Board of Supervisors : March 01, 2001

Meeting Information

MINUTES

Special Meeting
Thursday, March 1, 2001 at 10:00 a.m.
City Hall, Room 263

Chairperson: Commissioner Eisenberg
Members: Commissioners Ammiano, Maxwell, Daly, McGoldrick
Alternate: Commissioner Gonzalez
Clerk: Gregoire Hobson

SPECIAL AGENDA

(There will be public comment on each item)

1. Call to Order and Roll Call

The meeting was called to order by Chair Eisenberg at 10:08 a.m.

Members Present: Chair Eisenberg, Commissioners Ammiano, Daly, Maxwell, and McGoldrick

Members Absent: None

2. Discussion and possible adoption of the Sunshine Ordinance with suggested modifications by Chairperson Neil Eisenberg (Citizens interested in obtaining a free copy of the Sunshine Ordinance can obtain a copy by printing Chapter 67 of the San Francisco Administrative Code on the Internet at http://sfbos.org/sunshinehtm.)

Gloria L. Young, Executive Officer, stated that the Sunshine Ordinance is before the Commission. It is her understanding that Chair Eisenberg may introduce a Resolution, and if the Commission concurs, the item would be continued to the next meeting to allow the public to see the wording of the Resolution.

Chair Eisenberg asked if the Commission is bound legally by the Sunshine Ordinance since it is an agency created by state law.

Gloria L. Young, Executive Officer, replied that SF LAFCo is not bound by the Sunshine Ordinance.

Chair Eisenberg stated that there are technical reasons that it would be difficult for the Commission to comply with the Sunshine Ordinance dealing with written documentation that would not be substantive in any way, and that is one reason for the Resolution. The Resolution before the Commission states that LAFCo would be adopting the spirit of the Sunshine Ordinance and attempt to comply with it in all regards, but would not be adopting it. He believes the Commission’s focus for the next year will be the energy crisis, and that we are going to have many detailed and complicated questions and answers. The objection he has is that the Sunshine Ordinance specifies equality in testimony. If we announce that we will give people three minutes to speak, we cannot give somebody else five minutes to speak because that is the requirement of the Ordinance. Given the complexities of the energy crisis, it may be difficult for someone to state the issue within three minutes or five minutes, and the speaker may want to extend the time. A proposed Resolution was put together that commits SF LAFCo to the Sunshine Ordinance, but allows the Executive Officer not to have to comply with the technical paperwork that is cumbersome for the Commission. It also allows the Chair room to allow further discussion, rather than less discussion.

Commissioner Ammiano stated that the Chair has reached an equitable compromise and that we are all committed to the Sunshine Ordinance. As he understands the Resolution, the Commission will be embracing the principles of the Ordinance with technical adjustments on the amount of time testimony is allowed. For other Committees, the City Attorney is clear about the time limit once it has been established. Only people who are staff or work for departments can make a presentation, and we would have to give less time to Public Comment. He asked if the Sunshine Ordinance Task Force has been informed about how SF LAFCO was proceeding?

Chair Eisenberg replied that since City law does not bind LAFCo, the Sunshine Ordinance Task Force was not yet informed, but should be in the future. The Chair asked that the Executive Officer convey to the Sunshine Ordinance Task Force that the only reasons to pass the Resolution would be to broaden discussion and possibly expedite things in view of the fact we are in an energy crisis.

Gloria L. Young, Executive Officer, will confer with Donna Hall, Administrator of the Sunshine Ordinance Task Force, that this is the intent of the Commission and have her relay this information to the Sunshine Ordinance Task Force.

Chair Eisenberg asked if the Commission could vote on the Resolution today?

Gloria L. Young, Executive Officer, stated that we could not vote on the Resolution today. Another important factor is that the Sunshine Ordinance requires a 72-hour notice for special meetings. In an emergency, you may need to meet within 24 hours, and the Brown Act only requires 24 hours notice for special meetings. The Executive Officer stated that she would return with the Resolution at the next meeting for adoption.

No Public Comment

Chair Eisenberg moved to continue this item to the next meeting; seconded by Commissioner Daly. There was no objection.

Unanimously Passed.

3. Approval or modification of the Executive Officer’s Impartial Analysis on the Creation and Maintenance of a San Francisco-Brisbane Municipal Utility District.

Gloria L. Young, Executive Officer, stated that an Impartial Analysis has been prepared in accordance with Public Utilities Code (PUC) Code Section 15762.1. The SF LAFCo may approve or modify the analysis. Upon its approval, she will submit the Impartial Analysis to the Department of Elections. The analysis meets the 500-word limit required by the Department of Elections.

Chair Eisenberg asked the Executive Officer to read the analysis onto the record.

Gloria L. Young, Executive Officer, read the proposed Impartial Analysis.

Public Comment:

Clay Holstein, City Manager, City of Brisbane, San Mateo County. The only comment he would make is relative to the last paragraph in the proposed Impartial Analysis, and to indicate that they concur with the writing and the effect of this language.

Public Comment Closed.

Chair Eisenberg stated that it appears to him that the comment made by the City of Brisbane City Manager suggests that the last paragraph of the Impartial Analysis might be making a legal conclusion, rather than stating the law. Chair Eisenberg asked the Executive Officer what statutes were cited in the Impartial Analysis.

Gloria L. Young, Executive Officer, replied that Sections 11561 and 11652 were cited.

Chair Eisenberg asked whether it would be more appropriate to cite the words of the statute rather than to paraphrase in the last paragraph of the Impartial Analysis?

Gloria L. Young, Executive Officer, replied that she would defer to the Commission.

Chair Eisenberg stated that there are two differing interpretations of Section 11652 and asked the Executive Officer whether she was taking the City Attorney’s opinion that you need both the majority voters in Brisbane and in San Francisco to create a MUD?

Gloria L. Young, Executive Officer, stated that she took the opinion she stated on the Impartial Analysis because the petitions when they were first circulated had to be re-circulated to include the City of Brisbane. It is her opinion that the measure would require a majority vote of both San Francisco and Brisbane to pass, but that is up to the Commission to revise the Impartial Analysis accordingly.

Chair Eisenberg asked if the City Attorney reviewed the Impartial Analysis.

Gloria L. Young, Executive Officer, replied that the City Attorney did look over the Impartial Analysis, but had kept what she wrote because in her opinion it had to be the Executive Officer’s analysis.

Commissioner McGoldrick asked that Section 11652 be read.

Gloria L. Young, Executive Officer, read Section 11652.

Commissioner McGoldrick asked whether it would be possible to retain the last paragraph and then add in parenthesis what law states.

Chair Eisenberg stated that Section 11652 is subject to two varying interpretations, and the proposed Impartial Analysis takes the City Attorney’s interpretation. He stated that the fair way is to simply state state law and let the voters decide what it means. He interprets the statute to say that if you have a majority of voters in the district and the district consists of San Francisco and Brisbane, then under those circumstances whether or not Brisbane is in concurrence, Brisbane becomes part of the district. The last paragraph of the Impartial Analysis interprets the statute to say that Brisbane can veto the entire project, and he doesn’t believe that is Special District law. The last paragraph contains a legal opinion, and the Executive Officer would have no problem removing it. Chair Eisenberg asked to count the number of words in the state law to see if it would exceed the 500-word limit if it would replace the last paragraph.

Gloria L. Young, Executive Officer, stated that the state law contains 92 words, and with the phrase that she has so far the count is 31, so the word count is less than 500. The word count was printed from the Election Code.

Chair Eisenberg moved to amend the Impartial Analysis to take out the last paragraph and add the words of Section 11652. Commissioner McGoldrick seconded.

Gloria L. Young, Executive Officer, indicated that she would add "In accordance with Public Utilities Code, Section 11652..." to the amendment.

Chair Eisenberg asked to reopen Public Comment on the amended Resolution.

Harold Toppel, City Attorney for the Brisbane, stated that Section 11652 is clear in that it says that the vote of each jurisdiction has to be separately canvassed and separately counted, and there has to be a majority vote to create a MUD. He asked if there is legal authority to support the argument that Brisbane’s separate vote doesn’t count, and he has yet to be given any authority to support that position. One of the responsibilities of the Impartial Analysis is to advise the voters as to the type of vote required for the passage of a measure, whether it is majority or two-thirds vote, etc. He thinks the Impartial Analysis has to take a position. If the Commission is going to abide by the position that the vote of Brisbane does not count, then LAFCo is inviting litigation after the measure passes. They would want this issue determined before the election. If this Commission is unable to do that, then it will be up to the Brisbane City Council, if they desire to do so, to bring the issue to a Court to get a clear clarification. He requests that the Commission retain the language as originally proposed by the Executive Officer.

Jim Sutton, the Coalition for Affordable Public Services, the Committee set up to oppose the MUD initiative stated that they concur with the Brisbane City Attorney and with CLUB, the proponents of the MUD initiative. CLUB originally gathered signatures just in San Francisco and then figured out that they needed at least two public entities to create a MUD. They then re-circulated the initiative in San Francisco and Brisbane. CLUB then determined what the City Attorney and Ms. Young determined that unless a majority of voters in San Francisco and Brisbane vote for this MUD, there would be no MUD. Mr. Sutton stated that if you are going to include language from state law in the amendment, language from Section 11561 has to be included because that is the crucial section. Section 11561 states that in order for there to be a MUD, you have to have at least two public entities. In other words, if Brisbane votes the measure down, you are left with one public agency, the City of San Francisco. The purpose of the Impartial Analysis is not to restate the law, but to put the law into terms that the voters can understand. He would urge the Commission to reject this amendment to the Impartial Analysis and keep it as the Executive Officer has drafted.

No further Public Comment. Public Comment closed.

Chair Eisenberg asked if the Executive Officer has any problem with citing the words of the statute?

Gloria L. Young, Executive Officer, stated that she would defer to the Commission.

Chair Eisenberg stated that the prior public speaker misstated the position of the public power advocates. The history of the present petition was that the City Attorney was in fact of the opinion that there needed to be two entities to pass the MUD initiative, so CLUB withdrew the San Francisco petition and added Brisbane. CLUB has never taken the position that Brisbane could be a veto power, and CLUB has never taken the position of the last paragraph of the Impartial Analysis. The last paragraph is the City Attorney’s opinion, and there has been a substantial argument as to the interpretation of the statute. The speakers have suggested that this Commission take a stand as to whether Brisbane’s vote could stand as a veto power. As an advocate of public power, Chair Eisenberg suggests it is inappropriate to take a stand on a legal interpretation, when it is the Executive Officer’s job to state the law as best as she can. He doesn’t think it would be appropriate for the Executive Officer to take one side or the other.

Commissioner McGoldrick stated we might want to continue this item to discuss whether or not to keep the language that the Executive Officer drafted and to cite the Code Section.

Chair Eisenberg stated he would not want to keep the language as drafted because it may be argued that this Commission took the position that the City Attorney’s opinion is correct. There is a strong argument that the City Attorney’s opinion is wrong, and it is possible that this Commission may want the opposite interpretation. He does not think that the Commission can simply lay out the law to the public, but the Commission can give an objective statement that is interpretation free. If the amendment is accepted, the voters will have to decide what the wording means and he thinks the law requires LAFCo to do that.

Commissioner Daly asked if the Commission could choose to interpret the law in this situation and draw it out for the voting public and include language that there is ambiguity, or there is debate that exists about what the law means.

Chair Eisenberg stated that he thinks this would confuse the voters.

Public Comment reopened.

Clay Holstein, Brisbane City Manager, stated that the City of Brisbane’s interest is in their own sovereignty for their community. They do not want to be the veto to the will of the people of San Francisco. If San Francisco wishes to choose to form a district for public power, then they want San Francisco to be able to do that. The City of Brisbane has been placed in this position, but does not want the role. They want to be able to vote to choose whether they want to participate or not.

No further Public Comment. Public Comment closed.

Commissioner Maxwell asked that the Commission look at Brisbane as a neighborhood or community--their concerns are important. She is concerned as to what LAFCo is giving the voters because of the varying interpretations. She is not opposed to taking more time on the issue and to give people something that they can understand.

Chair Eisenberg asked the Executive Officer for the timing of the ballot as we are talking about an objective analysis that will appear on the ballot.

Gloria L. Young, Executive Officer, stated that according to Code, she has to present the Impartial Analysis to the Commission within five days of her writing it. The City Attorney could advise the Subcommittee as to further timeframes.

Paula Jesson, Deputy City Attorney, stated that the Code (MUD Act 11643.1, last paragraph) requires the Executive Officer to present the Impartial Analysis to the Commission within five days. The Code also specifies that this Commission is to act within five days. There are two consequences if you fail to comply with time requirements of statutes. One possible consequence is that you lose jurisdiction. If you do not take action within a certain amount of time, you can no longer act on it. The other consequence is that somebody could get an order to compel you to act by writ. She thinks you could continue the item as long as you do not wait too long to jeopardize the printing of the ballot. In addition, she wants to make sure that the Commissioners comply with the last paragraph of the Code, which states that a Local Agency Formation Commission must act within five days after receipt of the Executive Officer’s Analysis.

Chair Eisenberg stated that the date for the meeting is within five days of receipt of the Impartial Analysis. If people want to propose alternative wording, it should be received by March 2, 5:00 p.m. at the Board of Supervisors Office, so a copy can be available at the Front Counter of the Clerk’s Office by Monday morning.

Commissioner Maxwell motioned to continue this item for further clarification; Commissioner Ammiano seconded.

Chair Eisenberg after discussion and consensus of the Commissioners moved to continue this item to March 6, 9:00 a.m., asked the City Attorney to attend the meeting, and stated that a quorum would be in place.

4. Discussion of Supervisor Gonzalez’s legislation requesting the SF LAFCo to take such action as it deems appropriate with respect to the creation and maintenance of the San Francisco-Brisbane Municipal Utility District.

John Henry Pierce, Supervisor Gonzalez’s office, stated that there have been questions raised as to what procedures LAFCo has to follow, and there is a difference of opinion. There is a second and duplicate MUD petition that was created by the Board of Supervisors and sent to this Commission for their consideration.

Chair Eisenberg asked how Supervisor Gonzalez’s office wants LAFCo to proceed on the Resolution. Should the Commission wait to see if MUD1 is knocked out in court or proceed on parallel grounds?

Supervisor Gonzalez stated that they do not have a proprietary interest in this legislation and welcomes other input. They have spoken to the City Attorney and are confident that the City Attorney is working in good faith in putting this together. Discussion about the original petition that has now gone to the voters should be here and the Commission should do some of the things that have been recommended. We should make determinations about CEQA review. LAFCo should ask the City Attorney what their advice is on the new legislation. The Commission may want to question whether LAFCo should adopt new rules that would not require sending matters such as this to the Board of Supervisors and would allow LAFCo to send these types of matters directly to the voters. Once this body conducts the review that the City Attorney thinks is necessary, LAFCo may not need to put it on the ballot because the actual petition itself may be identical to what is going to the voters.

Chair Eisenberg stated that there are provisions in the Cortese-Knox Act that says that LAFCo has exclusive jurisdiction over the creation of districts and that we can take a petition and change or reorganize it. He asked if Supervisor Gonzalez was aware of the LAFCo powers in this regard?

Supervisor Gonzalez concurred and stated that they are not appearing here to tell the Commission not to change anything.

Chair Eisenberg inquired whether the legislation was replicating MUD1, and if the difference is that it is by way of a Resolution instead of a signature petition?

Supervisor Gonzalez concurred.

Chair Eisenberg asked if this Commission, at Brisbane’s request, could take Brisbane out of Supervisor Gonzalez’s petition and perhaps seek another agency that would thereby meet the requirement of two agencies and satisfy some of the objections of Brisbane?

Supervisor Gonzalez stated that it would conform to his opinion of the need for having two agencies engaged in the MUD proposal, but he thinks that the City Attorney should be consulted. He thinks the primary purpose of why this legislation was introduced was for LAFCo to retain the opportunity to do the review that there was so much discussion about.

Chair Eisenberg asked if the Commission should proceed and take into consideration the technical objections that were made against MUD1? Since the Commission has a new amended Cortese-Knox-Hertzberg law in 2001, should the Commission proceed with the advice of the City Attorney as how to process the Resolution? Would Supervisor Gonzalez be amenable to this Commission taking into consideration the objections and somehow structure a better MUD?

Supervisor Gonzalez concurred. He stated that if the MUD looks different than the one on the ballot, the Commission would need the City Attorney’s advice as to how to recall the first item to the voters. He expects LAFCo to decide whether to have just the second measure or have both competing measures on the ballot.

Commission McGoldrick asked if there is a difference between cities and agencies.

Chair Eisenberg stated that the statute makes reference to agencies. The City is an agency and so there is a broad range as to what the City of San Francisco can join in with to form a MUD. It does not have to join in with Brisbane-it could join in with Hetch Hetchy or Treasure Island. It is not necessary for the City to join in with a City.

Public Comment:

Harold Toppel, City Attorney, City of Brisbane stated that Section 11561 is clear and that San Francisco may join in with another agency or unincorporated territory-it doe not have to be a separate City jurisdiction. Brisbane would support any alternative San Francisco may have without getting Brisbane involved in the process. The City of Brisbane is having a problem with the attempt to nullify their sovereignty. They feel that they have the right to vote on this issue as a separate entity as state law requires. They are happy to work with San Francisco to support their own formation of an electrical power company, and they urge the Commission and Board of Supervisors to pursue other alternatives other than Brisbane.

Chair Eisenberg asked the speaker if it is possible that the citizens of Brisbane might want to participate in a MUD? If he is positive that the vast majority of Brisbane would not want to be part of the MUD, could he advice the Commission as to how he thinks the City of San Francisco might use a City agency? Mr. Toppel might want to write a letter to this Commission as to how his request might be honored through another measure.

Clay Holstein, Brisbane City Manager stated that Supervisor Gonzalez’s Resolution would open up dialogue that the City of Brisbane can partake in to see how all of this can come together. Perhaps there may be a measure between San Francisco, Brisbane, and another entity. Then the issue of the sovereignty of their vote becomes moot, San Francisco can move forward, and Brisbane can decide whether it wants to partake or not. There probably is an interest in the people of Brisbane’s part to debate the issue and be involved in the discussion.

Public Comment closed.

Gloria L. Young, Executive Officer, stated that the Commission has received the Resolution from the Board of Supervisors, which was sponsored by Supervisor Gonzalez. State law allows the Board to initiate the MUD formation process by adopting a Resolution that declares public interest and necessity for the MUD and referring it to this Commission.

Her first step as the Executive Officer would be to provide notice of the proposal to form a municipal utility district to interested agencies and determine whether the application is complete or requires additional information. If additional information is needed, she can ask the Board of Supervisors to provide it or take the necessary steps to obtain it on behalf of the Commission. In addition, the Executive Officer can arrange for an environmental review. Once the application is complete, a hearing would be scheduled within ninety days, and she would provide the Commission with a report prior to that hearing. State law also provides that if the Commission approves the proposed MUD, it would send the matter back to the Board of Supervisors with a request of the Board to direct the election officials to conduct an election.

At the present time, the Commission has received proposed Rules that the Executive Officer submitted in October/November. These Rules are under review by Chair Eisenberg and herself. She would suggest that the Rules be placed before the Commission at a future meeting so that they can adopt the Rules that would apply to the Resolution by Supervisor Gonzalez.

Chair Eisenberg and the Executive Officer agreed to put the Rules on the agenda for a future date.

No Action Taken.

5. Discussion of a proposed scope of work for a Sphere of Influence Study.

Gloria L. Young, Executive Officer, stated that the Commission at its November 28, 2000 meeting recommended that she develop a scope of work and a budget for a Sphere of Influence Study. Although there is no written report today, feedback is requested so she could provide the Commission with a formal recommendation at the next meeting. The scope of work is the feasibility study needed to provide answers to the following questions: what are San Francisco’s options for the cost and benefits analysis for generation, transmission, and distribution of electric power?

The Executive Officer recommends that the Commission allow her to use an informal process to secure a consultant rather than the formal RFP process which could take up to four months. The informal process would allow her to formulate a list of consultants to send the scope of work and specifications to, and request a proposal by a set date. The list would be made up of experienced consultants with background in public power and consumer advocacy and possibly joint action agencies made up of municipalities such as the Northern California Power Agency or CMUA, the California Municipal Utilities Association. A time period could be set for developing the list of potential consultants that would allow the public, you as a Commission, staff, etc. to provide her with names and firms. She could either bring the proposals back to the Commission, work with the Subcommittee of the Commission, or be authorized to set up a process for review and enter into a contract to proceed with the work, or some combination of the above. Most of the other LAFCO’s in the state operate in this way. If the Commission decides to proceed in this direction, she would request that the Board of Supervisors release the reserve of funds that they currently have for SF LAFCo.

Commissioner McGoldrick inquired as to the amount of the reserve funds.

Gloria L. Young, Executive Officer, stated that the reserve funds are a little over $600,000.

Commission McGoldrick asked if the Executive Officer knows what amount would have to be released at the Board of Supervisors?

Gloria L. Young, Executive Officer, sated that she has an approximate number for what it would cost for the consultant, but that LAFCo would also need to provide dollars for the environmental review. She would suggest that the full amount be unreserved and that she would come back to the Commission with the budget recommending an amount for each one of those services.

Commissioner McGoldrick asked who would be doing the environmental review?

Gloria L. Young, Executive Officer, stated that they would submit environmental review to the Planning Department unless there is another recommendation.

No Public Comment.

Gloria L. Young, Executive Officer, stated that formal action cannot be taken because there is nothing before the Subcommittee, but she can come back with the proposed scope of work at the meeting following the March 6 meeting. At that time, she will propose to the Commission what she has outlined in terms of a list.

Chair Eisenberg stated that the Executive Officer is proceeding properly and to advise LAFCo at the next meeting.