When the executive session began at the special Tuesday, December 24 Town Council meeting — actually, a meeting of the Pagosa Springs Sanitation General Improvement District (PSSGID) — the two people in the audience naturally got up to leave. Reporters are not welcome to attend government executive sessions, nor are other members of the taxpaying public allowed to sit in and listen. On Tuesday, the seven-member Town Council and Town manager Greg Schulte wanted some privacy during a telephone conference with their new Denver-based attorney, so that they could have a frank conversation about dragging the Pagosa Area Water and Sanitation District (PAWSD) into court, over a minor disagreement about the operations and maintenance of a new sewer pipeline.
As I said, the media was not welcome. So it’s hard for me to judge how that 40-minute conversation turned out, except to say that the Council reconvened afterwards and threatened PAWSD with a lawsuit.
The dispute concerns a clarification of an existing Intergovernmental Agreement (IGA) that both PAWSD and the Town agreed (last May) needs some clarification. Oddly enough, since May, I’ve seen the PAWSD board conduct numerous discussions about the operating details in the IGA that the Town agrees need clarification and possibly adjustment. But although the Town Council has received a progress report on the sewer pipeline construction at every regular meeting since May — that’s two times a month — I have not yet heard the Council nor the Town staff discuss the need for those IGA amendments.
As it appears to me, as an outside observer, the Town Council and staff consider it better government to hire an aggressive litigation attorney from Denver, than to sit down at the table with their neighbors and discuss a solution to a problem … that every agrees is a problem?
I’m not sure if any of the Council members have ever met attorney Andrew (“Andy”) Nathan in person, and I’m not sure if Mr. Nathan knows anything about our little community of Pagosa Springs. In ten years of writing about government-citizen disagreements, and government-government disputes, here in our backwoods rural town, I had not yet heard the name “Andrew Nathan.” (Nor “Andy Nathan” for that matter.)
According to the Martindale.com website — which is sort of like the Trip Advisor for the legal industry — attorney Andrew Nathan has a “AV Preeminent” rating (5.0 out of 5). That’s a ranking by other legal professionals. Martindale’s shows no ratings whatsoever from “clients.”
Based on Mr. Nathan’s letter of December 18, addressed to Jeff Robbins — the attorney representing PAWSD — Mr. Nathan does not understand much at all about the checkered history of the 2012 IGA, nor does he show much respect for the volunteer PAWSD board’s desire to protect the interests of existing PAWSD waste water customers.
Here’s are a couple of (annotated) excerpts from Andrew Nathan’s December 18 letter, promptly provided to me by the Town staff yesterday in response to a CORA (Colorado Open Records Act) request.
… I have been advised that [PAWSD] has given notice to Greg Schulte that the Pagosa Area Water and Sanitation District (PAWSD) will not appropriate anything for IGA monetary obligations for 2016. You have not provided any explanation as to the reasoning behind this, PAWSD intentions for the future, or how PAWSD envisions this will affect the IGA in question.
We must ask how a seemingly intelligent and well-respected attorney could propose that PAWSD has not fully explained their reasoning to the Town Council… considering the Town signed an agreement last May stating that
The Parties do recognize and agree that additional amendments to the IGA are necessary with regard [to] its Operation and Maintenance provisions…
And…
… the Parties will undertake the Operation and Maintenance amendments at a time closer to project completion.
But Mr. Nathan — having apparently no understanding of the actual issues — goes on, in his December 18 letter, to show his further ignorance of the situation.
In the absence of any explanation for these actions, I can only assume the following:
1. That this is a deliberate and bad faith attempt to obtain leverage in negotiating changes to the IGA which PAWSD cannot otherwise obtain in a legal proceeding for reformation;
2. That there is a multi-million dollar pipeline nearly completed which, in the absence of a continuation of the IGA, may well become useless;
3. That PAWSD does not expect reimbursement by Pagosa Springs Sanitation General Improvement District (PSSGID) of the money that PAWSD has loaned for work on the pipeline;
4. That PSSGID will need to institute legal action to require PAWSD to finish the pipeline, pay the costs it is obligated to pay for operations and maintenance, and accept PSSGID’s sewage until PSSGID can make other arrangements for its sewage at PAWSD expense.
Perhaps I have misinterpreted PAWSD’s intentions…
Well, that’s a bit of an understatement. A considerable amount of misinterpretation is evident here. In fact, all four of Mr. Nathan’s accusations are complete nonsense.
As has been very clear since May — in the joint agreement endorsed by the Town — the intentions of the volunteer PAWSD board are to sit down with the Town and correct the problems inherent in the operations and maintenance portion of the 2012 IGA. PAWSD cannot, out of respect for their taxpaying customers, proceed to accept PSSGID waste water — when both they and the Town have already acknowledged the flaws in the IGA.
But instead of simply sitting down at the table and talking man-to-man, the Town leadership — apparently — prefers to hire a legal “expert” from Denver who — apparently — has not a clue about the actual situation but still wants to collect his $250 per hour.
Attorney Andrew Nathan’s December 18 letter continues in pretty much the same vein for two pages, and notes, at one point:
We believe that PAWSD may be liable to PSSGID for what is likely to be substantial damage award… Assuming that we do not proceed under the IGA and the pipeline testing does not commence, the lawsuit will be filed on or about [January 4, 2016.]
You can read the entire threatening letter here.
Over the past couple of years, our local school district has been doing its best to address the issue of bullying — immature but aggressive students causing unnecessary and unacceptable physical and psychological harm to their fellow students, and the low morale that results when bullying is not addressed.
Maybe the school district could share what they’ve learned with the Town Council?