HomeMy WebLinkAboutWater Board - Minutes - 01/28/1985MINUTES
Water Board - Legislative/Finance Committee
January 28, 1985
Committee Members Present
Henry Caulfield, Chairman, Neil Grigg, Jim O'Brien, John Scott
Staff Present
Bill Carnahan, Paul Eckman, Assistant City Attorney
Committee Members Absent
Morton Bittinger
Committee Chairman Henry Caulfield had prepared a discussion paper which
stated the issue: Should membership on boards of directors of Colorado
Water Conservancy districts be by appointment of District Judges (as at
present) or by election or other means? Mr. Caulfield had also prepared
background information about the issue. At the end of the discussion
paper he listed possible alternative positions that the committee might
consider in developing a recommendation to the Water Board which were:
(1) Recommend appointment within the non -judicial domain of state,
county and/or city governments. The multi -county district, like
NCWCD, is most pertinent to the City's concerns; and alternative
appointment schemes might be:
(a) Like Utah, where each county, it is said, proposes three
names for each position to the Governor who selects one.
(b) By boards of county commissioners after mandatory consultation
including nomination by city councils, rural water disticts,
etc,
(2) Recommend an electoral system.
(a) Number of directors from each county proportional to population
and their election by voters in each county.
(b) 7
(3) Refuse to give a recommendation to the City Council on the grounds
that the issue is political and beyond the scope of the Board's
competence.
Attached to the discussion paper were copies of the present Colorado law
as amended, the Pitkin County Resolution and the Utah Supreme Court
decision.
Chairman Henry Caulfield opened the meeting. His first action was to
include two more alternatives to the three listed in the paper:
Alternative 4 would favor the status quo; Alternative 5 would delay
consideration of this issue by the City until we are advised that it
has become a real legislative issue and the nature of the issue as it is
arising.
Mr. Caulfield will know within a few days if a bill has been introduced.
After Mr. Caulfield had submitted his information to the Water Board
secretary to be typed and duplicated, he discovered that the Supreme
Court of Colorado, in May of 1937, found that this act was
constitutional, although the wording he has doesn't say expressly that
they found this particular provision to be constitutional. The Utah
Supreme Court decision, although interesting, is not conclusive of
anything in Colorado.
Mr. Caulfield said that he had talked with water attorney and former
Water Board Chairman Ward Fischer to get his viewpoint. Mr. Fischer does
not favor election of board members because, in his opinion, it would
result in chaotic politics. If there would be any change at all, he
wouldfavor perhaps a county commission appointment. Paul Eckman concurs
that this might be an easy way to change the selection process because
it would still be local.
Mr. Caulfield contends that even if county commissioners appointed the
board, it wouldn't be much different from the status quo as far as
Larimer County is concerned.
Henry Caulfield explained the agitation in Pitk.in County which resulted
in a resoltion which advocates the change to an electoral system. The
agitation grew out of some environmental concerns.
Henry Caulfield apprised the committee that from a political scientist's
point of view, judges who appoint the board members now are not
politically accountable. Whoever is a member should be politically
accountable either by the person appointing them being accountable to the
electorate or the job itself be politically accountable because they are
elected themselves.
Neil Grigg asked who initiated this review of the system.
Paul Eckman said that Mayor Horak had asked the legal staff to draft a
resolution that would support the election of the board members.
Basically, he wanted to do what Pitkin County had done. The Mayor also
attended a Water Board meeting at which he asked the Board to review the
issue and make a recommendation.
Paul Eckman advised the Committee that, after briefly looking at the
legal documents, he is fairly certain there won't be a legal problem;
however, political problems will probably surface.
Neil Grigg pointed out that in other special districts the directors are
elected and no one takes much interest in those elections. How would
this be different?
Mr. Caulfield stated that it is different because the District
encompasses five counties. There would be no community focal point, in
that the District extends from Boulder to Sterling.
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Mr. Caulfield went on to explain the membership representation from the
five counties. There are 12 Board members appointed by the District
Court Judges in each county.
Because there are close to 36 districts in the state, appointment by the
governor would be cumbersome and Colorado has tha tradition of opposing
state action: local action is generally preferable.
Jim O'Brien asked how ora gets his name on the nomination list. Mr.
Caulfield responded that this is one of the objections since there is no
such procedure.
It was brought up that the Utah decision argues that it is not good to
mix Judicial, executive and 'legislative concerns.
Jim O'Brien indicated that there are some bills that have been introduced
in the legislature this session the" have some bearing on this issue., fie
hasn't received a response yet about his concerns on these four bills.
He would like to know the status of thane bills
because, he believes that
they may give the District broader powers.
Henry Caulfield said "hat the lot without "- j% ha'va a ave ` -ve power wi ui7vuu these biiia-
'
They can incur debt (they did the Windy Sap project;: they created a
municipal sub -'district: they can have a tax up to one mill: "hey car,
decide upon the assessment charges etc.: they have allotment powers with
respect to the water. With added powers or not, it is an important
agency, and it is an agency that could well get into public political
conflict. For example, Mr. Caulfield cited the fact that the City loses
water that is in storage at the end of the water year. Tile idea for this
is that we are Sharing with everybody in a drought, but this prevented
the City from using Horsetooth as a storage reservoir. There are also
issues of the Cities having different interests from the irrigators.
The Cities have a year around demand on water: theirs is seasonal. For
this reason Mr. Caulfield thinks it is important for the organiztior� to
be politically responsible in one way or another. As to what way, that
is a good question.
Mr. Caulfield asked Bill Carnahan to attend the meeting because he is a
member of the PRPA Board of Directors. He is one of two members
representing the City. Here is a board of directors of a somewhat
comparable agency to the NCWCO: a joint action technical agency. At one
time PRPA directors were only utility managers from the Cities: now there
are also political representatives who are an asset to the Board for two
reasons: they give the city councils a much better tie with the agency
because they have one of their peers sitting on the Board: the other
reason is that the staff person doesn't always have the perspective that
an elected offical would have.
Neil Grigg wanted to know if there is a difference between electrical and
water agencies. Bill Carnahan admitted that electricity is less
political than water.
Districts are now a political sub -division of the state: they were not
when they first started.
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At this point Neil Grigg had to leave the meeting but he stated before he
left that he favors some kind of appointment for the Board members. He
likes the Urban Drainage District model.
What is the current formula for selecting directers from each county?
Mr. Caulfield and Mr. Eckman said roughly comparable to acres under use
plus population -- that kind of formula.
Jim O'Brien thinks the Board makes political decisions and should be
poplitically accountable to the public especially from the standpoint of
issues like building water projects on the Poudre and low head power
projects, etc.
It was stressed that the Board meetings for the District are open to the
public and held on the fourth Monday of the month.
Bill Carnahan explained that the current Board has been selected from all
types of water uasera. An elected Board might end up, for example,
with three City people without any respresentation from the other water
users.
How would representatives be elected? Mr. Caulfield suggested that
they might be elected by each county, but, of course, the types of
representatives could not be determined.
For how long are the current board members selected? Mr. Caulfield
explained that once someone is appointed, it is almost a lifetime
appointment, or until they decide to resign. The complexion of the
board hasn't changed much through the years.
Jim O'Brien commented that it is not a board that "one of us" could
probably get on -- thus, it is limiting. How do you know what other
candidates are being considered besides the ones who are appointed?
Also, how do you know who is up for appointment?
Bill Carnahan likes the prospect of having the Board elected.
Henry Caulfield suggested that it would be very difficult to get people
to vote; for example, the turnout is usually very low for the Hospital
Board and the Fire District elections.
Bill Carnahan said, in this case, you are dealing with an agency that has
taxing authority. Elected Board members would be held accountable
Henry Caulfield suggested again the idea of appointment by county
commissioners who are accountable; in theory just as accountable
politically. He cited the change in the RTD selection from appointment
to elected.
Bill Carnahan countered that if people elect the Board, they have a
recourse to remove them, whereas, in an appointment process, people
may feel that some members aren't representing their interest, but there
is nothing they can do about it.
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Mr. Caulfield said the voters would have a hard time making a decision
about who to vote for; they may not even know the issues. NCWCD is not
very visible. The county commissioners would know more about what the
county issues are and could appoint people who would be consistent with
those issues.
After a thorough discussion of all sides of this issue, including
representation, accountability, taxing authority, etc. the four committee
members were unable to make a recommendation; they were equally divided.
Henry Caulfield and Neil Grigg favor some kind of an appointment process.
Jim O'Brien strongly favors an electoral process. John Scott also favors
the electoral side. He thinks that because of the visible issues
facing the District, there would be broad public participation and
interest. It is no longer necessary to have a technically oriented
Board.
Furthermore, John Scott thinks that the electionclause in the statutes
in which 15% of the qualified taxpaying electors of the whole district
must vote, is not helpful; the 15% would have to be an organized upswell
of the public. On paper it might be constitutional, but it is very
impractical.
Bill Carnahan asked if there is a legal obstacle to another process of
selection. Henry Caulfield said that a completely new procedure could be
formulated. Paul Eckman explained further, that they were somewhat
concerned, based upon the Utah decision that it is unconstitutional to
have judges appoint board members because of the doctrine of "separation
of powers;" that could be a problem here too, although in 1937, Colorado
Courts gave a stamp of approval to the entire act.
Because there was no consensus from the committee to make a
recommendation to the Water Board, Mr Caulfield decided that the item
would be brought before the Board at their next meeting, with an
explanation of what has been done so far. Board members will receive the
same background information which the committee members had received
along with the minutes of the meeting which will summarize the points of
discussion which the committee members, Mr. Carnahan, and Mr. Eckman
contributed.
Water Board Secretary
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