On Tuesday night, the council went ahead with their plans for a Davis Waste Removal (DWR) transfer, despite the Utility Rate Advisory Commission (URAC) recommendation “that the City Council defer action on the DWR transfer” in order to have a third party analyze “the benefits and costs of a city acquisition of the DWR property versus the current plan to transfer the property and business to Recology, including the three sources of ratepayer value identified by the URAC task group.”
Matt Williams went further during public comment, stating that the actions by council “do not comply with express provisions of section 54956.8 which restricts closed section topics regarding purchase sale, exchange or lease of real property to price and terms payment.”
He noted the staff report stated: “There is no fiscal impact at this time for the Franchise assignment and agreement.” He read that “staff, in conjunction with a consultant, prepared information addressing Council concerns and questions associated with the proposed assignment of the solid waste franchise.”
Mr. Williams argued that “the only place these policy decisions by council can have been made by staff is in one of the eight noticed closed sessions between September 19, 2017 and April 3, 2018. Because the price and payment terms of the real property transaction do not directly or indirectly impact the rates, the fiscal impact information prepared by the consultant does not qualify for closed session under the provisions of 54956.8.
“Staff’s refusal to report either the name of the consultant or the consultant’s rate analysis is also a violation of section 54957.1,” he said.
He informed council that he has retained counsel to deliver a cease and desist letter to council. He argued, “Council’s review of the written and video documentation, some of which is only available within the last 12 hours, also identified violation of the California Public Records Act.”
He indicated that the letter would be delivered within the next 48 hours to the city.
He indicated that “the staff report that has been provided to (the council) for item 9 is fruit of a poison tree.”
According to Matt Williams, as of yesterday evening the city has yet to be served with the complaint regarding the Brown Act and Public Record Act violations.
During Item 9, Mayor Robb Davis asked if they were taking a risk discussing this matter, knowing that there were citizens planning to sue them regarding these proceedings.
City Attorney Harriet Steiner offered, “No.
“Earlier this evening, Matt Williams suggested that we had violated the Brown Act in holding closed sessions related to this matter,” she said. “Council obviously did have closed sessions on this matter. They dealt with price in terms of payment related to the transactions. At some of those meetings, council may have asked questions. Questions may have been answered outside of closed session. They did not deal with the issues before them during closed session which were solely price and payment.”
She said, “At this point we have nothing other than a threat that was made right here at the meeting. That doesn’t impact your ability to move forward at all.”
She said, if they do get a letter asserting that the council has violated the Brown Act, “the Brown Act provides for a cure and many public agencies decide that it’s appropriate to cure, just because they would prefer to do that than to go forward in litigation.”
She indicated that “all we can do at this point is move forward – there is no reason to stop at this point based on the threat made earlier at public comment. There is no legal reason not to move forward.”
Mayor Robb Davis expressed “frank frustration over some of the things that have been said here tonight.”
He said, “I sat through every URAC meeting when this franchise agreement was being discussed.” He said that Elaine Roberts Musser “had to tell me to back away from the table as a councilmember because I was too engaged. It was supposed to be for URAC members.”
He said, “I was told by the URAC and I was told by the NRC… that this was an outstanding contract that we should be proud of. In that contract was the right of first refusal. In that contract was the means to transfer the franchise agreement to another entity. At that time, not a single URAC member, not a single NRC member ever said we need to change the language in there so that if and when it’s sold we will demonstrate that we want to exercise our right of first refusal and we want to acquire this business.”
Mayor Davis said that there are concerns that Recology will suddenly and unilaterally increase rates. He responded, “I think we have enough information tonight to realize where the rate increases are likely going to come from.”
He said the $3 to $5 million for equipment for the MRF (materials recovery facility) is “probably going to happen” and “was probably going to happen before.”
In 2015, he said, that there were no concerns that someone could come in and unilaterally increase the rates in the city. “To suggest then that we have not listened to these bodies really offends me deeply.”
He added, “Another reason I’m offended is that I don’t know what I’m hearing from the URAC or its individual members.” He argued that he is getting conflicting statements about what they should do. “What is the model that I’m supposed to be approving and moving forward?
“For those who say we’re not respecting process, I would say, that’s exactly what this is about,” he said. He said if we want to be our own utility moving forward, then we need a process to determine the models and approaches – a means to get there. “Acquiring a MRF is not an end, it is a means.
“I reject the notion that we are not respecting process,” he said.
Mayor Davis also rejected the notion that they are not listening to their commission, but stated, “We do not always agree with you.”
The mayor added, “Arguably we are entering this transfer with a better agreement than what we had when we signed with DWR.”
He said, “It started with a gift of public funds as an accusation, now we’re being accused of a Brown Act violation. It just shows me that when people in this community don’t get what they want, they immediately go for the jugular and accuse of wrongdoing, they accuse of illegal activities.”
He said, “So far, every time we’ve been sued, we have won – because we do our due diligence, we do what’s right for the community. Go ahead, trash every revenue measure – do what you need to do.”
He said, “We have done our due diligence to move this forward based on a contract that we were told by our advisory bodies was a great contract we can have confidence in.”
The council unanimously approved the staff recommendation.
—David M. Greenwald reporting