Blindsided: Anger Erupts Over City’s Last-Second Legal Brief

Disenfranchisement

Anger and outrage emerged over the city’s last-second legal brief by City Attorney Harriet Steiner who wrote, “In our opinion, the City’s newly-adopted water rates are not subject to challenge by referendum.”

However, not everyone agrees with that legal opinion.  Even Harriet Steiner acknowledges there is a lack of case law, “We  must note that there are no post-Proposition 218 cases that are directly on point.”

Her argument is that the absence of reference to referendum in Prop 218 suggests a continuation of prior case law.

“Proposition 218 expressly allows initiatives to reduce or repeal any local tax, assessment, fee or charge. However, Proposition 218 only addresses initiatives and it is silent with respect to the power of the referendum.”

Harriet Steiner opines, “In our opinion, this silence leads to the conclusion that prior case law is still valid and that water and other utility rates adopted pursuant to Proposition 218 are not subject to challenge by referendum.”

Michael Harrington, a Davis aviation law attorney and former city councilmember who has headed up the referendum along with Ernie Head, sent the Vanguard a very strongly-worded response.

He said: “My legal research before prosecuting the referendum indicated that we had a valid and effective avenue to force repeal or a freeze on the hikes pending an election.”

“However, I am not worried about the issues raised in the City Attorney’s very weak legal research memo,” he told the Vanguard.  “I have no doubt we would prevail if we had to file a legal case to protect the rights of the nearly 3900 qualified voters whose signatures were duly ratified by the City and County.”

“Our current committee’s name is ‘Committee to Confirm the Rights of Davis Voters,’ and we intend to see our mission through to a repeal or a vote,” he concluded.

Mr. Harrington would later email the city stating, “The City Attorney memo is a direct attack on the civil rights to petition our government and to vote.  A violation of a constitutionally protected civil right is actionable and leads to damages, declaratory and injunctive relief.”

He added: “If that memo is not retracted in full, the voters have been harmed, and legal action would be available if the victims wished to sue.”

The timing of the brief, dated November 15, angered many who saw it as a last-second attempt by the city to thwart the will of at least 3800 to 4800 residents who participated either in the Prop 218 process or signed the referendum petition.

The city responded that Harriet Steiner had suggested the possibility that a referendum was not permissible under Prop 218 law on September 6.

City Manager Steve Pinkerton wrote in an email received by the Vanguard, “City Attorney did state her opinion on the legal validity of a possible referendum at the September 6 meeting.  According to the City Clerk, who reviewed the online video, Harriet made a statement consistent with the attached memorandum at 3 hours and 43 minutes into the question and answer period on the item.”

However, while true, the city had numerous opportunities to make it clear they questioned the legality of the action during the signature process.  And while it is true that Harriet Steiner does not have an obligation to the petitioners, the city really should have laid the cards on the table – it is not as though this situation was unanticipated.

What is becoming clear is that a legal battle is setting up between cities who apparently believe that a referendum is prohibited by Prop 218 and the drafters of the law, the Taxpayers Association.

Bob Dunning in his column today makes a good point that, while the memo was dated November, “it’s obvious it was written some time before that.”

He cites language such as, “The county elections official is currently examining the petition to determine whether it contains the required number of signatures” – when November 15 was a day after the county certified the referendum.

Mr. Dunning wrote, “One council member did, however, admit that ‘Harriet sent us a memo on Nov. 4 concerning whether or not we were bound to honor the referendum. It was confidential because Harriet said it was confidential.’ “

“Personally, I was perplexed as to why council or counsel would want to withhold this information. I personally think that the citizens should have been informed at a far, far earlier point that this might be an issue.”

Mr. Dunning argues that Ms. Steiner’s legal analysis is fatally flawed, citing first the lack of cases and then examining the Legislative Analyst’s Office’s analysis on Proposition 218 which asks, “Who may vote on referendums to repeal assessments, fees, or taxes?”

Mr. Dunning cites the LAO analysis: “Prior to Proposition 218’s passage, the courts allowed local governments significant flexibility in determining fee and assessment amounts. A business or resident challenging the validity of a fee or assessment carried the ‘burden of proof’ to show the court that the fee or assessment was illegal.”

“Proposition 218 changed this legal standard by shifting the burden of proof to local governments. Now local governments must prove that any disputed fee or assessment charge is legal.”

And furthermore, Mr. Dunning writes, “Although there is a legal distinction between initiatives and referendums, the LAO adds ‘Proposition 218 eliminates any ambiguity regarding the power of local residents to use the initiative by stating that residents of California shall have the power to repeal or reduce any local tax, assessment or fee.’ “

Mr. Dunning argues, “Two things to note here. First, the italics on the word ‘any’ are theirs, not mine. And second, the word ‘repeal’ generally assumes a referendum, not an initiative. Add that to the fact the LAO specifically recognizes the right to a referendum in its analysis and you pretty much have a slam dunk.”

I am far from convinced there is a slam dunk here, though the lack of case law is noteworthy.

Taking a step back, whether the city feels it legal or not, it is a dangerous idea to hide behind, at best, a loophole in the law to deny a sizable number of citizens what they clearly want – a vote.

And while the supporters of the referendum are pumping their chests right now, talking recall, and arguing about the right of the people to use the electoral process through referenda to address their grievances with local government – this process comes down to one thing – the voters should have the right to vote on this water rate hike.

If you think the water rate hikes are necessary and needed, then argue your point, do not hide behind the City Attorney’s UNTESTED opinion.  She is not a legal authority.  She is not an independent agent or a neutral bystander.  She is a paid agent for the City of Davis and she has an agenda to uphold the actions of council.

What we have here is another example of poor management and governance.  Some of that is understandable.  After all, the mayor has been on the job less than a year and was a mayor just six months into his term.  We have an interim head of Public Works.  We have a new city manager.  The Joint Powers Authority’s head was half out the door and the new head has barely gotten settled on the job.

While we can be understanding of this, at the same time this is a quarter BILLION dollar project and I have less than zero confidence now that this project is being managed properly.

Moreover, we have to start questioning the city attorney.  Bob Dunning wants to jump on the ZipCar project, but he forgets or ignores that that project cost the city nothing.  The bigger fiasco is the $800,000 boondoggle for the Davis City Employee’s Association and the impasse that was improperly enacted at the behest, or at least with the sign-off by, the city attorney.

Now we have this fiasco where it appears that Ms. Steiner has concocted a legal opinion of convenience without any basis in current case law.  She may be right, but a lot of other people do not believe that she is.

I had high hopes for this new council.  Now I am going to have to reevaluate things.  What has become clear to me is that this is no longer just about the water project.  There may still be good reasons to go forward with it, as have been pointed out numerous times.  The problem is, I no longer know that I can trust our governance to handle our money.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

Related posts

60 Comments

  1. E Roberts Musser

    [quote]However, while true, the city had numerous opportunities to make it clear they questioned the legality of the action during the signature process. And while it is true that Harriet Steiner does not have an obligation to the petitioners, the city really should have laid the cards on the table – it is not as though this situation was unanticipated.[/quote]

    The city did lay its cards on the table Sept 6. It is the opponents who refused to listen to what the city had to say. It was HARRINGTON’s RESPONSIBILITY to determine the legality of the referendum. My guess is it mattered not one whit what the city did or did not say – the opponents would have moved ahead with the referendum come h_ll or high water. The Vanguard has conceded opponents consider Harriet Steiner a shill for the city, so opponents would not have believed anything she said on Sept. 6 or thereafter anyway.

    [quote]I had high hopes for this new council. Now I am going to have to reevaluate things. What has become clear to me, is that this is no longer just about the water project. There may still be good reasons to go forward with it as have been pointed out numerous times. The problem is, I no longer know that I can trust our governance to handle our money.[quote]

    I’m not following your reasoning here. You concede there may be good reasons to move forward with the surface water project. Therefore CC/city staff are probably giving solid advice in regard to this issue. So obviously it is not the surface water project that gives you pause, right? Then what? Zipcar; DCEA debacle? I agree these two issues are troubling…

  2. E Roberts Musser

    Some glitch in the formatting – the paragraph begining “I’m not following…” should not be within the light blue box – it is my response to the quote…

  3. David M. Greenwald

    It was a six hour meeting – I don’t recall it coming up, and I have watched it on tape a few times now. To me this is not just about Harrington, it’s about 3866 residents of Davis who should have been informed by the city far earlier if this was in question. There’s an expectation that somehow the city is off the hook because it was brought up, I don’t agree. How many articles were written on the referendum, did anyone opponent or supporter even mention this once? It’s just like the 14% and the conservation effort – what we have here is a failure to communicate it comes back to bite the city every single time and they never learn.

  4. rdcanning

    The City is not responsible for spoon-feeding people. The referendum’s backers are big kids and in fact I believe Mr. Harrington is a member of the bar. Excuse my sarcasm but overdramatizing the City Attorney’s formalization of her statement on Sept. 6 is a bit over the top. It is clear from her memo the CC has options. Why don’t we wait until the December meeting before condemning them. Rich Rifkin may be right about the interchangability – his arguments are pretty persuasive that the referendum might be able to go ahead. At least he backs up what he says with some evidence and thoughtfulness, rather than hyperbole, hysteria and animus. Comparing our CC to apparatchniks from the past is just soooo Davis.

  5. Phil Coleman

    “Now we have this fiasco where it appears that Ms. Steiner has concocted a legal opinion of convenience without any basis in current case law. She may be right, but a lot of other people do not believe that she is.”

    If Ms. Steiner is right–and there is a concession that she may be–it’s hardly a concoction or a mere convenience. It will be precedent-setting law that will be followed by other jurisdictions facing this and similar issues.

    On the one-hand,it could be described as being “blindsided.” On the other hand, it could be a brilliant legal maneuver. The City has no obligation to reveal its legal options in advance of an expected legal battle. Rather, opponents should have seen this coming and they were caught with their pants down.

    Either way, prepare for lots of legal posturing on both sides in the months ahead.

  6. E Roberts Musser

    [quote]t was a six hour meeting – I don’t recall it coming up, and I have watched it on tape a few times now. To me this is not just about Harrington, it’s about 3866 residents of Davis who should have been informed by the city far earlier if this was in question. There’s an expectation that somehow the city is off the hook because it was brought up, I don’t agree. How many articles were written on the referendum, did anyone opponent or supporter even mention this once? It’s just like the 14% and the conservation effort – what we have here is a failure to communicate it comes back to bite the city every single time and they never learn.[/quote]

    It was HARRINGTON’S RESPONSIBILITY to determine the legality of the referendum. From his posts, it is clear he would have moved forward with it no matter what the city said.

  7. Rifkin

    [i]”It was HARRINGTON’s RESPONSIBILITY to determine the legality of the referendum.”[/i]

    According to a group called California City Finance (which appears to be legitimate), there were 14 referendums of the type Mr. Harrington is pushing on ballots in California between June, 2002 and June, 2008, challenging utility rate increases. There was another referendum in Paso Robles in 2009, which challenged a water rate increase. There probably were other such referendums between 1997 and 2002. I don’t think there have been any since the Paso Robles vote.

    It seems to me that since (according to Harriet Steiner) no one has ever challenged the legality of holding a Prop 218 referendum, there was no reason for Mike Harrington to think the legality of the referendum was in question.

    Aside from that, Prop 218 speaks to referendums, which are covered in Section 9 of Article 2 of the state constitution*. Why would Prop 218 discuss Section 9 of Article 2 if Prop 218 rate hike challenges could not be made by way of a referendum? I think Harriet needs to address this question as best she can.

    *SEC. 9. (a) The referendum is the power of the electors to approve
    or reject statutes or parts of statutes except urgency statutes,
    statutes calling elections, and statutes providing for tax levies or
    appropriations for usual current expenses of the State.
    (b) A referendum measure may be proposed by presenting to the
    Secretary of State, within 90 days after the enactment date of the
    statute, a petition certified to have been signed by electors equal
    in number to 5 percent of the votes for all candidates for Governor
    at the last gubernatorial election, asking that the statute or part
    of it be submitted to the electors. In the case of a statute enacted
    by a bill passed by the Legislature on or before the date the
    Legislature adjourns for a joint recess to reconvene in the second
    calendar year of the biennium of the legislative session, and in the
    possession of the Governor after that date, the petition may not be
    presented on or after January 1 next following the enactment date
    unless a copy of the petition is submitted to the Attorney General
    pursuant to subdivision (d) of Section 10 of Article II before
    January 1.
    (c) The Secretary of State shall then submit the measure at the
    next general election held at least 31 days after it qualifies or at
    a special statewide election held prior to that general election. The
    Governor may call a special statewide election for the measure.

  8. Rifkin

    FWIW, here is a link ([url]http://www.californiacityfinance.com/UUTfacts08.pdf[/url]) to California City Finance’s review of user utility taxes. It is in this paper where referendum challenges of rate increases are mentioned: [quote]From June 2002 through June 2008 there were 83 utility user tax measures placed before voters by cities and counties. Just two of these were county measures; 81 for cities. … [b]During this period there were also 14 referenda placed on the ballot by citizens concerning UUTs.[/b] All seven measures to repeal a local UUT failed and four out of the five measures to reduce local UUTs failed. Voters in Greenfield (Monterey County) voted to reduce their UUT from 6% to 3% in November 2002. A referendum to restrict the use of UUT revenues to law enforcement services passed in Seaside (Monterey County) in November 2002, but a similar measure failed in Stockton in March 2003.[/quote]

  9. Ryan Kelly

    Mike Harrington did not listen to the City Council meeting. Even the last meeting, he came and left after a few minutes. He comes to be seen, moves around the back of the room talking to people and then leaves. He wouldn’t have heard Harriet’s comment on the legality of the referendum, so he didn’t respond to the issue earlier. It clearly caught him by surprise and he is likely only doing research on it now. It’s a wonder how his law practice survives.

  10. roger bockrath

    It’s clear from the above mentioned wording of 218 that it does not preclude citizens from voting down an imposed tax or fee. There may or may not be a loophole that allows the City to ignore the results of a referendum petition. But it is clear that a sizable portion of Davis’ citizens want further review of this massive public works project and an opportunity to decide if this expenditure of their money is in their best interests. If the CC chooses to hide behind a loophole to deny it’s citizens the opportunity to weigh in on this massive expenditure, then the members of this council have lost all creditability.

  11. Matt Williams

    David Greenwald . . .

    [i]”Taking a step back, whether the city feels it legal or not, it is a dangerous idea to hide behind, at best, a loophole in the law to deny a sizable number of citizens what they clearly want – a vote.”[/i]

    This is the bottom-line for me. All the rest really boils down to a mix of personality politics and demagoguery.

    A vote has clearly been called for. The City will only fan the flames of discontent by working to ignore the reality of 3,800 “sufficient” signatures, as well as all the other signatures that were deemed “insufficient” for one reason or another. If I had signed, my signature would have been deemed “insufficient” but does that mean my “voice” (had I signed) was illegitimate?

    We need to step back from the personality politics and demagoguery, and focus on the issue that will continue to loom over us regardless of how we vote (or don’t vote) . . . water/wastewater. One place to start is by coming to some agreement about the issue we face and the goals/objectives we should be using to measure [u]any[/u] possible solution to that issue. Here’s a start:

    A group that can best be described as “an ad-hoc group of Davis residents for open and balanced discussions of water/wastewater” is working to schedule and conduct a series of community forums/discussions in the coming months. As input to those community discussions we have put together the following draft Goals/Objectives statement that can be used as a first step in both educating the community about the water/wastewater issues our community faces, as well as building a community consensus that those are the issues and we need to do something about them. We look forward to hearing your reactions, thoughts, comments, suggestions, additions, etc.

    [indent][i]The City of Davis Water/Wastewater system is facing challenges in meeting the present and future water quality and water supply needs of its customers. In this first draft of a community discussion, we believe those challenges are:

    1) Providing a reliable water supply to meet existing and forecasted future needs.

    2) Improving the quality of water dispensed from the “inside” water fixtures inside each customer location, including, but not limited to drinking water.

    3) Improve the quality of treated wastewater effluent discharged by the City of Davis Wastewater Treatment Plant to meet the current and anticipated future requirements of any and all discharge regulations and/or operating permits, including, but not limited to requirements associated with public health and environmental responsibility.

    4) Address the above three issues with a maximum of fiscal responsibility.[/i]

    How would you add to and/or modify these Goals/Objectives

  12. Matt Williams

    In addition to the Goals/Objectives draft our group has drafted the following description of the water/wastewater issues we face. Again how would you add to and/or modify this draft description of the issues?

    [i]Initially, the City of Davis was able to meet its drinking water needs from relatively shallow wells, but a variety of water quality concerns resulted in the need for deeper wells. From the 1950s through the 1980s, water needs were met by tapping into the intermediate portion of the groundwater basin. For the past 20 years, water supply challenges — the aging of existing wells, and the tightening of State (SWRCB and RWRCB) and Federal (EPA) water quality requirements — have continued to require new well construction, with new wells going even deeper into the groundwater basin, some up to 2,000 feet below ground. Since 1987, the City of Davis has had to retire eight intermediate wells, and several more will need to be taken out of service in the next few years.

    Further, the long-term withdrawal of groundwater has resulted in significant ground subsidence (sinking of the surrounding land) such that damage to some well casings has occurred and several of the well pumps can no longer be pulled to the surface for repair or replacement.[/i]

  13. Matt Williams

    David M. Greenwald said . . .

    [i]”It was a six hour meeting – I don’t recall it coming up, and I have watched it on tape a few times now. To me this is not just about Harrington, it’s about 3866 residents of Davis who should have been informed by the city far earlier if this was in question. There’s an expectation that somehow the city is off the hook because it was brought up, I don’t agree. How many articles were written on the referendum, did anyone opponent or supporter even mention this once? It’s just like the 14% and the conservation effort – what we have here is a failure to communicate it comes back to bite the city every single time and they never learn.”[/i]

    David, how would informing the 3866 residents have changed anything? Are you saying that some of them would have chosen not to sign if so notified? If that is your point, then I am [u]glad[/u] that the City did not inject this contentious issue into the midst of the signature gathering. People who were considering whether to sign should not have had to feel that they were under duress. Making such an announcement would have created duress, especially given the absence of any initial case determination to give us all clarity about how the Proposition wording should be interpreted (and relied on).

  14. Mr.Toad

    I’m for better water always have been. But it is clearly the right of the people to make the wrong decision. Being on the wrong side of the right to have this vote is a career killer. Voting not to have the election is a political obituary. The vote will happen one way or another, obstructing it only hurts the chances of the project going forward when the final vote comes down.

    Why is there no case law? Obviously, its because nobody has been stupid enough to deny a petition that qualified.

    David you are right about the city attorney. I defended her on PERB, mostly because there was all this inane pressure to go to imposition of a contract from people who know nothing about labor law on this blog, but this legal advice has got to be the stupidest legal and political opinion I have ever seen. In my opinion the council really needs new counsel.

    We need to win this at the polls not by some usurpation of the election system. I know it is frustrating for the proponents to see the community choose pollution and poor, unhealthy water quality, still this is the system we live under, and, as such, we must win it at the polls or be stuck with lousy water for generations to come.

  15. Mr.Toad

    By the way, I’ve seen this picture before, in the 1970’s.

    The Humboldt Bay Wastewater Authority wanted to build a pipeline from Mckinleyville to Eureka where they were constructing a new wastewater plant. The people petitioned. The powers that be tried to claim that the petition was invalid because the petitions were turned into the wrong office on the last day. The courts made them have the vote and the pipeline was defeated. Today one of the opponents of the pipeline, Wesley Chesbro, is in the State Assembly. Where are the other local polls who opposed the vote, nowhere is my guess.

  16. davisite2

    There may very well be a Yolo judge who succumbs to the power of Woodland and Davis powerful special interests and supports Harriet Steiner’s unsupportable position. Such a judge would be risking his career when he next is up for reelection as his decision will undoubtedly be over-turned on appeal. Of course, this would get Souza and Wolk off the hook by then placing the referendum further out beyond their June reelection bid. There would undoubtedly be a challenger to this judge’s position on his/her next attempt at reelection that would result in the least $50,000-$75,000 in campaign costs and probably his job. Of course, Let’s also not forget that this strategy would also get the referendum off the June ballot where Souza and Wolk will be seeking election. Their contempt for the Davis voter will be a major issue on the June ballot even if the referendum is not also there.

  17. Matt Williams

    Mr.Toad said . . .

    [i]”D2, Why impugn the local judiciary in such a manner? Why the familiarity breeds contempt attitude? This isn’t going to court, its going to a vote!”[/i]

    On your closing comment, I wholeheartedly agree. On your two questions, I believe the answer is that D2 speaks from direct knowledge of the courts.

  18. Herman

    Davis2 is largely to partially right. The stakes are bigger than just the water issue. If the water issue appears on the June 5 ballot it will have complex and unpredictable impacts on the outcome of the city council races. However, to argue that the issue would necessarily work against Souza and Wolk is probably mistaken. And, having a little inside knowledge, I don’t think Sue Greenwald or Brett Lee are any keener to have this issue on the ballot than the other contenders. All the contenders will have to juggle the water issue and decide whether it is riskier or safer to side with opponents or proponents or just take an on the fence sort of position. So, while it may come down to the courts, don’t expect much support from any members of the existing council to opt to put the measure on the June 5 ballot.

  19. Matt Williams

    I agree wholeheartedly Herman. The ideal solution for all five CC members is to use the time between now and June to show they are both actively listening to the Davis citizens/residents, and actively working to address the issues being raised. If they can show significant progress in building open, unbiased, and fair community dialogue on those issues, then the June election will be much less complex and unpredictable.

    On the other hand if the CC allows the kind of emotion and anger and personal attacks that we have seen over the past month to rule the day, then the June election will be predominantly ruled by the hearts of the electorate rather than their heads.

  20. rdcanning

    Although the City Council certainly has an influence on the tone of the debate, there are other significant contributions that are out of their control. You see it on this blog every day – inflammatory language, reliance on anecdote rather than facts/law, and attitudes that suggest that the motivation is neither aimed at civil discourse or collaborative and forward-thinking solutions. Your posts, among others, are informative and suggest a tone that ought to more emulated by others, rather than name-calling and hysteria.

  21. Rifkin

    [i]”There may very well be a Yolo judge who succumbs to the power of Woodland and Davis powerful special interests and supports Harriet Steiner’s unsupportable position.”[/i]

    I have a question for those who play lawyers on TV: If the City of Davis formally decides that this referendum is invalid and the proponents (Harrington, et al.) sue to overturn that decision of the City, which court would have jurisdiction in such a case? At first blush, I would not think that it would be Mr. Rosenberg’s palace of fine portraits in Woodland. But I really don’t know. Does the Superior Court send the matter to the Court of Appeals? Does such a case go to the Supreme Court in San Francisco? Will the NBA players ever be back on the Court?

  22. Matt Williams

    rd, one of the significant challenges in the dialogue is that there aren’t clear cut answers to a number of the key questions. Witness Sue Greenwald’s firm assertions about salinity and selenium vs. Don Shor’s equally firm assertions vs. my posting of simple straightforward numbers. Similarly, look at Mike Harrington’s emotional responses to even the utterance of the EIR challenges the City faces in trying to drill even one additional 2,200 gallon per minute well into the deep aquifer, much less the six such wells that would be needed to retire all the selenium rich intermediate aquifer wells. Mike (and others) simply doesn’t want to accept my contention that because of the vagaries of the EIR process the City must get UCD’s “permission” to further access the deep aquifer . . . and the strong likelihood that any unilateral decision to proceed regardless of UCD’s opposition will result in a long and acrimonious battle between the City and UCD in the courts. Is that kind of adversarial relationship good for the Davis community?

    Bottom-line, we need community collaboration, not community polarization.

  23. Don Shor

    Matt: [i]”we need community collaboration”[/i]

    To get collaboration, you have to at least agree on the facts.
    So when Mike Harrington says “No one believes anything anymore from the project personnel who gave us the false rates” and replies to a discussion about technical and regulatory issues with “But the same people designed and carried those studies. No, I don’t believe most of it…” it is impossible to have a dialogue.

  24. Michael Harrington

    Don: Collaberation? Oh, really? it’s always been from you guys that: “it’s the surface water plant or bust.” How can you talk about collaberation when there has been none, other than we have to see all the technical and fiscal stuff your way, or take the highway?

    The City and its numerous overpaid water consultants have had 15 years of file churning and billing to get to Sept 20, and we had one week to organize the referendum, and 3 weeks to somehow gather about 5000 signatures in the face of a blizzard of blockers and nay-sayers and pounding on this Blog by you and your friends, including your defense of United Water and Vioela Water, until David and I outed them with help from Nancy Price.

    I knew it was going to be razor-close.

    The project proponents have pretty much destroyed their credibility, which is why one of our fundamental requirements is that there is an independent study of the groundwater supply system before we agree on the design and cost structture for the system. I do not want the City’s nose in this; the study has to be fully independent. (Sorry, water staff, it’s not personal, but we have history with that project which is not good, and you guys and Yost set it up, along with Saylor, Souza and others.) So no, it has to be indepdendent of anyone who touched this project.

    This is going to be completely outside of the current newly formed Water Advbisory Committe that is stacked with water proponents who have defended and sung the praises of the politicians and staff and consultants who tried to stick us with this near-theft of over $250 million of ratepayer cash. I think that group should be immediately disbanded. ERM is a huge advocate of business as usual, and she should be removed. She is not objective, and makes no sense in her stubborn defense of the project and its personnel.

    Don, we are moving on to other things and will seek to get this right pursuant to an initiative that will set city policy and a process for getting to the truth of the water system and funding issues.

    We are not involved in drafting or pursuing Ernie’s initiative at this point; his only deals with rate rollbacks, which is too limited of a goal. We need an initiative that sets policy, and a Plan B to find solutions to what has been a very very bad process for nearly 15 years.

    Thanks to everyone who helped with the referendum.

  25. Don Shor

    Michael: “[i]other than we have to see all the technical and fiscal stuff your way, or take the highway?”[/i]

    Salinity: we will exceed the limits. Please describe how you plan to deal with that.

    Selenium: we will exceed the limits. Please describe how you plan to deal with that.

    Do you not believe we are going to exceed those limits? Do you not believe that the water has the amount of salinity and selenium that the city tests it at?

    Subsidence: the ground is sinking. Please tell me whether you think this is a problem, and how you plan to deal with it.

    Deep aquifer: the proposal has been made to use that aquifer at a substantially higher rate of pumping for the next 20 – 25 years. Please explain on what basis you consider that safe.

    Michael: [i]”…including your defense of United Water and Vioela Water…”
    [/i]When have I ever defended any specific company about anything? Please be specific, or withdraw this charge.

    Michael: [i]This is going to be completely outside of the current newly formed Water Advbisory Committe that is stacked with water proponents who have defended and sung the praises of the politicians and staff and consultants who tried to stick us with this near-theft of over $250 million of ratepayer cash. I think that group should be immediately disbanded.[/i]

    So, Matt, how do you propose collaboration proceed?

  26. Don Shor

    Michael, as I posted on another thread:

    You have maligned the citizens and public officials of Woodland.
    You have maligned the public officials and staff of Davis.
    You have labeled those of us who support the project as “elitists” and implied that project proponents snuck it by you and your supporters with questionable and nefarious practices.
    You have maligned the independent experts who have, almost unanimously, endorsed the surface water project.
    Seriously, this has got to stop. It seems you will say or do anything to block the water project. I welcome a fact-based debate. But your behavior makes me feel that is very unlikely.

    You have one issue. Short-term cost.
    We have several issues: water quality, the impact on the aquifers, pollution of the delta, and the likelihood of greater long-term cost.
    If you have facts to counter the points I and others have made regarding those issues, by all means post them. If you have experts to counter those I have cited, by all means post them — by name, with quotes and links. Quit creating bogeymen and deal with the issues.
    Sue Greenwald, to her credit, is addressing issues. We are having a fact-based discussion. We disagree about analysis and proposed policy outcomes.
    You are choosing, repeatedly, to impugn the integrity of your opponents. That means to me that you are using tactics, not facts.

  27. Ryan Kelly

    This has got to be the most illuminating of Mike Harrington’s posts:
    [quote]“How can you talk about collaberation when there has been none, other than we have to see all the technical and fiscal stuff your way, or take the highway?”[/quote]

    He doesn’t understand the project, water issues or public finance. This leaves him will little in the way of a response to these issues. Pretty soon Mike will resort to declaring that God will smite us.

  28. Politically Incorrect

    Quit arguing and quit wasting your time. Legal action will take time. You need to hit the city NOW with an initiative petition. You need to collect signatures of five (5%) percent of the number of voters that voted in the last gubernatorial election. The same ones who signed for the referendum can sign the initiative. The power is with the people even in the city of Davis.

  29. Matt Williams

    Don Shor . . .

    [i][b]”So, Matt, how do you propose collaboration proceed?”[/b][/i]

    One answer Don would be musically . . .

    [i]My momma done tol’ me
    When I was in knee-pants
    My momma done told me, “Son
    The man’s gonna sweet-talk
    And give you the glad eye
    But when that sweet-talkin’s done
    The man is a two-face, a worrisome thing
    Who’ll leave you to sing the blues in the night[/i]

    The more serious answer would be by invitation to discuss the issues one-by-one publicly in open, unbiased forums where Michael will either collaborate or avoid collaborating. He will either engage the issues, or he won’t. That will be his choice . . . for all to see and hear.

  30. JustSaying

    David, I’m having a little trouble following…help. Where does Dunning’s thinking stop and yours take over? You’ve done a great job attributing Dunning’s words, so can we assume that you wrap him up at “I am far from convinced…” and the balance of the report is your words and thinking?

    When you report “The timing of the brief…angered many,” who are the “many”? Are Harrington, Dunning and you angry, and do your three add up to “many”? Where is this “anger erupting”? Is there a poll, meeting, parade of citizens with pitchforks you neglected to mention?[i][quote]“What has become clear to me is that this is no longer just about the water project. There may still be good reasons to go forward with it, as have been pointed out numerous times.” [/quote][/i] What “this” is no longer “just about the water project”; it seems it’s all about the project. And, when did you ever point out (numerous times) the good reasons to go forward with it? I must have been dozing.[i][quote]“Bob Dunning wants to jump on the ZipCar project, but he forgets or ignores that that project cost the city nothing.”[/quote][/i]Are you forgetting or ignoring that ZipCar cost the city thousands in cash subsidies, in facilities management/donations and in personnel costs. (Maybe you’re concerned that you’ve been too accommodating of Dunning’s rantings lately?)

    Isn’t it a little silly to whine that the city didn’t beat into our heads things like the conservation contribution to cost calculations and Harriet’s Sept. 6 public statement that a referendum was not a effective challenge (IHO)?

    The fact that you (and Harrington?) and the rest of us weren’t paying attention to these significant points when the city “laid the cards on the table” really doesn’t justify criticizing them for a failure to disclose.

    It’s time to stop blaming the city for our own inadequacies, don’t you think?[quote][i][i]”If you think the water rate hikes are necessary and needed, then argue your point, do not hide behind the City Attorney’s UNTESTED opinion. She is not a legal authority. She is not an independent agent or a neutral bystander. She is a paid agent for the City of Davis and she has an agenda to uphold the actions of council….Now we have this fiasco where it appears that Ms. Steiner has concocted a legal opinion of convenience without any basis in current case law.”[/i][/i][/quote]Come on now, David, you know better than this even if you’re unbearably angry. This is not a city attorney’s [i]modus operandi[/i]. She may be mistaken, but so may be Harrington.

    If you’re just fine hiding behind the Harrington/Dunning UNTESTED legal analysis, why leap a fighting pose against people who are accepting Harriet’s?

  31. JustSaying

    [i][quote]“…at 3 hours and 43 minutes into the question and answer period on the item…..It was a six hour meeting – I don’t recall it coming up, and I have watched it on tape a few times now.”[/quote][/i]Are you saying the city manager is untruthful? What did you find at that point in the tape as you were watching it? It’s either there or it isn’t. Wouldn’t it be interesting to know Harriet’s exact wording? Why do you think you couldn’t find anything during your few times watching the tape?

  32. JustSaying

    [i][quote]“I knew it was going to be razor-close.”[/quote][/i]Yep, I noticed you loudly announcing your fears as the weeks rolled on.[quote][i]”…including your defense of United Water and Vioela Water, until David and I outed them with help from Nancy Price.”[/i][/quote]I thought by this point David wouldn’t be taking much pride in the way he outed Veolia with a long-ago-discredited, anti-semitic propaganda piece: [i][quote]“For Veolia, the problem is that their transportation division, which is somewhat separate from their water division, has a contract to operate buses in Israel. The complaint has arisen that Veolia operates buses that are only for Jewish passengers who travel on Jewish-only roads.[/quote][/i]I guess when you’re fighting City Hall, anything goes in the sleaze department.

  33. Don Shor

    .[i]..including your defense of United Water and Vioela Water…”
    [/i]
    [b]Before you post again[/b], Michael, I expect a retraction from you. I will no longer tolerate your innuendoes and lies. The statement that I “defended” those companies is a lie. Retract it.

  34. E Roberts Musser

    [quote]It seems to me that since (according to Harriet Steiner) no one has ever challenged the legality of holding a Prop 218 referendum, there was no reason for Mike Harrington to think the legality of the referendum was in question. [/quote]

    Then Mike Harrington has nothing to worry about, right?

  35. E Roberts Musser

    [quote]ERM is a huge advocate of business as usual, and she should be removed. She is not objective, and makes no sense in her stubborn defense of the project and its personnel. [/quote]

    My quote in the Davis Enterprise: “I think the City Council has a lot to wrestle with. I have no problem with the referendum. The voters had a right to do that; that was their choice. The City Council is going to have to think very long and hard about what the next steps are, and I think the proponents of the project are going to have to take a step back and have to think about what the next steps are.”

    Do you think if fair to ask for the removal of people from whatever position they hold whenever they do not agree with YOUR PARTICULAR VIEW? Do you think it fair play to mischaracterize people’s positions/words to suit your own political agenda? Why are you so afraid of me?

  36. E Roberts Musser

    [quote]MH: …including your defense of United Water and Vioela Water…”

    DS: Before you post again, Michael, I expect a retraction from you. I will no longer tolerate your innuendoes and lies. The statement that I “defended” those companies is a lie. Retract it.[/quote]

    Didn’t you know that if you disagree with Michael, he considers you fair game for vicious character assassination?

  37. Ryan Kelly

    [quote]Mike Harrington: “Ryan, actually, only the referendum shall smite your dream project.”[/quote]

    So now it is my “dream project.” I have never experienced the level of personal attacks that Mike levels at people who have a different viewpoint from him. I am one of the 4800 218-protestors Mike feels he has been called upon to represent. I dutifully sent in my protest form when I had the opportunity, so I don’t know why Mike would be calling it MY dream project. I am also a voter, and I do vote, so I don’t know why Mike would be working so hard to disenfranchise me and others like me who are looking for a more collaborative process.

    The only posts I have made here is calling Mike on the carpet for his dodging of questions, personal attacks, innuendo and lies, hidden agendas, and back stabbing behavior.

    Since his statements regarding the “defense” of water project vendors feels particularly slanderous and is clearly a lie, Mike needs to retract it. Everyone is waiting, Mike.

  38. hpierce

    [quote]Since his statements regarding the “defense” of water project vendors feels particularly [b]slanderous[/b] and is clearly a lie, Mike needs to retract it. Everyone is waiting, Mike. [/quote]I think Don, and perhaps others, should welcome Mr. H’s posts… I keep forgetting the differences between “slander” and “libel”… but there can be good money made by successfully demonstrating either to a judge, in court.

  39. medwoman

    Michael Harrington: On a much earlier blog, I took exception to your statement that the relatively wealthier members of our community “did not care ” about the impact increased rates would have on those with an income of less than $60,000. You graciously corrected your statement and clarified your position. I would appreciate if you would take the time to do so again with regard to some discrepancies I see in some of your positions.

    First, you frequently have stated that you want any water project to be run exclusively by the city. And yet you state that you do not trust the city staff and CC. If you can not trust them in setting rates and approving a project how do you think they would be better at running it independently ?

    Second, you state repeatedly that you are representing the voters. However, I feel that I already have voted on this issue. Once when I cast my votes for members of the CC who I anticipate will do the research and represent the best interests of the city as a whole and again when I placed my 218 protest form in the recycle. I do not feel that you are representing me as a voter when you disrespect my thoughtfully cast votes. If you cannot trust the voters who have already expressed their will several times, could it be that you only trust the voters who agree with you ?

    You state frequently that you are interested in collaboration. However, in my experience, people who are interested in collaboration do not call others names, accuse them of lying, threaten and bully to get their way. And yet you have seen fit to threaten repeatedly with lawsuits and various other stalling maneuvers if you do not get your way. Hardly sound ground for collaboration.

    I came to this subject very late and with an open mind since I have not followed the Davis water situation in the past. When I first began reading about this subject, I was hopeful that there would be a thoughtful, fact based discussion of the pros and cons of both the project and the means of financing. During the past couple of months I have seen many thoughtful, informative posts from folks on both sides of this issue including Sue Greenwald, Don Shor, Elaine Musser, Matt Williams as well as others. Sadly, I have yet to see any thoughtful, fact based and constructive posts from you. This is sad because I feel that you are missing a real opportunity.

    So there is at least one voter that you have lost through your vicious, bullying approach. I doubt that I am alone.

  40. E Roberts Musser

    [quote]I think Don, and perhaps others, should welcome Mr. H’s posts… I keep forgetting the differences between “slander” and “libel”… but there can be good money made by successfully demonstrating either to a judge, in court.[/quote]

    Slander refers to the spoken word, libel refers to the written word, and in either case, you must be able to prove damages… 😉

  41. medwoman

    ERM

    So as a purely hypothetical example, if a council member were to be subjected to recall, and could prove that libel had occurred during the campaign to recall, he or she could sue for damages associated with their loss of position on the council ?

  42. E Roberts Musser

    [quote]So as a purely hypothetical example, if a council member were to be subjected to recall, and could prove that libel had occurred during the campaign to recall, he or she could sue for damages associated with their loss of position on the council ?[/quote]

    Monetary damages…

  43. E Roberts Musser

    From legalmatch.com:
    [quote]Why Does the Distinction Matter?

    Damages in Defamation Cases – General damages may be awarded to a plaintiff if his reputation has been injured. In such case, the plaintiff is allowed to recover compensation without any proof beyond the defamatory nature of the statement(s). This compensation covers the emotional trauma and harm suffered by the plaintiff. Sometimes, however, the plaintiff must prove a specific type of loss in order to prevail. These are “special damages.” This includes specific economic losses, such as lost profits, that resulted from the defamation. These are often hard to prove. If the plaintiff can prove his special damages, he may then recover general damages. Whether a plaintiff must prove special damages depends on whether the defamation is considered libel or slander.
    Libel and Libel Per Quod – Most courts allow any plaintiff claiming libel to recover general damages. These damages are presumed from the harm to the plaintiff’s reputation. Some states have made a distinction between libel per se (libel on its face) from libel per quod (requiring extrinsic evidence). For libel per quod, the plaintiff must show special damages unless the libel falls into a “slander per se” category.
    Slander and Slander Per Se – If the defamation is characterized as slander, the plaintiff will most likely have to prove special damages. However, some statements are deemed so horrible that they are “slanderous per se,” requiring no additional proof of special damages. These include:
    Attacks on the plaintiff’s competence to perform adequately in his profession
    Claiming the plaintiff has a loathsome disease
    Alleging that the plaintiff has engaged in serious criminal misbehavior
    Suggesting a that a woman is immorally impure [/quote]

  44. E Roberts Musser

    So it appears that if libel is proven (written defamation), general damages may be awarded by the court without necessarily any proof of economic loss. However, if only slander is proven, specific monetary damages must be proved for any damages to be awarded…

  45. Matt Williams

    So Elaine, if I can use a specific hypothetical situation, imagine that ReconTrust the mortgage foreclosure collection subsidiary of Bank of America sends out foreclosure notices to a person who has a similar name to the property owner, but has no connection to the property, and has never had any direct or indirect connection to the property. Further, ReconTrust sends notice of those same erroneous foreclosure notices to other people in the community. It would appear that because ReconTrust’s multiple actions are in writing they are libel rather than slander, and that since they sent coppies to the other people in the community there are two kinds of damages, 1) damage to reputation and 2) emotional distress. Is that a correct reading of the hypothetical situation described?

Leave a Reply

X Close

Newsletter Sign-Up

X Close

Monthly Subscriber Sign-Up

Enter the maximum amount you want to pay each month
$ USD
Sign up for