Meeting Information
MINUTES
Special Meeting
Thursday, April 5, 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
10:07 a.m.
Members Present: Chair Eisenberg, Commissioners Gonzalez
and McGoldrick
Members Absent: Commissioners Ammiano, Daly, and Maxwell
2. Adoption of the Resolution of the San Francisco Local
Agency Formation Commission establishing open meeting processes and access to
public records.
Chair Eisenberg stated that this Resolution was discussed
at their last meeting, formalized by the City Attorney, and presented to the
Commission for a vote today. The intent of the Commission was sent to the
Sunshine Ordinance Task Force, and they responded with a letter dated March
29, 2001 that is in the Commission packet. The Task Force would like LAFCo
to abide by the San Francisco Sunshine Ordinance. Chair Eisenberg will amend
his Resolution before the Commission to change the last sentence that now
reads as follows:
"RESOLVED, That SF LAFCo will follow the Brown
Act and the spirit of the Sunshine Ordinance."
to:
"RESOLVED, That SF LAFCo will follow the Brown
Act and will abide by the San Francisco Sunshine Ordinance."
Public Comment:
Dana Dillworth, Brisbane resident, stated that Brisbane
does not have access to the San Francisco Viacom system and does not receive
all information. She would like there to be a provision that when LAFCo is
dealing with provisions dealing with the Brisbane Municipal Utility option,
that postings be included at the Brisbane City Library and on the City billboard.
Commissioner McGoldrick asked the speaker if Brisbane
has public notification requirements in their government.
Dana Dillworth, Brisbane resident, responded that she
believes that the requirement is 72 hours. They are usually notified by Thursday
for a Monday meeting.
Commission McGoldrick asked where the City billboard is
located.
Dana Dillworth, Brisbane resident, responded that the
billboard is located outside of the Public Library, at 250 Visitation Avenue,
Brisbane. It is different than the City Library’s location in that one is
outside and the other is upstairs.
Bruce Brugman, Bay Guardian stated that the San Francisco
for Sunshine Group and the Task Force, with this Resolution, are trying to
make the point that even though LAFCo is a state agency, this is very much
part of the City. His position is that LAFCo vote to be under the Sunshine
Ordinance and live by it. He agreed with Commissioner Eisenberg that the wording
of the amendment to the Sunshine Ordinance be amended as stated.
Commissioner McGoldrick asked the speaker if other agencies
that are not City and County government agencies are abiding by the Sunshine
Ordinance? He asked who the other agencies are.
Bruce Brugman, Bay Guardian stated that other agencies
such as the School Board, Community College Board, and Redevelopment Agency
should abide by the Sunshine Ordinance, and they haven’t done so as far as
he knows.
Commissioner Gonzalez asked if the Transportation Authority
is subject to the Sunshine Ordinance?
Gloria L. Young, Executive Officer, stated that according
to the Sunshine Ordinance, Section 67.32, Provision of Services to Other Agencies,
talks about having a number of associations comply with the Ordinance, and
it lists the San Francisco Transportation Authority as one of those agencies.
Donna Hall, the Sunshine Ordinance Administrator is here and can advise the
Commission.
Donna Hall, Sunshine Ordinance Administrator stated that
she would research the question and report back to the Commission within a
few days.
Commissioner Gonzalez asked the Executive Officer what
the primary distinction is between the Brown Act and the Sunshine Ordinance?
Gloria L. Young, Executive Officer, stated that there
are a number of distinctions. Specific distinctions she had mentioned to the
Commission dealt with the 24-hour requirement for special meetings in the
Brown Act as opposed to 72 hours in the Sunshine Ordinance. There were recommendations
with respect to the Request for Proposal (RFP) process and the Brown Act.
She stated that the City Attorney could better advise the Commission as to
the distinctions between the Sunshine Ordinance and the Brown Act.
No further Public Comment.
Chair Eisenberg moved to adopt the Resolution of the San
Francisco Local Agency Formation Commission establishing open meeting processes
and access to public records, as amended; Commissioner McGoldrick seconded;
No opposition.
ACTION: PASSES-Adopted as amended.
Gloria L. Young, Executive Officer, stated that, with
the concurrence of the Commission, LAFCo could adopt the Resolution without
a roll call vote if the Commissioners all agree.
3. Resolution appointing the San Francisco City Attorney
as Legal Counsel for the San Francisco Local Agency Formation Commission.
Public Comment
Bruce Brugman, Bay Guardian, stated that appointing legal
counsel is a critical issue for the Bay Guardian and those who have been working
on the Hetch Hetchy issue all these years. He recommends that the Commission
get answers from the City Attorney’s office on the certain issues before recommending
that they be appointed as legal counsel. The City Attorney historically has
made decisions in favor of PG&E, against the enforcement of the federal
Raker Act, and against bringing our own Hetch Hetchy power to San Francisco
citizens and businesses. From his perspective, the City Attorney is placing
one roadblock after another in the path of the citizens working to put the
initiative on the ballot. Their advice has often been deficient or conflictive
to LAFCo in regards to a MUD.
He stated that the City Attorney, Louise Renne, appears
to have a conflict of interest with her husband’s law firm, which has substantial
ongoing business with PG&E. The Commission should find out if the husband,
Paul Renne, is a partner in Cooley, Godward, the firm that has collected more
than $3,000,000 from PG&E between 1995 and 1999 according to PG&E’s
filings with the CPUC. The following questions were asked. How much did Paul
Renne’s law firm collect last year and in the last three months? Does PG&E
have an ongoing agreement with Paul Renne’s law firm? What work did Paul Renne’s
law firm do for PG&E? How much money did Paul Renne collect from PG&E
in the last ten years? In the midst of the energy crisis, Cooley Godward has
on their web site that their clients include PG&E. On the same page, they
say they defended a large utility against criminal charges that it willfully
and negligently failed to trim trees near their distribution line. Has the
City Attorney, Louise Renne, disclosed her connections to a law firm that
is doing substantial and continuing amount of business with PG&E? Does
the City Attorney consider these financial connections to constitute a conflict
of interest in representation of an agency and an issue that has a bearing
on PG&E’s future? Has the City Attorney gotten or will get a written opinion
on this conflict of interest point and if so, could she make it public to
LAFCo and the public? If so, why or why not? What steps are in place to assure
LAFCo and the public that the City Attorney will fully represent the interest
of LAFCo, even if the City Attorney disagrees with LAFCo? He urges that the
Commission ask for these answers from the City Attorney in writing and get
an outside independent attorney to review this issue, one that is experienced
in ethical issues, and submit it to the Ethics Committee of the San Francisco
Bar Association for ruling.
Chair Eisenberg asked if the speaker is asking for the
Commission to defer this Resolution until they obtain answers to these questions?
Bruce Brugman, Bay Guardian, concurred.
Commissioner McGoldrick asked if there is a policy that
excludes Deputy City Attorneys from certain cases if it is determined that
there is a conflict regarding financial interests.
Paula Jesson, Deputy City Attorney, stated that they are
subject to Rules of Professional Responsibility. None of them as attorneys
can engage in anything that would constitute a conflict of interest. If there
is a conflict, no one who had the conflict would be participating in the case,
litigation, advice or matter.
Commissioner McGoldrick asked if that is under the Conflict
of Interest Rules or under the California Bar Association’s rules.
Paula Jesson, Deputy City Attorney stated that it is under
Rules of Professional Responsibility and if there is a conflict under the
Political Reform Act, they could not participate either.
Commissioner McGoldrick asked if there were a case involving
a particular factory and that person owned stock in the factory, if that person
would be precluded from dealing with that case, but some other attorney could
deal with the case?
Paula Jesson, Deputy City Attorney, stated that they would
look at it on a case by case basis and would not involve the person who has
the conflict.
Commissioner McGoldrick asked if it were determined that
the City Attorney did have a conflict of interest, could other Deputy City
Attorneys deal with those cases without bringing the City Attorney into the
case?
Paula Jesson, Deputy City Attorney, stated that she has
not been involved in those decisions and will have to research and report
back to the Commission.
Commissioner McGoldrick asked what the Commission could
do to clarify this issue. Would the Commission ask the City Attorney or some
other agency such as the Ethics Commission or state agency to clarify this
issue?
Paula Jesson, Deputy City Attorney, stated that the Commission
could convey any request they have for information to the City Attorney. She
will research what other agencies the Commission can go to.
Chair Eisenberg stated that according to the budget that
is on the agenda for approval today, $100,000 would be allocated for legal
services. He asked if that is what this agency is going to pay to the City
Attorney’s office and how the City Attorney’s Office is being paid today since
LAFCo has not yet passed the budget?
Paula Jesson, Deputy City Attorney, concurred that if
the Commission chooses the City Attorney’s office to represent them as legal
counsel, they would be paid through the $100,000 that is allocated for legal
fees. She does not know how they are being paid today since the budget has
not yet been passed.
Gloria L. Young, Executive Officer, stated that once the
funds become unreserved from the Board of Supervisors, the City Attorney’s
Office will be reimbursed for their time today.
Chair Eisenberg stated that the City Attorney is a civil
servant who has a salary and a budget. The City Attorney’s Office bills its
time on an hourly basis to other agencies and recoups legal fees out of other
agencies’ budgets.
Gloria L. Young, Executive Officer stated that was her
understanding. The process that is being used for the budget is the same that
other LAFCo’s in the state use that are dependent upon county resources.
Chair Eisenberg asked what the City Attorney’s hourly
rate is.
Paula Jesson, Deputy City Attorney, replied that there
are different rates for different attorneys in the office. She believes that
their work order rates are calculated upon how much the attorney gets paid
and there is overhead built in. The rates are not comparable to private rates.
When they do work for certain departments, they have provisions that they
bill them at certain rates. It is her understanding that the LAFCo rates would
be the same as when they present a bill to other departments of the City.
Chair Eisenberg stated that the budget provides for $100,000
in legal services, $100,000 for consulting services, and $100,000 for CEQA
review. He has met Mr. Mihaly, who is with a private law firm and asked who
is paying him.
Paula Jesson, Deputy City Attorney, replied that she is
not involved in the payment issues, but she could research the subject.
Chair Eisenberg asked if Mr. Mihaly is an outside attorney
who is hired for the purpose of advising LAFCo.
Paula Jesson, Deputy City Attorney, stated that she was
not involved in the initial hiring process. She has talked to Mr. Mihaly about
LAFCo related issues.
Chair Eisenberg stated that he understands that Mr. Mihaly
is the LAFCo expert and the advisor to LAFCo. He asked if the Commission could
hire Mr. Mihaly as LAFCo’s counsel instead of hiring the City Attorney. If
they were to hire Mr. Mihaly, would the Commission have to put out a bid for
legal services to see if Mr. Mihaly or someone similar would be willing to
be legal counsel to LAFCo? Mr. Mihaly is acting as LAFCo’s consultant through
the City Attorney’s Office. Could the Commission just hire Mr. Mihaly as LAFCo’s
counsel?
Commissioner McGoldrick stated that his understanding
is that this issue is a policy call of the LAFCo Commission.
Gloria L. Young, Executive Officer, stated that she would
request legal advice, but she believes that the Commission would have to go
through the legal RFP process because it has agreed to abide by the Sunshine
Ordinance.
Public Comment:
Marc Salomon stated that the confidence by San Franciscans
in the City Attorney as a political office is melting. He thinks the Commission
should look beyond the City Attorney’s office for counsel on this issue because
the City Attorney’s advice has fallen short of the standard of objectivity
that is needed to represent the people in this process. He recommended that
LAFCo hire their own attorneys to draft a progressive alternative to the "one
size fits all" MUD initiative that has many shortcomings. He would like
to see a progressive charter amendment to counter some of the issues that
they have seen on this subject. He does not believe that they can get that
as long as the City Attorney is counsel for this project. The Commission should
look at ways to break beyond the at large elections that can easily be bought
off by PG&E and impair this entire process by the time it gets to the
voters in November. He stated that public power is a great thing, and that
the issue should not go through the group think mentality that fails to evaluate
as decision points come up. He stated that we have to do this in a way that
we are not going to give this to PG&E in November.
Chair Eisenberg asked the speaker if he was in favor of
a charter amendment.
Marc Salomon replied that he is in favor of looking at
ways other than the 1940’s "one size fits all" MUD act.
Don Eichelberger, Green Party of San Francisco, asked
what other decisions or options have been examined to hire an attorney for
LAFCo. He agrees that the Commission needs independent counsel because the
City Attorney’s Office has exhibited bias on this issue in the past. He asked
how the public would participate in the decision in terms of the RFP process
and being able to identify candidates. Is the continued absence of the City
Attorney for LAFCo going to impose a hardship on the work of this Commission?
What kind of timeline is there to find someone who is adequate to do the task?
Ernestine Weiss stated she feels that PG&E has been
delinquent in paying their proper tax rate for many years in this City. She
is sure it is due to the City Attorneys bringing that about. They pay huge
amounts to City people who run for office and that is a conflict of interest.
She urges the Commission to hire an outside attorney to handle this matter.
Bruce Brugman, Bay Guardian stated that it would be helpful
to receive an answer if the Deputy representing the City Attorney knows of
any opinion of the conflict issue. When the Bay Guardian investigates, the
City Attorney says they do not have anything, that everything is fine. They
call the law firm and ask what the law firm or Paul Renne is doing for PG&E-they
say that is private business. The law firm’s web site explains what they are
doing. They have the capability of analyzing a particular individual or corporate
problem understanding and predicting with some certainty the likely course
that an investigation will take in developing a strategy to meet that investigation
in an effort to satisfy the client’s needs and obtain the most favorable result
possible. As needed, they will add people from other disciplines within the
firm to assist in identifying and supporting the appropriate strategic plan.
You could apply what they are saying on that web site to exactly what the
City Attorney has done for the entire period that Louise Renne has been City
Attorney. He would ask the question if the Deputy City Attorney has an opinion
on this issue.
Chair Eisenberg stated that in the short time he has worked
with the Deputy City Attorney, he is convinced that she is not the person
to ask these questions to. She needs to forward these questions to the people
in the City Attorney’s Office who have the expertise and answers.
Paula Jesson, Deputy City Attorney, stated that it is
the position of their office that there is no conflict with the City Attorney.
As far as further details that Mr. Brugman is asking for, she cannot say that
the City Attorney’s office has a position.
Public Comment Closed.
Commissioner Gonzalez stated that there would be legitimate
concern if somebody were gaining financially from a relationship with a company
such as PG&E. He would suggest that Ms. Renne communicate about a conflict
of interest to LAFCo.
Paula Jesson, Deputy City Attorney stated that she does
not know if there has been communication with LAFCo directly on the conflict
of interest issue. She indicated she would pass on the request.
Commissioner Gonzalez asked if the City Attorney has ever
declared a conflict?
Paula Jesson, Deputy City Attorney stated that she does
not know.
Commissioner Gonzalez asked if there are State Bar rules
that control when a City Attorney must declare a conflict-Rules of Professional
Responsibility?
Paula Jesson, Deputy City Attorney, stated that they are
within the same Rules of Professional Responsibility that all attorneys are.
As public officials, they are subject to the Political Reform Act too.
Commissioner Gonzalez asked if she sees any problem in
asking the City Attorney to respond in writing or in another way and having
the State Bar investigate the matter through an Ethics Committee if they have
one.
Paula Jesson, Deputy City Attorney, stated that she would
pass on the request and that it was up to the City Attorney to respond.
Commissioner Gonzalez stated he would be opposed to making
a decision at this time to hire someone else as legal counsel.
Commissioner McGoldrick stated hypothetically that if
the Commission has a situation that he is a public official and his wife was
part of a law firm that did business with some entity that he had to consider
in a decision and his wife precluded herself from any cases involving that
entity. Would that create a distance that would be considered sufficient to
obliterate the conflict of interest consideration?
Paula Jesson, Deputy City Attorney, stated that there
are clear rules under the Political Reform Act as to sources of income to
you and to your spouse and people who are dependent on you. She will research
the procedures.
Commissioner Gonzalez stated that there would have to
be more specifics reported as to what amount of money is involved. They too
as elected officials have been required to file declarations of financial
interests.
Commissioner McGoldrick asked for clarification on the
second document of his packet regarding a letter that is dated March 19, 2001,
from Gloria Young to the LAFCo Commissioners. The second sentence, first paragraph,
indicates that the Commission may request the services of the City Attorney’s
Office or may direct the Executive Officer to contract with outside counsel.
What they have in front of them is a Resolution dated March 30. If the Commission
would adopt the Resolution in front of them today, would that preclude them
from hiring outside counsel?
Chair Eisenberg stated that at this time the Commission
has had the City Attorney and outside counsel, but outside counsel has been
acting as a consultant to the City Attorney. He does not think the Commission
would be precluded from bringing in outside counsel. Many cities contract
outside counsel because their City Attorney can’t do it or their City Attorney
is an outside contract. If this Resolution is passed, LAFCo would not be precluded
from hiring outside counsel.
Paula Jesson, Deputy City Attorney, stated that there
is a specific provision that says that LAFCo shall appoint counsel and if
there is a conflict on any matter shall appoint other counsel to deal with
the conflict issues.
Commissioner Gonzalez stated that Mr. Brugman stated that
there has been a relationship between LAFCo and the City Attorney about the
measure that is now on the ballot and considered by the voters in November.
It seems that one of the primary duties of LAFCo is to consider the shadow
MUD petition that was sponsored by Commissioner Gonzalez, and the City Attorney
has given good advice to him on how they could proceed. Commissioner Gonzalez
asked for Mr. Brugman’s opinion of the shadow MUD in regards to the conflict
issues that he has raised?
Mr. Brugman, Bay Guardian, replied that he does not know
anything specifically about the shadow MUD. He knows that in his observations
with LAFCo, the way the City Attorney has provided advice is conflicting and
questionable. The City Attorney is saying that if they disagree with the LAFCo
position, they won’t defend LAFCo. Ultimately, there may be litigation and
if you have a conflicting City Attorney, you’ll have a problem representing
LAFCo.
Commissioner Gonzalez stated that he was at the full Board
meeting, and he recalls the City Attorney saying that they would defend the
actions of the Board in putting the matter before the voters.
Mr. Brugman, Bay Guardian, asked if it was Buck Delventhal
that was at the meeting and whether he was representing the City Attorney
or LAFCo. It is his understanding that he was representing the City Attorney,
and there was no attorney representing LAFCo.
Chair Eisenberg concurred. He stated that the City Attorney
has been temporarily retained and has been acting as a de facto attorney since
the inception.
Commissioner Gonzalez asked what there is about a representation
made by Mr. Delventhal that he would fully defend the actions of the Board
in putting the matter on the ballot, but he was there as a non-attorney for
the LAFCo? The City Attorney that is present at the Board meetings is Ted
Lakey. He was at that meeting as well representing the Board.
Chair Eisenberg stated that LAFCo was represented by counsel
before the full Board meeting. At that time, LAFCo passed a rule, which they
called the "Alioto Rule." It was the City Attorney’s public opinion
that the rule was not in compliance with the Cortese-Knox-Hertzberg law. When
LAFCo came to the Board of Supervisors, LAFCo did not have representation.
In Mr. Delventhal’s capacity as the Deputy City Attorney, he was representing
both the Board of Supervisors and LAFCo. LAFCo had a City Attorney and his
name was Dorji Roberts, but he was not present at the meeting. Chair Eisenberg
wrote him a letter requesting his attendance.
Commissioner Gonzalez asked how the change of counsel
could adversely impact the work that the Commission is doing to try to strengthen
the MUD petition before the voters. He can work with whatever counsel that
LAFCo hires. However, the City Attorney has given him good advice in proceeding
with the alternative measure to improve the measure, notwithstanding their
public reservations about some of the decisions that have been made. The change
in the law and what is happening in Sacramento raises questions as to whether
the City Attorney is right or wrong.
Bruce Brugman, Bay Guardian, stated that PG&E has
been successful for eighty years in keeping themselves in control of almost
every issue in City Hall and keeping the rate paying citizens whom are paying
higher and higher rates out of the loop. The speaker stated that he has no
problem with Paula Jesson, Deputy City Attorney and Jackie Minor and has a
great deal of respect for them. He feels the problem is from the top down,
and he would like disclosure and an independent attorney. The City Attorney
went out and hired their own LAFCo consultant for advice that is not filtered
down to this Commission and then comes out in a charter amendment that keeps
PG&E in power.
Commissioner Gonzalez stated that it is not uncommon for
an attorney and a client not to agree on a matter. The attorney gives advice
to a client and then the client decides the course of action to take, and
the attorney gets behind that course of action. He asked the City Attorney
what happens when an attorney has a dual role of giving advice to members
of the Board of Supervisors. and the LAFCo’s attorney is no longer behind
the LAFCo, but giving advice to individual members of the Board of Supervisors?
Paula Jesson, Deputy City Attorney stated that the City
Attorney gives the same advice to LAFCo as to the Board. There are policy
decisions that the City Attorney does give advice about. Anybody who has a
concern about a conflict should have it addressed.
Commissioner Gonzalez asked if the LAFCo went to the Board
meeting with an independent counsel for advice instead of the City Attorney,
and a Board of Supervisors member asked the counsel to answer a question,
would that attorney be able to answer a question inconsistent with the LAFCo.
Chair Eisenberg stated that as a private attorney, a client
may come to his office with an issue that may be unwise, but the client is
entitled to advice. Can he, as the client’s attorney, go to court and stand
up in front of the judge and say that he has advised another client that what
his client is doing is wrong. His statement to the court would infer that
his client is acting improperly.
Paula Jesson, Deputy City Attorney, stated that it would
be fair to everyone to get those who are involved in the process to address
those issues.
Commissioner Gonzalez stated that there is a distinction
between what Chair Eisenberg is stating as private counsel giving advice in
a closed session as opposed to the public nature of the information that gets
disclosed through the LAFCo counsel and could be subject to a cross examination.
He asked if you could call counsel to be a witness in a case when the counsel
is defending the other side?
Chair Eisenberg stated that this Commission passed a rule
called the "Alioto Rule." The Deputy City Attorney, Buck Delventhal,
who he thought was his counsel, advised the Board of Supervisors that LAFCo
had acted improperly when it passed the "Alioto Rule." He did not
like that. His inquiry has to do with the State Bar rule, that says "if
an attorney has decided that it cannot properly advise its client and represent
its client in a private or public forum, then it must disclose to that client
in writing that it has a conflict and give the client an opportunity to obtain
independent counsel." He asked the City Attorney to defer these questions
to the appropriate people and explain to the Commission how they can obtain
proper representation in public forums when the advice to the Board of Supervisors
may be different than the advice to LAFCo.
He stated that the City Attorney is taking the position
that the Alioto Rule is not in compliance with the Las Tunas decision and
has stated so publicly. It is his opinion that they are required in future
proceedings to defend LAFCo’s position, and not to undermine it. If the
City Attorney has an intention to undermine their position in the future,
then they should be removed.
ACTION: Chair Eisenberg stated that Paula Jesson would
convey these concerns to her office and report back to the Commission at the
next meeting. Item 3 was continued to the next meeting.
4. Public Hearing: Discussion and adoption of the proposed
SF LAFCo 2001-2002 Fiscal Year Budget (Government Code Section 56381).
Gloria L. Young, Executive Officer, stated that she would
like to respond to Commissioner Gonzalez’s question as to whether the San
Francisco Transportation Authority complies with the San Francisco Sunshine
Ordinance Task Force. At this point, they have not formally adopted the Sunshine
Ordinance.
The budget before the Commission includes identical
items as the budget that was approved by the Commission last fall with the
exception of a reduction of $300,000 which has been made to the consulting
and CEQA costs. The hope is if the budget is approved, a request to the
Board of Supervisors will be made to release funds that are currently on
reserve for Fiscal Year 2000-2001 to pay for the consulting services rather
than use funds in the Fiscal Year 2001-2002 budget. The Fiscal Year 2001-2002
budget is in the amount of $454,250.00. The previous budget was for $754,250.00.
According to the new Cortese-Knox-Hertzberg bill, this will be the base
budget of LAFCo if the Board adopts it. This is the first step-the final
budget would come before the Board in another public hearing in May.
Chair Eisenberg stated with respect to the statement that
Commissioner’s fees would be paid at $50 per meeting, that it took him about
four hours to prepare for this meeting--a meeting that would take two hours.
The supervisors also have to spend a large amount of time preparing for the
meeting. He thinks that $50 is an inadequate amount and would like to revise
the stipend to $150 per meeting and asked to take it out of another source
if necessary.
Gloria L. Young, Executive Officer stated that if that
is the wish of the Commission, she would take it from another source that
is within the budget or add it to the budget. The average that the Commission
has met is once a month.
Commissioner McGoldrick asked about the description that
says for ten meetings per year. What if there are twenty meetings?
Gloria L. Young, Executive Officer, stated that the ten-meeting
figure was based on an average from October of last year to the end of the
fiscal year. There are funds in the other accounts that can be moved accordingly
if other services are not used.
Commissioner McGoldrick asked whether they originally
discussed the amount of $500,000 as their original budget?
Gloria L. Young, Executive Officer, stated that the budget
of $454,250 is approximately the amount originally discussed. She will bring
back an amended budget at the next meeting.
Commissioner Gonzalez asked what amount the other Board
members who sit on other Commissions are paid?
Gloria L. Young, Executive Officer, stated that members
of the Board generally are paid anywhere from $50.00 to $100.00, and that
is specific Boards, Commissions, or agencies outside of the City umbrella.
Commissioner Gonzalez asked whether a member of the Board
of Supervisors is limited to a number of committees?
Gloria L. Young, Executive Officer stated that a Board
member is limited to two committees that for which he or she receives a stipend.
If a Board member is sitting on two agencies that they are receiving two stipends
for, they would be precluded from receiving a stipend from this Commission.
Chair Eisenberg stated that LAFCo is a State Commission,
not a City Commission and there may be a distinction. He asked whether the
Rule refers to state agencies? His interpretation is that the Rule refers
to City agencies.
Gloria L. Young, Executive Officer, stated that it is
a policy that the Board of Supervisors has made in their Rules of Order, and
they can choose to revise the Rules to preclude state agencies. The Rule refers
to agencies in general.
Commissioner Gonzalez stated that he thinks the policy
refers to non-Board committees, so it would refer to LAFCo. He feels there
would be no reason to increase the $100.00 amount that other Commissions are
paid. The other supervisors are on other Commissions, so it would be unlikely
that LAFCo would be paying them a stipend at all. He thinks the public should
be able to comment and the regular Commission should be able to vote on the
issue since he is at the meeting as an alternate.
Chair Eisenberg stated that he would settle for $100.00.
Gloria L. Young, Executive Officer, stated that the Commission
would have to vote on the preliminary budget. The Commission will have another
opportunity to adopt the budget. The Cortese-Knox-Hertzberg bill calls for
a final adoption, so there will be another public hearing notice that will
occur before the main meeting.
Public Comment
David Dauty stated that the stipend should be $250.00.
The problem is if you underpay the supervisors, a lot of people cannot run
for supervisor because they would have to be independently wealthy.
Commissioner Gonzalez stated that he would rather have
the issue of supervisor’s salaries go to the voters to get reform instead
of making it up with Commission appearances.
ACTION: The preliminary SF LAFCo 2001-2002 budget PASSES
without objection, as amended to increase the stipend to $100 per meeting.
The final Resolution will come back to the SF LAFCo at the next meeting.
5. Discussion and adoption of the Modified Procedures for
the Evaluation of Proposals for the Formation of Districts Initiated by Governmental
Entities.
Gloria L. Young, Executive Officer, stated that the procedures
are before the Commission for approval. She would draw the Commission’s attention
to Section 3, Procedure for the Evaluation of Proposals for the Formation
of Districts that do not Specify the Services that may be Provided.
Chair Eisenberg stated that they have the "shadow
MUD" before the Commission. The provision on page 7 was carefully worked
out by Mr. Mihaly and was written in discussions that the Chair participated
in. The way that the "shadow MUD" would be treated is that a series
of complicated requirements stating that you have to explain what the scope
of the utility district would be, would be waived. As outlined in the procedures,
it calls for a two-stage process that will allow the Commission to approve
the formation of a district that does not specify the services that it will
provide, subject to the requirement that the district, once formed, obtain
further review and approval by LAFCo for the provision of specified services.
Gloria L. Young, Executive Officer, concurred that the
above is an accurate statement.
Public Comment:
Harold Toppel, City Attorney, City of Brisbane, stated
that if the proposal initiated by the Board of Supervisors excludes the City
of Brisbane, then they have no interest in this item. San Francisco can adopt
whatever procedures they wish. If Brisbane is included, he made a review of
the Cortese-Knox-Hertzberg law and did not find provisions in the law that
authorizes this kind of procedure where you would first be voting on what
is essentially a shell and then there would be a determination of the services.
As he reads the Act, the description of services is part of an application
and factors to be considered in approving the application are delineated in
the Act. The purpose of the Act is to conduct the public review process and
then put the matter to a vote. Brisbane’s concern is that they need to know
the details and they think it should be provided before the vote. Later on
when the services are delineated, it is not subject to a vote--it will only
be determined by LAFCo. The whole issue of what MUD would do would never get
to the voters. They think this process is repeating the same objections they
had to the earlier petition initiated MUD. The issue is whether a government
agency that does not have its purpose and function should be created.
Commissioner Gonzalez corrected the speaker’s comment
that the determination of services would not be determined by LAFCo solely,
because it would be determined by the elected MUD representatives. The potential
area that this body could go into could be extensive. To try and define everything
exactly that this MUD might engage in would be premature. MUD directors would
be engaged in much of the work that would be done and guide it in such a fashion
to ensure that it is done appropriately.
Public Comment Closed.
Chair Eisenberg stated that he has no objection with Mr.
Mihaly’s suggestion as to how to handle the "shadow MUD." He thinks
it is an excellent suggestion and that Brisbane’s concerns would be met in
Item 9. He applauds the Executive Officer’s work on this item.
ACTION: Chair Eisenberg motioned to adopt the modified
procedures for the evaluation of proposals for the formation of districts
initiated by governmental entities; Commissioner McGoldrick seconded.
Vote:
AYES: Commissioners Gonzalez and McGoldrick; Chair Eisenberg
ACTION: PASSED
6. Discussion and adoption of the proposed scope of work
for the Sphere of Influence Study and Analysis associated with providing public
power in the City and County of San Francisco, including the creation and maintenance
of a Municipal Utility District for San Francisco and San Francisco-Brisbane.
Chair Eisenberg stated that this matter calls for a detailed
discussion and that Commissioner Gonzalez has raised questions of an alternate
member participating in substantive discussions. Based on time constraints,
a recommendation was made to continue this matter to the next meeting. Chair
Eisenberg asked for Commissioner Gonzalez’s opinion.
Commissioner Gonzalez stated that he thinks the regular
Commissioners should have an opportunity to vote on this matter.
No Public Comment.
ACTION: Continued to the next meeting.
7. Discussion and approval of the process for selecting
and contracting with the consultant for the Sphere of Influence Study.
Chair Eisenberg stated that this item is similarly a significant
item and recommended forming a Subcommittee on this issue. He inquired as
to whether they need two or three members to form a Subcommittee?
Gloria L. Young, Executive Officer stated that three members
would constitute a quorum, so less than three would be ideal for a meeting
if you want to select an informal process. She stated that the City Attorney
might be able to provide further clarification.
Chair Eisenberg asked if the meeting would have to be
at City Hall?
Gloria L. Young, Executive Officer, stated that the meeting
would have to be in a place accessible to the public. Minutes and notes would
have to be taken.
Chair Eisenberg asked if Commissioner McGoldrick would
join him in forming a Subcommittee?
Commissioner McGoldrick asked Chair Eisenberg to explain
why he feels they should have a Subcommittee rather than the whole Commission’s
consideration of the item?
Chair Eisenberg stated that he does not know how the Commission
would approve a consultant without going through the interview process. He
stated that the Commission meetings can go on forever, and that you can not
have the Commission interviewing people. He thinks the Subcommittee can report
to the Commission after selection.
Gloria L. Young, Executive Officer, stated that Chair
Eisenberg asked for this item to be continued. The subcommittee is one of
the potential recommendations of this item. She asked whether the subject
of the subcommittee as part of the whole package be moved to the next meeting
or pull out that portion of the Subcommittee recommendation?
Chair Eisenberg stated that he wanted to pull out the
Subcommittee portion of the recommendation because he does not want to delay
the process. There is enormous public demand that they select a consultant
and do the study.
Commissioner McGoldrick asked if there could be a third
alternate member.
No Public Comment
ACTION: Without objection, Chair Eisenberg constituted
a Subcommittee consisting of Chair Eisenberg, Commissioner McGoldrick, and
an alternate third member to deal with the issues under Item No. 7. Item No.
7 was continued to the next meeting.
8. Chairperson Eisenberg’s request for a discussion of SF
LAFCo’s ability to request records from the Public Utilities Commission and
other agencies.
Public Comment:
Dana Dillworth, Brisbane resident, stated that as a member
of the public, she has asked the City of Brisbane to disclose what activities
it is doing regarding a formation of a MUD. Apparently, it is all coming from
closed session. While she has not received a letter that is saying that they
would not give her information, she has not received any information. She
asked who had directed the City Attorney to write these opinions that are
contrary to the public’s right to vote? She would like to have Brisbane’s
activities put on the public record so the public knows what is going on.
Public Comment Closed.
Chair Eisenberg stated that the reason for this request
is from public parties asking if LAFCo has the right to obtain from the San
Francisco Public Utilities Commission (PUC) information regarding profits
that PG&E has submitted to PUC. He would like the City Attorney’s opinion.
The statute says that LAFCo can obtain records from public agencies. Between
now and November, there will be a question as to whether public power can
provide power that is cheaper. The only way the Commission can determine the
answer to that question is by determining what the profit is. PG&E routinely
submits records to the PUC, but the PUC engages in a procedure in which it
redacts proprietary information. The utility provides information to the PUC,
but the PUC does not provide information to the public. Is LAFCo’s ability
to request records equivalent to subpoena power? If it is, then he would think
that they have the right to ask the PUC not only for the records that are
provided to the public, but for the records that is proprietary information
that is submitted by the utility to the PUC. Would LAFCo then have the discretion
to release that information and make the decision that it is not proprietary?
Commissioner McGoldrick asked if this is a question regarding
the California PUC?
Chair Eisenberg stated that he doesn’t think the statute
has given LAFCo the power to obtain records from state agencies, only from
local agencies. If LAFCo asks the City PUC for records and they refuse to
give it to them, could they go to court and obtain a court order saying they
have to give the records to LAFCo?
Public Comment Reopened.
Bruce Brugman, Bay Guardian, stated that he has been working
on this issue since 1969 and it is the first time that he realized that PG&E
submitted these records to PUC. The reason this is significant as a public
policy issue is because the City is by federal law supposed to have public
power. PG&E has controlled that power all these years and forced residences
and businesses to buy their expensive private power. The Guardian has never
been able to obtain these key financial figures from PG&E. How much are
they making using Hetch Hetchy power? They would not be fighting so hard unless
they were making an enormous profit from the City of San Francisco. How can
people and businesses afford to pay the increasing rate hikes? He stated that
LAFCo should ask PG&E directly for the records, then go to PUC for the
records, and then say publicly that they are after the records. The key question
is how much profit is PG&E taking out of the City and County of San Francisco
even though we have built a dam and even though the Raker Act and Supreme
Court have said that we are supposed to use our own public power?
Commissioner Gonzalez asked the City Attorney if this
Commission has subpoena power?
Paula Jesson, Deputy City Attorney, stated that she would
research the question.
Chair Eisenberg stated that the statute does not state
that LAFCo has subpoena power.
Commissioner Gonzalez asked the City Attorney if any Committee
of the Board of Supervisors has subpoena power?
Paula Jesson, Deputy City Attorney, stated that she believes
the Charter gives an agency of the Board subpoena power.
Commissioner Gonzalez asked if the Board of Supervisors
has the right to confer subpoena power on an agency such as LAFCo?
Paula Jesson, Deputy City Attorney, stated that she does
not believe so. She knows there is subpoena power, but she assumes it has
to do with the operations of its own departments. She stated she would research
the Charter provisions.
Bruce Brugman, Bay Guardian, stated that whether or not
you have subpoena power, you can publicly raise the issue of how much profit
PG&E is taking out of the City and County of San Francisco’s profit.
Commissioner Gonzalez asked if the Commission could obtain
that information from their corporate disclosures?
Chair Eisenberg stated that frequently companies who submit
information to City agencies will take the position that they have trade secrets
that they do not want to disclose. Ultimately, they do not disclose what their
profits are.
Commissioner Gonzalez asked if the Wheeling fee is what
is being discussed.
Bruce Brugman, Bay Guardian stated there are a series
of issues. How much profit is PG&E taking out of the City and County of
San Francisco for its overcharges to residences and businesses that is forced
to buy their expensive private power instead of the City’s cheap Hetch Hetchy
public power? What is the precise Wheeling fee? What happens to the Hetch
Hetchy power when it goes to the PG&E grid in Newark? How much of that
power is wasted? There has never been an energy audit.
Supervisor Gonzalez stated that he thinks these documents
have been made public pursuant to the bailout effort in Sacramento.
Bruce Brugman, Bay Guardian stated he was not aware that
the records were made public and that no one knows what PG&E’s profit
is.
Supervisor Gonzalez asked for clarification of the question
that the Commission is asking.
Chair Eisenberg stated that the Commission is specifically
asking for the profit PG&E is making on its sale of electricity to San
Francisco residents. PG&E equalizes its profit throughout the state, and
presents an equalized profit to the Public Utilities Commission. There is
a public belief that the exact amount of profit that PG&E is making in
San Francisco is not known and specific at this time.
John Eighberger asked if the Commission has the power
to talk to the State Board of Equalization for their input.
Public Comment Closed.
9. Chairperson Eisenberg’s resolution authorizing the Executive
Officer to enter into a covenant not to sue with the City and County of San
Francisco, the City of Brisbane and the Coalition to Lower Utility Bills, providing
that if a majority vote is obtained in favor of a Municipal Utility District
(MUD) in San Francisco but not in Brisbane, the MUD shall be formed in San Francisco,
and the parties shall not sue to obtain a contrary result.
Chair Eisenberg, at a prior meeting, asked the Brisbane
City of Attorney if Brisbane could find some mechanism for freeing the necessity
of Brisbane being in or out of the MUD district. Subsequent to that meeting,
they asked Senator Speier to obtain an opinion from the legislative counsel
who has provided the Commission with an opinion that if MUD loses in Brisbane
and wins in San Francisco, that the MUD District would be created in San Francisco.
The City Attorney has assisted in drafting the Resolution. The question is
whether this Commission adopts the position of the legislative counsel.
Public Comment:
Joseph Alioto, Law Offices of Mayor Joseph L. Alioto and
Angela Alioto. He is here to read into the record and distribute a letter
on Angela Alioto’s behalf to the Chair and Commission members endorsing the
stipulation between the Mayor of Brisbane, City and County of San Francisco,
CLUB, and LAFCo.
Harold Toppel, City Attorney for Brisbane, stated that
there are members of the Board, this Commission, and CLUB who have expressed
their assurance that there is no intention to bring Brisbane into a district
if its own voters vote against it. Those comments are appreciated. He thinks
people should be aware of the limitations of a document not to sue. If they
enter into this arrangement, it does not protect them from third parties opposed
to or in favor of a MUD. They are willing to work cooperatively with the Commission,
San Francisco, and CLUB to form an understanding.
Dana Dillworth, Brisbane resident, stated that if Brisbane
does not vote for the MUD, she is in support of Brisbane not being forced
into it. She is concerned that as a member of the public she wants to know
the details that have not been forthcoming. She would like to add to the discussion
that Brisbane not continue in any more politicking and no more covert or obvious
actions stating that they are pro PG&E and anti MUD. She has heard for
the past month that the City of Brisbane was going to publish an article about
the MUD in the Star. It is a public record and she should know what
is being circulated to every resident in Brisbane. She does not think that
the Resolution alone is fine as it stands as it does not protect the public
interest.
Chair Eisenberg stated to the City of Brisbane that this
is an excellent Resolution of both Brisbane and San Francisco’s interests.
The Chair would like to renew the invitation for the Commission to meet with
Brisbane. He hopes with the context of the passage of this Resolution that
Brisbane sees that the possibility of reducing electrical rates is a benefit
to Brisbane citizens and that is the intention of the Commission.
Vote:
AYES: Commissioner Gonzalez and Commissioner McGoldrick;
Chair Eisenberg
ACTION: PASSED
10. Future Agenda Items.
Gloria L. Young, Executive Officer, stated that there
are a number of items for the suggested May 18 meeting date as follows:
1. The final budget will need to be approved in May
2. Application for the formation of the San Francisco
Brisbane MUD sponsored by Supervisor Gonzalez.
3. Adoption of policies regarding disclosure requirements
4. Legal counsel appointment
5. Scope of work for the Sphere of Influence
6. Approval for the process of selecting the consultant
of the Sphere of Influence
Chair Eisenberg advised the Commission that Paul Nathan
Jr. is a student at the University of San Francisco (USF) who asked if he
could do a free internship. Chair Eisenberg asked him to obtain a list of
all the City non-profit organizations and to call them to find out what the
impacts of the increased utility rates are. He did a terrific job and gave
him a two-page report that he would like to put on the agenda for the next
meeting. He found out that the Suicide Prevention Crisis Center and the Haight
Ashbury Clinic are laying off people because of utility bills, and that Laguna
Honda is projecting an increase of $5,000,000 in their electrical bills this
year. He found out through calling a series of non profits that they are willing
to discuss these issues with the Commission and to give them vital information
that they need to base their future decisions. He suggests that the Commission
address a formal request to USF to provide them with this internship program
and invite a professor from USF to the next Commission meeting.
Supervisor McGoldrick concurred.
No Public Comment:
11. Public Comment on Items not on the Agenda.
Ernestine Weiss left copies with the Commission regarding
a statement from a distinguished colleague named Brian Brown who is on the
Mayor’s Infrastructure Task Force where he makes a lot of wonderful recommendations
for immediate action to lower utility rates. She would like to know if it
is under the Commission’s jurisdiction to take emergency measures before the
measure goes on the ballot.
Chair Eisenberg stated that the Commission does not have
emergency control measures.
Ernestine Weiss asked whom this issue could be brought
to.
Chair Eisenberg suggested the Board of Supervisors.
Harold Toppel, City Attorney, Brisbane stated there is
a memorandum in the Commission packet from Mr. Hobson regarding the invitation
for a joint meeting. He wants to clarify that the memorandum indicates that
Mr. Toppel made the decision for a joint meeting on behalf of Brisbane. That
is not the case. There was a public meeting by the Brisbane City Council.
The Council decided it was premature to have a meeting because they are waiting
for more information to be provided on the proposal. The City Council is not
opposed to the meeting.
No further Public Comment
12. Adjournment: The meeting adjourned at 12:23 p.m. The
next meeting of the LAFCo Commission is on May 18.