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In a special meeting Tuesday, the Board of Public Utilities rejected all but two of the Charter Review Committee’s recommendations for revising Article 5 of the Los Alamos County Charter regarding utilities, and recommended changing the two it did accept.
The motion passed by a 4–1 vote, with Chair David Powell voting no.
Powell appointed Vice Chair Timothy Neal to chair the meeting, since Powell had served as the BPU representative on the CRC committee.
The two CRC recommendations the board accepted concern removal of a board member and a process for resolving disputes between the board and county council.
The CRC revision for removal of a board member states that “Council may remove a member of the Utilities Board upon a no confidence vote of not less than one fewer than the total council membership.”
BPU is requesting that “no confidence” be changed to “for cause.” Members were concerned that “no confidence” was too vague and would allow council to remove members for purely political reasons.
The board acknowledged that the charter should include a mechanism for dispute resolution, but disagreed with the process proposed by the CRC.
The CRC proposal calls for a working group consisting of council and BPU members, with 90 days to reach agreement. If an agreement was not reached, council could require DPU to implement council’s policy with a vote of majority plus one.
The BPU resolution reads, “The board believes a dispute between the board and council should be submitted to a subcommittee of both bodies to propose resolution.”
Board members reasoned that conflicts have been resolved very effectively in the past through this procedure. Board member Chris Ortega was also concerned that the lengthy process proposed by the CRC could have financial impacts.
BPU was very opposed to council having the final say in a dispute. Board member Kevin Anderson suggested binding arbitration as an alternative. County Attorney Rebecca Ehler saw two problems with that.
“To arbitrate, you have to have opposing parties. I’m not sure we can arbitrate with ourselves,” Ehler said.
“The other thing is, if money is involved, the New Mexico courts have held that governing bodies can’t cede their financial authority to an arbitrator. You can call in some kind of independent party or have a panel with mediators to work it out.”
One of Powell’s concerns was that the resolution included no explanation of why the board rejected CRC’s recommendations.
“I think that if you’re going to reject something, you have to have a reason to reject it,” Powell said. “I don’t think we’re acting in good faith if we don’t give the council some material to work with.”
“I’d like to tell the council what we’re in favor of and why,” Neal responded. “I don’t think we’re under an obligation to explain each of our minor decisions.”
Ortega opposed any changes to the current charter, although he voted yes on the final resolution.
“The current charter does everything that we need it to do, it has done it, and it will do it in the future,” Ortega said, enumerating several significant challenges DPU has faced since the current charter was approved in 1968.
“The authors of Chapter 5 never anticipated back in 1968, when they developed it, all that has occurred. People say this thing doesn’t look to the future. Well, the future happened between 1968 and now, and it worked, and in my opinion, it will continue to work in the future.”
“I would submit that we have a case here of something working in practice that no longer should be working in theory. The reason that the charter worked was because of the people that were involved: people of high integrity, people who were willing to work together,” Powell said.
“I think the climate has changed drastically for decades. And I don’t think, going into the future that we can count on the amount of integrity that has existed now and in the past.”
Neal asserted that all the proposed changes revolve around that issue.
“We’re trying to write into the charter how to deal with the behavior of unreasonable people,” Neal said.
“Chris does not see a need for a change to the charter because he believes that people have always been reasonable and will continue to be reasonable into the future. Those who believe they will not be reasonable into the future have written a lot of things into the charter about personal behavior, or how to deal with people who are unreasonable.
“If we do end up with unreasonable people, it’s not clear to me the new charter is going to save us, I’m not convinced the legalities that are in there are adequate to protect us from the disaster we are trying to envision occurring.”
County attorney Rebecca Ehler agreed that the revisions would not address every accountability issue that could arise, but explained why the 1968 charter might not be adequate for today.
“I think what has changed is the way we look at liability for governments since the 1960s,” Ehler said. “In the ‘60s, we still had sovereign immunity, where the government couldn’t be sued for many things. Now that has largely been taken away, both by tort claims and by various federal acts.”
Ehler reiterated that responsibility for BPU’s actions ultimately rests with council, therefore the charter should provide some means for council to exercise some authority over the board.
BPU rejected the bulk of the CRC’s recommendations. Many were not even discussed.
A proposed amendment regarding rate changes that would have strengthened BPU’s authority by only allowing council to “approve, disapprove or remand” the board’s recommendation was rejected.
Board members felt the current charter adequately addressed the issue, since it requires the board to recommend rate changes subject to council approval.
Ehler pointed out that although it has not been the practice in the past, the current charter would allow council to change the recommended rates by amending the ordinance DPU submitted to them.
“The Charter doesn’t say that they can’t amend it, and they generally have the power to amend ordinances that are put before them,” Ehler said.
The board also disapproved of a provision that would allow council to transfer an existing utility to DPU. Anderson felt that transferred power to council.
Powell contended that any transfer would be subject to an evaluation by the DPU manager for financial and operational impact and require approval by the board. Others argued that the revision did not require council to accept the board’s recommendation.
Under the current charter, any change to the DPU’s responsibilities requires a charter amendment subject to a public vote. The consensus was that this provision would cover transfer of a utility and was sufficient without any revisions.
Neal also felt that many of the proposed changes would be more suitable as board policies, which several members agreed with. The consensus was that an entire section on “Communication” as well as a procedure for BPU members to initiate removal of a board member (pending council approval) did not rise to Charter level.
The CRC recommendations come before council on Dec. 3 . Any recommendations council approves are subject to voter approval before being adopted.