the world who looked up to this country.
I say “died,” and I mean that. The psychiatrist Elisabeth Kubler-Ross laid out the basic states of grief and coming to terms with loss. And Kubler-Ross’ five stages track almost perfectly the arc of how we’ve grappled and grieved over the sickening power crusade of the Bush administration gains the nation for these last seven years.
Denial: It can’t be happening. Who could expect that the man who had to win election in court, not at the polls, would instantly, arrogantly go on the attack – wiping out environmental protections unmatched since Teddy Roosevelt, throwing out scores of health and safety and accountability and privacy rules and protections that made life better for typical Americans and making “caveat emptor” the only motto of U.S. business? There must be some mistake, doctor.
Anger: It’s not fair. How dare they? How can they practice retrograde isolationism abroad and rapacious cronyism at home? How can they dishonor 9/11 by exploiting the nation’s fears to justify upending the Constitution and creating a metastasized secret government? Threatening librarians with prosecution? Arresting people wearing anti-Bush T-shirts, thus conflating protest with sedition? Sneaking and peeking on us without warrants – at the same time they’re wrapping the White House in impenetrable secrecy in the name of national security? I went to be at night raging against the outrages – Abu Ghraib, Guantanamo, Katrina, Blackwater, Terri Schiavo – and woke to fresh ones with the morning’s news.
Bargaining: If they stop now, I’ll make my peace. OK, they have the Supreme Court, and the war they lied to get – maybe that’s enough. Maybe it’s enough that the war will bankrupt our children, justplease don’t let it bankrupt our grandchildren too. He went to war with terrorism, so if he goes to war against global warming and failing levees the way he did against terrorism, I live with a “Clear Skies” initiative that pollutes the air and a “Healthy Forests” initiative that whacks more trees. Promise me it won’thappen again, and I’ll let it go.
Depression: I can’t e en lift my head to pay attention. Saddam Hussein had WME? Sure, fine, yeah. Dick Cheney doesn’t want to submit to a mandatory archive inspection, so he claims he’s not part of the executive branch? Naturally. The administration decides what it wants to do, then makes up its own facts to justify it. Reality, like history, is written by the victors. Take the science out of NASA and the Interior Department and the earth is suddenly in great shape; species are no longer endangered. Declarer “mission accomplished” with 150 dead American soldiers, and five years later, when the numbers are more than 20 times that, observe offhandedly that the U.S. could “easily” be in Iraq another 10 years. Whatever. I’ve pulled the shades.
Acceptance: Ready for whatever comes. Game over, peace out. I thought I was at the acceptance stage, but not yet.
I can’t forget that, in the nation’s name, these men have abused power to defeat the constitutional remedies for abuse of power. They’ve turned every government agency into a hit squad for Bush-Cheney Inc. They’ve despoiled this exquisite, singular planet just to stuff a few more millions into billionaires’ pockets.
Can I hold out for one more year? Can the nation? Will another election save us? Are we suckers to believe that, in the ultimate curative power of that brilliantly conceived human instrument, the Constitution? What other choice do we have? I’m ready for a last-minute miracle cure.
Bring it on.
Patt can be emailed at: firstname.lastname@example.org
Wednesday, January 23, 2008
In my previous post, I noted a link to Ron Crawford's latest posting, "The Tribune -- STILL worse than Nothing" -- and the next day, here's Exhibit A:
Front page story on, uh, what, exactly? Headline said: "Reclamator creator touts plan for Osos" " The maker of the purported toilet-to-tap device says a proposed partnership with the idstrict will solve the town's problems -- including bankruptcy."
Front page. Big type. Woooo! I could almost feel the hearts and spirits of the community rising as Tribune subscribers wandered out into the cold and wet soggy morning to pick up their papers. Ah, We Are Saved!
Urrrrnnnkkkk, not even close. Buried back on the page 6 jump are the unpleasant "facts" that should have alerted the editors that this story isn't ready for prime time.
Before ANY decisions get made about Mr. Murphy's "Reclamator," somebody --- Mr. Murphy? -- needs to go into federal? state? court to get a ruling on a whole bunch of things, including a definition of "discharge," and "pollution" and a ruling on the discharge numbers allowed under 83-13, among other things. Also, somebody needs to get a ruling over jurisdiction of septic tanks, and "discharge" of whatever is leaving whatever it is that's processing household wastewater and such like.
Without those rulings, this headline is nothing but paper-selling hokum. What went missing is the solid research that would nail down Mr. Murphy's claims and the RWQCB's claims -- i.e. asking that Mr. Harvey Packard formally declare that Mr. Murphy's device WILL NOT be allowed within the PZ and just as formally and officially indicate the policy and court rulings that support that official ruling. (What was noted in this non-story is Mr. Packard saying Murphy's plan wouldn't have an effect on the RWQCB's fine -- no mention of the RWQCB's declarations concerning CDOs and "discharges" within the PZ. THAT's the issue that's still gone missing in all stories about Mr. Murphy and his "Reclamator:"
Here's what the Tribune needs to nail down: An Official, final, legal ruling by the RWQCB on Mr. Murphy's device. Until that's forthcoming, then all we have here is Gamesmanship by Headlines starring Regulators, the County and an Entrepreneur.
And the public interest be damned.
Meantime, while the whooped-up headlines likely caught everyone's attention, they probably missed the small "More Coverage Inside" box which was snuggled next to the sub head, in tiny print, "Sewer project: County officials say work will go on after being denied $5 million in federal funding, Page 6.)
Ah yes, a PLAN FOR OSOS on the front page, big time, and $5 mil down the drain in tiny type buried inside. Yep, that's our Tribune.
Had my own letter to the editor show up in the Tribune. I was struck by a Jan 18th letter from Lorraine Bailey who very clearly was not happy with the movie, "No Country For Old Men," but did like "Charlie Wilson's War."
My response: "In her Jan. 18 letter ("Bad flick, good flick") Lorraine Bailey notes that she found "No Country for Old men" the worst movie she'd ever seen, in part because the critics "forgot to comment on the story line about a serial killer who murdered innocent people." In "No Country for Old Men," the professional hitman, played with chilling weirdness by Javier Bardem, killed about six people [hmmm, maybe have to correct that to seven? the possible 8th still isn't clear to me. There were so many other "hunters" after the hunter, hard to know just who got whom] to complete his mission, hence Ms. Bailey's bad review. On the other hand, she found that "Charlie wilson's War" provided "knowledge, humor and entertainment."
I found that an interesting comparison -- a hit man with six kills versus Charlie Wilson -- because clearly the critics also must have forgotten to inform Ms. Bailey that the direct blowback from Charlie's humorous and entertaining little war was Sept. 11 and the ongoing Afghanistan and Iraq wars. The kill rate in those conflicts is now in the hundreds of thousands of "murdered innocent people with plenty of blood and horror."
If the death toll of murdered innocents is the deciding factor, surely Charlie's little war would get "four tickets," while "No Country for Old Men" would barely rate as a humorous children's story by comparison." --end--
To be fair, Ms. Bailey likely wasn't familiar with the U.S.'s 30-year-old "great game" with Russia, part of the cold war with a still existant Soviet Union, and likely unfamiliar with that direct blowback. And Mike Nichol's light touch likely focused on the loonier aspects of that under-the-radar-we-deny-it-all quasi-black OP. And to be doubly fair, "No Country" is a harrowing film.
But for me, there is a bothersome "Springtime For Hitler" aspect to "Charlie's War," that has kept me from the theatre. The critics haven't been too kind either. Comedy, even black comedy is hard to pull off. And comedy involving so many dead . . . . mmmmm, even harder.
But I suspect "Charlie's War" is likely a perfect movie for a country that has litttle or no historical memory and so has little interest in or ability to connect the dots.
Speaking of Dots
Little blurb in the Trib: There's a new website that posts all those wonderful little dots from the Bush Administration that led to the Iraq war. The Center for Public Integrity has created the website so people can search for various buzz-words, i.e. look for the famous "mushroom cloud" reference, and up will pop the documents fin which the words appeared.
The database is at http://www.publicintegrity.org/.
For anyone paying attention at the time, or for anyone familiar with governmenal weasle-words and spin and media hype, those muddy little dots were all too clear. As was the failure of the Congress to do its job. Well, too late now.
But, look on the humorous and entertaining bright side: Maybe this data base will serve as a resource a few years from now for some screenwriter looking for a sparky, new comedy called "Georgie's War," a laff-a-minute comedy including hilarious scenes of whole pallets of gazillions of crisp dollars being "lost" in Baghdad's chaos, missing weapons caches, many of which likely turned up later as IED's aimed at American Soldiers. The Keystone Kops possibilities are endless.
Dr. Strangelove, anyone?
Tuesday, January 22, 2008
Ron Crawford, over at www.sewerwatch.blogspot.com has posted a "Viewpoint" he submitted to the Tribune, which, to date, the Tribune hasn't printed, not even after a whole series of Waltz Me Around Again Willy emails. Ah, Yes, Well, indeed. . . Ron's called his posting, "The Tribune -- STILL "'worse than Nothing.'" And when you read it you'll see why.
The failure of the Tribune to do anything even close to "investigative reporting" during the whole Hideous Sewer Wars is one of the sad links that keeps popping up when you look at that saga throughout the years. If only, if only. And, of course, in this Era Of No Accountability, Lord knows NOBODY want's to be reminded of so many of those key failures -- especially since the Sewer Train Wreck, so preventable if key points had been caught (and made public, by, oh, let's say, the newspaper of record?), turned out to be so expensive a disaster.
Friday, January 18, 2008
Poor Lost Osos
What a week for my poor Bangladesh By The Bay: A Dead On Arrival (but very revealing) BOS Resolution, plus our very own “Tacky Chippingate” scandal.
First up was the Board of Supervisors’ proposed resolution asking that the Regional Water Quality Control Board rescind the CDO’s on The Los Osos 45, those hapless citizens who were singled out for nearly two years of jerking around by the RWQCB. What some of the Supervisors had in mind was a simple resolution noting that the RWQCB’s process of individual enforcement was wrong, unfair, pointless and counterproductive, and that in light of the good progress the community and county are making on the wastewater project, ask that the RWQCBoard rescind the CDOs and “stand down.” Simple.
Instead, what arrived on the Supervisor’s dais was an elaborate Selectively Misleading History Of The Sewer Wars (With Really Interesting Parts Left Out) that contained a one-sided request that the CSD and others involved in the Prohibition Zone Legal Defense Fund lawsuit (the one that is now in Superior Court) all agree to drop that lawsuit, with no guarantees from the RWQCB that they, in turn, would stop future individual enforcements on everyone in the PZ.
Worse, the resolution conflated that lawsuit with totally unconnected “derailed” projects, or what “others have stated” and falsely noted that “The Cease and Desist Orders and settlement agreements do not require any burdensome actions now or in the near future.”
That last howler indicated that the county staff members who had written this resolution had not followed the ACL and CDO hearings at all. No mention that the Los Osos 45 had been threatened with daily retroactive fines all the way back to 1988, nor that the RWQCB reserved the right to “revoke and impose” all fines totally on their perception of whether the County was “making progress,” nor that should the county project fail for whatever reason, those 45 people would be forced to leave their homes after 2011, nor any mention of the onerous burden those CDOs put on anyone trying to sell their homes, and certainly no mention that the CDO process itself requires that the recipients file any objections in a “real” court of law before a certain amount of time has elapsed or else they will lose all their rights.
And then, closing the long list of “Whereas’s” was this capper: “The foregoing recitals are true and correct.”
Errrrnnnkkkk, not even close. Add in Supervisor Patterson’s cogent observation that he was not comfortable with an official County resolution that would demand a quid pro quo on a lawsuit he was not familiar with, one that could possibly interfere with a citizen’s constitutional rights, one that wasn’t even supported by the very people who had originally requested it, and this resolution was soon sensibly tabled, for now.
But the citizens of Poor Lost Osos should now be on notice: That resolution, which Supervisor Gibson supported, makes one thing absolutely clear: Protecting the interests of the County and the interests of the RWQCB come first -- NOT protecting the interests of the citizens. You have been warned.
Then adding insult to injury, there was the embarrassing front page Tribune news story about CSD Board officer, Julie Tacker and her boyfriend Jeff Edwards, involved in last November’s community-wide Chipping Day. That day is mandated by and partially paid for out of the community’s solid waste franchise fees, while any budget overruns come out of the fire department fund and/or the CSD’s water fund. In short, the ratepayers pay for this service.
Which is why this particular piece of idiocy warrants a full CSD public hearing since this one involved inappropriate verbal abuse of CSD employees, either misunderstood and/or incorrect procedures used to sign up homeowners, and stupidest of all, clear indications of someone attempting to game the system while sticking the ratepayers with the bill.
Well, if the CSD can devote a whole meeting to consider the censure of a particular private citizen, surely it can spend a meeting to determine who the players were in this game, what reimbursement to the CSD is required, how the system can be fixed to avoid this in the future, and if any Board member was involved in this scam, to consider an appropriate response.
Like poor Lost Osos doesn’t have enough trouble, now we gotta hide the silverware? And the eucalyptus leaves?
Wednesday, January 16, 2008
According to this morning’s Tribune story, the BOS has decided it’s O.K. to wash your car in your driveway, if you live in the unincorported areas of the county. And Mark Hutchinson, the environmental program manager, was asked to get the public information on what kind of soap is best to get your car washed in the driveway without ending up with environmentally unsafe chemicals running down the driveway and into the storm drains and out to sea. In short, everyone’s got to get involved to reduce and/or eliminate bad stuff getting into the groundwater and/or creeks and eventually the ocean.
BUT, if you live in Los Osos, here’s what I learned on my own. Los Osos has hard water, hard enough to require wearing a hard hat when you shower. If you’ve ever rinsed or washed off your car with LO Water, you’ll soon notice the windows end up with crusted-on water spots that won’t wash off no matter what. Windex? Feh. Vinegar? Feh. Steel wool? Feh. a small hand-held nuclear device? Feh. More soap and water? Feh-feh. Ditto for all the crusty spots on the paint as well. Won’t budge. (Some weird petroleum based goo can be rubbed and buffed on the glass that will finally get that calcium/mineral crust off, but, c’mon . . . )
So I asked the official repair/detail guys at Toyota when I took my car in to get serviced and was told: Yep. Those LO hard water spots will crust on and etch both paint and glass and are impossible to get off. If you hose your car down, soap it up and rinse, before you can run around to completely dry it, that calcium/mineral-rich water will dry and ZOT! Crutsy spots that nothing gets off, except more water, which leaves more spots & etc.
So, what to do? Well, here was their advice: 1) always take your car to a carwash using soft-water and a blower that dries it immediately, or 2) use two buckets of water, (soft water, if you’ve got it in your home, though that creates it’s own “pollution” problem eventually,) to wash down and then rinse a small section at a time so you can rinse & wipe it dry immediately; then, when you’re done with the whole car, section by section, dispose of bucket water properly. Voi la! No more hideous, impossible to get off crusty water spots. And, no soapy pollution running down the driveway.
Or, you can always sell your car and get a bicycle. Or a horse.
Meantime, I’m glad the county’s moving on this problem and hopefully, their education outreach on “safe soaps” will enable people (in areas without LO Water) to safely wash and hose off their cars on their lawns (thereby not wasting water) AND not end up dumping long-lasting crud down the drain. Win-win.
Monday, January 14, 2008
Well, I see in today's Tribune, that newly elected Board of Supervisors Chairman Jim Patterson's heading for a likely bear mauling. He's proposing that the weekly three-hour Tuesday Fest, the "Oh, Dang, Let's Talk About Los Osos" jam session be moved to a monthly "Oh Dang Let's Talk About Los Osos" jam session. The reason given: The Hideous Sewer Project is now heading into the part where things can be studied and decided by various "experts" and the BOS doesn't really need weekly updates and/or public comments and oversight since that can be a real bother and anyway the TAC is back in business and concerned citizens can go speak at the TAC meetings and their concerns will be duly noted and possibly put somewhere in the ginormous report that will eventually be produced and/or they can always email their technical concerns to the various folks in charge of technical concerns and their comments will be duly noted and possibly put somewhere in the ginormous report that will eventually be produced, commented on then ignored in whole or part as the whole Hideous Project steams along under it's own tsunami power, going which ever way it was determined to go anyway -- towards a successful conclusion or over a cliff -- chugga-chugga-chugga.
Well, good luck to Mr. Patterson, I say. The problem with Public Comment has always been The Public. It's like herding crazed cats -- you don't have any control where they're gonna go or what they're gonna say. And Los Osos cats are even more wily than their feral counterparts up in the chapparral eating endangered wild birds. No matter what rules are in place, someone'll figure out a way to sneak a sewer comment in there. And if the rules say Public Comment is for items NOT on the agenda, if you have a one hour morning Public Comment period and a one hour afternoonn Public Comment, you will have at least half of the speakers lined up to talk about The Hideous Los Osos Sewer, no matter what.
And if you pass a new resolution that people can speak on any topic NOT on the Agenda and also NOT about the Hideous Sewer, you'll be threatened with Brown Act Violations and somebody will loudly announce that you're a fascist! And so forth.
Ironically, some of the problems with the "Oh, Dang! Let's Talk About Los Osos" portion of the public comment period come directly from the Blakeslee Compromise and the lack of any working agreement with the Los Osos CSD to "partner" on the Hideous Sewer during this critical input stage. Since the County is 100% in charge, the citizens of Los Osos have no other venue to vent their concerns about the Sewer Project BUT the County, and the only proper public forum are the BOS meetings and the BOS public comment period. Previously, all those run-amok cats would have shown up at the CSD meetings for Public Comment, thereby giving the LOCSD Board vast hedaches as to how to herd them. Now, ironically, the method to proceed forward with a wastewater system (taken over by the county) is the very thing that's channeling all those cats into the BOS chambers to give the Supervisors headaches.
So, how's this for a compromise: Finish that "Partnership" agreement with the CSD, then announce that all public comment on the Hideous Sewer needs to be directed first through the CSD, since that's at the grass roots level, and they in turn will share those concerns directly to the County Sewer Team during their weekly (?) meetings -- partner to partner.
Perhaps then, the new Chairman Patterson won't have to spend time thinking about different ways to divert this stream of Los Osos cats into some proceedure that won't waste so much of the BOS's time, yet will preserve the appearance of "Yes, We Actually Really Do Value Public Comment & Input, Believe It Or Not, Heh-Heh."
So, if Patterson and the Board can come up with some way to herd these cats back to Los Osos for input at a meaningful forum, (you know, one where if some citizen actually shows up with facts and figures showing some calculations are wrong, the information will actually be seriously considered instead of being buried in a pile of paper with the smiling comment, "thank you for sharing, now it's time to move on,") while at the same time getting MORE people from different parts of the County to show up to comment on OTHER County issues, then I say, best of luck to everyone.
Sauce for Goose and Gander?
Wickedly droll L.A. Times columnist, Steve Lopez, wrote a recent column outlining his efforts to call up the three Movers & Shakers behind the recall of Gov. Gray Davis. He quoted extensively from the recall petition -- you remember, all about how the Gov. had driven the state into a financial hole, was bankrupting the place, threatening services, mis-governing, etc. etc. etc. and demanding that when a Gov. does that, he should be recalled-- then asked these three whether they were going to head up another petition to recall The Governator.
Nope. They weren't.
So, a Democratic governor was to be held accountable and tossed out of office by three outraged Republicans, but a Republican governor gets a free pass by those same three guys for the same fiscal disasters.
Ah, just as I thought.
Wednesday, January 09, 2008
The BOS met yesterday during the “Oh Darn Let’s Discuss Los Osos” portion of the meeting and up on the agenda was the Resolution asking that the RWQCB rescind the CDOs for The Los Osos 45.
The Resolution under discussion was astonishing, but even more astonishing to me was the following:
1. The County Staff and clearly some Supervisors, including Los Osos’ own Bruce Gibson, didn’t have any problem with the language used. Their concern was in placating the RWQCB, NOT placating citizens being injured by the Board’s actions, even though they acknowledged that they felt those actions were wrong, unfair and counterproductive. Nope, citizens weren’t of interest to them. Making another agency happy and officially scratching its back, even with demonstrably slanted and often inappropriate language and incorrect facts and conflations, was.
RWQCB’s backside: 10 – Citizens: 0
2. Several Supervisors and Paavo Ogren made it clear that they didn’t care what was said in this official Resolution. The language didn’t matter, the “facts” didn’t matter, history was important but not, apparently, correct history, and what was said didn’t matter. What was important was to “set a tone,” to “step into their shoes” (the RWQCB’s shoes, not the citizens’ shoes), that if the County is asking another governmental body for something (to rescind what all agree were wrong, unfair, counterproductive individual enforcement actions) then you have to phony up the document to soothe the other guy’s back, kissy-kissy, so he’ll have in writing “evidence” that you agree with his position (even if you don’t) so OFFICIALLY he’ll look good – “See? Even the County supports our [misleading] “history.” It’s all there in their Resolution.” – so it was a case, not of honestly presenting a formal request honestly, it was all about Bureaucratic ass-covering, one scratching back to another.
3. Even more interesting, from Supervisors whose votes create LAWS, was the rather cavalier attitude towards words and their meanings. Surely they, above all folks, know that Official Documents actually become “real” and that language really does count. A wrong word can land you in court. Language and wording are important. That wrong facts enshrined in some Official Document can cause all kinds of mischief later. (Look at the problems set in place by the recalled CSD’s unsupported SOC. That’s where not caring about language and facts can lead.)
4. Not even the folks who originally asked for this Resolution supported it. Not even CSD Board member Joe Sparks. He didn’t spell out exactly why he wasn’t happy with this thing, but it seemed to me to be tied to the CSD’s lawsuit. Perhaps it was the quid pro quo section that didn’t carry with it the quo from the RWQCB that they would not issue individual enforcement actions again, period. (Was there anyone in the room that trusted the RWQCB to actually keep their word, had the Resolution been accepted as written? I think not, not based on past experience with the RWQCB’s actions.)
Mercifully, Sup. Patterson expressed concern that an official county document should be involved with canceling out or tying up or voiding out a lawsuit the county wasn’t familiar with. Plus, he didn’t think the Supervisors should be supporting a Resolution that even the people who asked for it can’t support.
Sup. Lenthall noted, accurately, he admired the intent but this document didn’t hit the mark. He’d like to see it come back.
Sup Ovitt, no surprise there, is heartily sick of all things Los Ososian, didn’t care what the thing said, doesn’t want to spend any more time on it, wouldn’t make any difference, doesn’t care about the history, basically wanted it and Los Osos off the table permanently.
And Supervisor Gibson, true to form, eased his way out of this fiasco by giving his fellow board members an easy out: If there isn’t consensus, let’s table it; if you have any questions or are uncomfortable with any of this, table it. There’s no time schedule to adhere to, can always revisit this later, table it.
So it was tabled. For now.
Practically speaking, Unless both the RWQCB and PZLDF (CSD) both agree not only to drop their lawsuits and the RWQCB also agrees to not issue any future individual enforcement actions against people living in the PZ, and the PZLDF members agree not to sue for damages & etc, then this thing’s likely going nowhere. Each side clearly has too much to lose and absolutely NO TRUST in the other. With good reason for the Los Osos 45. They all have whiplash from Jeffery Young & Co. whipping them 180’ repeatedly for two years. Who in their right mind would trust anything that Board had to say? Not me, that’s for sure.
Meantime, if you want some more Whereas’s, here’s a list read yesterday by CDO recipient Bev Moylan: [posted with permission]
If you decide to adopt this resolution, I have a few whereas’s of my own for you to consider before you sign off as true and correct the allegations of the CCRWQCB in their unilateral history of the Los Osos wastewater project contained therein:
WHEREAS San Luis Obispo County and the CCRWQCB together bear significant liability for the overdraft and alleged pollution of the Los Osos aquifer by permitting the construction of over 1000 homes within the Prohibition Zone between 1983 and 1988, despite CCRWQCB resolution 83-13, and
WHEREAS the CCRWQCB failed for years to engage in enforcement against San Luis Obispo County and the original Los Osos CSDs for failing to produce a WWTF for Los Osos, and
WHEREAS the CCRWQCB determined to engage in individual enforcement to occur directly following a legally conducted election in Los Osos, and
WHEREAS many of the CCRWQCB enforcement actions in Los Osos were carried out following a series of messages from a small group of citizens encouraging the CCRWQCB to fine their neighbors, in fact, to fine the CSD out of existence, and
WHEREAS the CCRWQCB determined to conduct their prosecution randomly, thereby ensnaring the elderly, the sick, the disabled, the poor, the incompetent, young families, single parents, and families without resources, and
WHEREAS individual prosecutions by the CCRWQCB have resulted in thousands of dollars of fixed and hard-earned incomes and thousands of collective hours of time spent in defense against enforcement actions and spent in protecting due process rights, and spent in doctors' offices, ERs, hospitals, skilled nursing facilities, and therapists' offices, and
WHEREAS citizens facing enforcement have requested compliance assistance from the CCRWQCB and suggested widely accepted compliance solutions, all of which were rejected by the CCRWQCB, and
WHEREAS the only compliance solutions proposed by the CCRWQCB to date are either to pay the daily fine for alleged violation or “vacate the premises,” and
WHEREAS the CCRWQCB has in effect provided no compliance assistance to Los Osos citizens facing enforcement as required by its own regulations, and
WHEREAS individual prosecutions have resulted in numerous due process and civil rights violations of private citizens, and
WHEREAS citizens facing prosecution were advised by no less than CCRWQCB Chairman Jeffrey Young to look to the courts for redress if they disagree with CCRWQCB enforcement, and whose right to legally challenge the process is endorsed by the Chairman of the CCRWQCB, and
WHEREAS hundreds of Los Osos residents of the Prohibition Zone have suffered for two years substantive harm to their health and welfare, much of that harm significant and some of it irreversible, with no discernible improvement to the waters of the state,
BE IT HERE RESOLVED AND ORDERED that the San Luis Obispo County Board of Supervisors affirms its support for these citizens and respectfully requests that the CCRWQCB with all due haste vacate enforcement orders in Los Osos.
Tuesday, January 08, 2008
Today, at 2 pm, during the Oh Lord, Let’s Deal With Los Osos portion of the BOS meeting, apparently without any notice or input from citizens or the CSD, the BOS is going to vote on and sign off on a Resolution that will hang Los Osos out to dry, possibly officially jeopardize The Los Osos 45’s case to secure their due process rights, all the while pretending the County’s hands are clean and making sure the RWQCB’s behind is fully protected. The citizens of Los Osos, of course, are irrelevant.
Below, an excerpt from the resolution, my email to the BOS, followed by an email letter to Paavo from Ron Crawford, who’s asking some questions about this resolution as well. As Ron’s email points out, a whole lot of Whereas's are missing from this Resolution. A whole lot. Indeed, if you visit his website at www.sewerwatch.blogspot.com you can read reams of the "missing stuff. "
This resolution really goes to the heart of the question: Does the County have the interests of the citizens of Los Osos close to its heart, or is it just making sure it scratches covers various backs? If you think the County was concerned with the citizens, then why were none of them in the back room while this document was being drafted? And why no notice of this proclamation in a timely manner so the citizens of this fair burg could chime in to fix the “inaccuracies” in this document, many of them coming directly from the RWQCB? And why in the world isn’t Supervisor Bruce Gibson leading a charge to have this thing changed so it's at least accurate?
Well, hopefully you'll show up today to find out who actually does understand just how bad this thing is for 45 citizens at least. Katcho? Who doesn't even live in the district? Jim Patterson? Lenthall, who keeps stressing how he wants this process to be clean and fair? Who?
From BOS resolution:
Whereas the County recognizes the the RWQCB still has legitimate concerns about the successful implementation of a project by the County, and that critics of the RWQCB overlook the current practical effect of individual enforcement actions, including the following statemenmts from their staff report of December 7, 2007:
A. Prior project efforts have progressed further than the current County efforts only to be "derailed" and that "the very real possibility (exists) that attempts will be made to derail the project again."
B. "Others have stated their intent to file a lawsuit challenging the (County's Proposition) 218 vote."
C. "The Cease and Desist Orders and settlemnt agreeements are being litigated in San Luis Obsipo Superior Court."
D. "The Cease and Desist Orders and settment agreements do not require any burdensome actions now or in the near future."
The resolution you are apparently going to pass today states at the end that "the foregoing recitals are true and correct." There's one problem with that. The foregoing recitals are NOT true and correct and if you sign this document, you are signing on to falsehoods.
For example, consider the final "list" of "findings."
A. The CDOs for the Los Osos 45 will do nothing to stop any project from being "derailed." If enough citizens decide to derail any project, the Los Osos 45 will have no effect on the matter. So, that "recital" is false.
B. "Others'" opinions and intents have no bearing on the Los Osos 45. They are NOT responsible for what other people do or say. That "recital" is also false.
C. The PZLDF case is about due process issues and has no bearing on anything. That "recital" is irrelevant. Worse, is it the intent of this Board to sign on to a document that officially approves of citizens having their due process rights suspended while they are being held hostage and abused by a regulatory agency?
D. The CDO's ARE burdensome on The 45, since they alone have been singled out for "punishment," and carry with them a time clock that has not been imposed on the other residents. Again, the issue they raise is about due process and fairness, not sewers or the RWQCB's authority. So that "recital" is false as well.
In addition to enshrining falsehoods as "true," it's interesting what your resolution FAILS to note: The Blakeslee compromise asked everyone to "stand down." The RWQCB FAILED to do so and your resolution FAILED to mention that failure. You have also failed to note that the RWQCB can, at any time, rescind the 45 CDO's they have unfairly imposed and fairly re-issue CDOs to the entire community. Since this document states as true that CDOs are not burdensome, that should not be a problem. Instead, this document does nothing to fix that basic unfairness, it only seeks to officially approve and support it.
Which means, if you pass this thing, you will not only be signing onto falsehoods, you will be adding insult to an already injured community. I beg you to reconsider.
Los Osos, CA
In the Resolution concerning the RWQCB enforcement actions for tomorrow's meeting, it reads:"the failures of the LOCSD in 2005"
Which "failures" is the Resolution referring to?
The failure to construct a mid-town sewer plant that was called "bait and switchy" by Dave Potter of the Coastal Commission in 2004, and that also relied on an unsupported, and therefore illegal, Statement of Overriding Considerations to retain the sewer plant at its unpopular mid-town location, and also included, for absolutely no logical reason whatsoever, a multi-million dollar public park that not only dictated the expensive and unpopular sewer plant location, but also included an amphitheater, picnic area, and tot lot that was all being funded by the State Revolving Fund (while dozens of other California communities couldn't get a dime of SRF funding for their badly needed, amphitheater-less water quality projects), despite the fact that the SRF Policy so brilliantly states: "Ineligible for (SRF) funding -- Decorative Items?"
Is that the "failure" that tomorrow's resolution is referring to... the "failure" to build that project?
If that's not accurate, please clarify which "failures" the resolution is referring to.
As always, much thanks,
Saturday, January 05, 2008
In my Jan 1 posting,(“Is that a lawsuit in your pocket . . .”), I mused on the Taxpayers’ Watch lawsuit filed against five of the post-recall LOCSD Board members – individually, personally, not as a Board –alleging “sham settlement monies to their political supporters,” regarding the CSD’s settlement over the Measure B lawsuit originally filed by the recalled CSD Board majority.
In the comment section, a person identifying himself as Richard Le Gros (remember, Anonymous commenters are always anonymous, no matter who they say they are) had this to say about my posting . . .
“ Regarding the $600K settlements.....remember that the GRAND JURY found the settlements VERY QUESTIONABLE. As for that shrill McClendon, his reasoning will be very easy to dismiss in court.”
Well, apparently, “shrill McClendon” reads this blog on occasion and read both my posting and this “anonymous” poster’s comments, and emailed me the following. (It’s weird. My memory of Mr. McClendon was someone who was the exact opposite of “shrill.” Soft spoken, calm, measured, but “shrill?” Naw. Not that I ever saw. And since the subject line on his email stated “Re: That Shrill McClendon’g 2-2-06 LOCSD Public Meeting Presentation. . .” I would have to conclude that Droll McClendon would be more like it.)
In any event, as the person calling himself Richard Le Gros will see (below) the courts apparently have found just the opposite of “easy to dismiss.” What still remains a mystery, given the long history of the court’s ruling against people who try to stop elections, is why on earth the pre-recall Board majority ever filed that lawsuit in the first place. Unless they wanted to set up a post-recall board with a time bomb that would cost the citizens dearly? (If that’s the case, then we’re looking at Medea rather than mendacious.) Which is also why I wondered why some citizens haven’t also filed a lawsuit against Stan, Richard & Gordon – personally and individually – for gross negligence in filing a lawsuit that had such a clearly dangerous track record, thereby setting up the community for a hellacious financial hit. It’s a puzzle.
Then at the CSD meeting on 1/3/07, we learned that the Insurance Company that should have defended the Board Members under the policy requirements (Errors and Omissions Board coverage & etc, which covers this sort of thing) denied the claim--(Jeeze, they must think they’re Blue Shield or something) and so the CSD voted 5-0 to spend mo’money to hire an attorney to deal with both the Taxpayers’ Watch lawsuit and the denied claim.
(A side note: CSD attorney, Julie Biggs, noted that under California law, the district is compelled to furnish legal help when members, acting as a board, are sued. To that end, a law firm was found that agreed to take the case. And for good citizens who actually ARE concerned with the taxpayer’s money, it can only be hoped that the case won’t take too long (i.e. take too much money) to conclude.)
Also at that meeting, Joyce Albright of Taxpayers’ Watch accused the five Board members being sued (Tacker, Schicker, Cescena, Senet & former member, Fouche) of using the settlement money to pay” personal debts out of public coffers.” Personal debts? What? they each took the money to pay off their American Express bill for that Christmas purchase of 100 ginormous brand new HDTVs and a new Bentley??
Al Barrow also went to the podium to note that CCLO and CASE were the entities involved in the case and the settlement and none of the Board directors were members of either of those organizations at that time. So it will remain for a judge to decide what the definition of “crony” is. Or what a “personal debt” is. Or if he finds Mclendon’s settlement reasoning “easy to dismiss.” Or if there are other aspects of the case that are not so easy to dismiss.
On the other hand, IF Taxpayers’ Watch loses the case, will they be able to pay the court costs, seeing as how they still haven’t paid their LAFCO bill? (The CSD’s share of that LAFCO bill, to my knowledge, is being paid for by the citizens of this community, the very folks Taxpayers’ Watch claims to be looking out for.)
Well, it’s quite an interesting approach: Present yourself as the guardian of the people’s pocketbook, file lawsuits claiming fraud and public waste and private use of public coffers & etc, the defense of which costs a bundle out of the people’s pocketbook, and if you lose the cases but don’t pay the court costs, thereby causing the people to have to eat those costs, you still maintain that you’re the guardians of the people’s pocketbook. Very droll, I’d say.
Even more interesting, I spoke with Richard Margetson, who had had a restraining order filed against him before the recall by two recalled Board members. If you remember that case, the former Board Members swore, under penalty of perjury, that Margetson was a danger to them, they feared for their lives, and wanted him kept out of CSD meetings and etc, then lost the case when it was clear that it was all ginned up phony crap designed to use the law to silence a vocal critic. (I referred to it as the Emily Latella Case, from the wonderful Saturday Night Live skit with dear confused Emily nattering on about “violins” in the street, when the topic was “violence” in the streets, only to be corrected, at which point she looks into the camera with a wan smile and says, “Oh, Well, Nevermind.” )
At any rate, the recalled CSD two lost the case, but according to Richard, they have yet to pay the court costs and his attorney’s fees. If true, then an irony: One of the former board members involved with that fiasco, is still living in this town, so there’s a question: Until he pays that legal debt, doesn’t that launch the Dear Silly Donkey’s various comments on this blogsite about fiscal prudence and responsibility into the realm of Hypocritical Hokum?
And finally, I find of great interest, the final sentence of “shrill McClendon’s” piece, which I’ve bolded. Hmmmmm, very interesting. [Posted with permission.]
WHY SETTLE THE LITIGATION?
SHORT ANSWERS: (1) To eliminate the District’s litigation costs associated with these actions;
(2) To minimize the amount of attorney’s fees the District might have to pay;
(3) To help implement the settlement the SWRCB presented to the District.
Factual and Procedural Background:
• The LOCSD initiated the Measure B lawsuit against County Clerk Julie Rodewald in an
effort to prevent Measure B from going before the voters.
• Judge Hilton ruled in favor of the LOCSD and ordered Rodewald to keep Measure B off the
• The Measure B proponents filed an extraordinary writ with the Court of Appeal seeking a
stay of Judge Hilton’s ruling.
• The Court of Appeal immediately issued an Order staying Judge Hilton’s ruling; later, the
Court of Appeal issued an “Order to Show Cause” commanding Judge Hilton to appear and
explain to the Court of Appeal why his ruling should be allowed to stand.
• Thereafter, Measure B went on the ballot and was approved by the voters.
• On October 14, 2005, attorneys for the Measure B proponents threatened to sue the LOCSD
if it failed to abide by Measure B.
• In October, the LOCSD engaged in Blakeslee-facilitated negotiations with SWRCB staff
regarding the SRF Loan.
Relevant Legal Authority:
There is a long-standing judicial bias against granting pre-ballot challenges:
California Supreme Court: “Finally, "‘it has long been our judicial policy to apply a liberal
construction the [the] power [of initiative and referendum] wherever
it is challenged in order that the right not be improperly annulled. If
doubts can reasonably be resolved in favor of the use of this reserve
power, courts will preserve it. [Citations.]’"” (Assembly v.
Deukmejian (1982) 30 Cal.3d 638, 652. Note: the Supreme Court
cited this case in its August 12, 2005 opinion in Costa v. Superior
Court, where it “conclude[d] that it would not be appropriate to deny
the electorate the opportunity to vote on Proposition 77 at the special
election to be held on November 8, 2005 . . . .”)
However, courts will uphold pre-ballot challenges in two situations as long as the defect is clear:
“We recognize that "it is usually more appropriate to review constitutional
and other challenges to ballot propositions or initiative measures after an election
rather than to disrupt the electoral process by preventing the exercise of the people's
franchise, in the absence of some clear showing of invalidity." (Brosnahan v. Eu
(1982) 31 Cal.3d 1, 4 [181 Cal.Rptr. 100, 641 P.2d 200].) However, the courts have
recognized two exceptions to the general rule limiting judicial review of ballot
measures to postelection proceedings. The first is where the electorate lacks the
"power to adopt the proposal in the first instance . . . ." (Id., at p. 6; italics supplied.)
"Thus, for example, election officials have been ordered not to place initiative and
referendum proposals on the ballot on the ground that the electorate did not have the
power to enact them since they were not legislative in character [citations], the
subject matter was not a municipal affair [citations], or the proposal amounted to a
revision of the Constitution rather than an amendment thereto." (Id.)
The second exception to the general rule proscribing preelection judicial
review, and the one invoked by the council in the present case, is where the
substantive provisions of the proposed measure are legally invalid.
"[Even] if a proposed measure is within the scope of the initiative power,
courts retain equitable discretion to examine the measure before the election upon a
compelling showing that the substantive provisions of the initiative are clearly
invalid. (See Harnett v. County of Sacramento (1925) 195 Cal. 676, 683 . . .; Gayle
v. Hamm (1972) 25 Cal.App.3d 250, 255 . . .; Note, The Scope of the Initiative and
Referendum in California (1966) 54 Cal.L.Rev. 1717, 1725-1729.)" (American
Federation of Labor v. Eu (1984) 36 Cal.3d 687, 696, fn. 11 [206 Cal.Rptr. 89, 686
P.2d 609].) We shall therefore proceed to consider the council's claim that the
referendum would be "clearly invalid" if enacted by the voters.” (deBottari v. City
Council (1985) 171 Cal. App. 3d 1204, 1209-1210; underlining added.)
The relevance of the foregoing legal authority to the Court of Appeal’s ruling on the Measure B
election is that the Court of Appeal was not persuaded that Measure B fit under either of the two
exceptions for pre-ballot challenges. In other words, it concluded that the LOCSD failed to make
a “compelling showing” that (1) the voters lacked the power to put Measure B on the ballot, or
(2) the provisions of Measure B were “clearly invalid.” If the Court of Appeal had thought
otherwise, then it would have affirmed Judge Hilton’s ruling, and Measure B would have not gone
before the voters.
By successfully bringing Measure B before the voters despite the District’s efforts, attorneys
for the Measure B proponents claimed eligibility to recover their fees even if (1) the vote had gone Code of Civil Procedure section 1021.5 provides: “Upon motion, a court may award
attorneys’ fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor.” (1) the other way, or (2) a court later invalidated Measure B. The basis for such a recovery of fees is the Legislature’s codified of the judicially created “private attorney general” rule for recovery of attorneys’ fees in Code of Civil Procedure section 1021.5 (“Section 1021.5”).1 The purpose of awarding fees under Section 1021.5 is “to encourage suits effectuating a strong public policy by awarding substantial attorney’s fees to those who successfully bring such suits.” (Daniels v. McKinney (1983) 146 Cal.App.3d 42, 49.) According to the court in Woodland Hills Residents Assn. v. City Council (1979) 23 Cal.3d 917, 933, the private attorney general statute reflects a legislative policy that privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of attorneys fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible.
The Measure B proponent would have been entitled to recover their attorneys’ fees under
Section 1021.5 if they showed that (1) their defense of Measure B “has resulted in the enforcement of an important right affecting the public interest,” (2) “a significant benefit, whether pecuniary or onpecuniary, has been conferred on the general public or a large class of persons,” and (3) “the necessity and burden of private enforcement are such as to make the award appropriate.” (Woodland Hills Residents Assn. v. City Council, supra, 23 Cal.3d at 935.)
It was likely that the Measure B proponents could have shown that they met all three factors.
Given the relevant law, there is no question that they met the first factor:
“. . . [T]he "state constitutional right of initiative or referendum is 'one of the most
precious rights of our democratic process." [Citation.] These powers are reserved
to the people, not granted to them. Thus, it is our duty to " ' "jealously guard" ' "
these powers and construe the relevant constitutional provisions liberally in favor of
the people's right to exercise the powers of initiative and referendum. (Rossi v. Brown
(1995) 9 Cal. 4th 688, 695 [38 Cal. Rptr. 2d 363, 889 P.2d 557].)" (Pala Band of
Mission Indians v. Board of Supervisors of San Diego County (1997) 54 Cal.App.4th
565, 573-574.)” (Wal-Mart Real Estate Trust v. City Council of the City of
San Marcos (Sept. 7, 2005) 132 Cal.App.4th 614.)
(See also Hull v. Rossi (1993) 13 Cal.App.4th 1763, an opinion from the local Court of
Appeal awarding attorney’s fees to a real party in interest.)
Since more than six thousand voters voted for and against Measure B, this factor would have
been met as well. Finally, given the type of action that the Measure B proponents were defending – the right of the people to exercise a constitution right – the third factor would have been met.
Once eligibility to be awarded attorney’s fees is established, the inquiry focuses on the
amount of fees to be awarded. Here, the court sets a reasonable hourly “touchstone” or
“lodestar” rate based on that prevailing in the community for similar work by attorneys with
comparable experience and expertise. (Serrano v. Unruh (1982) 32 Cal.3d 621, 640-641.)
“The Court is not limited to using standard billing rates in setting reasonable hourly
compensation . . . , rather the Court is obliged to use the ‘market value’ approach which is
more likely to entice competent counsel to undertake difficult public interest cases.”
(San Bernardino Valley Audubon Society, Inc. v. County of San Bernardino, supra, 155
Cal.App.3d at 755.) In approving market rate awards for the enforcement of statutory rights
without pecuniary recovery, the United States Supreme Court has said, “the amount of fees
awarded [under section 1988] shall be governed by the same standards which prevail in other
types of equally complex . . . litigation, such as antitrust cases and not be reduced because
the rights involved may be nonpecuniary in nature.” (Blum v. Stenson (1984) 104 S.Ct. 1541,
Based on my own experience in similar cases, the attorneys for the Measure B
proponents would have likely sought a lodestar in the $300-$400 an hour range. However, in
settlement negotiations, the District got them to agree to not only cap their total fees at less than their full hours, but to also accept a significantly reduced lodestar of about $200 per hour. As a result, the attorney’s fees paid were roughly half of what they would have been had the court set the lodestar at market rates.
Moreover, after multiplying the number of hours spent by the reasonable hourly rate, the
lodestar can be adjusted up or down by using a “multiplier” that’s based on several factors. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) We knew that the Measure B attorneys were going to seek an upward “multiplier” to their lodestar based on the fact that (1) their contingency representation of the Measure B proponents during the litigation; (2) their intensive and expedited work that was required during their opposition to the District’s lawsuit, and; (3) the complexity and importance of the litigation. Notably, in Greene v. Dillingham Construction, Inc. (2002) 101 Cal. App. 4th 418, the court expressly held that refusing to consider contingent risk as a factor in a decision not to apply a multiplier is reversible error.
However, in all of our settlement agreements, we got the attorneys to agree to waive their
right to seek a Serrano multiplier, which further reduced the District’s potential exposure.
In sum, by settling the Measure B litigation, the District reduced its potential exposure to a
judgment for private attorney general fees to a fraction of what it could have been. For example, if the Measure B attorney had established their hourly lodestar at $350 per hour and had been awarded a multiplier of 1.50 (neither number is uncommon), the District would have had to pay in over $325,000 in attorney’s fees in the Measure B litigation alone – $200,000 more than it actually did.
If one adds to this number the amount it would have cost the District for its attorneys to continue prosecuting the Measure B litigation, and the additional amount of hours the Measure B attorneys would have spent defending it, the District’s potential exposure for continuing to pursue this action after the Court of Appeal’s ruling might well have exceeded $500,000.
A similar analysis applies to the other cases.
As a practical matter with contingency lawyers, they have no “end game” to recover their fees except to win. Consequently, they do not usually give up until all possible avenues to achieving victory are exhausted. Had they been successful on even one of the remaining cases, the District could have found itself facing the prospect of having to pay significant private attorney general fees – again, in addition to the significant fees it would have paid to its own attorneys.
The SWRCB’s Settlement Offer to the District.
The final factor relevant to the District’s settlement of the Measure B litigation was the District’s
efforts to obtain certain concessions from the Measure B proponents that would have helped
facilitate the District’s implementation of the first “final offer” settlement proposal SWRCB staff
presented to the District in negotiations brokered by Assemblyman Blakeslee. The District was
hoping to (1) fast track a new election to modify or rescind Measure B by conducting the election
itself, and (2) forestall a future lawsuit by reaching consensus with the Measure B proponents on
which “feasible” alternatives would be presented to the voters if the vote required by Measure B hadto take place. Unfortunately, after the District obtained these concessions from the Measure B proponents, two things happened. First, the County declined to enter into a stipulated judgment addressing these issues.
Second, thanks to a Public Records Act request presented by the San Luis
Obispo Tribune to the SWRCB, it was revealed that the SWRCB had undertaken the Blakeslee
negotiations in bad faith and had presented their “final offer” to the District knowing full well that
the SWRCB never intended to approve it even if the District accepted it. [emphasis mine]
And Now Onto Something REALLY Serious
At the 1/3 CSD Board Meeting, Maria Kelly announced another Water Conservation Faire,” Saturday, January 19, 10 – 2 at the Methodist Church at Pine and LOVR. There’ll be a variety of experts there to help you figure out ways to reduce your water use.
In addition, at the CSD meeting, during public comment, it was noted that on Jan 15, the Board of Supervisors will be discussing the water conservation and retrofit issues. Right now, the plan is to allow building outside the PZ if builders or developers retrofit X-number of existing houses. The concern expressed was this: You now allow builders outside the PZ to build by “cherry picking” the retrofit opportunities, while those inside the PZ are forbidden to do the same until the sewer is built. Then, when they can finally build, all the easy retrofits will be gone, thereby giving outside the PZ folks an advantage denied those lot owners living inside the PZ.
Also, of course, is the strange notion that when you have NO WATER, why should you allow anyone to building anything anywhere? Folks building outside the PZ are still sucking the same water out of the same overdrafted aquifer, so when the sewer’s built and the folks inside the PZ are allowed to build and there’s now no water left . . . oh, darn? . . . what then?
Friday, January 04, 2008
January 4, 2008
Shoeless Joe Forevermore
In American life, there are no second acts
F. Scott Fitzgerald
It’s odd that the man who wrote what is arguably The Great American Novel --The Great Gatsby --could have gotten it so wrong. In American life, there is nothing BUT second acts. Certainly, in our Era of No Accountability, we no longer bother to put paper bags over people’s heads for even five minutes of earned shame before banishment into the outer darkness of a well deserved obscurity. Nope, instead, it’s a quick appearance on Oprah for some tear-spilling phony repentance, followed by a multi-million dollar book contract and a very lucrative post-sin life speechifying on the rubber chicken circuit.
And I suspect that trait of No Accountability and Nothing BUT Second Acts preceded Fitzgerald. After all, the first Great American Novel was Huckleberry Finn. And when Finn, the quintessential American character, needed a second act, he simply “lit out for the territory.” No accountability there. Book contract to follow.
Add in a few other Great American Traits – our love of Money & Winning at All Costs, our Addiction to Fame, even fifteen minutes of it, and, ironically, our extraordinary tolerance for pious, hypocritical humbug – and you’ve got the present “Baseball Doping Scandal” in a nutshell.
The sports writers had a ball, all that hand-wringing --Baseball’s ruined! Black clouds of shame are hanging over our national pastime! The sport is tainted forever! -- while one column over from their jeremiads was a story on how management was busy signing multi-million dollar contracts for next year with some of the dopers just named in the Mitchell report. So much for taint. Forget accountability. Time to move on. Too much money at stake here for both players and management. Batter up!
And the fans? Well, they don’t care. Was their hero’s bulked up socko performance the result of chemicals? So what? Socko’s all that counts nowadays. And, anyway, everybody’s doin’ it, including the rest of pill-popping America; everyone looking for that edge, that boost, that little secret needed to make the big win, the big score, by any means necessary. You only go around once, grab for the gusto, even if it comes out of a container of pills, a bottle of booze, or the end of a syringe.
And there, of course, is the real tragedy when a “sport” gets steroided up into Bottom Line Big Business – professional boxers brain damaged at 40, football players’ ruined bodies turning them into broken old men at 30, careers gone in a flash leaving the players with years of pain, diminished capacity, their livelihood gone. They don’t call them the Boys of Summer for nothing. Like mayflies, too many athletes’ professional lives are equally brief. And how many ball players are more than willing to accept a lifetime of disability that comes with trading their health and future for that dream slot in Cooperstown? That, and a $36 million contract?
Ironically, baseball is particularly vulnerable to “taint” since it is a sport of record-keeping, of minutia. Whole games can be resurrected and replayed from out of the distant past, all based on those records, every strike-out, every ball, every walk or hit or bunt recorded faithfully by record-obsessed fans. Who played what, where, and how the weather was.
So it is a particular irony that those records will now forever be suspect. After all, how can you indulge in the game of Let’s Compare Players when you suspect one of them somehow magically changed his neck size from “normal” to Hulk in a matter of months? Should we now handicap each hit and start a new Cooperstown record? Plus ten points for proven clean; minus 7.9 points for steroid-dirty; 6.8 for HGF enhanced; and 4.5 for suspect?
And what does it matter anyway? If it’s all about money and fame, two things that almost always corrupt everything they touch, why should we even bother? Except to indulge our love of pious humbug – Aw, say it ain’t so, Joe, -- wink-nudge – followed by some pretend accountability before lighting out for the territory for another act, big money contract in hand.
Pass the syringe, and Play ball!
Wednesday, January 02, 2008
County Roundup notice, on Thursday the CSD will consider hiring another law firm to represent four CSD Board Members (three presently seated, one former) in a lawsuit brought by Taxpayers Watch suing the board members personally.
Notes the Tribune, “The lawsuit alleges that the board members paid more than $600,000 in “sham settlement monies to their political supporters” and asks for those board members to be held individually responsible for reimbursing the district’s coffers.” The meeting will begin at 7:30 p.m. Thursday at the South Bay Community Center . . .
Personally, I don't know where Taxpayers Watch is getting the money for this lawsuit. They tried and failed to get LAFCO to destroy the CSD. LAFCO sent them a ginormous bill for their efforts, a bill that still hasn't been paid off. And I find it odd that Taxpayers Watch's rationale for all this suing is to safeguard the taxpayers' money, when, in reality, these lawsuits are costing the taxpayer a bundle. Well, in for a penny, in for a pound, I guess.
I’ll sure attend that meeting because somebody has to ‘splain something to me. It was ‘splained years ago by attorney McClendon, who was representing the CSD after the recall election. So, let’s hope my memory of it is reasonably correct:
According to McClendon, part of the settlement agreement – a big chunk of it – was made because the previous, recalled board majority – Stan Gufstafson, Gordon Hensley and Richard Le Gros – had voted to file a lawsuit to stop Measure B from getting on the ballot. If memory serves, a local judge agreed with the "old" CSD and blocked the initiative, but the initiative's backers filed an appeal and the appeals court in Ventura set that first judgment aside in, what, 20 minutes, which allowed the election to proceed.
According to McClendon again, the California courts have a long record of really, reeeeeely hammering anyone who tries that – stopping initiatives before the election, no matter how silly the initiatives may be. Again, according to McClendon, the courts feel the vote is “sacred” and so elections must be allowed to go ahead unless the issue is clearly unconstitutional, and then, AFTER the election, folks can file in court to block the implementation of whatever was voted on.
Again, according to McClendon, in filing to block Measure B, the recalled Board members set up the CSD for a real hammering since Measure B was “arguable” as to its constitutionality and "arguable" on its technicalities, so the CSD would have lost on that narrow basis and having lost would face settlement “damages” in an amount mandated by a Judge using a set formula that very likely would have resulted in the CSD getting hammered for 3 -5 times the “regular” damages amount.
In short, the recalled three CSD members set up the community (and the new board) for a difficult decision – continue to defend the suit (that they didn't file but inherited) and lose and face 3-5 times a “regular” damages amount or settle for the smaller amount and consider that you got off lucky. Either way, it was a huge and totally unnecessary financial hit for everyone in the community.
So, here’s the question: Why isn’t somebody suing Stan, Gordon and Richard – personally – for unnecessarily costing the CSD a pile of money? Even more interesting, since these three unnecessarily voted to start work on the Formerly-Known-As-Tri-W project shortly before the recall election, thereby gambling with and (as it turned out) pounding gazillions into the ground, why aren’t they being sued individually for . . . well, wastefully pounding millions of tax dollars into the ground? Or maybe running a “sham” start-up so as to ensure their “political supporters,” i.e. the construction companies who donated to their “No on the Recall” campaign, got a good chunk of money into their pockets before the whole deal was shut down?
In short, maybe what we need here is another group playing Medea to the teeth, (their motto: Let's sauce the goose AND the gander!) by suing Stan, Gordon & Richard -- personally.
Well, surely one of the attorneys for the CSD will need to ‘splain all this to me at Thursday’s meeting.
And Now For The Oh, You Just Knew THAT Was Gonna Happen Department:
Yes, yes, we know. It was just a matter of time. . . .
Rabobank got robbed.
And Finally, A Sad Goodbye
Was downtown over the holiday only to see the huge Going Out Of Business sign in the window of Country Classics in the wonderful Sinsheimer Bros Building on Monterrey St. Spoke with the owner, Janet Baird, and alas, one of my favorite places to just poke around and smell of pot pourri, will be closing. Lagging sales for a variety of reasons, high rent and even higher rent once the earthquake retrofit is finished, interrupted business when the Big Dig for the Copeland Project gets underway across the street, all contributed to her decision to close.
It’s a story that will repeat itself throughout the downtown area as more and more small businesse move or go out of business. How it will ultimately shake out is anyone’s guess. It’s sad to me that Downtown SLOtown may turn into Anywhere USA, a place filled with little more than high end chain stores. Same old, same old.
On the other hand, if wonderful and unique places like County Classics can successfully relocate in another town, well, maybe that’s to the good. No need to go to SLOTown at all, just head for the outlying areas to find the special businesses that make this county such a great place to live.
Meantime, Get Out The Bumpershoots.
And pray for the kind of plentiful but soft rain that will fill the aquifers and lakes. Then get out your brelly and go puddle jumping.