Faced with overwhelming resident resistance to their proposal to raise water rates, Upland city officials this week abruptly cancelled a public hearing on the matter for which more than 50 residential ratepayers had shown up at City Hall. When a number of those residents sought to provide the city council with their input on the matter, Upland City Manager Bill Manis, at the behest of Mayor Debbie Stone, threatened them with arrest.
City staff had placed on the agenda for the Monday March 12 city council meeting a proposed multi-year water & recycled water service rate schedule. In accordance with the California Government Code, the agenda was posted 72 hours in advance of Monday night’s meeting to give the public adequate notice of the action the council was to potentially take.
Accompanying the action proposal, which was designated on the agenda as item 12B, was city staff’s recommendation that the city council approve a resolution establishing and adopting a multi-year schedule of water and recycled water rates and charges and so-called temporary demand-management surcharge rates as needed.
City officials asserted the proposed action would establish equitable fees, ensure the city meets its debt service obligations relating to financing arrangements previously made for system expansion and improvements, maintenance, rehabilitation and replacement of components, as well as cover operating expenses and pay for a number of unanticipated costs. Many residents, however, are not convinced that the rate increases as proposed are warranted, and they have concerns some of the revenue the city is hoping to capture by the rate increases will be used for purposes unrelated to the city’s water and wastewater recycling systems.
The proposal waiting for approval by the Upland City Council would increase water rates 17 percent effective April 1, 2018; 9 percent effective January 1, 2019, 9 percent January 1, 2010, 5 percent January 1, 2021; and 3 percent January 1, 2022. The charge will go to $1.76 per 100 cubic feet of water unit used in households or businesses up to the first 20 units; thereafter that below-threshold unit rate will increase to $1.91 on January 1, 2019, $2.07 on January 1, 2020; $2.18 on January 1, 2021; and $2.34 on January 1, 2022. Water used beyond the 20 unit threshold and up to 50 units will thereafter cost $2.32 per 100 cubic foot unit beginning April 1, 2018; $2.52 as of January 1, 2019, $2.73 as of January 1, 2020; $2.87 as of January 1, 2021; and $2.96 as of January 1, 2022. Cost on water use beyond 50 units will increase to $2.78 per 100 cubic foot unit as of April 1, 2018; $3.01 on January 1, 2019; $3.26 on January 1, 2020; $3.43 on January 1, 2021; and $3.54 on January 1, 2022.
The fixed bi-monthly charge for those using the system with 5/8s inch pipe, the type used by virtually all of Upland’s domestic water users, is to be $46.90 as of April 1, 2018; $52.25 as of January 1, 2019; $57.85 as of January 1, 2020; $60.80 as of January 1, 2021; and $62.75 as of January 1, 2022.
On January 22, 2018, the city began notifying property owners and tenants within the city by mail that the hearing on the rate increases was to be held this week at the March 12 city council meeting. There was a sizable turnout of residents at the meeting, with dozens prepared to offer their views with regard to the rate increases.
After an executive session behind closed doors in which certain matters were discussed outside the presence of the public including the performance and/or continued status of city manager Bill Manis in his current position, the council reconvened in public. After ceremonial presentations, remembrances, a convocation and the recitation of the Pledge of Allegiance, Mayor Debbie Stone sized up the crowd. Perceiving that the vast majority of those in attendance were in opposition to the rate escalations, Stone, without consulting with the remainder of the council, abruptly chose to cancel the public hearing relating to the rate hikes.
“Before we go any further, based on the inquiries and questions that have arisen since the public hearing for item Number 12B [the water rate hike], I would like to allow the city staff ample time to digest these comments and address concerns that have been expressed by the public,” Stone said, having not yet heard from the public. “As a result, I would like to make a motion to continue this item to the second meeting in April, which I believe makes it April 23.”
At that point, Stone indicated that those who had come to the council chambers that evening would still be allowed an opportunity to provide input on the matter.
“If anyone is here in the public for this, this evening, and had planned to speak and if you’re not able to attend on April 23, you could go ahead and speak to the city council at this time, but first of all I need to see if I can get a second from someone,” Stone said.
A city resident, later identified as Steve Carvalho, approached the public speaker’s podium, seeking to be heard. Stone declared Carvalho out of order, while assuring him that he would be allowed to speak. Councilwoman Janice Elliott suggested that before the rescheduled public hearing and vote by the council on the rate increase proposal is held, the city hold workshops to inform the city’s residents on the need for the rate changes “and why this is being put on the agenda.” Elliot proposed an alternate motion to hold two such workshops and postpone the hearing and vote until April 23. That motion was passed unanimously.
Stone then allowed Carvalho to come forward.
Carvalho noted that as a city resident he had “experienced rate hikes every year. I protest the water rate hike.” He indicated his belief, and that of many of those present, that the city council was going seek, through a loophole, to get around Proposition 218 protections intended to prevent taxes from being levied without those being taxed approving them. Carvalho’s reference was to a specific provision in Proposition 218 which allows public entities to bypasses the taxpayer-approval requirement on taxes by allowing a city to declare that it will impose a new tax or tax/rate increase and then invite those to be taxed to protest. Under that provision, if a majority of those to be subjected to the tax do not lodge protests, then the tax or tax/rate increase is presumed to be favored by a majority of those to be taxed and is deemed to have been approved by the taxpayers. Carvalho proposed an alternative to the council’s intended use of that loophole, saying, “An election should take place. The ballot is the more democratic tool to obtain opinions as opposed to an invitation to make a written protest requiring 51 percent participation. The cost of service should be the only factor involved in my water bill. If the City of Upland has other money problems, they should find another way to deal with it.”
Upon the completion of Carvalho’s comments, city attorney James Markman interjected, “Well, this is not on the agenda, so if 40 other people want to get up and speak to it, it’s no longer appropriate for this time of the agenda.”
“Okay, “ said Stone, indicating she was rescinding her earlier assurance that the council would allow those who had come to the hearing expecting to be heard with regard to the water rate hike to speak their piece.
Markman, nevertheless, reacted to the substance of what Carvalho had said, essentially offering a legalistic defense of proceeding with a “protest vote” rather than a “vote to approve” while suggesting that the city will have met its burden of transparency and responsive governance if the city council gives those in the community interested in weighing in against the rate hike the opportunity to glean information in workshops and use a later hearing to make their protests known.
“I want to respond,” said Markman. “I guess I can respond to a procedural comment. Whoever drafted Prop[osition] 218 took water rates and sewer rates and specified this protest process rather than taking it to an election, and I don’t know if I disagree or agree, but it does seem impossible that there could ever be a 50 percent plus one protest on a water rate that hits every house in town. You’d have to have half the population in the council chambers. So, obviously, I agree with the gentleman [Carvalho] that’s not a practical remedy. The remedy is to have hearings and have people get up and express their views on it.”
Councilwoman Elliott, at that point concerned that the council was going to preclude those members of the public who had come that evening expressly to address the concept and prospect of the water rate hike from being heard, attempted to point out that the council had advertised the consideration of the rate hike as a public hearing. “We do have on the agenda a public hearing and oral communications pertaining to that,” Elliott said. “We’re postponing the vote but we wanted to hear…”
Stone cut her off, saying “We’re postponing the whole item.”
In reaction to what the mayor said, audible protests were made by numerous individuals in the assembled crowd. “That’s not what it says,” one man could be heard saying, in reference to the agenda.
Elliott briefly attempted to persuade Stone and Markman to allow public input as part of the hearing to proceed, but then, cowed by the mayor and city attorney, Elliott desisted.
“So now we’ll continue with oral communications for items that are on the agenda, minus number 14 B or A, excuse me,” Stone said, apparently misreferencing the item she was trying to exclude.
Deputy city clerk Keri Johnson said, “This is the time for any citizen to comment on any item listed on the agenda only. Anyone wishing to address the legislative body is requested to submit a speaker card to the city clerk prior to speaking.” Johnson then called Marjorie Mikels, an Upland resident and attorney whose law office is based in the city, to the podium. Mikels greeted city manager Bill Manis and the council and began, “Water is life and our rates are really high now…”
“Marjorie,” Stone interrupted her, “that item is off the agenda. We won’t be discussing it this evening.” Stone shut off the power to the public speaker’s podium microphone. “Could you please have a seat and we’ll move forward with the next speaker,” Stone said.
The crowd roared, indignantly. “Let her speak” was heard from several members of the crowd.
Mikels stood at the podium, stunned, the sound of the crowd welling behind her.
City manager Manis, whose performance since his contract began on January 1, 2018 was evaluated in the closed session immediately prior to that evening’s public session, noting Mikels was lingering at the speaker’s podium, leapt into the breach at the opportunity to demonstrate his command and support of the council’s authority, threatening Mikels with arrest. “Excuse me, so, we can’t have disruption during the council meeting,” Manis intoned. “It is a misdemeanor. You will be removed from the council chambers if you disrupt the meeting. It’s on the front of the agenda, so I would like to politely request that you please conduct yourself in a quiet manner.”
With the crowd momentarily hushed, Mikels then said in a voice loud enough that her statement, despite the lack of amplification, could be heard, “Exercising First Amendment rights is not a misdemeanor in this state and city and country, so far as I know, Mr. Manis. I’m going to exercise my rights…”
“Excuse me, Ma’am,” Manis said. “Ma’am…”
At that point, acting Upland Police Captain Marcelo Blanco, who was in uniform, approached the podium, and stood within 18 inches of Mikels to her right, making a show of preparing to arrest her, waiting for a signal from Manis to do so.
“We have on the front of the agenda that you’re not to disrupt a public city council meeting,” Manis said.
When Mikels inquired how she was being disruptive, Manis said, “Because you are speaking out of order.”
Audible from the crowd was a male voice “She’s not speaking out of order.”
Manis then sought to justify the mayor shutting off the speaker’s podium microphone by saying “That item is not to be discussed until April 23 and you started out discussing the water item and the mayor politely reminded you that item is not on the agenda tonight now and so I’m just asking you to please respect our policy on disrupting a city council meeting. If you could, please, sit down.”
Mikels, on the verge of being arrested and recognizing discretion to be the better part of valor, returned to where she had been sitting.
Blanco, to ward off what his political masters deemed any further interruptions, used his cell phone to summon four police units to City Hall, redirecting them from their normal patrol rounds, to facilitate the arrests of any others at the meeting who might test the council’s authority by seeking to comment on the proposed water rate increases.
On Wednesday, the Sentinel sought from Manis an explanation as to his rationale for the council’s cancelling at the last minute what turned out to be a well-attended public hearing that had been noticed to the public well in advance and the scheduling for which had been reconfirmed with the required notice 72 hours in advance of the meeting.
“We moved the public hearing date to the second meeting in April, which is April 23,” said Manis. “That item will come back later. I can’t speak to the council’s reason for the postponement except to say it is the council’s intention to bring it back for a hearing then.”
As to whether the city council will be scheduled to make its decision at that point, Manis said there was such a possibility but indicated a vote would not necessarily have to take place. “It is the council’s intention to have the item heard on April 23,” he said.
Queried as to why the council did not utilize the opportunity it had on March 12, with so many members of the public assembled in compliance with the council’s advertisement of that meeting as being the “time and place” for the public to offer input on the rate hikes, to get input from its constituents at that stage, Manis deflected the question. “We are having a couple of workshops where the public will have the opportunity to get information before the public hearing,” he said. “Let me go to my calendar. The first will be on April 2, a Monday, at 6:30 (p.m.) in the council chambers and then again on Saturday April 7 at 9 or 10 in the morning. “
Asked directly if he thought it to be an example of good governance to summon residents to a hearing for the provision of input and informational exchange and to then abruptly cancel the hearing and thereafter threaten those who seek to be heard with arrest, Manis emphasized that the item relating to the water rates issue had been removed from the agenda, abrogating the public hearing. “She was out of order,” Manis said with regard to Mikels. “The item had been taken off the agenda at that point in time.”
Manis characterized the use of Blanco’s presence at the side of the podium as a “polite” way of persuading Mikels to discontinue her remarks and dissuade any of the others at the meeting from speaking with regard to the water rates issue.
Manis suggested that the input the public could provide as of Monday night, given how little is known about the rate hike schedule and why the city deems it necessary, was not worth listening to. “Apparently they [the council] did not feel the public had enough information [regarding the water rate proposal and the rationale for seeking it],” Manis said. He said it was not true that the city council was reluctant to hear the public’s input on the matter. “The city has received comment from the time everyone was notified,” Manis said.
In shutting off the public comment with regard to the water rate increases, Manis said, “The council’s intention was a good one. They did not want this to be rushed. They pushed the item to another meeting. They are trying to be transparent on this. It is appropriate to hold public workshops so we can address whatever questions the residents have.”
Cory Briggs, another attorney based in Upland, said the way the council and Manis had conducted themselves on Monday night is not an appropriate use of civil authority or a way to carry out public business.
“It sounds like the mayor, city manager, and the police need to be arrested for their Brown Act stupidity,” said Briggs, referencing the Ralph M. Brown Act, the State of California’s open public meeting law. “Anyone may talk about any city business during public comment. That is beyond debate.”