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2004-01-27 Joint CC PUB MinutesMINUTES OF THE SPECIAL JOINT CITY COUNCIL AND PUBLIC UTILITIES BOARD MEETING TUESDAY- - JANUARY 27, 2004- -7:00 P.M. Mayor Johnson convened the Special Meeting at 7:05 p.m. Public Utilities Board (PUB) President Lucas led the Pledge of Allegiance. ROLL CALL - Present: Councilmembers Daysog, Gilmore, Kerr, Matarrese and Mayor Johnson - 5. PUB Members Baldassare, Bangert, Flint, McCormick and President Lucas - 5. Absent: None. Public Comment The following speakers addressed the Council /PUB urging the City to withdraw from the Trinity River lawsuit: Spreck Rosekrans, Environmental Defense; Tod Bedrosian, Hoopa Valley Tribe; Ann Hayden, Environmental Defense; Dr. Nancy Ryan, Environmental Defense; Doug Linney, Alameda; Kevin Finney, Alameda; Rebecca Holder, Alameda; William Smith, Sierra Club; Michael McWilliams, Northern California Council Federation of Fly Fishers; Nada Nanda, Friends of the Eel River; April Marshall, Alameda; Kevin Jordan, Alameda; Peter Lenhardt, Alameda; and John Raphael, Alameda. (04 -037) Presentation on Trinity River by the Northern California Power Agency. Jane Cirrincoine, NCPA; Jeffrey Phipps, NCPA's consultant; Jerry Tenuis; and Dennis De Cuir, NCPA's General Counsel, gave a presentation and answered questions. (04 -038) Report on Alameda Power and Telecom's Participation in Trinity River litigation. Alameda Power and Telecom (AP &T) staff gave a brief oral report. Councilmember Kerr stated that, although there is legal ability to have a closed session, the City of Palo Alto held its discussion in open session. Mayor Johnson requested that the City Attorney address the matter. The City Attorney stated the Brown Act provides the ability to adjourn to closed session; however, it is not an obligation; the Council /Board can choose whether to hear the matter in open or closed session. Special Joint Meeting Alameda City Council and 1 Public Utilities Board January 27, 2004 Mayor Johnson inquired whether staff would give a further briefing in closed session. The City Attorney stated Mr. De Cuir would be available to address NCPA's legal strategy or chances of success. Mayor Johnson inquired whether the vote could be taken in public, to which the City Attorney responded in the affirmative. Mayor Johnson inquired how the voting should take place. The City Attorney responded the PUB is the NCPA member; the financial decision is whether to continue funding; the Council could render its opinion and the PUB could exercise its Charter obligation to make a decision regarding financing [the lawsuit]. Councilmember Matarrese stated the policy decision should be made in public; with the exception of questions about the outcome of the case, the discussion and vote should be held in public. Mayor Johnson stated the role of the Council and PUB should be addressed. Vice Mayor Daysog stated that the meeting was held for informational purposes; the PUB could make a recommendation to the City Council at a later time. The City Attorney stated the City Council makes policy; the PUB would make the financial decision about spending money to support NCPA; the PUB is the NCPA member and makes the financial decision under the Charter. Mayor Johnson stated the decision is whether the City will continue to be a party to the lawsuit. The City Attorney stated the Council is the policy- making body for the entire City under the Charter; however the Council's budget authority to direct the PUB is limited under the Charter; the Council should establish the policy for the City, which should be implemented by the PUB; the PUB passed the resolution to join NCPA in the 1960's and has the technical decision to withdraw [from the lawsuit]; further stated the PUB is obligated to follow Council policy. Mayor Johnson inquired whether the PUB's decision has to be consistent with policy set by the Council, to which the City Attorney responded in the affirmative. Special Joint Meeting Alameda City Council and 2 Public Utilities Board January 27, 2004 Board Member Baldassare stated the decision is whether AP &T will withdraw its financial support [of the lawsuit]; that he would like to address the matter in closed session. The City Manager inquired whether the Council is responsible for approving the Joint Powers Agreement (JPA) with NCAP. The City Attorney stated the JPA is signed by the President of the PUB and was authorized solely by the PUB. Mayor Johnson stated that said matter should be reviewed. Councilmember Kerr stated nothing is preventing the City Council from voting on a policy in open session. Councilmember Matarrese inquired whether the agenda allows the Council to take action. The City Attorney responded the Council can establish a policy pertaining to the Trinity River lawsuit; further stated that she would follow up on the directive to examine the legal protocol of having the PUB be the NCPA member. Mayor Johnson noted that Board Member Baldassare wished to adjourn to closed session. Councilmember Kerr inquired whether Board Member Baldassare wished to address a legal issue. Board Member Baldassare stated that he brought the issue to the PUB to address whether financial support of the lawsuit should be continued. Board Member Lucas inquired whether the closed session was justified. Board Member Baldassare noted that the agenda included a closed session; inquired whether a vote would be needed on the matter. Board Member Bangert stated that he understood the meeting would be informational; NCPA made a policy decision; if Alameda disagrees with NCPA policies, it should be dealt with in NCPA Board meetings; the secondary agenda item is voting on the funding issue. Councilmember Matarrese noted NCPA does not make policy for the City of Alameda. Special Joint Meeting Alameda City Council and 3 Public Utilities Board January 27, 2004 Mayor Johnson stated NCPA making policies does not preclude the Alameda City Council from making policies or the PUB from making a decision. The City Attorney stated nothing prevents the City Council from establishing policy tonight, even if the PUB wants to address the matter at a later time. Councilmember Kerr noted that the Brown Act does not permit budget issues to justify holding a Closed Session. Mayor Johnson inquired whether Board Member Baldassare and the City Attorney could discuss whether a closed session is warranted, to which the City Attorney responded in the affirmative. Councilmember Gilmore stated the Westlands Water District submitted a letter outlining a proposal; inquired whether NCPA is supportive of said proposal. The AP &T General Manager stated Alameda is not party to said settlement, which is specific to Westland. Mayor Johnson called a recess at 9:57 p.m. and reconvened the Special Joint Meeting at 10:04 p.m. Mayor Johnson stated the meeting did not need to be adjourned to Closed Session. Councilmember Matarrese stated both sides have made extensive cases; a healthy river would have an outcome of restored fisheries; the cost to the City of Alameda and the contributions to the environmental fund for the central valley project have no bearing on the discussion; there is an opportunity to have a real benefit for little cost; fossil fuel alternatives might have to be used; however, having every Alameda resident not use their car once a week would have a far greater impact on the effort to reduce greenhouses gases; Council should make policy. Citv Council Action Councilmember Matarrese moved that the City of Alameda make a policy to support the restoration of the Trinity River and that the City should withdraw itself from the lawsuit. Councilmember Kerr seconded the motion. Special Joint Meeting Alameda City Council and 4 Public Utilities Board January 27, 2004 Under discussion, Councilmember Kerr stated reviewing the fish population is one of the major signs of a healthy river; water will restore the environment; if Alameda withdraws from the lawsuit, the EIS process will not be stopped or slowed down; the matter could be in the courts endlessly; the City should set policy to support the ecosystem. Vice Mayor Daysog stated that he supports the motion. Councilmember Gilmore stated the Trinity River needs to be restored; the draft of the EIS could come out in the next six months; questioned what the rush is after 20 years of waiting. Mayor Johnson stated the litigation will continue regardless of the City's action tonight; the City has been through EIR litigation and is familiar with the tools of delay it creates; the matter might not be resolved in the next six months; many different directions have been given since 1955; that she supports the motion; the two largest beneficiaries of the project, Sacramento Municipal Utility District (SMUD) and Palo Alto, have withdrawn from the litigation; questioned why Alameda, with only to benefit, should fight the legal battle; stated maybe NCPA should review its position; restoring the river makes sense. On the call for the question, the motion carried by unanimous voice vote - 5. PUB Action The City Manager stated that he would support a motion to have the City withdraw its financial support. Board Member Baldassare moved approval of the City withdrawing its financial support of the litigation. The City Manager seconded the motion. President Lucas inquired whether SMUD is pursuing a separate settlement or litigation. Mr. De Cuir responded SMUD is not a part of NCPA and has decided not to financially support the litigation; SMUD was a separate party. President Lucas inquired whether SMUD is purchasing power or using a different source. Special Joint Meeting Alameda City Council and 5 Public Utilities Board January 27, 2004 Mr. De Cuir responded SMUD is still a customer and will remain a customer, but will not pay for [lawsuit] expenses. President Lucas noted SMUD proposed a settlement. Mr. De Cuir stated SMUD's proposed settlement was to move sand and gravel with some water, but to move more mechanically. Board Member Bangert stated the draft EIS will be available in March, which would be valuable to have before making a decision. President Lucas stated NCPA has a genuine concern for the environment; SMUD not paying their way is reason for others to drop out [of the lawsuit]; on the other hand, Alameda has benefited from its membership in NCPA; noted that her PUB seat is dependent upon the City Council. On the call for the question, the motion carried by unanimous voice vote - 5. (04 -039) Adjournment to closed session to consider Conference with Legal Counsel - Existing Litigation; Name of case: Westlands Water District et al v. U.S. Department of Interior et al. Not held. Adjournment There being no further business, Mayor Johnson adjourned the Special Joint Meeting at 10:25 p.m. Respectfully submitted, Lara Weisiger City Clerk The agenda for this meeting was posted in accordance with the Brown Act. Special Joint Meeting Alameda City Council and 6 Public Utilities Board January 27, 2004