Guest Editorial: Groundwater Authority bylaws need redefining

Guest Editorial: Groundwater Authority bylaws need redefiningBy STAN RAJTORA

A group of concerned citizens has requested the General Council position in the Joint Powers Authority bylaws be redefined. Change one is that a single GC be hired as soon as possible replacing the interim GC comprised of the attorneys representing the City of Ridgecrest, the Indian Wells Valley Water District, and the County of Kern. Change two is the GC shall be hired prior to any fee assessment or the Groundwater Sustainability Plan adoption. A number of justifications are presented below:

1. One Counsel would be more cost effective

Three attorneys are currently doing the job of one. The total cost of legal support is a minimum of three times the cost of a single GC doing the same job in the same time period. The negotiations and compromise discussions between the three attorneys simply add to the total time needed to resolve any issue. A single GC would be more cost effective.

2. One Counsel would have fiduciary responsibility to only the JPA

Each of the three Member Agency attorneys has a fiduciary responsibility to his client. That undeniable fact is the reason for the Retainer Agreements embodied in the bylaws. This fiduciary responsibility will generate disagreement among the various attorneys during JPA discussions. No attorney should have two masters. Attempting to serve two masters will compromise their ability to protect one or the other. The line between dealing with legal matters and policy matters would be clearer.

3. One Counsel would be more responsive to JPA stakeholders

The three Member Agency attorneys are negotiating and making compromises behind closed doors. None of the three attorneys is a local stakeholder. No stakeholders have been involved in any recent ad hoc committee discussions. The public interest and sustainability of our water supply is the important aspect of the JPA. The Board and the Member Agency attorneys are a necessary fact of life, but true sustainability requires the people be involved. A single GC acting on behalf of the JPA stakeholders would better represent the needs and goals of the stakeholders.

4. One Counsel would reduce the risk of future litigation

The JPA is supposed to be an independent agency acting independently for the benefit of the all stakeholders. However, three Member Agency attorneys have been negotiating and making compromises. Attorneys representing other financial interests have made known to the Board their displeasure regarding some decisions of the Board. Since the decisions are ‘compromises’ reached behind closed doors, the attorneys not party to the negotiations can rightly claim their client has not been allowed to participate in accordance with the spirit of new law. The best way to mitigate this is to have one GC and conduct public business in front of the public.

5. One Counsel would greatly reduce ongoing Brown Act complications

Much of the recent discussions regarding the bylaws including the discussions on PAC formation are driven by the need to comply with the Brown Act. This has delayed the startup of the PAC and the TAC. The Board needs to move forward quickly while at the same time protect the interests of all stakeholders. Each of the three attorneys, however, must protect his client. This must be done in compliance with the Brown Act, which causes a built-in roadblock to working quickly. A single GC acting for the JPA would not have such a conflict of interest.

6. One Counsel would reduce stakeholder risk

The Conflict of Interest Code in the bylaws has been left totally blank. Rather than address GC conflict of interest, the bylaws indemnify the three attorneys in case of a conflict of interest. The JPA signatories are also indemnified against liability. The risk therefore belongs to the JPA alone, i.e., the local stakeholders. This problem would not exist with a single attorney. Both JPA board members and attorneys have indicated that eventually a single GC makes sense. The problem with the current bylaws is the lack of a date or event triggering the transition leaving the stakeholders unprotected in the interim.

Story First Published: 2017-03-17