| News - Friday, January 22, 2010
Upfront: Witness for the prosecution?
Newest board member has Novato Sanitary District in another fine mess...
by Peter Seidman
It didn't take long. Just days after the lone opposition candidate to win a spot on the Novato Sanitary District took his seat, the first confrontation erupted in a district that has been wracked with dissension.
The acrimony and accusations that have been flowing through the district mirror a general anti-government attitude evident on the boards of government agencies across the county, state and country. In the words of Beverly James, general manager of the Novato Sanitary District, "It is a challenging time for local public agencies, and Marin is a challenging environment in which to work." Residents and board members in sanitary districts in the Ross Valley and Southern Marin can attest to that. Those districts have been working through their own controversies, but the polarization in the Novato district sets it apart.
The latest dustup in Novato came on Dec. 23, according to Dennis Welsh, one of three opposition candidates who ran for three open seats on the Novato Sanitary District Board. Welsh, Bill Scott and Dennis Fishwick campaigned on a slate opposing the district's plan to privatize its new wastewater treatment plant under a contract with a multinational corporation. Welsh, the lone opposition candidate to win a seat on the board, garnered the most votes in the election, emblematic of the polarized district. He received 5,844 votes, or 20.47 percent, in the Nov. 3 election, according to the Marin County Registrar of Voters. Scott came in fourth, just five votes shy of incumbent Bill Long who, along with fellow incumbent Mike Di Giorgio, won re-election. (Di Giorgio received the second largest vote count behind Welsh, another example of polarization.) That set up a 4-to-1 majority on the board.
Welsh was sworn in at a Dec. 14 board meeting. At a regularly scheduled board meeting on Dec. 28, an agenda item called for a closed session during which the board would discuss legal matters associated with a U.S. Environmental Protection Agency raid at district offices in May. It was part of an investigation into alleged environmental violations in the district in 2006 and 2007. Welsh was the superintendent at the Novato plant from 1987 to 2006, when he retired. Last spring, the EPA interviewed Welsh as part of its investigation leading up to the raid. The district and the board maintain that they do not know the details of the EPA investigation, and the agency has not yet revealed its case, or potential case.
That Welsh was called in during the investigation made some people at the Novato district a little nervous when the board wanted to meet in closed session regarding the case. "It was the instinctual sense of things that he should recuse himself, and he did not wish to recuse himself," says Kent Alm, attorney for the district, "so we terminated the meeting so there would not be any Brown Act violation until we could resolve this matter." (The Ralph M. Brown Act is the state's open-meeting law, which forbids meetings behind closed doors except under special circumstances.)
Welsh came out swinging and claimed the board and the district were violating the Brown Act. "I believe this continuance to be unlawful," Welsh wrote in a letter to the county district attorney. "A matter can be continued but not for the purpose of preventing a duly elected member from participating in the meeting. I find these events troubling because I believe this attempted exclusion to be in violation of the Brown Act, with the board thwarting the will of the electorate."
That letter is dated Jan. 6. Six days later, Welsh wrote another letter, this time to Di Giorgio, president of the Sanitary District board. In it, Welsh clarifies his contention and says the board "may be" meeting to defeat the Brown Act. It's a technical clarification, which becomes clear when he states that the board "may be having private unnoticed meetings with district counsel." The clear indication is that Welsh continues to believe the board and the district "may be" meeting in secret.
That's just not the case, says Alm, who reiterated that the closed session meeting was in fact postponed so the district would not violate the Brown Act. The legal matter, he adds, actually has more to do with other meeting laws than with the Brown Act. "There may be a balancing of rights," says Alm, "of the board or the agency to have a candid attorney-client conference balanced against the right of a board member who may be involved and who may be an adversary in a legal proceeding to be present at a meeting. We have not taken a final position on it. It merely came to a head [when Welsh refused to recuse himself]."
Welsh, not surprisingly, disagrees with Alm. In his letter to Di Giorgio, Welsh says that in a telephone conversation with an investigator at the district attorney's office, the investigator "stated he did not know of any case law that would support the [Sanitary District's] position of my exclusion from the closed sessions at this time."
Alm, also not surprisingly, disagrees. On Jan. 14, Alm said he soon would send his arguments regarding the situation to the district attorney's office, and he would send a copy to Welsh and other board members.
The unstated supposition is that Welsh could be something of a hostile witness to the district, no matter what personal position he takes regarding the alleged violations while he was superintendent—especially considering that the EPA interviewed him as a potential witness for the prosecution.
In November, the board hired an environmental law firm to represent district interests in any legal action that may stem from the alleged environmental violations. A representative of the law firm of Barg Coffin Lewis & Trapp asked the EPA whether Welsh was a witness. "The answer was affirmative," says Di Giorgio. Welsh says that although he was interviewed, no one ever told him whether the EPA definitely will call him as a witness. "Lots of people can be potential witnesses," he says, and that's not sufficient reason to exclude him from board business.
But if the EPA possibly intends to present Walsh as a witness in a case against the district, say Alm and district officials, it's not unreasonable to exclude him from what amount to strategy sessions regarding the case.
The district has yet to get a definitive answer about whether Welsh is a potential or definite witness ?and what that distinction might mean in a possible court case. "We have yet to receive that report" from the law firm, says Di Giorgio. He and Alm contend that the situation will reach a rational resolution based on legal interpretations rather than emotions. The board and the district, Di Giorgio maintains, never intended to exclude Welsh from district business because of his vocal opposition against positions the other board members assume, including the plan to privatize the new $90-million wastewater treatment plant.
The issues Welsh raises regarding the Brown Act "will be resolved through the process," says Di Giorgio. "Let the process work. If it is determined he does have a conflict of interest, he will be asked [again] to recuse himself." While the board and district administration wait for a legal determination from their law firm and the district attorney, James notes that district board members have received extensive training in implementing the Brown Act. "Dennis is new to the board and hasn't yet had the training, so perhaps he's not yet aware" of Brown Act details and compliance issues.
Welsh disagrees. And he says he plans to continue pushing to present his positions on the board to represent residents who elected him. "Let us all resolve to attempt in good faith to narrow [our] differences where possible," he states in the letter to Di Giorgio. But he ends with a kicker: "I intend to do the job I was elected to do and that includes participating in every meeting and discussion that this board conducts."
The district has been conducting business on a razor's edge of dissent since the board proposed privatizing its new treatment plant. On July 27, the board voted to sign a five-year contract with Veolia Water North America. The contract runs for five years, and the district has the option to extend the contract for two three-year options; the financial terms will be renegotiated if the district exercises the options. When the news broke that the district was ready to pay Veolia $15.6 million for a five-year operations and maintenance contract, opponents began lining up to protest a move that they said would privatize a public asset, even if it is a deal that includes an ultimate sunset.
Opponents say they mistrust the numbers, including an assumption by a consulting firm the district hired that Veolia could save the district $7.2 million over the length of the five-year deal. A group coalesced in opposition to the deal, which included the newly formed Alliance of Concerned Citizens of Novato.
Concerned Citizens garnered a big ally when California Healthy Communities came to Novato to help the anti-privatization fight. Healthy Communities is connected to the Tides Center in San Francisco, a home for progressive politics and social justice efforts. Roots of the Tides Center rest in the Tides Foundation, an organization founded in 1976. Healthy Communities and its ally, Food & Water Watch, adamantly oppose privatizing water utilities.
With the help of Healthy Communities, the opposition to the Veolia deal mounted a petition drive and succeeded in getting enough signatures to qualify the Veolia arrangement on the June 8 ballot.
Some disagreement exists over whether a referendum in the Novato district would be binding. "In all likelihood it would," says James, "but there are potential issues as to whether it's a referendable issue. The Sanitary Act allocates specifically to the board of directors the responsibility to enter into contracts." But the board decided to refrain from mounting a legal challenge to the referendum and to let it get on the ballot unopposed. Should voters pass the referendum, however, the district still could mount the legal challenge.
Welsh says the referendum will be a binding vote. The Veolia deal "will have to stop as soon as the vote is certified."
The referendum already has made an impact on the district, which suspended its contract with Veolia on Dec. 12, and downgraded, at least temporarily, its relationship with the company.
James says the district expects to start up the new $90-million plant on schedule, bringing "a good portion" on line in March and most units in operation by June. To accomplish that, the district has entered into an emergency services agreement with Veolia, which will cost $40,000 per month.
In addition to using Veolia as a kind of consultant with its own employees, the district has hired two temporary workers to help get the plant started and running. Union opposition has surfaced because the Veolia deal would allow the district to shed public employees, along with their pension and benefit plans.
James acknowledges the forces behind the debate. "They are largely driven by the challenges that public employees and public employers are facing, and that creates a lot of uncertainty and an atmosphere for controversy."
Contact the writer at peter@pseidman.com. | 
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