Lawsuits. What good are they. Especially between elected governments.
I ran into an acquaintance of mine — owner of a downtown business — at the bank last Friday, and he struck up a conversation about the recent decision by the Pagosa Area Water and Sanitation District (PAWSD) board, to repeal the 2012 Intergovernmental Agreement (IGA) between PAWSD and the Pagosa Springs Sanitation General Improvement District — PSSGID, the Town-managed special district that’s been effectively (and thoughtfully) processing our downtown sewage these many years using a rather low-tech lagoon system.
The IGA, that the PAWSD board had repealed a few days earlier, had been the legal instrument supporting the construction and financial obligations behind a seven-mile pressurized sewer pipeline that may, one day soon, deliver a fairly large quantity of downtown sewage to an underutilized, uptown treatment plant.
Apparently, the business owner — who certainly pays his share of sewer fees for his downtown business — had read a portion of an article by reporter Casey Crow, published the previous day in the Pagosa Springs SUN. I’m not sure if he’d read Ms. Crow’s well-written article thoroughly, however, because he seemed a little confused about certain details.
For one thing, he seemed incensed that a government board (PAWSD) could make a legal agreement with another local government entity (PSSGID) and then turn around and repeal the agreement, just at the moment the project was about to come online.
Those of us who’ve been party to contracts are pretty well aware, I suspect, that almost any contract or agreement — even between two government entities — has a “escape clause” that allows one of both of the parties to terminate the agreement under certain circumstances. When things are going wrong, for example.
Apparently, the PAWSD board was able to avail themselves of just such an escape clause, in an effort to repair some deficiencies (as they saw them) in the 2012 IGA. It’s a general principle of government in Colorado that a previous board (from, say, 2012) cannot obligate expenditures by a future board (in, say, 2015). Times change, and so does the composition of any given elected board of directors. Sometimes, as boards change, and as times change, so do government agreements.
Back in about 2005, the Town began making a decision to upgrade its sewer treatment facilities to better meet new Colorado water standards, and also — and perhaps most importantly — to accommodate the thousands of new residential homes that were soon to be constructed within the Town boundaries, in subdivisions like Pradera Pointe, Blue Sky Village, and Reservoir River Ranch.
The Town government, under the leadership of then-mayor Ross Aragon, were never quite able to make the finances for the new treatment plant work… try as they might. The cost of a state-of-the-art facility large enough to accommodate thousands of new residential homes remained just slightly beyond the capacity of the existing downtown sewer customers, even with the promise of state and federal grants and loans, and even with Town sewer rates increasing from $22 to $37.50 per month.
By 2010, however, it had become apparent that the thousands of planned homes were not likely to be built anytime soon, within the Town limits. Frighteningly enough for folks who’d grown accustomed to a steadily expanding Pagosa economy, it wasn’t clear that those homes would be built in the lifetime of anyone currently alive.
And another thing was rather apparent: numerous key employees at PAWSD, who were used to hooking up 200-300 new homes every year to their water and sewer systems, were now without real work to do, even though they were still collecting paychecks. It was an uncomfortable situation.
Maybe a big, seven-mile sewer line would justify a few key PAWSD job positions? And maybe also provide some work for a local construction company?
A number of closed-door planning meetings between Town and PAWSD leaders and agents produced the 2012 plan and the legal document supporting it: the controversial sewer pipeline IGA.
Conveniently, both sides of the secret negotiations were represented by the same law firm: Collins Cockrel & Cole.
Nevertheless, as board member Glenn Walsh suggested at the December 10 PAWSD board meeting, the resultant document was “… one of the most prominently miswritten agreements I’ve ever read for a large project.” Yet it was approved by both the PAWSD board (by a 3-to-2 vote) and by the Town Council (by a unanimous vote.) My own analysis of the IGA, back in 2012, was that it was a screaming deal for PSSGID customers, while PAWSD customers appeared to be subsidizing the screaming deal.
The Town and PAWSD are in agreement that a few key problems with the IGA need to be ironed out, according to a joint amendment made to the IGA last May, which states, in part:
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.
It’s now “closer to project completion,” by all accounts. The pipeline was scheduled to start pumping on or about January 4, 2016. But the “sitting down and making a new agreement” part never happened, for whatever reason.
At the December 10 PAWSD meeting, PAWSD president Mike Church mentioned a very recent discussion with Pagosa Mayor Don Volger.
“The mayor called and he said he understood that we were worried about the equitability issues with our customers … And he said that he wanted to ask me what I thought about [PAWSD] just taking the entire system over … “
He sounded optimistic about resolving the existing differences… if indeed PAWSD and PSSGID have any differences.
“I told [Mayor Volger] … where we are right now with the current IGA … I said, really none of the issues are so catastrophic that it couldn’t have progressed easily, with two hours of reasonable parties just trying to get together and deal with it…”
Two hours of reasonable discussion. Sounds about right.
But the Town Council (acting as the PSSGID board) will be looking at Resolution2015-08 this morning at around 7am — a Resolution that begins like this:
WHEREAS, a legal dispute has arisen between the Pagosa Area Water and Sanitation District (PAWSD) and the Pagosa Springs Sanitation General Improvement District (PSSGID) concerning the pipeline Intergovernmental Agreement dated January 3, 2012; and
WHEREAS, PSSGID has retained legal counsel to enforce and protect PSSGID’s legal rights and interests; and
WHEREAS, it does not currently appear that a resolution of the issues will occur absent the filing of a lawsuit…
Bill Hudson began sharing his opinions in the Pagosa Daily Post in 2004 and can’t seem to break the habit. He claims that, in Pagosa Springs, opinions are like pickup trucks: everybody has one.