Commentary: City’s Response to Lawsuit Makes It Look Incompetent

city-hallLawsuit is a Brilliant Political Tactic, Exposing the City’s Failure to Communicate –  Let us be clear at the start – the lawsuit has almost no chance of succeeding in a court of law.  The city probably is not tracking its expenses as closely as it perhaps should, something that City Attorney Harriet Steiner appeared to acknowledge in a statement to the local paper.

She said that the city does not track its use to the penny, but it does attempt to “offset its water usage costs by forfeiting costs the water division would owe to the general fund.”

“Presently the city does not separately account for water used at city facilities,” the city’s statement said. “(But) the city also does not charge the water division rent for its use of city park space where some wells are located, and the reimbursement of other city services and facilities is overdue for reconciliation and an update.”

“Over the past few years, the City Council has considered how to fund water used at city facilities in order to pay into the water enterprise fund and what is reasonable to charge for water division use of city park space and other city services and facilities.”

If your head is spinning at this point, you are not alone.  This is probably why lawyers should not be spokespeople for municipalities in the middle of a political campaign.

Let us back up here, and get back to that point in a moment.  Because the problem here is not legal, it is political.  We can debate the merits of the project, but the legality is not really in question.

We believe that the proposed Prop 218, particularly with regard to the Loge-Williams rate structure, gets it much closer than they have currently, to a fair and proportional rate structure.

Sure, you can concoct, as columnist Bob Dunning did, unrealistic winter-summer water usage splits to show otherwise, but he has no evidence that anyone falls into the most egregious splits that drive the differential he cites.

Anyone who believes that a Yolo County court is going to strike that down, I think is being unrealistic.  Michael Harrington, who is filing the suit, can argue as he has that the city has the burden of showing that this is proportional.  That means that the city will have to make a showing of its rate study, the work that went into creating both the Bartle Wells and the Loge-Williams rate structures, and show the justification for it.

While the city will have to theoretically have the burden, in reality the plaintiffs here will have a much higher hurdle than I think they expect, to show that the court should not allow the voters of Davis to make the ultimate call on this.

And that’s really what this is about: the voters.

It is easy to underestimate this suit because, in a court of law, it most likely goes nowhere.  But as a political tactic, it’s brilliant.  In fact, it is downright Rovian.

Most political tacticians look at a candidate and an issue, they assess the strengths and weaknesses and attack the candidate or the issue at its weak points.  But not Karl Rove, the former strategist for George W. Bush.  His approach was to find the opponent’s point of strength and attack it.

We saw this brilliantly displayed in 2004, in a race where many people thought that President Bush was vulnerable.  John Kerry, his Democratic opponent, saw his strength as being a war hero, and he emphasized that.  The Swiftboat attacks were aimed right at the core of John Kerry’s strength – the fact that he was a war hero and George Bush was a privileged draft dodger.

In so doing, Karl Rove had neutralized John Kerry’s strength.

Don’t get sidetracked by this analogy.  The key point here is that one of the strengths of the project is the rate structure.  They spent a tremendous amount of time creating a very innovative rate structure.

So, when Bob Dunning creates his miraculous fantasy numbers and Michael Harrington fires off a lawsuit challenging the rates as being disproportionate, he is attacking one of the strengths.  Look at the numbers under Loge-Williams – they are far more fair than they were under either the existing rate structure or Bartle-Wells.

The city had to know this was coming, given the letters sent to it by Michael Harrington.

But, like anything, the city has been slow to respond here.  The Vanguard‘s request for documents from the general manager was met by a response that it would have to be cleared by the city attorney.

The city manager, apparently out of the office, did not respond until out of the office.

He explained that, once the city has been served with a lawsuit, they have to essentially lawyer up.  This is the problem, and this is where the disaster is occurring before our very eyes.

This, of course, plays into the hands of the Mr. Harrington.

He is, after all, making a political statement, not a legal one.

Look no further than Bob Dunning’s column from Thursday.  The message: “We’re subsidizing city’s water use.”

Now, suddenly, the issue is not whether the city broke the law, but whether the citizens of Davis were being charged more to pay for the city’s water use.  It is a strange argument anyway, because the city has to use water and the city’s money comes either from the taxpayers or the ratepayers.  So how could we not subsidize the city’s water use?

The city gets no money other than from the citizens.  So, do we want parks with no grass and brown greenbelts?  What exactly is Mr. Dunning’s point then?

The longer the city takes to respond, the more effect this attack will be… politically.  The No on Measure I campaign was in trouble – they were outgunned and appeared to be disorganized.

But now they have changed the message.  We are talking about their lawsuit, the city will have to explain; the longer it takes for the city to offer an explanation, the worse this will be.

Look no further than Bob Dunning’s column, where he writes, “The lawsuit alleges that the city of Davis has for years not paid for its own water, which is indeed a clear violation of Prop. 218.”

“The charge is valid,” he proclaims.  He writes, “The city admitted Wednesday that ‘presently the city does not separately account for water used at city facilities’ … the city further admitted that it doesn’t even know how much water is used annually.”

As these things go, that is a BAD ANSWER.

Where did it come from?  It appears it came from Harriet Steiner.  Harriet Steiner is the city attorney – she is not a political consultant.

Mr. Dunning continues that a city official answered his question, by stating, “The city recognizes the need to transition to a more formal accounting of revenues and expenses between the water enterprise and the city. Staff are installing and repairing water meters at all city facilities to measure the amount of water being used in order to accurately calculate the water bill to allow payment with the proper city funds.”

Mr. Dunning adds his own interpretation, “In other words, at this point nothing is in place to tell the city how much water it is using and very clearly ‘proper’ payment is not being made…”

Let me reiterate this point.  I have no reason to believe that the city is in legal peril here.  But they look awful.

This is another example of the city’s poor communications system.  They don’t need to lawyer up here, they need to open this up because this is a political problem not a legal one.  And it’s a political disaster because, to be quite frank, the explanation that they have publicly put forth is nonsensical to the voters and, frankly, to me too.

Who authorized Harriet Steiner – or whoever Bob Dunning’s city official was – to speak to the press, let alone Mr. Dunning?  Did Harriet Steiner clear this with the city manager, the mayor, the Measure I campaign?  Was any thought put into this at all?

As we said at the outset here, Mr. Harrington has not exposed any sinister plot or any wrongdoing.  What he has exposed is the ineptness of the city’s communication apparatus.

Measure I now may well be in question because of the city’s failure to hire a communications director and because of Harriet Steiner’s lack of political sense.  This is an utter disaster for the city.

—David M. Greenwald

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.

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41 Comments

  1. rusty49

    David:
    “It is a strange argument anyway, because the city has to use water and the city’s money comes either from the taxpayers or the ratepayers. So how could we not subsidize the city’s water use?
    The city gets no money other than from the citizens. So do we want parks with no grass and brown greenbelts? What exactly of Mr. Dunning’s point then?”

    If it’s proven that the city isn’t paying for its water and if its ratepayers are subsidizing city water use I agree that as citizens we all will pay for it one way or another and we as ‘citizens’ do enjoy and use the parks, greenbelts, pools…. But, how about someone who doesn’t live here, doesn’t benefit from the parks and etc; owns a business like a laundromat, car wash or restaurant with high water use? Is it right or legal that they also are subsidizing city water use?

  2. JustSaying

    Michael Harrington as Karl Rove. What an interesting concept…and apt. The tactics we see in this very personal attack on our city council does bring back unpleasant memories.

    i have no problem with the city attorney responding to a legal challenge to city, and I don’t struggle at all with her explanation attempting to defend the city’s actions to allocate charges without metering every city park.

    Your call for a professional public affairs operation in a city of our size and complexities is a good one. Not to come up with cute, convincing comments, but to assure adequate, accurate communications between city government and the rest of us.

    However, no trained communications director could do much better if faced with a frivolous lawsuit designed to influence an election or an illogical Dunning dunning that Davis citizens may have paid for some of the water that Davis citizens should have paid for.

  3. David M. Greenwald

    “But, how about someone who doesn’t live here, doesn’t benefit from the parks and etc; owns a business like a laundromat, car wash or restaurant with high water use? Is it right or legal that they also are subsidizing city water use?”

    How is such a person subsidizing city water use?

  4. David M. Greenwald

    “Not to come up with cute, convincing comments, but to assure adequate, accurate communications between city government and the rest of us.”

    I agree.

    “However, no trained communications director could do much better if faced with a frivolous lawsuit designed to influence an election or an illogical Dunning dunning that Davis citizens may have paid for some of the water that Davis citizens should have paid for. “

    So you think that their explanation is a good one?

  5. rusty49

    “How is such a person subsidizing city water use?”

    If the city isn’t paying we all have to pay higher rates then we would’ve if the city had been paying. The water and system costs have to be paid for somehow. So in turn that out of town business owner is stuck with the higher rates too even though they don’t benefit as we citizens do.

  6. Ryan Kelly

    Mike Harrington as Karl Rove. Yes, this shoe fits. His allegations have always been politically motivated. Politics seems to give his life purpose, but he doesn’t see the consequences of his narcissistic actions. How he roped in Nancy Price and John Munn is a mystery.

  7. JustSaying

    “So you think that their explanation is a good one?”

    Harriet’s explanation certainly is clear and, I presume, true. If a system of informal offsets no longer is adequate, the city needs to continue its efforts to come up with a more costly, fair measuring and accounting process. Whether it would make much difference in what any of us would pay in combined taxes and water charges (even out-of-town property owners) is academic at this point.

    Harriet knows the history of the discussions and the law. The suit’s timing is from Harrington’s Brain, as you’ve accurately pointed out. It is what it is. What could a city public affairs officer done differently?

  8. medwoman

    Rusty

    [quote]If the city isn’t paying we all have to pay higher rates then we would’ve if the city had been paying. The water and system costs have to be paid for somehow. So in turn that out of town business owner is stuck with the higher rates too even though they don’t benefit as we citizens do.[/quote]

    I would agree with this statement if public facilities, parks, greenbelts etc. were open for use only for citizens.
    But they are open to the public whether you own a home here, a business, or are merely passing through.
    I would say that everyone who comes in to Davis for any purpose whatsoever benefits from our freely available
    facilities. If we were getting down to this detailed a level, one might even argue that the local business owner has more time available to enjoy the amenities if their business is open during the day than does the local homeowner who commutes to work in Sacramento or in the Bay area and is mostly gone during the daytime often leaving before daylight and returning after sunset.

  9. Ryan Kelly

    [quote]So in turn that out of town business owner is stuck with the higher rates too even though they don’t benefit as we citizens do. [/quote]

    Out of town business owners benefit from fire and police service, public works for city infrastructure (streets, sidewalks, trees and planting beds), city planning services, etc. There’s way more to the general budget than just parks and greenbelts.

  10. medwoman

    [quote]So you think that their explanation is a good one?[/quote]

    I think it is adequate given the clearly frivolous and political nature of the lawsuit.
    Unless of course, the issue is dramatized to the point where Harrington and company are successful in totally changing the course of the topic from the need for a surface water project to the supposed incompetency of the city communications or to supposed dishonesty of public officials and employees.

    I think that the media should play a major role in not allowing this change of topic to occur, and that this will only happen by keeping this deliberately created and timed distraction on the sidelines where it belongs.

  11. Frankly

    Good article David.

    But why are you heaping so many complements on Mike Harrington? Shouldn’t you have attributed his tactics to David Axelrod instead? 😉

    Again, my thoughts keep going back to the progressive rate structure. People don’t pay much attention to it when their water bill is so small; but with this surface water rate increase, it is like a giant “kick me” sign taped to the butts of city and t the Yes on I proponents.

    We can argue about the validity of the Dunning examples with all the nuance we can muster; but the fact is that progressive and complex rate structures can be exploited in the political arena by demonstrating unfairness and classism.

    I think the Loge-Williams rate structure is brilliant in that it successfully maneuvers the goals for encouraging conservation without risking funding shortfalls. However, it tees up a political target for challenges to fairness and claims of social engineering. It breaks the fundamental principle of K.I.S.S… it has been proven over and over again in the California voting process, that people will vote NO on measure and propositions that are too hard for them to understand.

    I don’t think it is too late to take another look at a simple flat and consistent usage-rate structure. Everyone should pay the same per unit cost… including the city.

  12. Matt Williams

    JustSaying said . . .

    [i]”What could a city public affairs officer done differently?”[/i]

    Good question.

    A starting place might be to share with the public that there are a minimum of meters in City Parks and other City facilities that show an aggregate total of at least 221 meters recording 277,786 ccf of consumption in 2011 and that 96% of that consumption was for irrigation.

    The City might go on to say that the City’s accounting system calculated a $576,000 billed amount for that usage under the rate structure in effect in 2011.

    Instead they said, “The city admitted Wednesday that ‘presently the city does not separately account for water used at city facilities’ … the city further admitted that it doesn’t even know how much water is used annually.”

    The fact that the City knows the number 277,786 does not in any way guarantee that there aren’t some City facilities somewhere in the City that are not metered, but to say “[We] don’t know . . . ” is providing the citizens with a woefully incomplete picture.

    JMHO

  13. Matt Williams

    JustSaying said . . .

    [i]”Harriet’s explanation certainly is clear and, I presume, true. [b]If a system of informal offsets no longer is adequate,[/b] the city needs to continue its efforts to come up with a more costly, fair measuring and accounting process. Whether it would make much difference in what any of us would pay in combined taxes and water charges (even out-of-town property owners) is academic at this point.”[/i]

    Here too I don’t think the City has provided the public with an accurate picture. As I understand the situation, I do not believe the system of offsets is structurally informal, but rather that the reconciliation of the individual debit and credit entries has not been reconciled in recent months due to staff’s concentration on other more pressing issues. My understanding is that the ability to reconcile is there, just that the formal act of doing the periodic reconciliation has not actually taken place.

  14. medwoman

    Matt

    While I appreciate your more complete explanation, I think in the current environment, the more prudent city response may actually be an honest “we don’t know the exact amount” rather than providing a partially correct number. This number would then doubtless, given previous attacks, be used to say that city officials and staff were either incompetent, or erroneous, or keeping with the form of the most outspoken member of the No on I campaign so far, lying, cheating the public, or guilty of some other nefarious, but largely unspecified intent or actions.

    Again, I think that it is incumbent upon the media to continuously point out that while the City has a great deal to lose by speaking or acting imprudently, no such restrictions apply to the No on I campaign which is free to
    put up any number of unsubstantiated accusations and arguments since there will be no price to pay for having done so.

  15. Don Shor

    It sounds as though they use an accounting offset. So the only thing they would do differently to satisfy the complaint would be to write an actual check. To themselves.

  16. JustSaying

    Matt, if Harriet hasn’t told the truth, I’d certainly have to amend my comments. I gather you’re saying that the city, in fact, has a formal measuring and billing system for city property water use, but has refused to implement the system.

    Back to David’s contention that a public affairs professional would have made a difference here, she/he wouldn’t have permitted a lie to be advanced without protest. So, I’d need to change my conclusion regarding that as well.

    While you’ve mentioned the system for parks, are we similarly capable of billing other city departments (equipment yard, fire department, etc.) for their use?

  17. Matt Williams

    medwoman, I do not think it is an either/or situation. Tell what you know [u]and[/u] at the same time acknowledge that what you do know is the result of an ongoing initiative, and that the initiative is not as yet complete.

    Said another way, acknowledge [u]both[/u] the distance that has been traveled [u]and[/u] the distance that still needs to be traveled.

  18. David M. Greenwald

    ” As I understand the situation, I do not believe the system of offsets is structurally informal, but rather that the reconciliation of the individual debit and credit entries has not been reconciled in recent months due to staff’s concentration on other more pressing issues. My understanding is that the ability to reconcile is there, just that the formal act of doing the periodic reconciliation has not actually taken place.”

    This is a tremendous problem in my opinion.

  19. David M. Greenwald

    “the more prudent city response may actually be an honest “we don’t know the exact amount” rather than providing a partially correct number. “

    While I agree a honest answer is preferable – we don’t know is a very bad answer.

  20. David M. Greenwald

    BTW, I am informed from the Enterprise reporter that part of the statement came from the city and not Harriet – so this is not all on her (though she didn’t help things).

    This apparently came from the city and not Harriet:

    [quote]“Presently the city does not separately account for water used at city facilities,” the city’s statement said. “(But) the city also does not charge the water division rent for its use of city park space where some wells are located, and the reimbursement of other city services and facilities is overdue for reconciliation and an update.”

    “Over the past few years, the City Council has considered how to fund water used at city facilities in order to pay into the water enterprise fund and what is reasonable to charge for water division use of city park space and other city services and facilities.”[/quote]

  21. David M. Greenwald

    “It sounds as though they use an accounting offset. So the only thing they would do differently to satisfy the complaint would be to write an actual check. To themselves.”

    The problem is that they are not necessarily accounting for the full outset. Again, I think this just looks messy rather than present legal liability.

  22. medwoman

    JustSaying

    [quote]n fact, has a formal measuring and billing system for city property water use, but has refused to implement the system. [/quote]

    Actually, to my reading that is not what Matt said. According to Matt,
    [quote]the reconciliation of the individual debit and credit entries has not been reconciled in recent months due to staff’s concentration on other more pressing issues. My understanding is that the ability to reconcile is there, just that the formal act of doing the periodic reconciliation has not actually taken place.[/quote]

    I think there is a substantial difference between “refused to implement” and “has not been reconciled due to staff’s concentration on other more pressing issues”. Anyone who has ever missed a work “deadline” due to being given higher priority tasks will understand this point.

  23. Frankly

    [i]This is a tremendous problem in my opinion[/i]

    It depends on the financial reporting cycle. I close my books every month, but used to every quarter. It isn’t until the end of the period that I make many adjusting accounting entries and reconcile all accounts.

  24. David M. Greenwald

    Jeff: You’re not a government agency. I expect (I know what you’re going to say) but I expect better accounting practices than are what are in place. And when I say tremendous problem, look at the Dunning columns.

  25. JustSaying

    I agree with your distinction, medwoman, that choosing not to do something maybe shouldn’t be called a “refusal.” My point, however, is that what we thought was Harriet’s statement implied something completely different (that the city hasn’t determined anything other than an informal understanding). Matt’s additional information suggests that’s not true.

    I’m still confused about whether the city had been doing a complete and accurate accounting in the past but recently decided that the described “estimates and trade-offs” temporarily would meet the need because of “other more pressing issues.”

    If Matt’s description is accurate, there is not bar to proper reconciliation (other than giving it some higher priority). Then, there’s David’s feeling that the city doesn’t really have the system and data to have fully reconciled ever.

    In any case, the anonymous city source (apparently not Harriet) has a different story than Matt.

  26. medwoman

    David

    [quote]we don’t know is a very bad answer.[/quote]

    Agreed, if that is all that is being said. However, if what is being said is “we don’t know right now” but we have a mechanism to find out and will do so as soon as possible, I think it is an entirely reasonable answer and is indeed one that I am sure has been made by anyone who has ever been in any position of responsibility.

    Matt

    [quote]medwoman, I do not think it is an either/or situation. Tell what you know and at the same time acknowledge that what you do know is the result of an ongoing initiative, and that the initiative is not as yet complete.
    [/quote]

    If what were occurring here were a well reasoned and evidence based discussion of the issues, I would completely agree with this comment. However, I do not believe that is the situation. I believe that one side is so determined to demonize the other as part of their overall strategy, that any incomplete or erroneous response, no matter how well intentioned is likely to be deliberately distorted thus making the picture less rather than more clear. In my opinion, at this point in time, this is a clear goal of the opponents of the water project. I sincerely hope I will be demonstrated wrong by an evidence based discussion of all of the issues tomorrow.

  27. Matt Williams

    JustSaying, one of the factors that I believe is affecting what is being said is a very natural tendency on the part of municipal employees to avoid saying something that over reaches. Pascal’s Wager says that it is prudent to manage the downside risks associated with the scenario where the information you have is proved to be wrong.

    The downside risks in this case are obtained if one of the City facilities is not as yet metered and the water usage at that facility is meaningful (it doesn’t even need to be substantial). So to say that “we don’t know” mitigates the downside risk of being called to task.

    My problem is that it doesn’t give credit where credit is due for the steps that have been taken to ensure that all the meaningful water usage locations were first on the list of sites that needed to have meters installed.

    It is worth noting that the Government Relations Committee (GRC) of the Chamber sat down with City management several years ago and they collectively agreed on the steps that were needed to achieve better accountability in the City’s financial management. As I understand it, the metering initiative was one of the steps that the GRC and the City agreed needed to be taken. Note, I am not a member of either the Chamber or the GRC, but I was told that by someone who is both.

    JMHO

  28. medwoman

    Matt

    I concede that it probably is prudent to back up statements about lack of knowledge with a statement about the positive steps that are being taken to address the issue. Having said that, I am very skeptical that such a reasoned approach would be honored in this setting. And that is probably the most cynical comment you will ever hear from me.

  29. JustSaying

    Agree, medwoman, nothing like a modified, limited hangout to get government in more trouble than in which it began. Over-reaching in defense of the truth is no vice.

  30. Frankly

    [i]Jeff: You’re not a government agency. I expect (I know what you’re going to say) but I expect better accounting practices than are what are in place. And when I say tremendous problem, look at the Dunning columns.[/i]

    Reasonable point. However there still are GAAP rules that apply and delays might not be a problem from that respective.

  31. Ryan Kelly

    [quote]Mike Harrington (Post from 1/31/2013): The rates are a mess, but I am committed to working with the Court and the City to come up with an excellent rate system that pays for our water system in a fair and lawful manner.[/quote]

    I’m counting on the Court to protect us from this guy.

  32. roger bockrath

    When I hear that the City lacks the technology to meter their water consumption at city facilities I am reminded of their campaign to convince us that you can’t conserve water if you have no way of knowing how much you are using. So I volunteered for one of the first meters retrofitted in Davis. I collect rain water to irrigate my gardens. I don’t let the water run while I brush my teeth.

    Meanwhile the City of Davis wastes more water in a day than I can conserve in a year. For example, they drain and refill the Civic Center Pool annually, in the dead of winter. Right next door is Civic Center Park, with it’s huge water thirsty lawn. But no, the pool water goes down the storm sewer in December when no irrigation is required at CCPark. I,m pretty sure,if they scratched their heads a little, they could figure out a way to schedule that one week down time at Civic Pool to coincide with irrigation season, and put that 225,000 gallons of water to some good use. And Manor Pool is surrounded by lawns, as is Arroyo, and Community. That’s a lot of water to be conserved. The Civic Pool mens locker room has a shower that will not shut off. It’s been that way for the past five years. Perhaps a little water could be conserved there too.

    We have all seen the water going down the storm drains along City blvd. center divides, wasted by newly installed but antiquated watering systems. How about the huge amounts of water used to flush out street piping? Is there some valid reason why this valuable water can not be flushed into a tank truck and used to irrigate city parks and greenbelts Instead of being flushed down the storm drains?

    If I am going to have to pay for City of Davis water use, one way or the other, I think it’s only fair that they be held accountable for water waste. Clearly that is not currently the case. I just want to ask the City to play by the same rules they are asking me to play by.

  33. Robb Davis

    Mr Bockrath – I concur that the City of Davis (as an entity) does not value water (a precious resource that we blithely refer to as a “commodity”). But neither do we, its citizens. Unfortunately (and you know this) your practices represent an exception rather than a rule.

    I am an early morning runner and I see, firsthand, the utter wastefulness of our irrigation practices. We dump hundreds (thousands?) of gallons of water into storm drains each month while barely making a mental note of our need to “fix that sprinkler head” at some point when we have time.

    People are complaining that we will have to pay too much for our water but the sheer that goes on around here shows that we simply do not have a clue as to the real value (the real cost) of the water we use. This is NOT just a problem for the “City”–it is a pathology from which we all suffer. We barely value a resource that is critical to our very survival. Maybe if we have to pay more we will think about it value more.

  34. DT Businessman

    “Lawsuit is a Brilliant Political Tactic” -David Greenwald

    Only from the perspective of the crazy aunt who’s crazy husband is suing the whole family. The family has got to be thinking, “Why did you marry this idiot who is screwing us all over.”

    -Michael Bisch

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