Monday, September 30, 2013

Observations from the Petaluma Wastewater Decision

Two weeks ago, a Sonoma County Superior Court judge issued a decision against the City of Petaluma.  Judge Gary Nadler agreed with former City Councilmember Bryant Moynihan that Petaluma had been wrong in using wastewater maintenance funds, which are rate-funded, for stormwater maintenance needs, which are tax-funded.  The story was covered by both Petaluma Patch and the Argus Courier.

It’ll be a difficult decision for Petaluma to implement because it puts a new burden on an already stretched municipal budget.

Predictably, much of the public comment focused on vilifying the wrong-doers in the Petaluma City Hall while lauding Moynihan.  But those reactions were simplistic.  There are other observations to be made, including one that ties directly to urbanism.

Observation #1 - Even if there are “guilty parties”, they’re no longer on the scene: The mingling of funds began during the tenure of a now-departed City Manager.  Also gone are many of the employees who reported to him.  Of the cadre of folks who may have had an opportunity to comment upon or to object to the decision back when it was first made, it’s possible that none remain in the city employ.

More recently, current city management has been taking a more cautious approach to the transfer of funds, documenting them as loans to be repaid, acknowledging the possibility that the decision would go against them.

If people are forming a lynch party, they may have a hard time finding appropriate targets.

Observation #2 – The judicial decision probably wasn’t clear-cut: When I first learned of the transfer of funds, I had two thoughts.  My first thought was that the transfer could be justified from an engineering perspective.  The city was correct that a properly maintained stormwater system diverts water from the wastewater system.  So using wastewater funds to maintain the stormwater system could be reasonable.

My second thought was that if mingling funds in that manner was legal, then it would be a huge loophole.  One can make an argument that maintaining roadways helps the wastewater system or that maintaining waterlines helps the roadways.

My two thoughts were contradictory.  It’s likely that the judge had to grapple with similar uncertainties.  Much of life falls into areas of grey.  This judicial decision probably fell securely into the grey.  And anyone who tries to characterize it as black-and-white is overreaching.

Observation #3 – Judges are only human: I’ve known many judges in my sixty years.  Almost without exception, I find them reasonable and intelligent people.  But not one has been an expert in all the fields that came before their bench.  Indeed, it’s impossible for any single human being to have knowledge in all the fields of human endeavor.

One of my favorite judicial stories is about a judge who was willing to admit his shortcomings.  The legal matter was a battle between partners in a land development project.  The argument was over how to allocate the development costs between the different land-holdings of the two parties.  The dispute eventually found its way into the judge’s courtroom.

Before the trial could begin, the judge addressed the attorneys and the litigants.  He told them that he’d be willing to make a decision once the evidence was presented and the arguments made.  But he was sure that, because he lacked a land development background, his decision wouldn’t be nearly as reasonable or appropriate as any compromise they might reach.

So he offered his chambers for a final negotiation, along with his strong encouragement to reach a deal.  The parties took heed of his offer and were able to reach a good settlement.

I don’t know Judge Nadler, but I suspect that he’d be equally humble about his background in infrastructure.  Nonetheless, he was forced into making a decision by the intractability of the situation.  It’s likely that the decision was made by a decent man who was struggling to grasp the complexity of the engineering issues that were raised.  Which is another reason not to make broad conclusions about good guys and bad guys from the decision.

I’m not suggesting the decision is wrong.  I don’t have an opinion on that point.  I’m only noting that our system of justice sometimes results in decisions being made by honest, well-meaning people who lack a depth of technical understanding that would be helpful.

Observation #4 – The underlying issue is a city struggling with finances: We’ll likely never know exactly why the former city employees choose to begin the fund transfer.  But it was likely the result of a financially-constricted city trying to find a way to cover expenses.  Which is an increasingly common situation.

Perhaps this one particular strategy was rejected by the courts, but it was only one of numerous other strategies still being used by many cities, including selling and leasing back city property and securing debt against revenues streams such as parking revenues.

More important than questioning how Petaluma came to have their particular strategy rejected by the courts is asking why cities are increasingly forced to move into grey areas.  And it’s not just the recession that created the problems on municipal ledgers.  The Petaluma transfers began before the economic travails.

The answer is that we’ve created a world that is expensive to operate and to maintain.  At the same time, we’re denying the cities the funds to perform those tasks.

There are a number of actions that must be taken to address this concern.  But urbanism, which offers reduced per capita infrastructure costs, must be a key element of the discussion.  And every moment we spend in finger-pointing rather than in making the necessary changes is a disservice to the future.

If there is one thought that we should take away from the Petaluma decision, it shouldn’t be who do we blame, but how do we pull cities back from the edge of the financial cliff.  And urbanism is part of the answer.

As always, your questions or comments will be appreciated.  Please comment below or email me.  And thanks for reading. - Dave Alden (
(Note: Petaluma wastewater plant photo is from Petaluma Patch.)

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