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Council to mull proposals

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Charter > Changes in Article 5 would increase council oversight of DPU

By Arin McKenna

Tuesday night’s Los Alamos County council meeting will focus on consideration of the Charter Review Committee’s recommendations for revising Charter Article 5, which governs public utilities.

This is the second attempt at revising this section of the Charter. The previous CRC raised a red flag about the fact that under the current Charter, council’s only oversight of the department or the Board of Public Utilities is its ability to appoint board members and approve budgetary matters.

State law has changed since the current Charter was written, and now places responsibility for any liability resulting from mismanagement squarely on council. County Attorney Rebecca Ehler summed up the problem this way.

“By law you can’t delegate your liability that way to any other organization. We don’t want our government passing on its responsibility to organizations we can’t hold accountable to voters.

“Under the current system of our charter, you’ve not been given oversight. So if there is an operational infirmity, you can be held liable ultimately, but you don’t have the ability to direct the operations to correct whatever that infirmity might be.”

The previous committee recommended giving council the authority to remove board members as an oversight tool. BPU members argued that council could use that authority to pressure board members for political ends, such as raiding the utilities’ assets to balance the general fund.

Council rejected that recommendation in December 2012. In March, council appointed a new CRC to review Article 5, consisting of Chair Susan O’Leary, Vice Chair Kirk Christensen, Edward Birnbaum, Councilor Steven Girrens and DPU Chair David Powell.

Council gave the committee three objectives: evaluating accountability and liability issues, reviewing the current profit arrangement between DPU and the county and recommending a process for adding a utility.

O’Leary summed up the committee’s final recommendations concerning accountability.

“After evaluating the current arrangement in Article 5 about the relationships of the Board of Utilities and DPU and under the county government, we came to believe that there were a lot of benefits to the organizational structure, and that it allowed some really dedicated public servants to focus on a very complicated business, but that the Article 5 was silent or ambiguous in many instances in terms of final authority about decision making, how to resolve disputes and the responsibility of the board and DPU in terms of communicating with council and the county administrator.

“We, like the prior CRC, felt the benefits of the dedicated team were important, but that there were a lot of problems with the structure and that these problems and this lack of clarity had been minimized over the past five years because the people involved had very high standards and were dedicated to finding a solution that works for the county. But, going forward, we felt that making modifications to Article 5 to clarify the questions and the problems we identified was in the best interests of the citizens of the community. “

Council accepted the CRC’s recommendations in September, but delayed action in order to review the proposal and allow BPU to respond to it.

BPU has rejected all but two of the CRC’s recommendations, and suggested significantly altering those two.

“My concern and I think the concern of many of the committee members that I spoke to, after listening to the board members in opposition talk, is that they really have no alternative solution to the problem,” Birnbaum said.

“They’re basically saying that things have worked okay up until now, and there’s been no major issue that’s come up that’s caused a disaster for BPU.“It’s either leaving it the way it is or addressing the fundamental issue, which is, if there is something that happens and there is something that needs to be resolved, there’s just no mechanism in the charter to do so. I don’t think any of the committee members felt that that was an acceptable option.”

The CRC is suggesting a dispute resolution process as the main oversight tool.

Either council or BPU may invoke a dispute resolution process. A working group consisting of council and BPU members would have 90 days to reach an agreement, with council taking public comment on the issue during at least two of its regular meetings. If an agreement is not reached, council can require DPU to implement council’s policy with a vote of majority plus one.

BPU objected to council having the ultimate control on an issue and argued that allotting 90 days for resolution was too long. They proposed changing the charter to read, “The board believes a dispute between the board and council should be submitted to a subcommittee of both bodies to propose resolution.”

O’Leary pointed out that the board’s recommendation does not identify who makes the final call, and that the committee believes that authority should rest with elected officials answerable to the public.

Both O’Leary and Birnbaum saw the 90 days allotted for resolution as a maximum, although the way the proposal reads suggests the process would take that long.

“That 90 days was put in just to make sure that eventually some decision was made, and there’s nothing that precludes the decision be made earlier,” Birnbaum said. “The whole idea was that the working group would be formed early on and that would be the group that would come up with possible solutions, which then could go before council for a vote.”

The CRC also proposed a mechanism for council to remove a board member through a vote of “no confidence” by a majority plus one. The recommendation to remove could initiate with either the board or the council.
O’Leary explained the need for such a provision.

“When you think about the benefits of having this dedicated group focusing on the complicated business of the utilities, if they’re not productive and if they’re not active and engaged, then they’re really not serving the role

“Aside from their decision making and whether or not they’re professional in their approach, you’ve had recent examples around the world of politicians or public servants who have been doing really inappropriate things.

Although it’s never been an issue here in Los Alamos, the public is better protected by having the council able to remove a board member if they are in a position where they need to do that.”

BPU agreed there should be a mechanism for removal, but felt the article should read “for cause” rather than “no confidence.” The CRC rejected using “for cause” because they felt they would have to delineate what the causes were and would be unable to provide a comprehensive list. The BPU felt “no confidence” would make the board vulnerable to political removals.

“None of the committee members felt that the ability to get a supermajority vote in council was ever likely to occur without some really serious issue that arose with the way the board was functioning” Birnbaum said.

“It’s hard to get six or seven people to agree on that kind of activity, especially when the public is going to be very vocal about something like that. You’re not talking about a few politicians getting together in a back room and making a deal. They’re going to have to override the board in full public view, and it’s going to require everybody but one member of the council to do it.”

“One of the things that struck me when I listened to the board’s comments, is that they seem to view article five as a document that is for the board and the department of utilities,” O’Leary said.

“They do not seem to appreciate that the charter is for every single person in this community, and that this is about having transparency and open government and having good government, government that works, as opposed to government that is dependent upon the personalities of the people involved.”

If council approves the CRC’s recommendations on Tuesday, then the revised Article 5 will have to go before voters for approval.