An Open Letter to City Council on Water Advisory Ballot Measure

by Matt Williams 

GUEST COMMENTARY – First, the customary disclaimer.  The author is a member of the Water Advisory Committee (WAC), but the opinions herein are his own and not those of the WAC.

As Council, Staff and the WAC have wended their respective ways through the last 10 months of the water system decision process, there have been a couple of situations where the WAC recommendation to Council and the Staff Report recommendation to Council have been at odds with one another.  Until the events of last Tuesday night, in each case Council chose to defuse that WAC/Staff disagreement by returning the issue to the WAC for further consideration, where an updated recommendation was hammered out that both Staff and the WAC could support.  In each case where Council followed that process, a good result happened.

Unfortunately, when presented with the latest incident of WAC/Staff disagreement on Tuesday night, Council chose to follow a different path and jettison the WAC recommendation in favor of Staff’s recommendation.  My opinion is that Council made a mistake in doing so, and at their next meeting, should step back from what it agreed to last Tuesday and return this issue to the WAC for some further open, thorough, transparent, collaborative, consensus building deliberation by Staff, Legal Counsel and the WAC at a WAC meeting.

Let me try and explain why I strongly recommend that course of action.  The table below captures the four scenarios that need to be considered regarding 1) whether to complete the Prop 218 before or after the ballot and 2) whether the ballot should be advisory or binding.

Iris Yang and Harriet Steiner’s advice to Council on Tuesday night was Scenario 1 that the Ballot should be Advisory and the Prop 218 process should happen after the Ballot vote.

In the past two weeks many of you have received and read your “Combined Sample Ballot and Voter Information Pamphlet.”  On Page 25 you find the Impartial Analysis of Measure E.  Take a moment and read that analysis and the information that is included on pages 26-29.  What you see therein is typical ballot information.  Now fast forward in your mind to next March and imagine similar information specific to the water rates/water system/water project decision we will be voting on.  When you do this you will observe that a ballot and its support material is not set up to reveal the individual impacts of the upcoming water decision.

Now contrast that high level, general, non-personal ballot and sample ballot information with the very specific rates oriented information that comes with a Prop 218. In a Prop 218 Notice (using a mail merge combination of text and database information) each voter gets to see and analyze detailed fiscal information provided by the City for the next five-year period regarding 1) the total costs of the conjunctive use system, 2) the total revenue that will be generated to offset those total costs and produce a balanced budget in the water enterprise fund, 3) the specific rate structure that will be used to generate the revenue, 4) the total water consumption that is projected for each of the five years of the rate structure, 5) for each individual customer/account/ratepayer, the actual consumption for the most recent 12-month period, 6) for each individual customer/account/ratepayer, the actual fees paid for water during the most recent 12-month period, 7) for each individual customer/account/ratepayer, the projected consumption for each of the five years of the rate structure, and 8) for each individual customer/account/ratepayer the annual fees the account is expected to pay at the projected consumption levels.

Further, the Prop 218 process A) mandates that the Prop 218 Notice containing all the above information shall also include “the date, time, and location of a public hearing on the proposed fee or charge,” B) allows customers to respond to the proposed rate increases prior to the public hearing, and C) mandates that the City tally and publish the number of customer responses that filed written protests against the rates.

If our goal is to have an informed electorate “step into the ballot box” in this mail-only election, then it is very clear to me that the voters need a combination of both the Prop 218 information and the ballot/sample ballot information.  As a result I believe Ms. Yang’s and Ms. Steiner’s opinion that the Prop 218 should follow the Ballot means Davis will have an electorate that will cast their water ballot vote without the benefit of any of the Prop 218 information: neither the Notice, nor the Public Hearing, nor the Protest filing tally.

Instead of following the Yang/Steiner advice, I strongly believe we should honor processes that work well.  We should complete the Prop 218 process with its focus on individual impacts prior to voting on the Ballot.

Lets now look at Scenarios 2 and 4 . . . the issue of Binding vs. Advisory.

Yesterday Robb Davis asked me to reflect on what the WAC’s activities over the past 10 months have meant for the City.  After some serious self doubt on my part we came up with the following answer that combines a whole lot of reality and a little bit of hope.  “The WAC has conducted an open, thorough, transparent, collaborative, consensus-building process that has resulted in an informed City of Davis vote that overwhelmingly supported the recommended (by the WAC) and chosen (by the Council) solution to the City’s water needs for the next 50 years.” As the Council weighs the advisory vs. binding alternatives I hope it is their goal to choose a solution that meets all the criteria embedded in that description of the WAC process.

Although I personally prefer a binding ballot, Robb made a very persuasive argument that choosing an advisory ballot can meet those criteria as well.  The key with either alternative is to build both reliability and accountability into the ballot process.  To do that with an Advisory Ballot, Council needs to let the electorate know what criteria it is are going to use for acting on “the advice” it gets from the ballot vote.  Said another way, Council needs to provide answers in advance to questions like:

The reason I support a binding vote is that virtually all of those questions go away.  “Binding” means you count the votes and proceed if there are more yeses than noes.  Regarding low voter turn-out, in a conversation with Bob Dunning back when the WAC was considering the November date vs. a Spring date, Bob made a very clear and compelling argument that if a voter chooses not to vote in a binding election, then that voter has no choice but to be bound by the decision of those citizens who did choose to vote.  I had a hard time arguing with him on that.

For me, choosing binding is just the next step in a very logical progression toward reaching a conclusion in which the community will say, “The project stood (or failed) on its merits.” I truly believe that outcome will be good for this community.

Robb believes that that same end can be achieved with an advisory vote if Council clearly tells the community up front what its decision criteria are for integrating the advice into the decision process.

Regardless of which side of the binding vs. advisory argument you fall on, Council would be well served by asking for a discussion of that choice by the WAC, Staff, Ms. Yang and Ms. Steiner at a WAC meeting.

What would the question on a binding ballot look like?  What I tried to convey during my public comment was the following simple yes/no question.

Should Council implement, as an Ordinance of the City of Davis, the most recently noticed Proposition 218 rate structure that was approved by the ratepayers to generate revenue to cover the costs of the Water Advisory Committee and Davis City Council recommended conjunctive use water system including the Davis Woodland Water Supply Project.

If the result of the vote is that the Davis community says yes, then I believe that none of the concerns that Iris Yang and Harriet Steiner raised at the last Council meeting will happen.  Specifically, if project costs change as Ms. Yang fears (and they surely will), those changed costs have been anticipated and covered by the “industry standard risk contingency” amounts that are part of the projected project costs at this pre-bid stage of the process.  Further, a binding ballot will not tie the Council’s hands in unforeseen areas as Ms. Yang fears.  It will only be a yes/no decision on the implementation of the Prop 218 approved rates.  Ironically, all the community angst that happened in late 2011 was simply a less disciplined and less formal of version of exactly that yes/no question.  Whether you agreed with the Referendum signers or didn’t, it was very clear what their message to Council was . . . “don’t implement the approved rates” . . . and Council listened to and acted on that message.

It is interesting to note that the proposed path closely parallels the path that every Council takes in implementing every set of approved Prop 218 rates.  Further, it closely parallels the path that Council took regarding water in 2011.   Council felt that path served the community well then.  Why does that path not serve the community well now?

Ms. Yang’s concern about costs is further mitigated by the legal constraints built into Prop 218.  Specifically, every Prop 218 (regardless of what it is for) presents to the ratepayers a set of rates that set the maximum amount that can be charged.  In most cases when the actual rates are placed into an Ordinance by the governing body (Council in our case), the actual rates implemented are lower than those that were approved in the Prop 218.  Implementing lower rates is the governing body’s right under the law.  They can choose to implement any portion of the Prop 218 approved rates from 0% to 100%, but not more than 100%.  In fact, the Council by its decision on 12/6/2011 made a choice to implement 0% of the approved rates before them.

On Tuesday night when I asked Harriet Steiner during the break what she felt was wrong with a simple yes/no vote as proposed, my sense of what she said was, “Under Prop 218 you don’t have the right to tell the Council what they can or can’t implement!” When she said that, I couldn’t help but wonder that if there is legal precedent for her statement, then why did Council choose to not implement the Prop 218 rates in December?

Ms Yang and Ms. Steiner have outlined the downside of a binding vote.  Lets look at the upside for a moment.  If the open, thorough, transparent and consensus-building WAC process produces an objective vote on the clearly outlined merits of 1) the conjunctive use system, 2) its components and 3) its costs, then we will have taken a major step in transforming the perception of mistrust in this community into the reality of healing.  For me, that alone is a huge reason to make the ballot binding.  It will bind us together.

So I end this open letter to Council asking you to do now what you did each of the other two times the recommendations of the WAC and Staff differed, send the question back to the WAC for further deliberation.  Having Ms. Yang and Ms. Steiner come to a WAC meeting armed with their legal precedents for why the ballot vote should not be binding will produce another lively, open, thorough, transparent, collaborative, consensus-building examination of the issue, and as a result send back to Council one more valuable, well-considered recommendation.

If Council does take the above recommended steps, community leaders like the Council, WAC members and others will be able to keep the focus of the pre-ballot community outreach and discussion on the objective positives and negatives associated with the decision, as well as the inherent risks associated with the ultimate decision regardless of whether the vote is “yes” or “no.”  This isn’t an easy decision for our community, and there are important implications associated with both of the respective ballot results.  I believe it is important to be discussing those implications earlier rather than later.

Matt Williams is an Alternate on the Water Advisory Committee (WAC) and a member of the Davis Vanguard Editorial Board