CWA to clarify legitimacy of general managers as CWA board reps

The nomination of Otay Water District general manager Mark Watton, who is also one of Otay’s representatives on the San Diego County Water Authority board, as one of the candidates for the CWA board secretary for 2007-08 has created the question whether a water district general manager, city manager, or city department head serving on the CWA board constitutes a violation of the California Government Code section on incompatible offices.

In a split Legislation, Conservation, and Outreach Committee decision, the committee voted not to pursue a request for an Attorney General’s opinion which had been submitted by individual board members and to inform the Attorney General that the request had not been approved by the full board. The CWA board, however, also voted unanimously to allow CWA general counsel Dan Hentschke to make his files on the matter available to CWA member agencies, and the possibility of either pursuing an Attorney General’s opinion or pursuing clarifying legislation to allow high-level staff to serve on the CWA board will be discussed at a future CWA board meeting.

“If we choose to head them off at the pass, there’s plenty of time to get legislation,” said Fallbrook Public Utility District general manager Keith Lewinger, who is one of four general managers on the CWA board.

According to the County Water Authority Act, an agency’s CWA representative or representatives shall be designated by the chief executive officer of the public agency with the consent and approval of the agency’s legislative body. The CWA currently consists of six cities, two water districts whose board is also a city council, 14 additional water districts, and Camp Pendleton. Any citizen may be appointed as an agency’s CWA board representative; the CWA board member does not need to be an agency board or staff member.

The original County Water Authority Act did not authorize members of the governing bodies of CWA member agencies to serve on the CWA board of directors. The CWA Act was later amended to permit member agencies which are water districts to appoint board members as their CWA representatives. In 1973 the San Diego City Attorney’s Office issued an opinion that simultaneous service on the San Diego City Council and the CWA board was a violation of the incompatible office doctrine, although in 2004 the CWA Act was amended to allow city council members to serve on the CWA board.

The CWA Act also prohibits a majority of a member agency’s board members from serving on the board and prevents more than one board member of any agency which is not a water district from serving on the CWA board.

The CWA Act specifically mentions that a member of a CWA member agency’s governing body is allowed to serve on the CWA board. The CWA Act also specifies that any director holding dual offices shall not vote upon any contract between the CWA and his or her member agency.

The individual board members who sought an Attorney General’s opinion whether a general manager, city manager, or department head could serve on the CWA board provided the request to Assemblyman George Plescia, who forwarded the request to the Attorney General. “I’m not against managers. I’m just asking for an ethics question,” said Marilyn Dailey, who represents the City of Escondido on the CWA board but is not on the City Council or the city’s staff.

Hentschke told the CWA committee meeting that two public offices are incompatible if one has authority over the other, if there is a possibility of conflict of duties or loyalties, or if there are public policy considerations involving the two governing bodies.

“An employment does not trigger the incompatible office doctrine. Holding a public office does,” Hentschke said.

Hentschke indicated, however, that a position with authority over the agency may be considered a public office even though it is employment rather than by election.

Ironically, that definition might affect more than the four general managers on the CWA board. Barry Martin is the City of Oceanside’s water utilities director. Mark Muir is on the Olivenhain Municipal Water District board but also the fire chief of the City of Encinitas, and Gary Croucher is one of Otay’s CWA representatives and a division chief for the San Miguel Consolidated Fire Protection District. City of San Diego representative George Loveland spent 38 years on the city staff; his duties included serving as assistant city manager and deputy city manager and he was also the director of the city’s water, parks, transportation, and general services departments during that time.

Jim Bowersox remains as Poway’s CWA representative following his retirement as Poway’s city manager, but he held both positions prior to his retirement. “I didn’t know I had a problem until this agenda came out,” he said. “If something needs to be changed, we ought to do it through legislation and not ask the Attorney General.”

Between May 2000 and August 2001 there were no general managers on the CWA board. In May 2000 Yuima Municipal Water District general manager Sue Collins stepped down from the CWA board, citing the demands of both her general manager position and her CWA position. She was replaced by Yuima board member Bill Knutson.

Leo McGuire was the last Fallbrook Public Utility District board member to serve as FPUD’s CWA representative. McGuire replaced FPUD board member Paul Algert, who passed away during his term on the FPUD and CWA boards. McGuire, who served from September 1982 to March 1983, recommended that it would be better for FPUD if he was replaced by FPUD general manager Gordon Tinker.

Tinker noted that at the time the CWA board had an approximately equal mix of general managers, board members, and appointed citizens who were neither board members nor staff. “I always thought it was a nice mix of points of view because you had a lot of different input,” Tinker said.

Before the DeLuz Heights Municipal Water District merged with FPUD, DeLuz general manager Phil Berg was his district’s CWA representative. “I obviously don’t understand why anyone would be upset about having a general manager on the board, because they’re a wealth of information,” Tinker said.

Tinker retired as FPUD’s general manager in June 1999 and remained as FPUD’s CWA representative until August 2001, when he was replaced by Lewinger.

“I don’t think there’s anything in our act that precludes general managers or staff members to be on this board,” Lewinger said.

“The authority to make the appointment is with the local agency,” Tinker said. “That’s the way it should be.”

Lewinger was the only general manager on the CWA board until Tom Brammell replaced Doug Wilsman as the Ramona Municipal Water District representative in 2004. “During the time I was there, they shifted from getting most of their assessments input from the board to getting it from general managers,” said Wilsman, who was on the CWA board for five and a half years.

The CWA now has general managers meetings, and board members who have sought to attend have been told they aren’t allowed at those meetings. “There’s a substructure that’s going on at the CWA right now,” Wilsman said.

Votes are not taken at the general managers meetings, but CWA staff utilizes that input. Wilsman noted that Lewinger was the only general manager on the CWA board prior to the Ramona transition. “I think that gave him a terrific amount of additional power,” Wilsman said.

Wilsman recommended that Brammell replace him on the CWA board. “I’ve never had misgivings about doing that,” Wilsman said.

Gary Arant of Valley Center and Watton have subsequently replaced local district board members on the CWA board. This is Watton’s second tenure on the CWA board; he had previously represented Otay when he was a board member of that water district.

The incompatible offices doctrine is enforceable upon a proper motion, and the officeholder would lose his or her first office. Bowersox acknowledged concern about general managers receiving a “second bite of the apple” at general managers meetings but also fears that a general manager taking a CWA board position in good faith would be forced to resign his staff position.

Even if an Attorney General’s opinion rules that local agency administrators on the CWA board constitute incompatible office, they would not be forced to resign immediately. “Attorney General’s opinions are persuasive but not binding,” Hentschke said. “It is not binding precedent in court. It is, however, persuasive authority that the court may follow.”

The opposition to pursuing the Attorney General’s opinion was based on the procedural issue of not being submitted as a board-approved item, but some CWA members would still like clarification.

“Ask them. Just see what the answer is,” said CWA board chair Jim Bond.

“I’m not disturbed that the question got asked,” Watton said.

An Attorney General’s opinion includes requesting comment from the counsels of the involved agencies and others, and the process can take up to a year to obtain a result. A CWA decision at an October board meeting or even at the CWA’s November 30 meeting would allow for introduction of state legislation to clarify the issue before the Attorney General renders an opinion.

“The simplest solution is to change the act,” Arant said.

“If it’s iffy, we need to clear it up,” said Joe Parker, one of the City of San Diego’s CWA representatives and currently the longest-serving member on the CWA board.

“I think any consideration of legislation at this time is premature,” said Legislation, Conservation, and Outreach Committee chair Fern Steiner, who is one of the City of San Diego’s representatives.

“I do believe it requires much more time,” Steiner said. “It has huge ramifications all the way around.”