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2010-01-28

Water board accused of violating state law

By Julie Whitmore

On Wednesday, Jan. 20, attorneys for the Flying L Public Utility District (PUD) sent a third letter to Bandera County River Authority and Groundwater District directors expressing their increasing concern over possible violations of state law in the district’s rule-making process.

Limited executive sessions
Austin-based attorney Edmond R. McCarthy Jr., representing the PUD, first wrote to the board on Nov. 11. This was followed by a Dec. 1 letter from the Flying L Homeowners Association Board. BCRAGD administrators responded to neither letter.

In the most recent letter, McCarthy again requested a face-to-face meeting with the BCRAGD board to discuss his clients’ concerns about “continuous and adequate potable water service to its customers” and to “protect health and safety.”

More importantly, however, McCarthy took issue with the water district conducting a rule-making discussion in closed executive session.

“Under Texas’ Open Meeting Law (Chapter 551, Texas Government Code) the use of ‘executive sessions’ is restricted to very limited circumstances prescribed by the statute. ‘Rulemaking’ is not the type of process that lends itself to being conducted in ‘executive session’,” McCarthy wrote.

“In fact, it is hard to think of a scenario where the circumstance would warrant or justify conduction of a lawful executive session during a rulemaking process.”

Executive sessions are limited to discussion of litigation or “confidential matters” under the Disciplinary Rules of Professional Conduct of the State Bar of Texas.

‘Bad public policy & poor political judgment’
Describing the use of an executive session for rulemaking “both bad public policy and poor political judgment,” McCarthy noted, “Rule making should be open, and fully debated in front of those who will be subject to the rules upon adoption. Moreover, closed sessions only incite the public’s paranoia that the purpose of the closed executive session is to ‘cut a deal’ for some insider, or ‘gore someone’s ox’.”

He concluded by requesting that the board “engage the stakeholders and constituents to address community concerns and work toward the development of a balanced consensus to benefit all affected parties.”

In a Monday, Jan. 25, interview, BCRAGD President James Chastain said since he had not yet seen the letter, he could offer no comment. General Manager David Jeffery was unavailable.

In another development, on Thursday, Jan. 21, the Texas Water Development Board declared the “desired future conditions” adopted by Groundwater Management Area 9, of which Bandera and surrounding counties are a part, to be “unreasonable.”
This action could possibly lead to the BCRAGD being taken over by the state. That will be discussed in a future article.

Protracted public hearing

After a four-hour executive session on Monday, Jan. 18, with attorney, Mary Sahs, Chastain announced that a public hearing for new district rules would be held at 9 am, Wednesday, Feb. 24.

Director Gene Wehmeyer said a plan to go through the rules “page by page” would preclude an evening meeting.

Deadline for written comments will be 5 pm, Tuesday, Feb. 16. Chastain said copies of the proposed revised rules should be available by Wednesday, Jan. 27, at the district office. He also directed Jeffery to make the revised rules available on the board website, www.bcragd.org.

According to Texas law, the rules must be available to the public at least 20 days before the public hearing.

The contentious rule-making process has been years in the finalization. The proposed rules include a one-acre per foot maximum for well production, as well as several other controversial provisions.

Along with the Courier, two attorneys representing the Flying L Resort attended the public hearing announcement. After his announcement, Chastain asked attorneys Randy Dayton and Rene Ruiz if they had any preliminary comments. Both have attended all the rule-making public meetings, and, with copies of the proposed changes in hand, have often commented on specific sections. The attorneys indicated they would wait until they had copies of the fully revised rules before commenting.

Budgetary surplus discrepancies

Earlier in the meeting, BCRAGD directors approved the 2009 budget by an 8-1 margin, with Kneupper casting the lone “nay” vote. Issues engendering considerable discussion included surplus discrepancies, money in restricted funds and cost of the Pawlvick property. Neither outside auditor Eric Ede nor Jeffery could explain the discrepancies, however.

Regarding the transfer of funds for renovation of the new property, discussion centered around whether or not approximately $39,000 remained in the building fund after closing on the Pawlvick property. After directors realized that would provide a nearly $140,000 balance in the building fund to cover a $69,000 bid proposal, Director Karen Ripley declared an unwillingness to transfer all the funds immediately - particularly since they would be paid out only gradually.

Discussions about the necessity of additional funds for a parking lot and possibly transferring money to the scientific fund to upgrade well monitoring processes ultimately proved fruitless.

“Frankly, I just don’t want the bad PR,” Ripley declared.

Finally a vote was taken to move $58,184 from the erosion fund into the building fund, adding to the already-present surplus. The approximately $51,000 surplus in the general fund would be moved into “an unspecified restricted fund” to be determined later.

The final vote was 5-2 with Kneupper and Connors voting against the motion.

In a final bit of business, the board accepted a single bid of $1,000 for a 1996 Chevy Suburban, with 160,00 miles and transmission and brake problems. Chastain did not disclose the lucky bidder’s name.