Meeting Information
MINUTES
Special Meeting
Friday, July 27, 2001, 2:00 p.m.
City Hall, Room 263
Chairperson: Commissioner Eisenberg
Members: Commissioners Ammiano and McGoldrick
Alternate: Commissioner Gonzalez
Clerk: Monica Fish
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
2:08 p.m.
Members Present: Commissioners McGoldrick, Gonzalez and
Chair Eisenberg
Member Absent: Commissioner Ammiano
Chair Eisenberg asked the Executive Officer to state the
composition of the Commission at this time.
Gloria L. Young, Executive Officer stated that the members
currently are Chairperson Eisenberg, Commissioners McGoldrick and Ammiano
and Alternate Commissioner Gonzalez. There have been resignations by Commissioners
Daly and Maxwell. Commissioner Gonzalez is being recommended to fill the regular
seat on LAFCo. The Board of Supervisors will hear this issue after the charter
amendments are complete. At the time of Commissioner Gonzalez’s appointment,
the Commission would be without an alternate member.
Chair Eisenberg asked the Executive Officer if the Commission
has a quorum today because there are three out of four members present.
Gloria L. Young, Executive Officer stated that three members
would constitute a quorum.
2. Approval of Minutes of the previous meetings from March
1, March 6, April 5, and May 18, 2001
No Public Comment.
Chair Eisenberg moved to approve the Minutes from the
March 1, March 6, April 5, and May 18, 2001 meetings; Commissioner McGoldrick
seconded.
AYES: Commissioners McGoldrick and Gonzalez and Chair
Eisenberg
NOES: None
ACTION: March 1, March 6, April 5 and May 18, 2001 meeting
Minutes approved without objection.
3. Discussion of Contribution Limits for Candidates for
the Municipal Utility District
Dorji Roberts, Deputy City Attorney stated that the Commission
asked if contribution limits could be imposed upon candidates for the proposed
Municipal Utility District that is on the ballot. He advised that this Commission
does not have authority to impose contribution limits for MUD candidates.
State law governs this issue, which requires certain disclosures of contributions,
but there are no limitations.
Gloria L. Young, Executive Officer stated that Supervisor
Hall introduced a Resolution urging the candidates for the Board of Directors
of the proposed MUD to adopt voluntary contribution limits. The Board approved
the Resolution on June 4, 2001.
Public Comment
Bernie Choden stated that he is a candidate for District
2 of the Municipal Utility District. He thinks a voluntary contribution limit
of $1000 is fair.
Public Comment Closed
4. Discussion of a Sphere of Influence for the City and
County of San Francisco
Gloria L. Young, Executive Officer stated that the City
and County of San Francisco is required to adopt a Sphere of Influence in
order to comply with the consideration of the application of the Board of
Supervisors for the Shadow MUD. She recommends that SF LAFCo adopt the current
City and County’s General Plan that was adopted by the Board of Supervisors
and is on file in her office. It seems logical that the same plan is adopted
since the boundaries are contiguous and it is the simplest, easiest, and most
expeditious. SF LAFCo has the ability to adopt its own Sphere of Influence,
but it would take a lot of time because it includes a number of elements.
She will come back to the Commission with the application, recommendation,
and General Plan at a future hearing so it can be adopted. A motion and hearing
would be made at that time. She will talk more about this item when the Shadow
MUD is discussed in Item 6.
Chair Eisenberg stated that Item 5 has to do with the
selection of a consultant for the Sphere of Influence Study, and Item 4 refers
to a Sphere of Influence Study also. He asked the Executive Officer to explain
the difference between the two Sphere of Influence Studies.
Gloria L. Young, Executive Officer stated that the Sphere
of Influence in Item 4 is a more comprehensive one than required as a part
of the Cortese-Knox-Hertzberg Act. The Act requires that any jurisdiction
that has an application before the LAFCo needs to have an adopted Sphere of
Influence. The City and County of San Francisco does not have a Sphere of
Influence. The Sphere of Influence Study that is identified as Item 5 is for
the selection of a consultant to work on the options associated with providing
public power in the City and County of San Francisco.
No Public Comment
Public Comment Closed
5. SF LAFCo Subcommittee Recommendation and possible SF
LAFCo action regarding the selection of the consultant for the Sphere of Influence
Study
Commissioner McGoldrick asked if the Commission, when
no action is taken on items, is supposed to say "Continued to the Call
of the Chair" as part of official parliamentary status
Gloria L. Young, Executive Officer stated that is the
procedure followed by the Board of Supervisors, but SF LAFCo is within their
rights to follow their own procedure.
Commissioner McGoldrick stated that he wants to make sure
the Commission can bring a particular item back when the action stated is
"Continued to the Call of the Chair."
Chair Eisenberg stated that discussion items can be placed
on the agenda at any time, and there is no point in continuing them.
Gloria L. Young, Executive Officer stated that the SF
LAFCo Subcommittee interviewed the consultants at the Subcommittee Meeting
of July 13, 2001, and recommended the selection of E. J. Simpson, Utility
Consultant.
Chair Eisenberg asked the Executive Officer to read into
the record the letter received by Project Design Consultants, the consultants
who were not selected.
Gloria L. Young, Executive Officer read the letter from
Project Design Consultants written by Richard Miller, Vice President, thanking
the Commission for the interview, acknowledging Mr. Simpson’s experience,
and offering their services in the future.
Chair Eisenberg stated there were two candidates interviewed
by the Subcommittee to do the scope of work for the Sphere of Influence Study.
One candidate was E. J. Simpson, Utility Consultant, and the other candidate
was Project Design Consultants. There were a variety of differences in both
applications. The Executive Officer pointed out that there were incomplete
matters with respect to both applications. Mr. Simpson did not specify a completion
date, but stated that he would comply with the direction of the Executive
Officer, who indicated that the desired completion date would be October 2.
In addition, Mr. Simpson’s application did not directly respond to questions
involving the specific aspect of the Sphere of Influence and instead chose
to say who in his organization would be dealing with those specific aspects
of the Sphere of Influence. However, in his presentation, he did discuss what
he would be doing with respect to the specific tasks.
Project Design’s application had a key problem in that
they left their bid open ended in two respects. One, they said they would
be relying on LAFCo staff, and the Executive Officer pointed out that she
has no staff that they could rely on. Two, the exact cost of their bid was
not specified. They estimated that it could be $5000 to $10,000 more, and
they refused to give the Commission a specific price.
A discussion was held about opening the bid up to further
bidders because only two bids were received on time. It was pointed out that
if this were to happen, it would not be possible to complete this Sphere of
Influence Study prior to the election. The Subcommittee considered that to
be a crucial point. It was decided that the problems with Mr. Simpson’s bid
were solved because he said he would comply with the October 2 completion
date, and he specified what he would do with respect to the Sphere of Influence
during the interview.
The discussion of the Subcommittee revolved around the
qualifications of Mr. Simpson and Project Design. Project Design Consultants
acknowledged in their letter that Mr. Simpson had unique experience within
the electrical utility industry that they did not have. Mr. Simpson told the
Commission that he had been a manager of PG&E for twenty-five years and
had direct experience with creating Municipal Utility Districts and Public
Utility Districts in Redding and other areas. Project Design stated that they
had no direct experience with the tasks the Commission was looking for. The
Subcommittee concluded that Mr. Simpson was more qualified for this particular
Sphere of Influence. It was acknowledged that Project Design Consultants is
an expert in LAFCo Sphere of Influence Studies overall. They were invited
to come back and bid again in the second phase of the Sphere of Influence
in the event that LAFCo decides that more work had to be done. It was noted
that neither of the bids provided cost analysis for detailed accounting. Mr.
Simpson stated that in the event that he had to do further energy cost analysis,
he would subcontract with a nationally prominent accounting firm that was
familiar with energy questions. At the inception, they were advised by the
Executive Officer that this Sphere of Influence could cost $400,000. Mr. Simpson’s
bid was $90,000 and Project Design’s was $110,000.
Gloria L. Young, Executive Officer stated that she does
not recall stating $400,000, but she recalls an amount of $200,000. Mr. Simpson
and Project Design’s bids, as stated by the Chair are correct.
Chair Eisenberg stated that the Subcommittee scored in
favor of Mr. Simpson because he (1) was the low bidder (2) had expertise in
the direct tasks that the Commission was looking for (3) gave a precise bid
amount, and (4) gave a direct completion date. The Subcommittee recommended
E. J. Simpson, Utility Consultant to the full Commission.
Public Comment
John Kaufman, representing the Coalition for Affordable
Public Services stated that the Coalition strongly objects to the selection
of Mr. Simpson. The LAFCo is a public agency that needs to be neutral and
to make sure that an objective study will be done, and that is not the case.
The Commission should have gone back to get bids if they felt that the two
bids received were not qualified. Mr. Simpson has a long record of being outspoken
and partisan on the issue of a Municipal Utility District, which is the subject
matter of his study. According to numerous articles in the press, he has spoken
out in favor of this measure and has represented the campaign in favor of
this measure in public meetings. Mr. Simpson had formed the MUD concept that
was later adopted into a ballot measure. It is clear that this is not an objective
selection by the Commission. If this agency makes an endorsement, the public
trust must be upheld. By selecting Mr. Simpson, the Commission is not upholding
the public trust and selecting someone whom has a stated biased public view
on this matter. He is shocked and surprised with the actions that the Subcommittee
has taken and presumably the Commission will be taking if Mr. Simpson is selected.
He stated that he has nothing against Mr. Simpson personally, and he is entitled
to his point of view. However, he should not be selected to conduct an objective
third-party study that is paid for by a public agency.
Commissioner Gonzalez asked Mr. Kaufman for clarification
as to his association.
John Kaufman stated that he is associated with the Coalition
for Affordable Public Services dually registered as a campaign committee with
the State of California and the City and County of San Francisco on the Municipal
Utility District measure. The Coalition has been in existence for approximately
a year.
Chair Eisenberg asked Mr. Kaufman if he is an attorney.
John Kaufman stated that he is not an attorney and is
not speaking from a legal point of view, but is speaking from a public policy
point of view. When you have a public agency and that public agency is hiring
a consultant to do a study, you need an objective third party, not a partisan.
Commissioner Gonzalez asked Mr. Kaufman if the Coalition
for Affordable Public Services was established primarily to deal with the
MUD measure that will be on the ballot in San Francisco.
John Kaufman stated that was correct.
Richard Ow stated that he attended many of the workshops
Mr. Simpson has conducted and feels he is objective. As a result, he now has
a clear idea on the subject of electric lines and the generation of electricity.
The way to obtain a lower rate is through public-owned power. His meetings
are held in the Union Hall in the CLUB (the Committee to Lower Utility Bills)
and in other neighborhoods. He urges the Commission to assign Mr. Simpson
to the job. After reading Mr. Simpson’s objective report, the voters can render
a fair decision in the November election on the San Francisco MUD.
Bernie Choden stated that he is pleased by the scope of
work for the Sphere of Influence Study and with the selection of Mr. Simpson.
However, he believes this project is too inexpensive and recommends a reserve
account attached to the contract. There are contingencies and Mr. Simpson
has narrowed it down to the least possible cost. He recommended an evaluation
committee of expertise such as Dr. Price of PUC or the Women’s Energy Association,
people who are engaged in large-scale contractual consultancies on this subject
to make sure this is an objective study, to vouch for the contingencies, and
to expedite the study. He does not think it should be left up to the expertise
of the Commissioners.
Chair Eisenberg stated that there is a potential of a
reserve of approximately $400,000, and the Commission contemplates more steps
to complete the study. The Commission will first review this report, which
will be done by October 2 and then go into detailed cost analysis, as it has
another $300,000 to work with.
Public Comment Closed
Chair Eisenberg asked the Executive Officer to state for
the public what was done to pre-qualify both candidates to see if they have
the proper public power credentials. A question was raised as to whether the
selected candidate was qualified.
Gloria L. Young, Executive Officer stated that she did
not go through the pre-qualifying process before the consultant was selected.
Qualifications would be checked after selection and the contractual process
was underway.
The Executive Officer stated that SF LAFCo approved the
scope of work for the Sphere of Influence at their May 18, 2001 meeting. The
Request for Proposal (RFP) was published in the San Francisco Independent
on May 26, 2001. The Clerk’s Office received approximately twenty-six requests
for proposals, and they sent those out. In addition, the RFP was made available
on the web and posted. The deadline for prospective consultants to provide
their proposals was on Monday, June 25, 2001. Two proposals were received
by the timeframe and reviewed. The Commission received her recommendation
at the July 13 Subcommittee meeting.
Chair Eisenberg stated that he was delighted to receive
the letter from Project Design Consultants, as he was impressed with their
qualifications. The Subcommittee decided that the two bidding parties had
different types of expertise. The Commission may want to use Project Design
Consultant’s expertise in the future, and they were invited to come back into
the bidding process, which they acknowledged in their letter. There was a
dramatic difference between the two bidders. It is unusual to receive a letter
from one bidder saying that they are sure that the other bidder is qualified
and will do a good job, and that is what they got from Project Design. He
stated that there was acknowledgement at the Subcommittee meeting that Mr.
Simpson’s experience with public power was crucial in the determination. The
RFP process was an open and fair one. Had there been other consultants that
wanted to bid, they had ample opportunity. There were no objections to the
bidding process. The competing bidder indicated that they are interested in
participating at a later date.
Commissioner McGoldrick moved that the Commission accept
the recommendation of the Subcommittee and selects E. J. Simpson, Utility
Consultant, for the Sphere of Influence Study; Chair Eisenberg seconded.
AYES: Commissioners McGoldrick and Gonzalez and Chair
Eisenberg
NOES: None
ACTION: SF LAFCo has selected E. J. Simpson as the consultant
for the Sphere of Influence Study.
Chair Eisenberg advised Mr. Simpson that the Commission
would expect the report no later than October 2 at 5:00 p.m.
E. J. Simpson thanked the Commission and assured that
the report will be presented on time, in a form that is easily understood,
with the information that has been requested.
6. Discussion of the processing of the Application for the
formation of the San Francisco-Brisbane Municipal Utility District (Shadow MUD)
Gloria L. Young, Executive Officer stated that on February
23, 2001, LAFCo received a Motion from the Board of Supervisors requesting
that it consider a proposed formation of a MUD District in San Francisco and
Brisbane. Supervisor Gonzalez introduced the Motion, which the Board adopted,
and he spoke before LAFCo on March 1, 2001.
The Board of Supervisors application for the MUD is currently
being reviewed. She would refer to her March 27 letter to the Board President,
Tom Ammiano that indicates that in accordance with Government Code Section
56658, as the Executive Officer, she is responsible for determining whether
the Board’s application is complete.
The Executive Officer stated that she had worked with
other agencies to pull together the recommended documentation that SF LAFCo
needs in order to hear this item and to complete the application. The recommended
documentation includes (1) the Sphere of Influence from the City of Brisbane
(received from the County of San Mateo), (2) a General Plan for the City and
County of San Francisco (which she discussed with respect to the Commission
approving the Sphere of Influence Study), (3) a Certificate of Determination
of an Environmental Review (received from the Planning Department), and (4)
the legal description and the map of the City (received). When this item is
brought back to the Commission, the Commission will be asked to approve the
Sphere of Influence for the City and County of San Francisco. It is her understanding
that Chair Eisenberg plans to introduce a Resolution that would affect this
item.
Dorji Roberts, Deputy City Attorney stated that he was
not sure whether Chair Eisenberg would be introducing his Resolution today.
If so, he does have copies for members of the public and the Commissioners.
The Commission previously adopted Procedures for the Evaluation of Proposals
for the Formation of Districts that are initiated by governmental entities.
Those procedures set forth two alternatives, (1) for districts initiated by
governmental entities that specify the service that will be provided by the
proposed district, and (2) an expedited process by which proposals for formation
of districts that do not specify the service that will be provided. For the
latter there are certain determinations that this Commission must make under
the Cortese-Knox-Hertzberg Act and certain requirements that need to be included
in the application, specifically a plan for how to provide services. The expedited
process would authorize this Commission to defer some of the determinations
until such time as a district is formed and comes back to the Commission for
approval to provide a particular service.
Chair Eisenberg asked that his proposed Resolution be
passed out and made available to the public.
Dorji Roberts, Deputy City Attorney stated that in the
event the Commissioners had questions, he did bring additional copies of the
procedures for the formation of district proposals.
Chair Eisenberg stated that the Resolution of how the
Commission would process the Shadow MUD was developed in conjunction with
the Deputy City Attorney. When the Shadow MUD was first introduced, the Commission
was operating on unknown terrain in terms of how legislative areas worked.
After discussions with the City Attorney, it was determined that the LAFCo
could modify the Shadow MUD. The timing is such that if the MUD petition on
the November ballot would fail, he thinks it would be possible to do the things
that are necessary to put this particular MUD petition on the ballot by March.
Rather than delay the fleshing out of the proposal, he asked the City Attorney
to prepare this Resolution, which is a modification of the proposal. LAFCo
has the power to modify a proposal and approve it. It’s Commissioner Gonzalez’s
Motion that was set forth by the Board of Supervisors, so he will have something
to say about it. The Commission does want to initiate the process and discussion
today.
Commissioner McGoldrick asked if Chair Eisenberg’s Resolution
should be heard at a future date because it was presented today, and under
the Sunshine Ordinance and Brown Act that the Commission has adopted, the
Resolution was not made available to the public 72 hours before the hearing.
Chair Eisenberg stated that no action is being taken on
this item so the Commission is acting in accordance with the Sunshine Ordinance
and Brown Act. The only point of discussing the Resolution now is to get a
sense of the Commission as to whether it should move forward in this direction.
All that is needed today is a discussion and public comment.
Dorji Roberts, Deputy City Attorney stated that this item
is on the agenda for a discussion only of the processing of the Shadow MUD.
There could be no action taken on this item.
Commissioner McGoldrick asked if members of the public
were aware of the nature of the Resolution before the Commission today as
a result of the advertisement that was on the agenda.
Dorji Roberts, Deputy City Attorney stated that the agenda
specified that there would be discussion of how to process the Shadow MUD.
Not all explanatory documents necessarily have to be available to the public
in the agenda packet. It just depends whether it is reasonably described in
the agenda, so that persons would know to inquire or to attend the meeting.
Commissioner McGoldrick asked if the Commission indicated
to go in a certain direction, if that would constitute an action under parliamentary
procedures of the Brown Act and Sunshine Ordinance.
Dorji Roberts, Deputy City Attorney stated that the Commission
could discuss in general terms what the approach of the Commission would be,
but no formal action could be taken on this Resolution to modify the application
that has been submitted to LAFCo. That would have to occur at a later meeting.
Public Comment
John Kaufman asked what the purpose of this Resolution
is since there is a Resolution that has already been approved by the Commission
and the Supervisors and will be on the ballot this fall. What is the Commission’s
concern that has prompted this Resolution?
Chair Eisenberg stated that this Resolution is a separate
petition. There are two petitions that were forwarded to LAFCo. One will be
on the ballot in November. The second is Commissioner Gonzalez’s Shadow MUD
and is a totally separate item that has been pending before the Commission,
but for technical reasons had to comply with the application provisions of
the Cortese-Knox-Hertzberg law. The Executive Officer has advised the Commission
that those steps have been complied with. The question is if it is the sense
of this Commission after taking public comment, whether the Commission should
proceed with the Shadow MUD or flesh it out pursuant to provisions of the
Cortese-Knox-Hertzberg Act.
John Kaufman stated that he was not sure if he understood
what was stated. There is a measure on the ballot that would set up a MUD
with a broader scope than the Shadow MUD, and the scope of the original measure
also includes electricity. What is the feeling about why this Resolution for
the Shadow MUD is necessary?
Chair Eisenberg advised Mr. Kaufman to wait for Commission
discussion.
Paul Goerke stated that he is pleased that the Commission
is taking auxiliary steps that will help to make the MUD a reality. He has
wondered what other steps might be taken by the Board of Supervisors to make
it easier to pass this measure in November. Possibly enforcing the Raker Act
could be an auxiliary step in supporting the MUD.
Public Comment Closed
Chair Eisenberg stated that it is the advice of the City
Attorney that it might be more expeditious to proceed in this manner. The
Resolution is not an attempt to detract from Commissioner Gonzalez’s petition--it
is an attempt to expedite it. Since there is no objection, he will state an
intention to introduce this matter at the next meeting pursuant to the Sunshine
Ordinance and Brown Act.
ACTION: Call of the Chair to continue this item to the
next meeting for adoption and discussion of the Resolution directing that
the Proposal to form a Municipal Utility District (MUD) initiated by the Board
of Supervisors of the City and County of San Francisco be (1) modified by
the Commission to specify that the proposed MUD shall provide electric service,
and (2) processed in accordance with Part II of the Commission’s Procedures
for the Evaluation of Proposals for the Formation of Districts Initiated by
Government Entities.
7. Public Hearing: Discussion and Adoption of Policies and
Procedures for General Operations of SF LAFCo (Continued from May 18, 2001)
Dorji Roberts, Deputy City Attorney stated that at the
May 18, 2001 meeting, the Commission directed that there be changes made to
the General Policies and Procedures. He has made those changes in accordance
with the Commission’s direction and has the corrected copies available. The
changes were to (1) remove the provision in Section 1.25 that said that alternate
Commissioners would not routinely sit in closed sessions, (2) add Room 263
where this Commission normally meets, and (3) surplus language at the end
of the document that referred to definitions contained in the Cortese-Knox-Hertzberg
legislation.
Commissioner Eisenberg asked if since the Policies and
Procedures are made available at this time, and in order to comply with the
Sunshine Ordinance and Brown Act, whether this item should be continued to
the next meeting.
Dorji Roberts, Deputy City Attorney stated that the Commission
could act on the Policies and Procedures at this time. The only changes were
the corrections made at the last meeting, which was properly noticed. There
were no changes other than those and it was continued to today’s meeting.
No Public Comment
Public Comment Closed
Commissioner McGoldrick moved to adopt the Policies and
Procedures; Chair Eisenberg seconded.
AYES: Commissioners McGoldrick and Gonzalez and Chair
Eisenberg
NOES: None
ACTION: The Policies and Procedures for General Operations
of SF LAFCo were adopted without objection.
8. 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). (Continued from May 18, 2001)
Gloria L. Young, Executive Officer stated that at the
May 18, 2001 meeting, the Commission directed that the Executive Officer prepare
Policies and Procedures to Require Lobbying Disclosures. Those procedures
are before the Commission today for approval. The forms are similar to those
used by the Fair Political Practices Commission. Once the Policies and Procedures
are approved, they will be available on the web and distributed as indicated
in the Policies and Procedures to the Commission, the Director of Elections,
and the Board of Supervisors.
No Public Comment
Public Comment Closed
Commissioner McGoldrick moved to adopt the Policies and
Procedures to Require Lobbying Disclosures. Chair Eisenberg seconded.
AYES: Commissioners McGoldrick and Gonzalez and Chair
Eisenberg
NOES: None
ACTION: 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 was adopted with no objection.
9. Discussion and Possible Action on a Resolution Appointing
the San Francisco City Attorney as Legal Counsel for the San Francisco Local
Agency Formation Commission (Continued from May 18, 2001)
Dorji Roberts, Deputy City Attorney stated that correspondence
was received from City Attorney, Louise Renne, on this matter.
Chair Eisenberg asked if City Attorney Louise Renne’s
letter is available to the public.
Dorji Roberts, Deputy City Attorney stated that there
were two letters--one dated June 15 that was in the packet and a July 23 letter
that is available to the public.
Public Comment
Richard Ow stated that because of the City Attorney, the
San Francisco voters were not able to vote on a MUD in last November’s election.
If the election were held, San Francisco citizens would not have had to pay
a 50% increase in electrical bill rates. The City Attorney’s position is not
a comfort for the citizens of San Francisco. He urges the Commission to appoint
an independent attorney so that the attorney’s only objective is for the full
benefit of the San Francisco electric bill payers.
Bernie Choden stated that the county is an administrative
district of the state. The Commission should not want to have a City Attorney
as a counsel for a county operation. However, he has been impressed as to
the integrity of the counsel.
Public Comment Closed
Commissioner McGoldrick stated that given the message
in the letter dated July 23, 2001, the City Attorney is an unwilling counsel.
The Commission does not want to have an unwilling legal counsel as representation.
He suggested that the Executive Officer calendar an item as soon as possible
to seek independent outside counsel other than the City Attorney.
Chair Eisenberg stated that the City Attorney could have
responded by giving the Commission an economic disclosure. There are numerous
rules and procedures that have been set forth by the State Bar that could
have been complied with. However, the City Attorney has provided the Commission
with an excellent Deputy, Mr. Roberts, who is doing a substantial amount of
work and is essential to the functioning of this Commission. He believes that
Mr. Mihaly, who is outside counsel would charge approximately $400 an hour
and inside counsel would be approximately $200 an hour. In discussion with
Ms. Young, she feels comfortable working with the City Attorney and is worried
what would happen if the Commission would have to go to an outside law firm
every time things needed to be checked as to form. The preference would be
to go back to the City Attorney and ask her if she would consider creating
a firewall between herself and Mr. Roberts and to prepare a waiver of conflict
of interest.
Commissioner Gonzalez stated that the Commission would
essentially be asking the City Attorney to concede to a conflict to the extent
that a firewall is set up. He concurs with the Chair that a question of a
conflict was never resolved. The difficulty he had with the response is that
it went to the conclusion rather than trying to deal with the direct allegations
that were made. He stated that the City Attorney indicated that they do not
want to be the Commission’s counsel. The Commission should agendaize an item
to speak to outside counsel and determine costs.
Chair Eisenberg asked the Deputy City Attorney if the
Sunshine Ordinance refers to a firewall.
Dorji Roberts, Deputy City Attorney stated that the Sunshine
Ordinance specifies that the Deputy City Attorney assigned to the Sunshine
Ordinance Task Force shall be walled off from others in the office that provide
Sunshine advice. Ethical and due process walls have been created in the past.
Commissioner Gonzalez asked if there has been a firewall
created in the City Attorney’s Office if there was no conflict determined
to exist.
Dorji Roberts, Deputy City Attorney stated that he was
unaware of a firewall being created if no conflict exists.
Commissioner McGoldrick asked the Deputy City Attorney
for the foundation or rationale for creating a firewall between the Sunshine
Ordinance Task Force and the City Attorney’s Office.
Dorji Roberts, Deputy City Attorney referred Commissioner
McGoldrick to the people who drafted the Sunshine Ordinance and worked on
the campaign to explain the rationale.
Commissioner McGoldrick stated that the City Attorney
has indicated in her June 15 letter that she does not now have or ever had
a conflict of interest with any legal matter involving PG&E. He believes
that if there is another institution that should look into these allegations,
they should move to investigate. At the same time, LAFCo can accept on the
basis of that statement, that the City Attorney has responded to a request
from this body.
Commissioner Eisenberg stated that there is a standard
provision in a civil settlement that says if there is settlement, there is
no admission. There is a dispute and both sides decide to resolve the matter
in an amiable fashion. He is not asking for a concession by the City Attorney
that there is a conflict. He is asking her to accept that there is a problem
and resolve this matter without an admission of a conflict. The City Attorney
should recognize that if she doesn’t have a conflict, there is an appearance
of a conflict. Under those circumstances, it would make sense to create a
firewall.
Commissioner Gonzalez stated that it is not bad if there
is a conflict. The only problem would be a conflict that is not dealt with
appropriately. Previously, the Commission requested that the City Attorney
respond to serious allegations. The response received is not adequate and
he is not prepared to waive the discussion of whether or not the conflict
exists. He thinks the City Attorney has made it clear that she does not want
to represent the LAFCo. From her point of view, she could believe that there
is no conflict and not want to work with this body because of the manner that
the entire subject was approached. He recommended continuing the matter and
meeting with the City Attorney. He would not be supportive of a civil settlement
because the allegations are too strong.
Chair Eisenberg stated that he would like to continue
the matter and meet with the City Attorney to resolve the matter.
Gloria L. Young, Executive Officer stated that the Commissioners
should continue this matter to a meeting as soon as possible. There are immediate
needs to develop a contract with E. J. Simpson. An attorney will need to review
the contract before it is signed and delivered so the work can begin August
27, as outlined in the Request for Proposal. In reply to Chair Eisenberg’s
request for what the City Attorney and independent counsel is charging for
their services--records since October indicate $100 - $137 an hour for the
City Attorney. The hundreds of hours that LAFCo has used has completed the
$100,000 in the budget for the fiscal year. The Executive Officer stated she
would check the record to see what Mr. Mihaly, independent counsel, charges,
but approximated several hundred dollars per hour.
Chair Eisenberg stated he thought it was $400 per hour.
Commissioner McGoldrick recommended that the Executive
Officer prepare a Request for Qualifications (RFQ) immediately in order to
take bids and select outside qualified counsel other than the City Attorney’s
office, if required.
Gloria L. Young, Executive Officer stated that she would
prepare an RFQ. It would be an instrument that would not be prepared by the
City Attorney’s office.
Commissioner McGoldrick asked if the Commission could
embark upon an employment relationship on an interim basis with qualified
legal counsel, such as Mr. Mihaly.
Gloria L. Young, Executive Officer stated that she would
request at the next meeting that the Commission give the Executive Officer
the authority to solicit attorney support.
Commissioner Eisenberg stated that the recommendation
was to meet with the City Attorney between now and the next LAFCo meeting.
He asked Commissioner Gonzalez for direction as to the specific issues to
be discussed at the meeting.
Commissioner Gonzalez recommended that the Commission
obtain a response to specific allegations of conflict, substantive and specific
responses so the Commission can get beyond that issue to determine whether
there is a need for a firewall or whether outside counsel is needed.
Gloria L. Young, Executive Officer recommended that a
Subcommittee be set up to work on this issue before the next meeting.
Dorji Roberts, Deputy City Attorney stated that a three-member
committee would constitute a quorum of a Commission, so it would have to be
noticed as both a meeting of the LAFCo and the Subcommittee of LAFCo.
Commissioner McGoldrick asked if the Subcommittee would
have to meet with the participation of the public and whether it falls under
the areas of the Brown Act and Sunshine Ordinance. Would the Commission be
able to go into a closed session to discuss this sensitive topic?
Dorji Roberts, Deputy City Attorney stated that under
the Brown Act, unless a specific exemption applies that allows you to go into
closed session, you would have to conduct the Subcommittee meeting as a public
meeting as noticed.
Commissioner McGoldrick stated that the Commission is
under the presumption that the City Attorney would willingly come into a discussion
on this matter. Could the City Attorney legally choose not to appear at the
session?
Dorji Roberts, Deputy City Attorney stated that he does
not know what her response would be.
Commissioner McGoldrick recommended that one member of
the Commission attend the meeting.
Commissioner Gonzalez stated that the City Attorney’s
failure to appear would be a strong concession of a conflict. She is saying
she does not have a conflict so she needs to be there to interact with the
Subcommittee.
Commissioner McGoldrick recommended that a diplomatic
course should be followed, and that one member of this Commission and the
Executive Officer meet with the City Attorney.
Chair Eisenberg stated it is the consensus of the Commission
that the Chair and the Executive Officer would meet with the City Attorney’s
Office instead of using the Subcommittee process to resolve the matter. If
the issue cannot be resolved, he will report back at the next meeting. In
the meantime, a RFQ will be developed by the Executive Officer.
AYES: Commissioners McGoldrick and Gonzalez and Chair
Eisenberg
NOES: None
ACTION: Continued to the next regular meeting without
objection. In the interim, the Chair and the Executive Officer will attempt
to meet with the City Attorney’s Office to review the matter, and the Executive
Officer will prepare a Request for Qualifications for Legal Counsel.
10. Discussion: 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 May 18, 2001)
Dorji Roberts, Deputy City Attorney stated that a question
was raised whether this Commission has subpoena powers. The discussion is
academic at this time because the Commission has not asked for or been denied
access to records. He pointed out two provisions of the LAFCo-enabling legislation
that are set forth in the Cortese-Knox law, specifically: Section 56378 of
the Government Code states that various agencies shall provide the Commission
with studies and information that are necessary for the Commission, although
it does not specifically reference subpoena power. Their view is that if an
agency were to refuse to comply with a proper request, that it would be possible
to obtain a court order to compel that production. In addition, Section 56386
provides that officers and employees of a city, county, or special district,
including any local agency and various others enumerated in the statute, shall
provide the Executive Officer with information that is necessary to assist
her or the Commission, including the preparation of Executive Officer reports.
Chair Eisenberg asked the Deputy City Attorney if a court
order means a subpoena.
Dorji Roberts, Deputy City Attorney stated that it would
not be in the form of a subpoena. If the Commission made a request for records
to which the Commission is entitled and if that agency then refused, the request
could be enforced by a court order.
Chair Eisenberg asked the Deputy City Attorney if he thinks
Section 56386 is enforceable through court order.
Dorji Roberts, Deputy City Attorney stated that it would
depend on the facts and circumstances that existed at the time, i.e. was the
request made, what was asked for, what was the response of the agency or the
particular officials or employees involved? The facts would have to be analyzed
to determine whether a court order could be obtained.
Chair Eisenberg asked the Deputy City Attorney if in the
event that the Commission asked for records from the Public Utilities Commission
and they refused to give the Commission those records, would it be the position
of the City Attorney to go to court and obtain an order?
Dorji Roberts, Deputy City Attorney stated that it would
depend on what records were asked for. Applicable federal or state laws with
respect to exemption from disclosure would have to be reviewed.
Chair Eisenberg asked the Deputy City Attorney if he would
submit his opinion in writing.
Dorji Roberts, Deputy City Attorney agreed.
Chair Eisenberg stated that the Deputy City Attorney’s
opinion is valuable to the proceedings of this Commission. This Commission
may ask for the records of the Public Utilities Commission. If the request
were not complied with, it would make a big difference if the Commission could
obtain a court order.
Public Comment
Bernie Choden advised the Commission that this would be
done under the aegis of the recently approved Sphere of Influence Study. The
Commission wants a study in context so that when you ask for information,
there is a relationship. Especially since state law empowers LAFCo to address
investigations into any City agency within its Sphere of Influence. That is
an important precedent. The Commission should require the MUD, once approved,
to come back here with regard to efficacy and efficiency provisions. In order
to complete that appraisal, the Commission will need that power.
Public Comment Closed
11. Discussion on Supervisors Newsom and Hall’s 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 (Continued from May 18, 2001)
Commissioner McGoldrick asked if this issue was discussed
at a Committee or Subcommittee and if a recommendation was set forth.
Commissioner Gonzalez apologized, but stated that he would
have to leave the meeting.
No Public Comment
Public Comment Closed.
Chair Eisenberg motioned to table this item; Commissioner
McGoldrick seconded.
AYES: Commissioners McGoldrick and Gonzalez and Chair
Eisenberg
ACTION: Tabled without objection.
12. Discussion and Possible Action of the University of
San Francisco’s Internship Program (Continued from May 18, 2001)
ACTION: At the Call of the Chair, continued to the next
meeting without objection.
13. Discussion and Possible Action on the Legislative Report
on pending legislation of interest to SF LAFCo
AB 47 (Wiggins) - Municipal Utility Districts: Public
Agencies
AB 793 (Cox) - Municipal Utility Districts: Purchases
AB 948 (Kelley) - Local Agency Formation
AB 1495 (Cox) - Local Agency Formation
ACTION: At the Call of the Chair, continued to the next
meeting without objection.
14. Public Comment for Items not on the Agenda
Public Comment
Robert O’Malley, public citizen stated that he is interested
in contributing in the formation of committees for Presidio Trust issues.
He is not sure if the City has an Advisory Commission at this time. The Presidio
Trust discussed issues of traffic because of the planned reconstruction of
Doyle Drive in four or five years at a meeting he attended. He recommended
that the SF LAFCo could help in gathering environmental impact reports from
CALTRANS and Presidio Trust and making informed decisions for the City on
Presidio issues.
Public Comment Closed
15. Future Agenda Items
No future agenda items were discussed.
16. Adjournment: The meeting adjourned at 3:49 p.m.