Meeting Information
MINUTES
Subcommittee Meeting
Friday, September 21, 2001 at 10:00 a.m.
City Hall, Room 263
Chairperson: Commissioner Eisenberg
Members: Commissioner McGoldrick
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 10:09 a.m.
Members Present: Chair Eisenberg and Commissioner McGoldrick
Members Absent: None
Gloria L. Young, Executive Officer introduced SF LAFCo’s new legal counsel, Nancy Miller from Hyde, Miller, Owen & Trost; Donald Maynor, Esquire, and Fred Yanney. Donald Maynor is here representing us today.
2. Approval of Subcommittee Meeting Minutes dated July 13, 2001.
Commissioner McGoldrick moved to approve the July 13, 2001 Subcommittee meeting minutes; Chair Eisenberg seconded.
Public Comment
No Public Comment
VOTE:
AYES: Commissioner McGoldrick and Chair Eisenberg
NOES: None
ACTION: July 13 Subcommittee Minutes passed without objection.
3. Discussion and action regarding the contract between the SF LAFCo and E. J. Simpson, Utility Consultant for the LAFCo Sphere of Influence Analysis of Providing Public Power to the City and County of San Francisco and Other Potential Areas.
Gloria L. Young, Executive Officer stated that the Commission has her staff recommendation before them. The staff report is public record that is available in Room 244 and was available for public review 72 hours prior to today’s meeting. In addition, the Executive Officer announced that there is a pending lawsuit, Winchell Hayward vs. San Francisco Local Agency Formation Commission.
Public Comment
E. J. Simpson, Utility Consultant requests to make a few comments if the Subcommittee decides to accept the recommendation of Gloria L. Young, Executive Officer.
Chair Eisenberg stated that the Subcommittee cannot make a final decision, only a recommendation to the full Commission. The Subcommittee is considering a full recommendation at this time.
E. J. Simpson, Utility Consultant turned in a new draft of his proposal to the Subcommittee and the Commission Clerk.
Gloria L. Young, Executive Officer amended her recommendation to the effect that the Subcommittee recommend to the full Commission at its meeting of Friday, September 28 at 4:00 p.m. that E. J. Simpson, Utility Consultant, cease work on the project as of Monday, September 17, 2001.
Chair Eisenberg asked if legal counsel reviewed the Executive Officer’s recommendation.
Gloria L. Young, Executive Officer stated that Donald Maynor, Esquire, was involved with her staff recommendation, steps, and procedures as of this date.
Donald Maynor, Esquire stated that he had represented SF LAFCo and the Executive Officer at the ex parte meeting in which Winchell Hayward had filed a lawsuit. They agreed that the purpose of the hearing was to schedule a full hearing before the judge as they were seeking an injunction against Mr. Simpson’s contract. It was agreed that they would pick a time well after the LAFCo Commission hearing to consider this matter. The hearing date will be October 10, 2001. Because it is pending litigation, there will be an opportunity to discuss the merits of Mr. Simpson’s contract in a closed session at the Commission meeting of September 28. He would encourage that any discussion regarding his contract at this time be deferred until the September 28 Commission meeting.
Chair Eisenberg stated that public comment would be taken today. He understands that the Executive Officer’s recommendation stems from her review of the reports from the last couple of weeks and has nothing to do with the lawsuit.
Donald Maynor, Esquire stated that the Executive Officer’s recommendation occurred prior to the lawsuit. The lawsuit is a new issue that came up only a couple of days ago. He is alerting the Commission that because of the lawsuit there are a new set of circumstances that makes it difficult to discuss her recommendation because it involves talking about the merits of E. J. Simpson’s, Utility Consultant’s contract.
Chair Eisenberg stated that he prefers that the Subcommittee proceed with discussion and that the lawsuit and staff report are unrelated at this time. The Subcommittee will separate the two issues today.
Donald Maynor, Esquire stated any issue that the Executive Officer may raise in her report that involves the lawsuit, they would advise the Subcommittee not to discuss at this time. He would not want litigation to be jeopardized.
Commissioner McGoldrick asked if there is a connection between the discussion that could occur here and the issues raised in the litigation because the Subcommittee does not want to be in a position where they have discussed issues that still need deliberation.
Donald Maynor, Esquire stated that the problem is that the lawsuit that was filed identifies the first draft, and that is an issue that Ms. Young is focussing on.
E. J. Simpson, Utility Consultant stated that the first draft that he presented in two weeks as he was supposed to do were not drafts of his work-they were drafts of things that were being done. It was a mishmash of reports out of the computer, no conclusions, all of it to be modified. He pointed to Page 1.2 of the Response to the Request for Sphere of Influence Study and stated that was what he was contracted to provide in a professional manner. He wants the Commission to look at "Current Demand in all classes of service in San Francisco"--papers he has submitted show all documentation and he has backup. He was to discuss generation, transmission and identify resources. He has submitted papers that show that. He has extensive documents that support what he says. Under B, he is to project future San Francisco’s demands under a set of assumptions--that has been done. He has it documented, and there will be more added. Number 2, he is to talk about access to generation, transmission and distribution--he has done that and has documentation.
Commissioner McGoldrick asked where the documentation was.
E. J. Simpson, Utility Consultant stated that the documentation was in today’s draft that he prepared and turned in today. The others were not truly drafts that he had done-it was just mishmash out of the computer. He does not want LAFCo to defend work that they have called his work that was something merely presented as things he had in his computer to work on. They were called Draft 1 and Draft 2. They were not Drafts 1 and 2. They were nothing but an indication that he was working. As we go through these items, he has completed approximately 90% of what was asked for. They talked about energy efficiency that he has pages on alternative energy that he has professionally done. He wants to acknowledge that he was told to stop work. To him that means that his pay stopped. He could not stop and let the Commission think that the other work were his drafts. On Wednesday, when he met with Ms. Young because she made her decision, she did not feel comfortable to take any more documents from him. If you move to Page 1-5 about a Municipal Utility District, he has addressed that fully. The document that he turned in today is not 100% complete. One week from Monday, he can submit the total document that he was contracted to do. He has completed a major part of the document; he has documentation to back it up. He requested that he continues to work and put this document together in a professional matter and when the Commission reviews the document, they can decide whether you pay him or not.
Commissioner McGoldrick asked Mr. Simpson if the document that he turned in today was the document that he continued to work on when he felt that he was not any longer going to be paid. He asked if the document could be dated with today’s date.
E. J. Simpson, Utility Consultant stated that was correct. He has handed the document to the Subcommittee and the Commission Clerk. He has other copies as required.
Chair Eisenberg asked Mr. Simpson if Ms. Young had asked him to stop work as of September 17. He asked if he is trying to relay that he handed in a draft that was work in progress from his computer notes and now is submitting the document in report form. He asked if he would have had a few more days if he would have submitted this document rather than a document that led to her conclusion that he was not proceeding with the contract.
E. J. Simpson, Utility Consultant stated that he was not going to submit a document to anyone other than the Executive Officer. The Sunshine Ordinance did not permit that. She had no choice than to do what she did when she looked at what he sent her thinking that he was calling it work. There are other critical items that need to be provided. A transmission line from Newark to San Francisco that they have done a lot of work on is not in the report yet. He needs a few more days to put the document in order, and he wants to continue to work on it.
Chair Eisenberg asked if the document that he handed the Commission has generated additional time from September 17.
E. J. Simpson, Utility Consultant stated that he has not come here today with those hours. There were substantial hours-50 to 60 hours.
Chair Eisenberg stated that he would ask the Executive Officer to take that into consideration and ask Mr. Simpson to submit an invoice for the additional work, and then counsel would be consulted as to the legality of considering the invoice.
E. J. Simpson stated that he could do the contract properly and within the timeframe. If the Commission elects that he would not be paid, then he accepts that.
Chair Eisenberg asked Mr. Simpson if he felt that the Subcommittee was duty bound to accept the Executive Officer’s recommendation as she has been the one looking over the report.
E. J. Simpson, Utility Consultant agreed that the Executive Officer had the right to stop her pay and that he would provide the Commission with a quality report. He does not want the Commission defending the first "mishmash" that came out of the computer.
Gloria L. Young, Executive Officer stated that as she was negotiating the contract with Mr. Simpson, they agreed that every two weeks from the initial date of the contract, which was August 27, that Mr. Simpson and she would have a conversation to indicate how his work was progressing. On September 10, instead of a phone conversation, Mr. Simpson sent her a first draft. She was not able to review the first draft until Wednesday evening because of the tragedies that occurred on September 11. On Friday, September 14, she had a conversation with Mr. Simpson and she indicated to him her concerns at that time and asked him to cease work. He indicated that he had a better draft that he wanted her to review that he sent by e-mail. She indicated that she would review the draft over the weekend and would contact him on Monday, September 17, which she did. Mr. Simpson indicated in his e-mail that attached was his work to date and that any supporting footnote information and references with respect to the document would be sent to her no later than Monday, September 17. Monday, she had the document that she reviewed that weekend. That is what the Executive Officer labeled as the second draft and that is when she asked him to cease work.
Chair Eisenberg stated that E. J. Simpson has handed in his third draft, which is what the Commission may resort to, and he thinks he should submit his invoice.
A member of the public discussed the issue of access to records.
Public Hearing Closed
Donald Maynor, Esquire stated that the work that Mr. Simpson submitted after he was told to cease work was at his own risk. Whether he would be paid for any work thereafter would be decided on Friday, September 28, at the Commission hearing. Only the Commission can counter the Executive Officer’s decision. One of the conditions on the stipulation was that the LAFCo would not pay Mr. Simpson under his contract until the court had an opportunity to review the issue. That was the essence of the lawsuit. They agreed to a later date in order to allow the LAFCo to meet and discuss the issue.
Chair Eisenberg asked Donald Maynor, Esquire if the Subcommittee had asked the Executive Officer today to start the bid process, if it would be possible to bring someone in at an extremely high speed working with what Mr. Simpson has provided, and get something done in the next couple of weeks.
Donald Maynor, Esquire stated that there are people out there that may be available. The Commission would want to look at the work that was accomplished and look at supplementing that work. He can bring in preliminary ideas at the Friday hearing.
Chair Eisenberg asked if the Subcommittee could ask the Executive Officer to put a Request for Proposal out to bid today.
Donald Maynor, Esquire stated that it seems to be a Commission decision.
Chair Eisenberg stated that the Subcommittee had authorized the Executive Officer to put it out for bid previously. He asked legal counsel what would prevent her from starting to work on getting the bid out on the presumption that the Commission will proceed?
Donald Maynor, Esquire stated that the process could be started informally immediately.
Chair Eisenberg stated that he would like to start the process immediately.
Gloria L. Young, Executive Officer stated that she has the ability to prepare a separate Request for Proposal.
Chair Eisenberg stated that the available vendors can be canvassed and tell them that we are in this situation and that their Commission is committed to getting something out quickly, that they have Mr. Simpson’s work and the vendors may be able to work with Mr. Simpson.
Donald Maynor, Esquire stated that Mr. Simpson has a contract with the LAFCo at this time and that should be respected. What the Subcommittee is doing is asking Ms. Young to identify the alternatives and maybe do something different with the contract.
Commissioner McGoldrick asked what the utility of the document that E. J. Simpson submitted today is.
Donald Maynor, Esquire stated that the document was presented after a request to stop work so it is a document outside of the contract. He is requesting that the Subcommittee accepts and reviews it. He thinks that may be appropriate, but the Subcommittee is not accepting it as a document under the contract which compensation has been agreed to.
Chair Eisenberg asked if the Commission decides that the document is of value, if they could proceed and honor an invoice.
Donald Maynor stated that the Commission can decide, but right now there is no legal obligation to pay for the additional work.
Chair Eisenberg stated that the public should understand that this is the first LAFCo that San Francisco has had, and they have gone a long distance with remarkable speed and dispatch. In that process, they have relied on the excellent professional advice of staff and they will continue to do that. It appears now that they have excellent legal counsel and he thinks this is a phase in a long process. They will proceed and will not be stopped. Ms. Young will continue with the process, and they will do whatever is necessary to get the information to the public.
Chair Eisenberg moved to pass on the recommendation of the Executive Officer with the recommendation of this Committee; Commissioner McGoldrick seconded. No further discussion or objection.
VOTE:
AYES: Commissioner McGoldrick and Chair Eisenberg
NOES: None
ACTION: Passed that the Subcommittee recommend to the SF LAFCO to approve notice to E. J. Simpson, Utility Consultant, to cease work on the agreement dated August 1, 2001 as of September 17, 2001.
4. Future Agenda Items
Chair Eisenberg stated that he had heard from the professor at the University of San Francisco that the internship program has been implemented. Commissioner McGoldrick and they have interns working for them. But not everybody else has and because of timing, they have had to move some of their interns into other programs. He thinks the program is going to be successful. He asked the Clerk to contact the USF professor and tell her that we noted the communication and are sorry that we were not able to take advantage of all of the students that were provided. The Commission will make sure that in the next go around there will be more thorough contact. He requested that we ask the professor to talk to the LAFCo Commission and give an evaluation of how the internship program is going.
5. Public Comment on Items not on the Agenda
No Public Comment.
6. Adjournment: The meeting adjourned at 10:58 a.m.