Meeting Information
MINUTES
Special Meeting
Friday, September 28, 2001, 4:00 p.m.
City Hall, Room 263
Chairperson Eisenberg
Members: Commissioners Ammiano, Gonzalez and 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 4:09 p.m.
Members Present: Chair Eisenberg, Commissioners Ammiano, Gonzalez and McGoldrick
Members Absent: None
2. Approval of Minutes dated August 24, 2001
No Public Comment.
Public Comment Closed.
Chair Eisenberg moved to approve the Minutes from the August 24, 2001 meeting; Commissioner McGoldrick seconded.
VOTE:
AYES: Commissioners Ammiano, Gonzalez and McGoldrick and Chair Eisenberg
NOES: None
ACTION: August 24, 2001 meeting minutes approved without discussion and objection.
3. CLOSED SESSION
CONFERENCE WITH LEGAL COUNSEL
Motion that the San Francisco Local Agency Formation Commission convene in
closed session under the provisions of Government Code Section 54956.9(a):
Winchell Hayward v. San Francisco LAFCO; City and County of San Francisco Case
No. 324661, for the purposes of conferring with or receiving advice from legal
counsel.
Question: Shall this Motion be ADOPTED?
Commissioner Eisenberg asked the Executive Officer how the Commission should proceed.
Gloria L. Young, Executive Officer deferred to Nancy Miller, Esquire, legal counsel for the San Francisco Local Agency Formation Commission.
Nancy Miller, Esquire stated that there should be public comment first and then a motion to adjourn into closed session.
No Public Comment
Public Comment Closed
Commissioner McGoldrick moved to adjourn into closed session; Chair Eisenberg seconded. No discussion was held.
VOTE:
AYES: Commissioners Ammiano, Gonzalez and McGoldrick and Chair Eisenberg
NOES: None
ACTION: Passed to convene into closed session.
After a closed session, if one occurs, the Chairperson shall (1) request the Legal Counsel to identify the subjects discussed in the closed session, and (2) direct the Clerk to report the vote taken on any motion in the closed session.
[Elect To Disclose]
Motion that the SF LAFCO finds it is in the public interest to disclose information discussed in closed session, and directs the Chairperson immediately to disclose that information.
[Elect Not to Disclose]
Motion that the SF LAFCO finds that it is in the best interest of the public that the Board elect at this time not to disclose its closed session deliberations concerning the anticipated litigation listed above.
Meeting of the San Francisco Local Agency Formation Commission reconvened.
Nancy Miller, Esquire stated that the San Francisco Local Agency Formation Commission did meet in closed session on the matter regarding the Winchell Hayward v. San Francisco LAFCo and City and County of San Francisco matter. She recommended that the Commission entertain a motion that it is in the best interest of the public that the Commission elects not to disclose the deliberations that were taken in closed session.
Commissioner McGoldrick motioned not to disclose the deliberations that were taken in closed session; Commissioner Ammiano seconded.
Chair Eisenberg stated that he was not in favor of the motion to elect not to disclose the deliberations because he believes this Commission has adopted a policy of abiding by the Sunshine Ordinance, and he thinks the matters that were discussed should be publicly disclosed.
Commissioner McGoldrick asked if the Commission is required to disclose deliberations taken under closed session under the Sunshine Ordinance.
Nancy Miller, Esquire stated that the Commission is not required to disclose deliberations taken in closed session under the Sunshine Ordinance.
VOTE:
AYES: Commissioners Ammiano, Gonzalez and McGoldrick
NOE: Chair Eisenberg
ACTION: Passed to elect not to disclose closed session deliberations.
4. Discussion and action on the SF LAFCO Sub-committee recommendation to SF LAFCO to approve notice to E. J. Simpson, Utility Consultant to cease work on the agreement dated August 10, 2001.
Gloria L. Young, Executive Officer stated that the Subcommittee at its meeting of September 21, 2001, elected to recommend to the San Francisco Local Agency Formation Commission to approve notice to E. J. Simpson, Utility Consultant to cease work on the agreement dated August 10, 2001, as of Monday, September 17, 2001.
E. J. Simpson, Utility Consultant provided a copy of the Sphere of Influence Study to the Commission. He stated that he was authorized to start work on August 27 to respond to LAFCO’s wish for a Sphere of Influence Study that would assess San Francisco’s energy demand and resources. At the end of approximately three weeks, the information that he supplied to Gloria L. Young did not appear to her to be satisfactory. He was asked to cease work and that further payment for work completed would be in jeopardy. Because of the Commission’s confidence in awarding him the contract, he completed the contract. He stated that the Commission now has before them a Sphere of Influence contract that was issued by the SF LAFCo. Twenty-three specific items have been responded to professionally, documented as accurate, and it is a report that he is proud of. To finish the Sphere of Influence, it would be necessary to document the services that the City of San Francisco and Brisbane provides. The LAFCo law changed on January 1. If this document was accepted and someone was authorized to do the additional work in documenting the services in San Francisco and Brisbane, the Commission would have a Sphere of Influence study. He does have ten more days before this document is due. If he is permitted to continue, that work could be completed. He stated that he appreciated LAFCO’s confidence in him, is familiar with this work, and offers his apologies that he did not correspond and communicate properly with staff that was doing their best to do a good job.
No further Public Comment.
Commissioner McGoldrick asked if the document that Mr. Simpson handed to the Commission is to be accepted as an official document for use by the SF LAFCo.
Nancy Miller, Esquire, stated that Mr. Simpson was provided with written notice to cease work on the contract, and he was advised that any additional work that he performed would be at his own risk. The document he turned in is a public document, but not a LAFCo document.
Commissioner McGoldrick asked the Executive Officer if there is official language required in order to move on this item.
Gloria L. Young, Executive Officer stated that the recommendation is written as Item Number 4 as a Sub-committee recommendation to SF LAFCO to approve notice to E. J. Simpson, Utility Consultant to cease work on the agreement dated August 10, 2001.
Commissioner McGoldrick moved to approve recommendation to the San Francisco Local Agency Formation Commission to approve notice to E. J. Simpson, Utility Consultant to cease work on the agreement dated August 10, 2001; Commissioner Ammiano seconded.
VOTE:
AYES: Commissioners Ammiano, Gonzalez and McGoldrick
NOES: None
ABSTAIN: Commissioner Eisenberg
ACTION: Passed.
Commissioner McGoldrick asked if an abstention is an allowable vote under the Commission rules.
Nancy Miller, Esquire, legal counsel stated that the Commission adheres to Roberts Rules of Order that allows abstention.
5. Discussion and direction to the Executive Officer regarding the termination of the agreement to E. J. Simpson, Utility Consultant, dated August 10, 2001
Gloria L. Young, Executive Officer stated that the termination language in the contract reads as follows:
"LAFCo shall have the option in its sole discretion to terminate this agreement at any time during the term hereof for convenience and without cause. LAFCo shall exercise this option by giving contract or written notice of termination. The notice shall specify the date on which the termination shall become effective."
To this date, there has not been a report that she as the Executive Officer has accepted in accordance with this agreement.
No Public Comment
Public Comment Closed
Commissioner McGoldrick asked the Executive Officer if there is language that the Clerk recommends to enter into the record.
Gloria L. Young, Executive Officer stated that the Commission would approve a motion to terminate the agreement.
Commissioner McGoldrick moved to terminate the agreement with Mr. E. J. Simpson, Utility Consultant, dated August 10, 2001; Commissioner Ammiano seconded.
VOTE:
AYES: Commissioners Ammiano, Gonzalez and McGoldrick
NOES: None
ABSTAIN: Commissioner Eisenberg
ACTION: Passed.
6. Discussion and action on a Request for Qualification (RFQ) for consultant(s) to provide data and information to the Commission on public power options.
Gloria L. Young, Executive Officer stated that at the Subcommittee Meeting of September 21, 2001, she was directed to issue RFQ’s and to contact consultants to provide data and information to the Commission on pubic power options. She has not issued an RFQ at this time. As an alternative the Commission may wish to consider, rather than having a full request for consultants, is to limit the scope and to identify consultants that could provide information on issues related to the forming of an electric-MUD or other alternatives. The other possibility would be to set up public hearings before the LAFCo to provide for an opportunity to have experts in the field come in and present information, an opportunity for questions and answers, and to provide a record for this Commission.
Donald Maynor, Esquire, legal counsel stated that he thinks the Commission can generate a great deal of information by limiting the broad scope of some of these issues and to develop some of the expertise that is out there. He has seen hearings of this nature occur at the CPUC. If it is necessary to draw more information on specific areas, the Commission can give specific requests to consultants.
Chair Eisenberg asked how the Commission could go about formulating the process in the next month.
Donald Maynor suggested that Ms. Young be directed to come back in a reasonable time period to identify a proposal, how to do that in terms of conducting hearings, and what the issues might be. Ms. Young with the advice of counsel could put together what the scope of the issues might be and if it is the Commission’s desire, they could suggest experts that might be invited.
Chair Eisenberg asked if Mr. Maynor is recommending that Ms. Young come back at the next meeting and provide the Commission with an issues scope and asked if other Commissions have followed this process throughout the state.
Donald Maynor, Esquire stated that the CPUC has conducted this kind of process in the past and he has been a participant. It produces a lot of information that the staff can consolidate. If additional information is needed in certain areas, special assignments can be made to focus on those issues.
Chair Eisenberg stated that Mr. Simpson has turned in a 100-page report and asked why Mr. Maynor’s process would be a better process than doing an immediate Request for Qualifications and asking someone to take Mr. Simpson’s draft that has been provided to the Commission, take out whatever is objectionable or might not be appropriate to form, and to build on this draft and determine whether or not the mission can be completed by October 15. He asked why the issues scoping process would be better than determining whether or not Mr. Simpson has complied with the Commission’s process. He has provided the Commission with a document and perhaps someone else can come in and work on it.
Donald Maynor, Esquire, legal counsel stated that he is not going to comment on something he has not read, but stated that the scope of the issues were extremely broad. If it were his process, he would greatly reduce the scope of the information. He is aware that East Bay MUD is conducting hearings on similar types of issues. He has been through a similar process with the CPUC and has seen information developed in a short amount of time. There are a number of activities that a SMUD gets involved in. You can bring in experts from SMUD, people that are interested in distributed generation, and experts on conservation. There will be an opportunity to hear from people on both sides of the issue. His concern is that the scope is so broad now, it would take a long time to complete.
Chair Eisenberg stated that if they had a City Attorney that wanted to cooperate with the Commission a couple of months ago, instead of wanting to fire the Commission, this exact process could have been recommended a couple of months ago. He asked if the alternative discussed is one that Mr. Maynor recommends.
Donald Maynor, Esquire, stated that he does recommend this alternative.
Commissioner McGoldrick asked when the Commission would meet again to discuss these issues.
Gloria L. Young, Executive Officer stated that she would have staff poll the Commissioners and attorneys for a meeting date the week of October 8th to discuss finalizing the plans to look at a document that limits the scope of services. One of the Commission’s previous members, Supervisor Maxwell, had asked about this opportunity and received a memo regarding an energy summit. The conference that the Executive Officer attended in April had a number of consultants that talked about the advantages and disadvantages. She stated she was in concurrence with Mr. Maynor’s recommendation.
Chair Eisenberg asked if they should proceed to direct the Executive Officer to set a meeting and provide the Commission with a report that is designed to scope the issues that were originally contemplated in the Sphere of Influence Report.
Donald Maynor, Esquire, legal counsel stated that it would be the Executive Officer’s recommendation of the issues that were initially addressed in the hearing process.
Public Comment
Don Eichelberger, Coalition for Lower Utility Bills, the organization that sponsored the fall ballot to establish the MUD. He has been listening to the last three items and has not been in a position to attend the previous meetings. He did not know that Mr. Simpson’s work was being questioned or otherwise dismissed. This Board has spent several months setting what he thought was the scope of what needed to be evaluated and done. Election Day is approaching and they anticipate having access to the information to utilize in their work to convince the public of the concerns about costs and benefits of the Municipal Utility District. He stated that he was concerned about the timing of the process. How is this going to effect a yes or no vote in the election? Will there be an opportunity for the MUD directors to move forward in establishing a MUD? He thinks having a panel of experts together to talk about things is a good idea. However, since this work has been done by E. J. Simpson, he agrees with Chair Eisenberg’s suggestion of having it peer reviewed by another consultant to look at the issues that have been brought forward in the report.
Commissioner Gonzalez stated that the MUD measure went to the ballot and there was quite a bit of dispute about what work had to be put in the measure before the voters were able to vote on it. There were a number of people who believed that even if the measure passes, the measure would have to go back to the voters for greater specificity. As he understands it, the reason why this process was continued at the LAFCo was because of the "shadow MUD" provision that allowed the LAFCo to continue to do the work on the MUD petition. He does not think anybody anticipated a particular timeline for when that work would have to be done. The most important thing is that it be done in a way that everyone is satisfied.
Don Eichelberger stated that his concern is that this appointed board is usurping some of the authority of the to be elected MUD Board to do some of these studies and evaluation.
Commissioner Gonzalez stated that if that is true, it is his fault because he was the one that initiated the "shadow MUD" provision. If they had not done that, there would not be any work happening in this LAFCo related to MUD. The motivation for doing that was to deal with the concerns that were brought forward that the work would have to be done before you would have a MUD that would engage in electricity in San Francisco.
Don Eichelberger is questioning why E. J. Simpson’s work is seen as not appropriate to the goals of the "shadow MUD" initiative.
Commissioner Gonzalez stated that sometimes certain requests or requirements are not fulfilled.
Don Eichelberger recommended following Chair Eisenberg’s suggestion to have another consultant peer review Mr. Simpson’s report and identify the problems and then move onto public hearings instead of starting all over again.
James Sutton, Coalition for Affordable Public Services stated that the lawsuit that is currently pending is about the taxpayer dollars that this Commission in the City and County of San Francisco were ready to spend on what they allege as an illegal campaign purpose. It is a clear statement of the law that tax payer dollars cannot be used to promote either side of a ballot measure. He would want to caution the Commission, after listening to this conversation about the proposed energy summit or forum, that the same precept that says this Commission in the City and County of San Francisco can’t spend money on a report that will be used to influence voters in the election would apply equally to any kind of summit and the advertising around that summit and any money spent on consultants or reports involving that summit.
Commissioner Gonzalez stated that the problem he is having with Mr. Sutton’s argument is that he is reading the law in a strict way. As LAFCo continues to do its work, it may stumble across the truth and benefits of public power that may hurt Mr. Sutton’s client, but he can’t see that any court in the United States can say that is a violation of what Mr. Sutton is suggesting.
James Sutton referred to a legal case in which it is stated that if a City or County of public entity is going to spend money to give information to voters about a ballot measure, it has to be neutral and show both sides of a ballot measure.
Commissioner Gonzalez stated that the Commission is not entering into arrangements to promote a ballot measure. The Commission is trying to do work on what may become a reality here in San Francisco.
James Sutton stated that when the Chair of this Commission says that this report is needed by October 10 so it can be given to the voters, then the Commission is not in the business of simply doing an Impartial Analysis authorized by the LAFCo law.
Commissioner Gonzalez stated that is a statement of one member of the Commission and is not a quorum of this LAFCo. He does not think that the Commission would any more demand a report before the election then to delay the report because the findings of any study would hurt Mr. Sutton’s client.
James Sutton stated that he found it interesting that Commissioner Gonzalez is assuming that this report is going to hurt the interests of their campaign committee. It is interesting that it is being assumed that this supposedly neutral analysis is going to come out a certain way.
Commissioner Gonzalez is presenting this assumption because he knows that Mr. Sutton is here as a paid advocate for a particular side. It is the same point that he made to Mr. Eichelberger, who is on the other side. They are not going to help a particular side of the measure.
James Sutton stated that he knows that the City Attorney’s Office has consistently given advice to Commissions not relevant to LAFCo, that once a measure has been put on a ballot, even if it is a measure that the Commission initiated, at that point that Commission cannot put it on the agenda, cannot have public hearings, cannot have reports, public forums or summits.
Commissioner Gonzalez stated that the Commission is working on a separate MUD measure that was not voter initiated but got here from the Board of Supervisors. Otherwise, the point Mr. Sutton is making would have been a good one.
Public Comment Closed
Chair Eisenberg moved that this Commission direct Ms. Young to report back at the next Regular Meeting on the scope of issues specified in the previously requested Sphere of Influence Study, scope the issues, and that she proceed as requested in the last Committee Meeting to issue a Request for Qualifications to obtain a consultant to proceed with the Sphere of Influence Study; Commissioner McGoldrick seconded.
Gloria L. Young, Executive Officer stated that she understands that the Commission would like her to return with the original Sphere of Influence and do a revised scoping. The second recommendation would be to immediately issue a RFQ for a revised Sphere of Influence Study with the scoping of issues. She asked whether the Commission needed to review the issues scoping before the RFQ is issued.
Chair Eisenberg stated that he wanted to proceed with Mr. Maynor’s process and with another process to proceed in a way to get the most available information to the public as soon as possible. He restated that the Commission wants to scope down the Sphere of Influence; the Executive Officer’s report is to be presented at the next meeting, and that the Request for Qualifications is to be sent out and based on the Executive Officer’s scoped down Sphere of Influence.
Commissioner McGoldrick asked if the Chair is asking the Executive Officer to move forward without the ascent of this Commission. He thinks the Executive Officer should bring something back to the Commission in terms of what is a condensed version and that it should be reviewed in public.
Chair Eisenberg stated that the scope could be submitted to the Subcommittee so the Subcommittee could give her guidance.
Gloria L. Young, Executive Officer asked if the Commission is asking for a Subcommittee meeting sometime next week to review the scoped down Sphere of Influence, as it would appear in the RFQ.
Commissioner McGoldrick stated that he would prefer the full Commission’s input.
Chair Eisenberg stated that if they were to have a Committee meeting and then a full Commission meeting, that the process would be derailed. Ms. Young could work with the attorney to scale down the issues and issue an RFQ. He stated that he would accept an amendment to the motion that a Committee of this Commission would be appointed by the Chair by any two members who want to be on the Committee. He will appoint a Committee of any two Commissioners that want to appear and then proceed with the next Regular Meeting in which the RFQ and the scoping have been issued. The motion is amended to include a Committee review prior to the next regular Commission meeting and that Ms. Young will work with the Committee to scope out the issues.
Commissioner McGoldrick suggested a three-person Committee that would be a quorum of this Commission.
Chair Eisenberg stated that the three LAFCo Commissioners have volunteered and that the Committee would be comprised of Commissioners McGoldrick, Ammiano, and Gonzalez.
VOTE:
AYES: Commissioners Ammiano, Gonzalez and McGoldrick and
Chair Eisenberg
NOES: None
ACTION: Passed.
7. Future Agenda Items
Gloria L. Young, Executive Officer stated that future agenda items would consist of items discussed today. She is working with the attorney, Nancy Miller, in terms of bringing a resolution before the Commission that sets out a relationship between this Commission and the Board of Supervisors with respect to reserves.
Chair Eisenberg stated that state law provides for an annual Election of Officers and asked to place the item on a future agenda.
8. Public Comment on Items not on the Agenda
No Public Comment
9. Adjournment
The meeting adjourned at 6:08 p.m.