Morro Bay's Disenfranchised Voters

by Linda Stedjee

Morro Bay residents have long complained that the city staff, not the City Council, actually runs Morro Bay.  This disenfranchises Morro Bay voters, who can only vote for the mayor and Council members, and not for staff.  Residents allege that staff members sometimes overstep their authority and make decisions without seeking appropriate direction from the Council.  On other occasions, it is alleged, they bring recommendations to the Council at the last minute, without providing the documentation and allowing the time necessary for good decision making, and claim that the Council must act immediately or face negative consequences.

The Council majority, according to concerned residents, allows the staff to continue operating in this way, "rubber stamping" staff decisions made behind closed doors, and allowing themselves to be rushed into approving staff recommendations without sufficient time for public review, discussion and analysis.   In those situations, residents say, the Council majority is essentially relinquishing its authority to the staff.

Failure to discuss issues and make decisions in an open forum in which the public participates, and failure to take sufficient time for such discussion and participation, violates the spirit, if not the letter of the California Brown Act.  A discussion of the Brown Act published by California Treasurer Bill Lockyer states, "Throughout California's history, local legislative bodies have played a vital role in bringing participatory democracy to the citizens of the state. Local legislative bodies - such as boards, councils and commissions - are created in recognition of the fact that several minds are better than one, and that through debate and discussion, the best ideas will emerge. The law which guarantees the public's right o attend and participate in meetings of local legislative bodies is the Ralph M. Brown Act."  When debate and discussion do not occur, or are rushed, the public's participation is negatively impacted.

The Declaration of Legislative Intent contained within the Brown Act states that, "The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created."  Yet concerned residents believe that by relinquishing their authority to the staff, the City Council majority has been depriving residents of the information and the control to which they are entitled.  By allowing the staff to make their decisions for them, the Council majority is said to be "evading" or "getting around" the intent of Brown Act. 

Some recent examples of the people's business that was not conducted openly and/or with sufficient time allowed for public participation,  are the choice of the design engineering firm for the wastewater treatment plant (WWTP), the choice of the project manager for the WWTP, the handling of the Library building lease, and the decision to allow in-lieu parking funds to be used for a Harborwalk "extension."

Choice of Design Engineering firm for WWTP

In explaining their recommendation for MWH to receive the contract to design the WWTP upgrade, residents allege that staff gave the Council incorrect and incomplete information.  Residents further allege that staff followed a seriously-flawed request for proposal (RFP) process that did not adhere to basic common standards, and exposed the City to possible litigation.  When the process used was challenged by a resident with extensive RFP experience, the City Attorney told resident, and the Council, that the resident did not understand RFP's, and stated that, "The City complied with all legal requirements in regard to issuing and awarding the contract for the RDA feasibility study."  Since that time, under pressure from residents, the Council has determined that the City's RFP process must be revised and enhanced.

MWH was chosen to receive the contract, although the firm was the highest, not the lowest bidder.  The City's Municipal Code, chapter 3.08.100, requires that contracts be given to the lowest responsible bidder. However Bruce Keogh, WWTP Manager, said that according to State law, they must be awarded on the basis of "best value."  According to Nossaman LLP, a large California-based law firm, "Local agencies in California are generally subject to a requirement to select design professionals based on qualifications (Gov. Code § 4526), and many agencies are required to award construction contracts to the low bidder. It is possible to meld these two requirements--with qualifications of the designer considered in a prequalification phase of the procurement, and with the contract awarded to the low bidder among the prequalified proposers that have submitted a technically acceptable proposal."  This statement indicates that the City's code and state law are complimentary, not mutually exclusive, and appears to indicate that both should have been followed.

Keogh told the Council that no "red flags" were found for MWH, but were found for some of the other contract bidders.  However, at the same time the RFP was underway, serious accusations were being leveled at MWH in New Orleans and Florida.  Those accusations included billing for work not done, billing multiple times for the same work, making inappropriate gifts to government officials, and channeling no-bid contracts to other firms, circumventing the requirement for competitive procurement of services.  Equally serious accusations were made against MWH in 2006 by the Los Osos Community Services District.

Resident concerns with the RFP process include vague, insufficiently-detailed selection criteria, inappropriate weighting of at least one of the criteria, failure to maintain an accessible audit trail of the ratings that the evaluation committee assigned to contract bidders, inclusion of a former MWH employee on the evaluation committee, and renegotiation of a new scope of work after MWH was chosen, giving the other bidders no opportunity to bid on the re-scoped project.  staff also published, on the City website, a project schedule that indicated that the RFP was to be issued May 31, 2010.  In fact, it was issued eight months early on October 1, 2009. Representatives of one vendor indicated that their firm had been shut out of the RFP process because they had been relying on the City's formal, published schedule.  Information on these RFP issues was given to the Council by residents, not by staff.

Choice of a Project Manager for the WWTP

City staff assessed candidates for WWTP project manager position and developed a recommendation, which they presented to the Joint Powers Agreement (JPA) Board on July 15, 2010. The Board was not provided any alternatives from which to choose. Board members were simply asked to approve the staff's choice. 

Betty Winholtz publicly objected, stating, "This is the second contract in a row on this project where staff has narrowed the field by bringing only information about their preference in the staff report to the board, in essence asking the board to rubber stamp staff's decision. Their decision, not this board's. The board does not hire staff to tell the board what to do, but to give advice about what we choose to do. Giving advice does not mean making my choice for me."

According to Council Members Smukler and Winholtz, the Council majority had stated, before the public meeting where Delzeit's hiring was approved, that they would accept whomever the staff recommended, thus leaving public input completely out of the discussion.  Delzeit was evidently so confident he would be hired that he stated, "I'm your project manager," and thanked the Council for choosing him before they had even voted. 

Further protesting the Council majority's abdication of its responsibility, and the resulting disenfranchisement of the voters who elected them, Winholtz said, "We, the board, are not allowed to select from a culled list of experts pre-evaluated by staff," and "I am disappointed that the board is willing to go along with this way of doing business."

Library Building Lease

At the August 9 City Council meeting, Council members Winholtz and Smukler noted that the lease that the staff had negotiated with the County indicated that at the end of the lease term, the building would automatically go back to the City, rather than being subject to negotiation for continued use by the Library (County).  This lease provision had not been previously discussed with or approved by the Council, and Winholtz asked that it be changed. 

The staff recommended that the Council just approve the lease as it was, and stated that the issue could be handled later. Staff stated that if the Council failed to approve the lease terms as they were, the lease  would have to go back to the Board of Supervisors, and that the Supervisors’ staff would not want to deal with making the correction at this time. 

Some residents allege that the staff’s failure to gain advance Council approval for the disputed lease provision, and their reluctance to re-open negotiations with the County, are related to the recent dispute over use of the Library Program Room. Despite the fact that the original lease terms clearly designated the entire library for building for use by Library Services, the City Staff reportedly resisted relinquishing control of the room until they were finally instructed to do so by the Council. The Recreation and Parks Department had been receiving $6,000 - $8,000 per year from renting the room to local groups.

Despite concerns expressed regarding the disputed lease provision, the document was allowed to stand

Harborwalk Extension to Beach Street

Although they had been working on the Harborwalk extension project grant application for some time, City staff came to Council less than two weeks before their grant hearing with the San Luis Obispo Council of Governments (SLOCOG). They urged the Council to immediately approve the use of $150,000 from the Parking in-Lieu Fund to supplement grant funding.  Claiming that a Council commitment to spend the City money would help get the grant, they urged quick action and claimed that if the Council failed to approve the use of the in-lieu funds immediately, the SLOCOG grant would quite possibly not be approved.

Council members Winholtz and DeMerritt expressed concerns.  DeMerritt noted that there was not much money in the Parking in Lieu fund, and Winholtz stated that the money that was there was needed to finance the third trolley. Winholtz, who noted that this issue had not come before the Council before, wanted to see if the SLOCOG grant would come through before committing use of the Parking in-Lieu Funds.

This Harbor Walk "extension" was not technically an extension at all, as it was disconnected from the original walkway.  The areas in front of the Harbor Office and Coast Guard Station were not included, and the "extension" was to begin at Thai Boat [now the Thai Bounty].  From that point, to a point just past Harbor Hut, the walkway was to be placed in front of the businesses where, it was noted, it would benefit them. It was NOT to be placed on the water side, where it would provide optimal benefit to walkway users. 

Mayor Peters noted, and the Council discussed, the fact that other businesses had to pay for their walkways.  They discussed requiring the businesses that would benefit from the "extension"  to pay for their share, but that provision was not included in the approved Council motion.  However, in response to a recent resident inquiry, Public Services Director Rob Livick stated that the businesses had later been "conditioned to pay their fair share of the project."

Evidently swayed by staff claims that this was an urgent matter, and that they must immediately approve staff's request, the Council majority approved the expenditure of the Parking in-Lieu funds.