North County water plans sidetracked by bad counsel?

May 3, 2009

By DANIEL BLACKBURN

Paso Robles officials may have been receiving less than stellar legal advice throughout the city’s lengthy process to secure a future water supply, a former mayor and new county supervisor suggested last week. Frank Mecham’s comments come on the heels of the city council’s forced decision to place the question of paying for water before city voters.

“If you ask legal counsel every single time, are we okay with this, and every single time they answer yes, then maybe you need to look at legal counsel as maybe having been wrong,” said Mecham. Asked in a subsequent conversation to elaborate, Mecham wondered, “What would we do if what we were being told wasn’t right? What are your options at that point? Do you go back two years? How far back?”

Mecham has been a consistent supporter of developing additional water supplies for the North County. During a discussion about water reclamation with a CalCoastNews reporter, he said, “Going after Nacimiento water was absolutely the right thing to do. But when it comes to the process….”

That “process” has been the subject of controversy in Paso Robles, and now a legal challenge mounted by Concerned Citizens of Paso Robles (CCPR) is gaining momentum. CCPR alleges that provisions of the state constitution’s Proposition 218 were violated by city officials during maneuvers to plan and finance a water supply and conveyance system. City officials, on the other hand, cite legal opinions to bolster their actions.

“The constitution of the state is pretty important, and it has to be met,” said Paul E. Heidenreich of the Orange County law firm of Huskinson, Brown, Heidenreich & Carlin. Heidenreich represents Paso Robles residents John E. Borst, Brooke G. Mayo, William Taylor, and Teresa St. Clair.

“City council members are taking advice from a range of sources, and those sources are very limited,” said Heidenreich. “Then they’re all patting each other on the back, but no one is asking, what if? No one is playing devil’s advocate.”

Heidenreich, whose firm has a reputation for successful constitutional litigation, has filed a lawsuit challenging Paso’s water and sewer fee increased in 2002. He said the objective is “to stop illegal taxes and fees, and to obtain restitution of illegally collected moneys.”

He said the problem of faulty legal counsel can be traced to “a relatively small group of attorneys who provide advice to associations like the League of California Cities. Then that group disseminates the information to its members. The advice given regarding revenue-raising is often right on the edge of reality. And when they provide this advice, they never say this is cutting edge, that it’s kind of a new concept.

“The result is that many cities are getting similar, but bad, advice,” Heidenreich said, adding that he has long “questioned the accuracy of legal advice the city has received.”

“The analysis [of the water fee and its constitutional implications] as presented to the city surprised me. I wondered why they [council members and other city officials] were interpreting it that way,” he said.

Paso Robles City Attorney Iris Ping Yang, of the Sacramento law firm of McDonough Holland & Allen, did not return requests for comment, nor did Jon Seitz of San Luis Obispo, who frequently covers meetings for Yang.

John Borst, spokesman for CCPR, said he believes the water debate has been good for the community:

“I think we as citizens need to elect persons to office who will actually represent and govern us democratically. For any elected official who would simply or exclusively choose to represent the opinion of an attorney as an expression of the ‘will of the people,’ such is an authoritarian Trojan Horse and an abuse of public office.”

Borst added, “Elected officials who subvert the constitution in an attempt to construct a public works project are not upholding their oath of office. [CCPR] must be an advocate for democracy to help advance and/or ensure the blessings of liberty made possible by constitutional institutions.”

Heidenreich said that the citizens’ group has been the target of some criticism.

“My hope would be that at some point they will sit down and talk it through, and not just attack,” he said of those who have been critical of CCPR. “Attacks are not helpful to the process. I’m just concerned that the constitution be satisfied. And that citizens’ rights in the process be met.”