Meeting Information
MINUTES
Special Meeting
Friday, November 16, 2001, 2:00 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 Commissioner Ammiano
at 2:08 p.m.
Members Present: Commissioners Ammiano, Gonzalez and McGoldrick
Member Absent: Chairperson Eisenberg
2. CLOSED SESSION REGARDING PENDING LITIGATION (Continued
from September 28, 2001).
PUBLIC COMMENT
E. J. Simpson, Utility Consultant stated that he entered
into an agreement with the San Francisco Local Agency Formation Commission
to provide a study in which he was limited to a work time of thirty-three
days with a penalty to be issued if the work was not completed in that time.
The study started on September 28 in which two people worked for ten days
for extended periods of time. Information on the amount of work completed
was provided to the Executive Officer, Gloria Young, as the contract called
for. On that Friday, at 4:00 p.m., the Executive Officer issued instructions
to stop work. He did not stop work, but quit charging for the work. During
that time, a certain amount of background work to be used for the total report
was provided, but was not satisfactory for LAFCo to utilize. The total report
was finished without charge. Anyone who looks at the total report would understand
that the first two weeks of background work was required for what he was doing.
He regrets he did not go forward on LAFCo’s authority. He did complete the
report--a good report that he is proud of. Due to PG& E’s litigation and
other issues, his work was never used. There may have been others that used
the total report. He requests that the invoice that he provided to the Executive
Officer be honored and be paid for as the contract calls for.
Public Comment Closed
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 Ammiano moved to enter into a closed session;
Commissioner McGoldrick seconded; No objection.
Closed Session Convened at 2:20 p.m.
Closed Session Adjourned at 2:35 p.m.
Commissioner Ammiano called to order the meeting of the
San Francisco Local Agency Formation Commission at 2:40 p.m.
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 litigation listed above.
Commissioner Ammiano moved to elect to disclose that the
SF LAFCo finds it is in the public interest to disclose information discussed
in closed session. Commissioner McGoldrick seconded; No objection.
Nancy Miller, Esquire stated that the items that were
discussed in closed session are as follows:
· Litigation of Winchell Hayward v. San Francisco
LAFCo; City and County of San Francisco Case No. 324661 was dismissed without
prejudice by the plaintiffs on November 1, 2001.
· The Commission has provided authority to counsel
to negotiate with Mr. Simpson regarding the invoice for payment of services,
which was a subject matter of the litigation.
No Public Comment
Commissioner Ammiano moved to take the agenda out of order
and discuss Agenda Item 9 next. No objection.
3. Discussion regarding the nature of the role of the Board
of Supervisors and SF LAFCo and how it relates to present and future elections.
Nancy Miller, Esquire stated that the Chairperson has
asked to hear this item first because how the Commission proceeds could potentially
affect the rest of the items on the agenda. The question now is how and what
the SF LAFCo staff should proceed on given the result of the election. As
a state body, the SF LAFCo shall continue to exist statutorily. The policies
and procedures provide that SF LAFCo will meet as needed. That also provides
for an Executive Officer who will take petitions or requests from the public
on matters that have occurred in the past. LAFCo has the power to study issues
regarding governmental service. Even though there is not a petition application
before the SF LAFCo at this time, there is still the resolution of the Board
of Supervisors that was called the "Shadow MUD." The Commission
may want to request clarification from the Board of Supervisors on how to
proceed, or SFLAFCo may wish to proceed in another manner regarding LAFCo’s
power to initiate studies regarding governmental services and efficiencies.
Commissioner Ammiano stated that he is not interested
in pursuing the "Shadow MUD" further, but feels that LAFCo can pursue
feasibility studies about the issues of public power.
Commissioner Gonzalez stated that he feels that feasibility
inquiries should contain specificity on what it is that SFLAFCo is interested
in pursuing. Simply having an umbrella of public power of a general notion
would not be sufficient in his view. The "Shadow MUD" is a completely
separate Municipal Utility District measure than the one that went to the
ballot. He would be interested in doing the work to pursue the "Shadow
MUD" measure. There may be issues to consider from the election because
of the public power nature of the two measures.
Commissioner Ammiano stated that he would like not to
pursue the "Shadow MUD" measure, but recommended coming back to
the Commission at the next meeting with specificity.
Commissioner Gonzalez asked legal counsel if the recommendation
to dismiss the "Shadow MUD" took place, what authority would this
body have to engage in a general inquiry on public power.
Nancy Miller, Esquire stated that SF LAFCo has statutory
authority to commission studies and look at all kinds of issues related to
government services. The "Shadow MUD" does provide some specificity
so the Commission would know the studies that would have to be done with the
MUD. As for other studies, the Commission would have to provide direction
as to what exactly the Commission needs and wants to look at.
Commissioner Gonzalez stated that the Chair should consider
that in the event the "Shadow MUD" was terminated, it would raise
the larger question at the full Board of Supervisors about the budgetary realities
of the SF LAFCo. Supervisor Hall raised this issue before the full Board in
his inquiry to the Executive Officer. LAFCo was created for a specific reason
to try to meet statutory requirements for the original MUD item that went
to the ballot. Dismissing any inquiry of a Municipal Utility District and
wanting to use LAFCo solely as a vehicle to engage in an inquiry to public
power should come out of the Board of Supervisors because it would be too
general in nature.
Commissioner Ammiano concurred and stated that there is
merit that the Board of Supervisors could deal with public power issues, whether
it is a charter amendment, etc. Even though this LAFCo was technically set
up for the implementation of the MUD petition, there is latitude in what a
LAFCo can do. He stated that he would like time to consider other ideas and
would come back with specific ideas at the next SF LAFCo meeting.
Commissioner Gonzalez stated that there is the Public
Utilities and Deregulation Committee at the Board of Supervisors and advantages
and disadvantages could be explored.
Commissioner McGoldrick stated that he would like clarification
as to what the function of a "Shadow MUD" would be at this time.
Nancy Miller, Esquire clarified that the SF LAFCo had
received an application from the Board of Supervisors to create a district
so there are certain procedures to be followed if it were to go forward. That
means there are certain issues that the Commission would study in considering
a district and the request is still there. The Commission did limit the study
area of the "Shadow MUD" to electric power.
Commissioner McGoldrick stated that the Commission could
choose not to take action today, convene at another date, and see what else
arises from the community. He asked whether the Board of Supervisors would
need to reinitiate the request. Has the outcome of the election changed anything?
Nancy Miller, legal counsel stated that her analysis is
that the application and request from the Board of Supervisors to consider
a district is still valid.
Public Comment
Bernie Choden stated that as he understands the legislation,
SF LAFCo is dealing with a state agency, a county as an administrative district.
LAFCo, without the supervisors, can initiate any broad study into efficacy
and efficiency. It would be his advice to take on the broad issue of supplying
energy as a public good without prejudicing the outcome by stating that public
power is the outcome. He suggests that the Commission look at the aspects
of the LAFCo law added by Herzberg that gives the Commission the broad mandate
to initiate studies.
Nathan Nayman, Committee on Jobs stated that just last
week San Francisco and Brisbane voters rejected Measure I, and San Francisco
voters rejected Proposition F. The election results demonstrate that there
is no public mandate for the municipal takeover of PG &E’s distribution
system. Conducting studies of how the government should proceed with efforts
to take over the utility service lies in the face of the election results.
The LAFCo is acting solely as a proponent for a Municipal Utility District,
and not necessarily for the taxpayers at this point. San Francisco’s Charter,
Article 16 and various sections, already allows for the acquisition of public
utilities. The Charter indicates that if it is determined the public interest
or necessity demands the acquisition, construction or completion of any public
utility or utilities by the City and County, or whenever the electors shall
petition the Board of Supervisors for the acquisition of any public utility
or utilities, the supervisors must procure a report from the Public Utilities
Commission (PUC). The PUC is the agency conduct the study. Members of the
LAFCo appear to be in violation of the City’s Charter if they move forward.
The Charter clearly speaks to the City and County of San Francisco, not a
MUD running the utilities. Since the public power MUD seems to be the LAFCo’s
only purpose, and the voters in San Francisco and Brisbane have rejected a
MUD, LAFCo should disband--taxpayer money could be used more effectively.
Commissioner Ammiano stated that counsel had addressed
those issues.
Nancy Miller, Esquire stated that the speaker is in error
on the issue of the PUC report. A report is required before you proceed on
an action. That report takes quite a bit of time from the PUC so LAFCo can
be moving forward as the PUC is moving forward.
Winchell Hayward, Committee for Affordable Public Services
stated that he hopes that LAFCo will disband. There are many arguments against
public power that he and others have enumerated. He worked for Hetch Hetchy
for about twenty years in construction and operations and maintenance. He
stated that PG &E is a good company and that there has been a vendetta
against them. He feels that PG &E should be restored to handling distribution
which they have done very well for many years. He recommended not pursuing
public power-it is not for San Francisco.
Commissioner Gonzalez stated that LAFCo may have been
created for dealing with the purpose of the original MUD petition, but does
Mr. Hayward have a quarrel with what counsel is saying that once the LAFCo
is created, it could by statute meet and consider other items. Voters may
consider an item at future elections that have been considered before. As
was the case with the Central Freeway issue that went to the voters two or
three times. At this election, voter turnout was very low, and the measure
was defeated by a narrow margin. The measures can be improved to allow the
voters to reconsider the subject in a separate and distinct measure.
Winchell Hayward stated that his advocacy is stated in
the voter’s pamphlet. Possibly LAFCo can get into other things. If you hit
the voters again and again it could go either way, but he doesn’t think the
philosophy of doing it this way is a good idea. You would have to supplement
the Hetch Hetchy with a lot of generation. Where are you going to put the
generation?
Don Casper, Chairman of the San Francisco Republican Party
stated that a single-minded pursuit of a Municipal Utility District or a Public
Power Agency or public power is a pursuit away from rather than toward the
policy of a LAFCo as set forth in the Cortese-Knox Local Government Reorganization
Act of 1985, which is the basic statute behind LAFCo. Section 56301 sets forth
the purposes of a LAFCo. Among them are discouraging urban sprawl, preserving
open space and prime agricultural lands, and efficiently providing government
services, and encouraging the orderly formation and development of local agencies
based on local conditions and circumstances. Clearly among those purposes,
only two, efficiently providing government services and encouraging the orderly
formation and development of local agencies based on local conditions and
circumstances apply to the San Francisco LAFCo. Should a MUD be proposed again,
it would have to include another local agency. That other local agency may
not be contiguous to the City and County of San Francisco. The chances are
it will have to be in San Mateo County. The voters of Brisbane have already
overwhelmingly voiced their opposition to a MUD. Voters in San Francisco very
narrowly voiced their opposition to a MUD. It seems that should this Commission
single mindedly pursue a MUD, that does not make for orderly formation and
development of a Local Government Agency because there should be community
consensus behind it. There is no community consensus here. On the subject
of public power as a whole, the Cortese-Knox Act also requires that a LAFCo
in its study look at whether existing governmental agencies can supply the
same service. Another speaker has pointed out that our Charter provides for
a mechanism within an existing structure to provide public power. LAFCo should
not be focused solely on public power, but rather an orderly provision of
government services within the City and County of San Francisco.
Richard Ow stated that he supports the continuation of
LAFCo. Last year, 24,000 citizens signed and brought a petition to the Board.
LAFCo was created to put the initiative on the ballot to let the people decide.
We had eighty years of lousy service from PG &E, and they took advantage
of Hetch Hetchy, which was given to the City by an act of Congress. What has
happened in the past eighty years of service is higher rates, a sixty percent
increase this year. No business, resident, or low-income resident of San Francisco
can afford the increase.
Public Comment Closed
4. Approval of Minutes of the Commission Meeting of September
28, 2001 and Subcommittee/Commission Meeting of October 5, 2001.
Commissioner McGoldrick moved to approve the minutes of
the Commission Meeting of September 28, 2001 and Subcommittee/Commission Meeting
of October 5, 2001; Commissioner Ammiano seconded. No objection.
No Public Comment
5. Election of 2001-2002 Officers for the San Francisco
Local Agency Formation Commission (SF LAFCo).
Commissioner Ammiano moved to continue this item; Commissioner
McGoldrick seconded. No objection.
No Public Comment
6. Resolution regarding SF LAFCo Budget/Revenue Understanding
with the San Francisco City and County.
Commissioner Ammiano moved to continue this item; Commissioner
McGoldrick seconded. No objection.
No Public Comment
7. Discussion and action regarding direction to the Executive
Officer to reallocate the existing budget to provide for appropriations for
consultant services and additional temporary staff support.
Commissioner Ammiano moved to continue this item. No objection.
No Public Comment
8. Recommendation and action regarding the SF LAFCo Subcommittee
recommendations on scoping of issues for a Request for Qualification (RFQ) to
provide data and information to the Commission on public power options, including
scheduling possible hearings at the SF LAFCo on public power options.
Commissioner McGoldrick stated that the Subcommittee does
not have sufficient membership to meet. He recommended that the Subcommittee
be dissolved, and that the full Commission hear this item.
Gloria L. Young, Executive Officer stated that the Subcommittee
was reconfigured to include the three members that are currently here. LAFCo
could choose to hear this item by the Subcommittee or as a Commission.
Commissioner Ammiano moved to continue this item; Commissioner
McGoldrick seconded. No objection.
No Public Comment
9. Recommendation and action regarding direction to the
Executive Officer on the selection of a consultant(s) to assist on scoping of
issues and providing data to the Commission on public power options including
participating in possible hearings at SF LAFCo on public power options.
Commissioner Ammiano moved to continue this item; No objection.
No Public Comment
10. Future Agenda Items
Commissioner Ammiano stated that with the resignation
of the public member to LAFCo, the Commission should address an immediate
outreach.
Nancy Miller, Esquire stated that the Commission has a
procedure in place for the appointment of a previous public member. The Executive
Officer has within her power to initiate the process, so the issue does not
have to be placed on the next agenda. She stated that the Commission does
not have to meet until January 2002. She would recommend that staff come back
with options for the "Shadow MUD" in terms of what the process would
be and recommendations, options, and alternatives. There may be additional
agenda items at that time from Commission members.
Commissioner McGoldrick stated that future agenda items
may be the reconsideration of the Brisbane/San Francisco connection and the
Commission could uncouple that and find other alternatives.
11. Public Comment on Items not on the Agenda
No Public Comment
12. Adjournment.
The meeting of the SF LAFCo Commission adjourned at 3:18
p.m.