Meeting Information
MINUTES
Special Meeting
Friday, May 18, 2001 at 10:00 a.m.
City Hall, Room 263
Chairperson: Commissioner Eisenberg
Members: Commissioners Ammiano, Maxwell, Daly, and
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 10:12 a.m.
Members Present: Commissioners Daly, Gonzalez, Maxwell, and McGoldrick; and Chair Eisenberg
Members Absent: Commissioner Ammiano
2. Public Hearing: Discussion and adoption of the final SF LAFCo 2001-2002 Fiscal Year Budget (Government Code Section 56381).
No Public Comment:
Commissioner Daly questioned whether the first budget-line item, Salary for Personnel, a figure of $72,000 is the Executive Officer’s salary?
Gloria L. Young, Executive Officer, stated that this amount was identified as salaries, whether hers or whether or not they needed to hire staff. Her salary has not been effected yet in respect to this position.
Commissioner Daly asked the Executive Officer if there are discussions about remunerating the Executive Officer for work as LAFCo Executive Officer currently in her contract as Clerk to the Board.
Gloria L. Young, Executive Officer stated that President Ammiano requested by memo in October that she takes the Executive Officer position in an interim capacity. She accepted that responsibility. He then requested that she take the position of Executive Officer as a permanent position. The LAFCo Commission approved the permanent appointment in November. Supervisor Ammiano then requested by ordinance to the Board of Supervisors Office, which was prepared by the City Attorney’s Office, that the position be added on a formal basis to her position as the Clerk of the Board. That ordinance was approved and the section of the ordinance did talk about remuneration for the position that she believes is in discussion with the Board. It would be retroactive when it becomes effective.
Chair Eisenberg asked how the Board of Supervisors has the jurisdiction to determine the compensation of the Executive Officer’s services for LAFCo?
Gloria L. Young, Executive Officer stated that the salary was based on other jurisdictions such as Santa Clara and several counties throughout the state where the Executive Officer is already on staff and it becomes an intradepartmental responsibility. There is this relationship that if the person serves in another position with the City, that the governing body of that position has a role in effecting that salary. She is also part of the Municipal Executive Association and that relationship needs to be included as well.
Chair Eisenberg asked if the $72,000 is designated or funds that are set aside.
Gloria L. Young, Executive Officer stated that it is funds that are set aside.
Chair Eisenberg stated that since the Board of Supervisors provided the money to LAFCo and since the Executive Officer works for the Board of Supervisors, the Board will give the Commission a suggestion as to how they should allocate additional funds for the Executive Officer’s additional compensation. It would be the Commission’s decision, but on a collegial basis the Commission would get guidance from the Board of Supervisors.
Gloria L. Young, Executive Officer stated that the revised budget reflects the amendment from the April meeting to increase the Commissioner’s stipend. An eighteen meeting period was selected, twelve months, once a month and if the Commission needed additional meetings because of additional work. The Board’s budget that included funds for LAFCo was submitted in February. The LAFCo funds have been set aside in a sub fund rather than an operating budget fund. The budget needed to be a base budget when it was submitted to the Mayor’s Office. The funds for LAFCo are set aside in a project fund, which means that no additional funds have been added to that fund. With the consideration of the Board, the remainder of the reserve that was set-aside during 2000-2001 is the funds that will carry over to the next fiscal year. The $604,000 that was not expended is the funds that are the 2001-2002 SF LAFCo budget.
Chair Eisenberg asked if the Executive Officer is referencing the present budget in front of the Commission?
Gloria L. Young, Executive Officer concurred and stated that if LAFCo does not spend excessively out of the funds that are currently there this fiscal year, then the Commission will have the $458,000 in the 2001-2002 budget.
Chair Eisenberg asked if that means that LAFCo would have a $200,000 surplus?
Gloria L. Young, Executive Officer, stated that a consultant has not been hired yet to do the Sphere of Influence Study, so she does not anticipate a surplus.
Commissioner Gonzalez asked the Executive Officer about Item 7 on the agenda that they will be discussing the adoption of the proposed work for the Sphere of Influence Study. He noticed that the focus right now is on energy. He is wondering in so far that it is limited to that, if that has been taken into account in the budget, or does the Commission have power once they approve the budget to expand the Sphere of Influence?
Gloria L. Young, Executive Officer, stated that LAFCo does have the authority to expand the budget and request a change to the amount that is recommended.
Supervisor Gonzalez asked how the Commission is basing the conclusion that some of the work such as the Sphere of Influence or CEQA review can be done for this amount of money? The work has not been put out to bid.
Gloria L. Young, Executive Officer, stated that the work has not been put out to bid. If they receive proposals back that exceed the funds that are in reserve and allocated to transfer into Fiscal Year 2001-2002, they would be in the position of requesting a supplemental budget from the Board of Supervisors. The Controller’s Office has set these funds aside in a sub fund program and what goes over into the 2001-2002 budget is what is remaining from the 2000-2001 fiscal year budget. So far, the $604,000 that has been placed in reserve has not been used. If the scope of the study was to be expanded and the Commission would use a fee such as $300,000, that would leave the Commission with a balance of $304,000 for the next fiscal year. That figure would be less than what they budgeted for this fiscal year. When these funds were budgeted, a full CEQA review was expected. That is not monies that are being expended because they received the Certification of Determination of Exemption from Environmental Review from the Planning Department based on Supervisor Gonzalez’s Resolution.
Supervisor Gonzalez asked if there have been comparable studies in other counties and that there should be more specifics before the budget is approved.
Chair Eisenberg stated that he doesn’t think the Executive Officer can answer those questions. You ask the Executive Officer to peg a figure, take testimony, and then put it out for bid to see if anyone is interested in doing the work.
Gloria L. Young, Executive Officer stated that through conversations with members of the American Public Power Association (APPA) and California Municipal Utilities Association (CMUA), $200,000 and $300,000 seemed reasonable for a consultant to do the study based on the scope of services that the Commission has before them today. The dollar amount required for the scope of work for the Sphere of Influence was developed with the City Attorney’s Office and reviewed by a another agency’s Utility District and by APPA members.
Commissioner Gonzalez asked to discuss the matter of legal services and what is being budgeted in conjunction with Item 6, Resolution appointing the San Francisco City Attorney as legal counsel for SF LAFCo, before final action is taken on the budget.
Gloria L. Young, Executive Officer, stated that the funds in the budget are based on the use of internal services. Approval depends on whether the Commission wants to use funds for internal or external services.
Public Comment Closed
Chair Eisenberg asked if the Commission could approve the rest of the budget and take the legal services item out of the budget and defer it to Item 6.
Gloria L. Young, Executive Officer stated that the Commission would have to speak to the Deputy City Attorney. If you close the public hearing and adopt the budget, she is not sure that if you amend the budget that you would not need to do another public hearing notice to reopen the item. The simplest way is to continue the budget until Item 6 has been discussed.
Chair Eisenberg stated that the adoption of the final SF LAFCo 2001-2002 Fiscal Year Budget would be continued until the Commission discusses Item 6, Resolution appointing the San Francisco City Attorney as Legal Counsel for SF LAFCo.
3. Public Hearing: Discussion and adoption of Policies and Procedures to require the disclosure of contributions, expenditures, and independent expenditures made in support of or opposition to a proposal for a change of organization or reorganization. Government Code Sections 56021, 56069, 56073, 56100.1, 56300(b), and 81000 et seq.
Gloria L. Young, Executive Officer stated that Item 3 is a result of the Cortese-Knox-Hertzberg bill that states there be policies and procedures to require the disclosure of contributions, expenditures, and independent expenditures made in support of or opposition to a proposal. The Commission has the opportunity to request that she come back with policies and procedures at the next meeting. This item is a required public hearing. If the Commission chooses not to adopt formal policies and procedures at this meeting or to request the Executive Officer to prepare policies and procedures for adoption, policies and procedures would need to be in effect at the time the MUD petition is on the ballot. The way the bill reads is that Government Code Section 81000 et seq. will apply to measures placed on the ballot regardless of whether the Commission adopts formal policies and procedures requiring disclosure.
No Public Comment
Gloria L. Young, Executive Officer stated that since there is nothing effective right now, the Commission can wait and at the time the measure is on the ballot, she could provide procedures and policies.
Chair Eisenberg moved to continue this item to the Call of the Chair; Commissioner Maxwell seconded.
VOTE:
AYES: Commissioners Gonzalez, Maxwell, and Chair Eisenberg
NOES: None
ABSENT: Commissioners Ammiano, Daly, and McGoldrick
4. Public Hearing: Discussion and adoption of Policies and Procedures to require lobbying disclosure and reporting requirements for persons who attempt to influence pending decisions by members, staff or consultants of the SF LAFCo. Government Code Section 56300(c).
No Public Comment
Commissioner Daly and McGoldrick are present.
Chair Eisenberg stated that these are Policies and Procedures that were worked out by the Executive Officer, previously reviewed by the Commission, and in accord with the necessary policies and procedures.
Gloria L. Young, Executive Officer stated that the policies are not before the Commission at this time. This item is to indicate that there is a requirement that the Commission hold a public hearing to determine whether the Commission wants the Executive Officer to prepare policies and procedures.
Public Comment Closed.
Chair Eisenberg moved to request that the Executive Officer prepare Policies and Procedures; Commissioner Daly seconded.
VOTE:
AYES: Commissioners Daly, Gonzalez, McGoldrick, and Maxwell and
Chair Eisenberg
NOES: None
5. Public Hearing: Discussion and adoption of Policies and Procedures for General Operations of SF LAFCo.
Gloria L. Young, Executive Officer, stated that these General Policies and Procedures for general operations of SF LAFCo were prepared in conjunction with the City Attorney’s Office, and they are a compilation of policies and procedures of other LAFCo’s throughout the state. Her recommendation to the Commission is to continue this item because it is an extensive document that was received by the Commission this week and take public comment. The policies and procedure could be approved at a future meeting.
No Public Comment
Commissioner McGoldrick asked the Commission if there is anything that should be highlighted.
Dorji Roberts, Deputy City Attorney stated that he compiled these policies and procedures after looking at LAFCo policies and procedures from a number of different counties throughout the state. There are a number of policies in this 20-page document. He recommends that each of the Commissioners take the time to review them, if the Commissioner has questions, contact the Executive Officer or himself, and if there are revisions, they would be happy to come back with a new draft. Some of them will be policy decisions for the Commission to make. There are certain policies contained within this document that derive directly from the new Cortese-Knox-Hertzberg legislation that would be mandatory regardless whether they are set forth in this document.
Chair Eisenberg stated that when they went through these policies and procedures in November, the Commission developed and adopted a rule specific to MUD. He hasn’t reviewed the policies in detail, but he is assuming that there is nothing in these policies and procedures that would abrogate that rule.
Dorji Roberts, Deputy City Attorney stated that these procedures are different from those developed last year. Last year’s policies dealt directly with the processing of a petition to form a Municipal Utility District. These are general policies and guidelines that govern a variety of different types of proposals that may come before LAFCo in the future. There are no such proposals before the Commission at this time.
Chair Eisenberg asked if there is anything that is retroactive about these Rules.
Dorji Roberts, Deputy City Attorney stated that was correct.
Commissioner Gonzalez asked if the Deputy City Attorney could address the Policies and Procedures, LAFCo Budget, Section 1.61. How common is it in the other policies and procedures of other LAFCos to mandate that the budget be equal to or greater than the budget adopted the previous fiscal year?
Dorji Roberts, Deputy City Attorney stated that it comes directly from the Cortese-Knox-Hertzberg legislation, and not a policy that he adopted from other counties. The legislation states that the Commission must make a finding that any reduction in the LAFCo funding would nonetheless allow the Commission to fulfill all of its obligations and programs under the LAFCo law.
Commissioner Gonzalez asked if Cortese-Knox speaks to LAFCo being under the purview of the Board of Supervisors.
Dorji Roberts, Deputy City Attorney, stated that LAFCo is an independent agency created under state law and it is not captive of the Board of Supervisors. All other counties are not consolidated cities and counties, and the representation is more diverse as far as representatives from cities within the county and representatives of the county government. Many LAFCo’s in the other counties also have district representation. We are in a unique position being a consolidated City and County, and the Board of Supervisors is the legislative body for the City and the County.
Commissioner Gonzalez asked to clarify Policies and Procedures, Section 4.42, "the proposed entity shall be able to provide sufficient revenue to provide the requested service."
Dorji Roberts, Deputy City Attorney stated that the Commission would pass judgement upon whether to approve the formation of a special district and whether that district has an anticipated revenue stream that would be sufficient to provide service in the geographic area it would be serving.
Commissioner Gonzalez asked if the LAFCO has the ability to do any sort of revenue bond capacity.
Dorji Roberts, Deputy City Attorney stated that the LAFCo would not be issuing revenue bonds. If revenue bonding were one of the sources of revenue that would be available to a particular type of district that would be proposed to be formed, then financial analyses would be submitted to the LAFCo with the application for LAFCo approval to form that district. It would be up to the Commission to review those documents, determine if they are adequate and, if the Commission felt comfortable that the revenues that would be available to the district, including possible revenue bonding, would be sufficient to provide the services.
Commissioner Gonzalez stated that without revenue bond capacity, Section 4.42 would be an impediment to a determination in the area of electricity.
Dorji Roberts, Deputy City Attorney stated specifically in regards to energy that it is not LAFCo that would issue the bonds to obtain the money and provide the money to a new district--it would be the district itself. The Commission would have to look at the enabling legislation in state law to see if the district was authorized to provide those types of bonds.
Chair Eisenberg stated that the MUD enabling legislation does provide for the sale of bonds.
Supervisor Gonzalez inquired about Section 2.6, Special Studies, the phrase, "discouragement of urban sprawl" and asked if that is from Cortese-Knox.
Dorji Roberts, Deputy City Attorney stated that Section 2.6 was from Cortese-Knox. In San Francisco, although there is some open space left, we are substantially built out, so that is not for the most part going to be a consideration in the City and County of San Francisco. There are two other corrections that have to be made to the policies and procedures that he takes responsibility for:
1. Section 1.41, page 5, the Room Number 263 where the Commission normally meets has been left out.
2. Section 5, Definitions. As he first drafted the policies and procedures, he intended to put forth the definitions from the Cortese-Knox Act, but it ended up being twenty pages long, so he thought he would incorporate the definitions by reference. The last sentence should then be removed.
Chair Eisenberg asked the Deputy City Attorney about the retroactivity of these procedures. He thinks that he said that nothing is pending before LAFCo at this point. Is Supervisor Gonzalez’s Resolution pending before the Commission at this point?
Dorji Roberts, Deputy City Attorney, stated that he meant no proposals other than the formation of a MUD which is governed by the policies which were already adopted by the Commission.
Chair Eisenberg asked if it is the City Attorney’s interpretation of these policies and procedures that the shadow MUD is not controlled by these Rules?
Dorji Roberts, Deputy City Attorney stated it is not, to the extent that this Commission has adopted specific procedures governing MUD proposals. He did not go back and review those specific policies, but the intent was not to put anything in the policies and procedures other than general LAFCo procedures. There is a provision here that if there are policies and procedures in this document that are not relevant to a particular proposal, the Commission can ignore those provisions.
Chair Eisenberg stated that he thinks the rule needs to be checked because he is not sure it applies to the shadow MUD. He knows it applied to the initial MUD.
Dorji Roberts, Deputy City Attorney said he would review the matter and work with the Commission to develop rules that would adequately address this issue.
Chair Eisenberg stated that he thinks that the rule they developed in November referred to petitions signed by petitioners and not to Board resolutions. He thinks the distinction should be made that Board Resolutions would be captured by these rules, but that particular petition was not at that time.
Dorji Roberts, Deputy City Attorney stated that it would be appropriate for the Commission to review these rules to see if there is anything in them that is in odds with what the Commission would like to do with the shadow MUD.
Commissioner McGoldrick inquired about Section 1.25 that states that "alternate Commissioners do not routinely participate in closed sessions." Does "do not routinely" exclude the possibility because he thinks it would be acceptable for an alternate Commissioner to participate.
Dorji Roberts, Deputy City Attorney, stated it would be appropriate for an alternate member to sit in if needed to make a quorum. Routinely, they would not sit in on closed sessions where you had your regular Commissioners available to hear and take action on a matter.
Chair Eisenberg asked if that sentence was needed in the policies and procedures.
Commissioner McGoldrick stated there is the possibility that an issue is being discussed in closed session in which an alternate may not need to cast a vote, but the alternate may need that information. The alternate could participate but would not vote because there was a full-five vote. He would like an alternate to be part of closed sessions.
Dorji Roberts, Deputy City Attorney stated that would be another example of where it would be appropriate for an alternate to sit in a closed session meeting. The Commission can have the provision taken out.
Commissioner Gonzalez asked if the Commissioner’s term is four years.
Dorji Roberts, Deputy City Attorney stated that was correct.
Chair Eisenberg continued this item to the next meeting, asked the Deputy City Attorney to correct the sentence in reference to alternate Commissioners in Section 1.25, and provide the Commission with the corrections.
6. Resolution appointing the San Francisco City Attorney Legal Counsel for the San Francisco Local Agency Formation Commission (Continued from 4/5/01).
Public Comment
Bruce Brugman, Bay Guardian asked whether the City Attorney has answered the questions as requested at the April 5 meeting.
Chair Eisenberg replied that the Commission has not received a reply from the City Attorney’s Office.
Bruce Brugman, Bay Guardian stated that historically, the City Attorney has a conflict with this issue and the Commission has to deal with this issue. He does not see how legal counsel can be appointed without getting answers to those questions on the record. He would check to see if the minutes from the last meeting reflect the questions he discussed and make sure they are available for inspection.
Richard Ow stated that the City Attorney is delaying the processing of a MUD. Lately, they are cooperating with this Commission somewhat. The past record indicates that we cannot depend on the legal side of the City Attorney. He asks this Commission to appoint independent attorneys other than the City Attorney because the City Attorney has a bad record in regards to a MUD.
Public Comment Closed
Commissioner McGoldrick asked that there be an agenda item to hear from the City Attorney’s Office to clear up the allegations of a conflict of interest. He thinks the Commission should proceed along those lines. He has not seen the Minutes from the previous meeting.
Gloria L. Young, Executive Officer stated that the Minutes would be available at the next meeting. They have had a loss of staff in the office and Greg Hobson has been appointed as Deputy Clerk.
Dorji Roberts, Deputy City Attorney stated that he was not at the last meeting. Paula Jesson had been covering the hearings, but took ill and will be out indefinitely. He requested specific information as to what type of conflicts are referenced.
Commissioner Gonzalez stated that two items were raised. One was the relationship with PG&E through the City Attorney Louise Renne’s husband’s relationship with the law firm, Cooley Godward. The second item was the representation by the City Attorney both at the Board of Supervisors and the LAFCo. At the time the original MUD petition was placed on the ballot, the attorney representing LAFCo was visiting individual supervisors and speaking at the full Board of Supervisors about activity being taken by this body.
Chair Eisenberg corrected Commissioner Gonzalez and stated that what actually happened was that Mr. Roberts formed his own opinion, and Mr. Delventhal gave the opinion at the Board of Supervisors. The same office was representing LAFCo, but Mr. Delventhal stood up at the Board of Supervisors and stated he did not agree with what LAFCo did. They are trying to figure out how one office can give advice to one Board saying that the other Board shouldn’t have done what it did. Ms. Jesson stated that the Commission would receive something in writing at address these issues, and the Commission needs something in writing.
Dorji Roberts, Deputy City Attorney stated that both the Board and LAFCo would not present a conflict. It would be conceivable in some circumstances the interests of San Francisco and the LAFCo might differ in which case both the factual and legal issues would have to be looked at. There was recently a study performed by CALAFCo, the umbrella organization for LAFCo’s around the state. Of the counties that responded to this survey, 25 of 31 counties continue to use county counsel rather than obtaining independent counsel. Prior to January 1, the City Attorney’s Office was counsel for LAFCo by default in the absence of the appointment of counsel by the Commission. Since that time, there has been an obligation under the Cortese-Knox-Hertzberg law for this Commission to appoint counsel. The Commission is free to appoint the City Attorney or outside counsel either for all or specific matters.
Commissioner Gonzalez stated that the City Attorney was in the unusual position where they were giving advice to both the Board and representing the LAFCo and taking a particular position. This body specifically addressed the conflict concerns at the last meeting. He would not want to continue this item and would like to take a recess and have the Deputy City Attorney bring someone from his office to address the questions.
Chair Eisenberg stated that after the last meeting, Ms. Jesson had a medical situation occur. Under normal circumstances, he would agree with Commissioner Gonzalez although the City Attorney is saying they are not prepared to address the item. He would not want to bring in someone else from the City Attorney’s office that is not prepared to address these questions. They had asked for written answers to specific questions and the transcript of that meeting is available.
Commissioner Gonzalez stated that he needs to hear from the City Attorney, Ms. Renne on the conflict. He and Mr. Delventhal have handled this matter at length.
Chair Eisenberg stated the problem he has is that after watching many of these hearings, the City Attorney will give the Commission general ethics advice. The Commission asked for specific rules. One question asked specifically is whether there is a State Bar or Ethics opinion. Second is whether the City Attorney should be answering these questions, or should these questions be referred to outside counsel. Third, the Commission specifically asked about State Bar rules. Fourth, the Commission asked if the Commission should consult the hotline. Fifth, how can it happen that their attorney, the City Attorney, ends up at a Board of Supervisors hearing and says that what the Commission did was wrong. They didn’t have an attorney who was at the Board of Supervisors saying what they did was right. Sixth, under those circumstances, isn’t the City Attorney required to advise the Commission in writing that he or she has a problem with their conclusion, and advise them that they have to have independent counsel. He thinks Mr. Roberts is saying that he is not prepared to answer those questions. He would like to have Mr. Delventhal answer those questions in depth, but he does not think it is appropriate to get Mr. Delventhal and bring him in without an opportunity to prepare.
Commissioner Gonzalez disagreed with Chair Eisenberg in that the items raised were not specific questions that the Commission was asking the City Attorney to address--these were components of factors that the Commission said raised the question of a potential conflict. He thinks the question of a conflict should not be addressed by outside counsel, but should be addressed by our counsel right now. He thinks this is a simple matter for Ms. Renne or a representative of her office who has been dealing with matters related to a Municipal Utility District for over a decade to step in and address why her office is saying there is not a conflict. He does not think that the illness of an individual attorney who often times was filling in for other attorneys who had been handling this matter justifies a continuation of a question of a conflict that can be answered very quickly.
Dorji Roberts, Deputy City Attorney stated that generally speaking that there is no conflict in the City Attorney’s Office in representing both the Board of Supervisors and the LAFCo. Whether specific circumstances may arise where the interests of San Francisco and the Commission may differ, those would then have to be addressed at that time. The City Attorney has an Ethics Team that investigates both the legal and factual issues involved in conflicts. If there are questions, they may seek outside assistance including going to the State Bar to ask for their assistance. The City Attorney’s response could vary if there is a conflict. There could be an imposition of an ethical or due process wall or retaining of outside counsel. Their office does have arrangements with other public law offices in the event that conflicts arise in order to try to minimize the cost of hiring outside private counsel. Without a specific factual circumstance, he cannot tell the Commission whether there was a specific conflict.
Chair Eisenberg stated that Commissioner Gonzalez is asking Dorji Roberts to go to the City Attorney’s Office and bring somebody back to answer specific questions.
Dorji Roberts, City Attorney stated that both Louise Renne and Buck Delventhal are not in the office and are on vacation.
Commissioner Maxwell asked Commissioner Gonzalez who he wants to answer these questions, whether it is Louise Renne or a particular person. If so, it seems to her that that person should be here to answer the questions.
Commissioner Gonzalez stated that Louise Renne has to answer the question.
Commissioner Maxwell stated that Louise Renne is not here and cannot answer the questions. She recommended that a special meeting be called to have the questions answered.
Dorji Roberts, Deputy City Attorney will inform the Commissioners through the Executive Officer when Louise Renne will return from vacation.
Gloria L. Young, Executive Officer stated that since this is one of the budget items, the Commission might want to call a special meeting prior to June 15 when the budget has to be approved and prior to June 1 when it is coming over from the Mayor’s Office.
Chair Eisenberg stated that the item in the budget says $100,000 for legal counsel, but does not specifically state it is for the City Attorney. The Commission can use the funds for the City Attorney or for independent counsel.
Gloria L. Young, Executive Officer stated that when she estimated the $100,000 for legal counsel, it was based on internal counsel support. She looked at the average fees within the City and County of San Francisco, which she believes to be $140 to $150 an hour. Compared to outside resources that figure may go up. There would be a limit as to who could be used from outside counsel.
Commissioner McGoldrick asked what could be done internally to separate the person who could be involved in an identified conflict of interest.
Dorji Roberts, Deputy City Attorney stated that it is possible to impose a due process or an ethical wall where the one deputy who had the conflict would not have access to the files or discuss matters with the deputy who is working in the area.
Public Comment Reopened
Bruce Brugman, Bay Guardian stated that the City Attorney has helped defend PG&E for eighty years. He comes before this group and asks basic questions and the City Attorney, not Dorji Roberts who is a representative of the City Attorney, treats this group with contempt and has no answers. This one is in the hospital, the other one is on vacation, and there is no one who can answer Commissioner Gonzalez’s question. Bring somebody into the office that can answer these questions. The Commission should ask the real City Attorney to show cause why they should represent this group, and not represent PG&E as they have all these years. They should either show cause or the Commission should bring in an independent attorney.
Public Comment Closed
Commissioner Daly stated that he is prepared to vote against this Resolution at this time and would be open to continuing this item to a special meeting where the City Attorney, Ms. Renne can appear before the Commission.
Chair Eisenberg stated that the City Attorney has no testimony before the Commission supporting the Resolution.
Supervisor Gonzalez stated that he thinks it is fair to give the City Attorney an opportunity to respond to the allegations.
Chair Eisenberg stated that he does not know what the dollar amount is, but as he understands it they have been using outside counsel for the last five or six months which is Mr. Mihaly.
Dorji Roberts, Deputy City Attorney stated that Mr. Marc Mihaly has been retained and paid by the City Attorney’s Office to provide consultation regarding LAFCo matters.
Chair Eisenberg asked if Mr. Mihaly would be available to the Commission at the next meeting if this Resolution to appoint the City Attorney as legal counsel was voted down.
Dorji Roberts, Deputy City Attorney stated that the question would have to be posed to Mr. Mihaly.
Chair Eisenberg asked if the Commission is paying for Mr. Mihaly’s services as a consultant to the City Attorney.
Dorji Roberts, Deputy City Attorney stated that the City Attorney is paying for Mr. Mihaly’s services.
Chair Eisenberg asked if the City Attorney is being reimbursed through the Commission’s budget?
Dorji Roberts, Deputy City Attorney stated he has not been involved in the financial matters with respect to their representation.
Commissioner Maxwell asked if the Commission could ask the Executive Officer to find out what it would cost for outside counsel and to compare costs. If people feel strange about the City Attorney, we should look into getting outside counsel.
Commissioner Gonzalez stated that the City Attorney is contracting with another attorney to provide certain services. Without speaking to the quality of the services, the purpose of the Commission hiring outside counsel is for the purpose of not hiring outside counsel that has a relationship with the entity that has a conflict.
Dorji Roberts, Deputy City Attorney stated that if they wanted to hire outside counsel, it would be up to the Commission and not the City Attorney to hire outside counsel.
Chair Eisenberg stated a professionalism concern to Mr. Roberts. This Commission is entitled to the most professional legal advice it can get. He has seen a change in the attitude of the City Attorney, but he believes in the last couple of months that both deputies have been extremely cooperative and helpful. The deputies have to be separated from the office. He thinks it is vital that the Commission continues with the advice of the deputies because they are guiding the Commission through an unknown process. This Commission is a new Commission and needs legal advice. He commends both Mr. Roberts and Ms. Jesson for their work. The Commission has policies and procedures and is moving along quite rapidly. He would not be prepared to vote against the Resolution at this time because he respects the professionalism of the deputies. The City Attorney was required today to show cause with respect to a series of serious ethical questions that were asked at the last meeting. The boss is on vacation. A clear and firm message has to be sent to the boss that if the City Attorney continues to be the City Attorney for this Commission at its next hearing, the Commission expects detailed analysis and answers to every one of the questions that were asked at the last meeting. It would be the height of unprofessionalism if the questions were not answered in detail. At that point the Commission puts the City Attorney on notice that this Resolution may be voted down. The Commissioners have stated that they feel as if their time has been wasted because this item has not been addressed.
Commissioner McGoldrick asked Mr. Brugman for his opinion.
Bruce Brugman, Bay Guardian stated that out of this meeting came the fact publicly that the City Attorney has an attorney, Marc Mihaly who is advising them on LAFCo. Or is he? Has he ever been to a meeting? Do you know how much he is being paid? Why is he not here today? He is supposed to be the expert and he is secretly meeting with the City Attorney probably to ruin the process.
Chair Eisenberg stated that he has met with Mr. Mihaly and he charges approximately $450 an hour and that is good reason not to have him here.
ACTION: Chair Eisenberg is specifically asking the City Attorney to appear personally and respond with written authorities to back up her opinion regarding the issues discussed.
Item 2, Public Hearing: Discussion and adoption of the final SF LAFCo 2001-2002 Fiscal Year Budget (Government Code Section 56381) has been recalled.
Chair Eisenberg stated the Executive Officer should note that there does not need to be a change in the budget with the provision that the $100,000 is for legal counsel, not for specific legal counsel.
Gloria L. Young, Executive Officer stated that when Commissioner Daly asked about the salary and benefits, that $72,000 was not strictly for the Executive Officer--it also included salary for a temporary clerical support staff.
She would refer to Commissioner Gonzalez’s report on the Policies and Procedures, Section 1.6 on the LAFCo’s budget. The Commission is in an odd situation with the City and County of San Francisco because the LAFCo budget is part of the Board of Supervisor’s budget--it is not a separate entity budget. Therefore, it affects the overall baseline budget because a part of the Cortese-Knox-Hertzberg law indicates that the budget you adopt this year becomes your base budget for future years. Section 1.62 specifically indicates that LAFCo shall cooperate with the City and County as much as possible to accept budget cuts when necessary and when the requested cuts are compatible with the annual budget. That is based on the fact that the Cortese-Knox-Hertzberg bill sets this up as your baseline budget.
Commissioner Gonzalez stated that the report from the Planning Department that relates to the CEQA review shows exempt status.
Gloria L. Young, Executive Officer stated that she just received the CEQA review the other day and had it distributed to the Commissioners. She had spoken to the Planning Director a couple of weeks ago. Because of Supervisor Gonzalez’s Resolution, the Commission is going through all of those processes with respect to the MUD. The CEQA review relates specifically to that MUD proposal that is exempt at this time.
Commissioner Gonzalez asked what the $100,000 line item budget that is set aside for CEQA relates to.
Gloria L. Young, Executive Officer stated that the $100,000 is for LAFCo to do a Sphere of Influence Study on a number of issues. If in the next fiscal year, the Commission chose to do an Environmental Impact Report, $100,000 has been left in the budget. When the amount was first put in it the budget, it related specifically to the MUD proposal.
Commissioner Gonzalez stated that as he understood the budget, the Sphere of Influence was being done under consulting services.
Gloria L. Young, Executive Officer stated that she first did this budget before the Commission back in November had asked for a Sphere of Influence Study. The budget was based on what was in other counties throughout the state. Other counties have separate lines for CEQA reviews and consultants because of the proposals that can come before this body.
Chair Eisenberg asked if the $100,000 is specifically for the consultant to do the scope of work for the Sphere of Influence.
Gloria L. Young, Executive Officer stated that the $100,000 was her estimate in November and has been carried forward. The estimate was based on the kinds of consulting services that were used in other districts and other LAFCo’s. Given the fact that the energy Sphere of Influence Study probably will be more than that, they would reallocate funds in the $604,00 budget based on the kinds of proposals that are received. If one costs more than the other, dollars would be transferred or she would come back to the Board to ask that funds be reallocated to the portion of the budget where the funds were needed.
Chair Eisenberg asked if the Commission would need the Board of Supervisors consent to reallocate funds as needed.
Gloria L. Young, Executive Officer stated that the funds are on reserve at this point and she is waiting for the Commission to approve the scope of work for the Sphere of Influence and the consultant’s selection process. She would then request that the Board unreserve those funds that are currently on reserve.
Chair Eisenberg asked if the Board of Supervisors has the right to refuse to release the funds or is it automatic.
Gloria L. Young, Executive Officer stated that the funds are under the purview of the Board of Supervisors. The previous Board put those dollars on reserve because there were no proposals before them requesting those funds with respect to Sphere of Influence studies or CEQA guidelines.
Commissioner Eisenberg moved that the adoption of the final SF LAFCo 2001-2002 Fiscal Year Budget is passed with the understanding that legal services are not for any specific legal services. That does not need to be in the Resolution; Commissioner Maxwell seconded.
VOTE:
AYES: Commissioners Gonzalez, McGoldrick, Maxwell and
Chair Eisenberg
NOES: None
ABSENT: Commissioners Ammiano and Daly
ACTION: Passed
7. 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 (Continued from 4/5/01).
Gloria L. Young, Executive Officer stated that the scope of work for the Sphere of Influence Study was presented to the Commission at its April 5 meeting. The Commission formed a Subcommittee, which included Chair Eisenberg and Commissioner McGoldrick. Chair Eisenberg and Commissioner McGoldrick met and suggested recommendations to the scope of work for the Sphere of Influence Study. On Monday, May 14, the staff met with Bernard Choden who had agreed to review and clarify the changes that he had outlined. Before the Commission are combined recommendations of the Subcommittee and Mr. Choden’s comments in two versions. The Executive Officer read Chair Eisenberg and Commissioner McGoldrick’s version. When the staff and Mr. Choden met on May 14 that included Deputy City Attorney Roberts, the Clerk Gregoire Hobson and herself, Mr. Choden indicated that there was consensus in adding additional changes. The copies reflecting those changes were passed out to the Commission and made available to the public.
Commissioner McGoldrick asked where the consensus came from.
Gloria L. Young, Executive Officer indicated that it was Mr. Choden’s understanding that his comments were to be added to this document so she has given the Commission that second version.
Commissioner McGoldrick stated that the second version would be added for consideration. There was no discussion with the Subcommittee and Mr. Choden, but the other version would be worth consideration.
Gloria L. Young, Executive Officer read the changes that were added by Mr. Choden. She stated that a letter was received yesterday afternoon from the Brisbane attorney and arrived too late to be included in the packet. Mr. Toppel indicates that he is unable to attend the SF LAFCo meeting today. The point he has made in his letter has been corrected by adding "Other Potential Areas" to the title.
Chair Eisenberg stated that the Executive Officer does not need to read the letter because the Commission has it in front of them and that Brisbane is mentioned on the second page of the document.
Commissioner McGoldrick asked if the version of the scope of work influenced by a meeting with Mr. Choden was subject to Brown Act requirements regarding general circulation to the public?
Gloria L. Young, Executive Officer stated that the document on the Sphere of Influence Study, which includes the Commission’s comments as well as Mr. Choden’s was part of the packet that went out to the Commission.
Commissioner McGoldrick requested changes be made to the larger draft document and discussed those changes with Chair Eisenberg and the Executive Officer with final agreement on revisions.
Public Comment
Bruce Brugman, Bay Guardian stated that this is a historic document that looks good to him. He can speak with expertise because they at the Guardian have journalistically been doing these feasibility studies and publishing them by others for years. They all come out and say that San Francisco should have public power and bring its own Hetch Hetchy power back. But everytime they say whoever did the study is not an expert and that PG&E has all the answers. He is suggesting that this is a great way to proceed and to make sure the consultant is qualified to do MUD work so it can hold up in the public court of opinion.
Richard Ow, CLUB member stated that they have been on their way to public power through MUD. This document if followed will get to the main point of less stoppage of electricity supply and a lower rate.
Paul Goerke, former Brisbane resident stated that Brisbane has proceeded San Francisco with a study of energy and electricity issues and should be available to the Commission as a resource. In his opinion, it is an unbiased study.
Chair Eisenberg stated that he would like to add additional changes to the draft document under Roman Numeral 2A as follows:
· Add Number 5, Renewable and Sustainable Alternatives.
· Add a small a, energy efficiency
· Add a small b, energy alternatives including but not limited to solar power, wind power and other known energy alternatives.
He thinks the document probably calls for an analysis, but he wants to call for those two items.
No further Public Comment.
Public Comment Closed.
Chair Eisenberg moved to adopt the proposed scope of work that include Mr. Choden’s revisions for the Sphere of Influence Study and Analysis with amendments that have been made. Commissioner Maxwell seconded.
VOTE:
AYES: Commissioners McGoldrick, Maxwell, and Chair Eisenberg
NOES: None
ABSENT: Commissioners Ammiano, Daly, and Gonzalez
ACTION: Passed
8. Discussion and approval of the process for selecting and contracting with the consultant for the Sphere of Influence Study (Continued from 4/5/01)
Public Comment
No Public Comment
Gloria L. Young, Executive Officer stated that the LAFCo Subcommittee took action at its April 5 meeting to direct the Executive Officer to evaluate the consultants for the Sphere of Influence Study in compliance with APPA and other relevant criteria and present the evaluation to the LAFCo Subcommittee. The Subcommittee would then forward their recommendation for final decision to the Commission. The Subcommittee was made up of Commissioners Eisenberg and McGoldrick.
Chair Eisenberg moved to approve the process for selecting and contracting with the consultant for a Sphere of Influence Study; Commissioner McGoldrick seconded.
VOTE:
AYES: Commissioners McGoldrick, Maxwell and Chair Eisenberg
NOES: None
ABSENT: Commissioners Ammiano, Daly, and Gonzalez
ACTION: Passed
9. Chairperson Eisenberg’s request for a discussion of SF LAFCo’s ability to request records from the Public Utilities Commission and other agencies (Continued from 4/5/01)
ACTION: Chair Eisenberg continued Item 9 to the next meeting.
10. Supervisors Newsom and Hall resolution requesting the San Francisco Local Agency Formation Commission to assist the Board of Supervisors with a full analysis of public power options and conservation/energy efficiency measures so that the Board may use this information to determine the best way of providing reliable cost effective, environmentally responsible electric service to San Francisco.
Gloria L. Young, Executive Officer stated that this Resolution is before the Board of Supervisors Public Utilities Deregulation Committee on Friday, May 25. On their agenda are a number of items associated with electricity and energy.
Chair Eisenberg requested that the Executive Officer advise the Committee that they have passed the Sphere of Influence Study and ask them if there is anything else that they are requesting. Item 10 is continued with the provision that the Executive Officer will advise the Board at the Board Meeting that it is the opinion of the Chair that the Sphere of Influence Study covers this Resolution. If there is something aside from the Sphere of Influence that they need, they can let the Commission know.
Commissioner McGoldrick asked if the Commission could forward a Resolution to the Board asking them to continue their consideration of this item because there are political implications, and this Commission has not had time to review the issue.
Chair Eisenberg stated that he is requesting that Supervisors Newsom and Hall appear at the next meeting to tell the Commission what they would like done after they have examined the Sphere of Influence.
Gloria L. Young, Executive Officer stated that she could send a memo to the Committee forwarding them the scope of work for the Sphere of Influence Study that the Commission just adopted. She would advise them that this item was continued and be present at the next meeting if they require information.
Commissioner McGoldrick stated that he was disappointed that no one is here to talk about this item, as it is an agenda item.
Chair Eisenberg stated that if the Supervisors do not appear at the next meeting, he would vote against the item because of fiscal considerations.
Gloria L. Young, Executive Officer stated that she welcomes any of the Commissioners that would like to attend the May 25 Board of Supervisors Public Utilities Deregulation Committee meeting.
ACTION: Continued to the next meeting.
11. Discussion of the University of San Francisco’s Internship Program
ACTION: Continued to the next meeting.
12. Future Agenda Items
No Public Comment
No discussion on future agenda items.
13. Public Comment on Items not on the Agenda
No Public Comment
The meeting adjourned at 12:16 p.m. The next meeting is scheduled for June 22, 2001 at 9:00 a.m.