After meeting behind closed doors for about forty minutes yesterday, December 22, on a telephone conference with attorney Andrew Nathan , the Pagosa Springs Town Council — acting as the board of the Pagosa Springs Sanitation General Improvement District (PSSGID) — reconvened from their executive session and allowed the two news reporters (SUN reporter Marshall Dunham and myself) back into the Council Chambers.
Without any discussion whatsoever, the Council then voted unanimously, on a motion by Council member Tracy Bunning, to approve Resolution 2015-08.
Here’s the gist of what the Council approved:
NOW, THEREFORE, BE IT RESOLVED BY THE PAGOSA SPRINGS SANITATION DISTRICT GENERAL IMPROVEMENT DISTRICT, as follows:
1. The law firm of Nathan Dumm & Mayer PC, is authorized to take such legal actions, including the initiation of a lawsuit against PAWSD, asserting all appropriate claims and requesting all appropriate remedies. Nathan Dumm & Mayer P.C. is authorized to proceed with such legal action under the guidance of and with consultation with the Town Manager who is authorized to make necessary day-to-day legal decisions with the attorneys.
2. The Town Manager is directed to consult with Mayor Don Volger and Council Member Tracy Bunning, acting as an advisory sub-committee of the Board, in making the day-to-day legal decisions with the attorneys in this matter.
3. This Resolution shall take effect and be enforced immediately upon its approval by the PSSGID Board of Directors.
The Town government, for as long as I can remember, has been using the law firm of Collins Cockrel & Cole as its legal counsel — primarily, the services of attorney Bob Cole. For other cases — the ones covered by the Town’s litigation insurance through CIRSA — the Town’s attorney is Steve Dawes.
We now have yet another law firm involved, in the Town’s ongoing negotiations with Pagosa Area Water and Sanitation District (PAWSD) over a poorly-written (and possibly unfair?) Intergovernmental Agreement that has produced a seven-mile sewer pipeline nearly ready for operation, but lacking a satisfactory operating agreement.
During the writing of the 2012 IGA (Intergovernmental Agreement) between PSSGID and Pagosa Area Water and Sanitation District (PAWSD), Collins Cockrel & Cole had represented both sides of the negotiations, so attorney Bob Cole had opted not to get involved in this difficult situation (which his firm apparently helped create.)
How a law firm can ethically represent both sides of a contract negotiation, I haven’t a clue. But that’s precisely what happened in 2012.
The main things preventing the operation of the pipeline, at this point, appear to be the Town’s stated need for an additional $600,000 overflow vault and some (purportedly minor?) amendments to the 2012 IGA.
The PAWSD board obtained an agreement from PSSGID, back in May, that changes to the IGA were indeed needed, before the pipeline began operating. The changes sought by PAWSD were enumerated in a recent Pagosa Springs SUN article written by reporter Casey Crow. The SUN’s informational summary listed four parts of the IGA that the PAWSD board hopes to amend, and it also listed PAWSD-proposed solutions. The discussion is rather technical, but not beyond the understanding of most ordinary elected officials, I presume.
Although the 2012 IGA was seemingly sufficient to guide the actual construction of the sewer pipeline — except for a minor, already-resolved disagreement about how much money PAWSD would loan to the Town from PAWSD reserves — the old IGA is not acceptable in terms of “Operations & Maintenance” of the new pipeline. We know that it’s not acceptable, because the Town and PAWSD both agreed on that point, back in May:
The Parties do recognize and agree that additional amendments to the IGA are necessary with regard [to] its Operation and Maintenance provisions, however, due to the need to expeditiously address the amendment to the funding provisions of the IGA, the Parties will undertake the Operation and Maintenance amendments at a time closer to project completion.
PAWSD president Mike Church had suggested that a couple of hours of good-faith negotiations could likely fix the problems in the current IGA. But PAWSD — which is responsible, according to the not-yet-updated IGA, for operating and maintaining the pipeline — had apparently grown frustrated with the lack of negotiations, and as the project approached its start-up date, the PAWSD board voted to remove any funding for pipeline operations from its 2016 budget.
Now we have the threat of a lawsuit coming from the Town? That might appear to be the case, based on the language in yesterday’s Resolution, which I assume was crafted by attorney Andrew Nathan, or by one of his paralegals.
Why a lawsuit is threatened in the Resolution, I cannot explain. I’m not an attorney like Andrew Nathan, who (I understand) is charging the Town taxpayers $250 per hour to negotiate an agreement (or, file a lawsuit) about issues that PAWSD president Mike Church reportedly believes could probably be settled with a couple of hours of friendly conversation.
Following the vote by Town Council (the PSSGID board) to enlist Mr. Nathan’s services, Mayor Don Volger approached the two news reporters who’d attended the meeting and gave us his interpretation of the Resolution.
“If you read the Resolution carefully, it doesn’t mean that we are absolutely going to file a lawsuit. It means that, that option is a definite possibility. Okay? And we’re going to proceed with that. We’re just putting the Pagosa Area Water and Sanitation District board on notice, that we are willing to file suit if necessary.
“And we are [indeed willing.] Okay? The Resolution pretty much states that.”
I don’t often like to disagree with the Mayor, but actually, the Resolution doesn’t state that, at all. Actually, the Resolution states that, in the opinion of the PSSGID board:
WHEREAS, it does not currently appear that a resolution of the issues will occur absent the filing of a lawsuit;
After the meeting had officially adjourned, the Town’s sanitation manager Gene Tautges was asked to give a brief update, and he let the board know that CDHPE (Colorado Department of Public Health and Environment) was apparently going to allow the Town to continue using the existing sewer lagoons near the high school, until things can be sorted out with the pipeline operations and management issues. The lagoon system is violating water quality standards in a minor way, he said, but CDPHE is willing to overlook those violations, for the time being.
My very limited experience with lawsuits and judges suggests that an actual lawsuit between the Town and PAWSD would last at least a year, maybe two.
So, who is this guy, Andrew Nathan? Did he really need to help craft a threatening-sounding Resolution, when the issues at hand are relatively minor?