Fresno Bee Newsroom Blog

Outsourcing issue gets more complicated

Opponents of Fresno City Hall’s effort to outsource the residential trash service filed a lawsuit on Tuesday.

This long fight suddenly got even more interesting.

I’m going to assume that you (my dear reader) know outsourcing’s background. I just can’t bring myself to repeat yet again all the details. You can’t bear to read them again.

Here’s what happened Tuesday:

I got a call at home from my boss. There’s a morning news conference outside City Hall dealing with trash. Be there, the boss says.

I checked my cell phone. Sure enough, there was a news release from Dee Barnes and Howard Watkins. Dee (president of the city’s white collar union and a long-time city employee) and Howard (a local attorney) are among the anti-outsourcing leaders. The three of us have spent much of our lives over the past four months at various outsourcing hearings.

Howard is fearless. I got a kick out of him at the end of the long Dec. 20 City Council meeting. The council had just voted 4-3 to pass the outsourcing ordinance. The council chamber was packed. Everyone was tired. Exhausted council members stood up, stretched, and slowly headed for the exits. Howard jumped up from his front-row seat, camera in hand, and gestured at the council to gather by the council president’s chair.

Howard looked like he was at a Thanksgiving dinner, trying to convince distracted family members to stand by grandma for a group shot. Why Howard thought that he — a high-profile outsourcing opponent — could persuade the council’s four pro-outsourcing members to comply with his wishes at the end of what amounted to a 15-round heavyweight bout escapes me. And, of course, the four acted as if Howard didn’t exist. Howard saw their indifference and waved his arm at them as if to say: OK, forget it!

Still, you’ve got to admire Howard. He’s got guts.

So, Tuesday at 11 a.m. rolls around. TV, radio, The Bee — we’re all there. Howard, Dee and Diane Smith (a southwest Fresno resident) speak. Howard and Dee do most of the talking.

The two things of particular interest emerged.

First is the lawsuit itself. A new direct-action group called Fresnans for Clean Air (FRESCA) is suing City Hall under the California Environmental Quality Act (CEQA).

Fres-Ca and Cee-Qua.

The council on Dec. 20 had approved a “negative declaration” (“neg dec” in the experts’ shorthand) on the Mid Valley Disposal deal. In essence, the council was saying: Yes, everything in the universe has an impact on somebody’s environment. The Mid Valley deal will, as well. But, in our opinion, the impact isn’t earth-shaking. We don’t need to do a full-blown environmental impact report (expensive, time-consuming, lots more hearings for me and Howard and Dee to attend). We’ll approve this “neg dec” and be on our way.

FRESCA is asking a Fresno County Superior Court judge to say to City Hall: Whoa! The “neg dec” might have some holes. Let’s all gather in a courtroom and chew on this.

Council Member Oliver Baines (an outsourcing opponent) raised the “neg dec” issue on Dec. 20. Well-known local civil rights attorney Patience Milrod raised the “neg dec” issue to city officials in a single-spaced, seven-page letter dated Dec. 17.

What’s key here is CEQA. The act inspires Californians to file lawsuits. If you want proof, just think of downtown’s L Street project (rest assured, that project was on my mind throughout Tuesday morning’s Dee-Howard-FRESCA news conference).

As you will recall, Granville Homes (owned by the Assemi family) wants to build a 28-unit townhouse project on the northeast corner of L and San Joaquin streets in uptown. One of the project’s challenges was the presence of two century-old houses on the 1.3-acre site — the Sayre and Crichton homes.

As 2011 wound down, City Hall and an advocacy group not unlike FRESCA called Citizens for the Restoration of L Street got in a fight.

Mayor Ashley Swearengin very much wants to end her second term with downtown revitalization well on its way. Uptown, thanks in large part to the Assemi family, is improving by leaps and bounds. Crichton Square (the townhouse project’s name) would be another feather in Swearengin’s cap. It would please Granville Homes.

I was somewhat familiar with the Crichton and Sayre homes. I used to walk by them all the time. During the eight-week Stacy Johnson-Klein sex discrimination trial, which I covered, I always parked my pickup on L, across from the Crichton house. I ate lunch every day in my pickup. I got to know the Crichton house. It sure looked like junk in late 2007. I can’t imagine it was in much better condition in late 2011.

As to the Sayre house, I visited one day when Habitat for Humanity was headquartered there. The Sayre house (on San Joaquin Street) didn’t look like much on the outside. But I got a decent look at the ground floor’s entry hall as I waited for a Habitat official to see me. The inside of the Sayre house looked pretty good from what I saw.

Bottom line — the Assemi project had the makings of conflict. The Mayor and Granville Homes wanted to move fast on the townhouse project, and that meant ripping down the two old houses (no one could be found to buy them for $1 each, since the buyers would have to pay for moving the houses, not to mention remodeling). And Citizens for the Restoration of L Street wanted the houses preserved for posterity, although by whom was never clear.

Late 2011 comes. The council issues a “neg dec.” No full-blown EIR is called for. City Hall issues a demolition permit to Granville. Citizens/L Street wants to go to court to stop the demolition and mandate the EIR. Citizens/L Street is a tad late — the houses tumble before a judge can speak.

Citizens/L Street is hotter than a drugstore pistol. The houses are in a landfill somewhere, but Citizens/L Street sues anyway. CEQA is the group’s hammer.

The lawsuit is filed in late 2011. The two sides turned in reams of arguments to Judge Jeffrey Hamilton over the next eight months. The two sides spent the better part of a morning and afternoon in Hamilton’s courtroom on August 31, 2012 arguing the nuances and case history of CEQA. Finally, in November 2012, Hamilton hands down his long-awaited CEQA decision.

The City Council, Hamilton ruled, must give Fresno’s citizens another chance to voice their concerns about the potential environmental impacts of a 28-unit townhouse project on a site that once was home to a pair of century-old houses that might or might not be worth saving but, in any case, are already long gone.

CEQA and existential despair go hand-in-hand.

It’s been nearly 14 months since the Crichton and Sayre homes bit the dust and Granville’s townhouse project is still nothing but bare dirt. The only sure thing is that the CEQA environment on the northwest corner of L and San Joaquin remains as stagnant as it’s been for decades.

Now, there’s no doubt that the concept of “delay” lies at the heart of the strategies of both sides in the outsourcing battle.

I chatted with a West Fresno minister after an anti-outsourcing news conference at City Hall several months ago. I said to the minister: Delay the start of outsourcing for nine months or a year — until the financial and political landscape at City Hall is thoroughly changed — and the pro-outsourcing momentum might die. That’s your strategy, right?

The minister just smiled. That was all the confirmation I needed.

Tuesday’s FRESCA/CEQA lawsuit fits perfectly with this game plan.

But delay is also among the anti-outsourcing side’s big problems.

City Manager Mark Scott says the city is broke. No one with a sense of what’s really going on at City Hall argues with him. The cops union brought in an accountant to look at the city’s books. Council President Blong Xiong (perhaps the council’s harshest outsourcing critic) brought in an accountant to look at the city’s books. These outside experts say city is broke. Wall Street credit rating agencies say the same thing.

The city is so broke, Scott says, that he can’t bear so much as a month’s delay in getting that Mid Valley money. So, Scott is making a list of employee and service cuts. One month’s delay in the Mid Valley money — so long jobs and services. Another month’s delay — so long more jobs and services. On and on it’ll go.

I walked to City Hall Tuesday afternoon and did a bit of chatting “on background.” In a week or two, we reporters will probably be writing about the first couple of rounds of such layoffs and cuts. Don’t be surprised if Scott, charged by the city charter with making unilateral decisions to keep the city afloat in times of emergency, simply tells the council from the council chamber dais: This is what I’ve done. Deal with it.

So, today’s FRESCA/CEQA lawsuit was one of two really interesting things to emerge from the Dee Barnes/Howard Watkins news conference. The second thing, tackled exclusively by Howard, was about generating money.

It is obvious that the anti-outsourcing folks understand the public relations-impact of what Scott is about to do.

The anti-outsourcing folks say: Outsourcing affects every single Fresnan. It’s too important to be rushed. It’s too important to be left to the Dec. 20 actions of four council members (who, we’re often reminded, were white Republican males). Fresnans must have the option of waiting three to four months and voting on outsourcing themselves.

That has generated a lot of good PR for the anti-outsourcing side.

But what happens to that good PR if, over the next three or four months, the city’s media are producing a steady flow of stories about the incremental reduction in city workforce and service levels, and how this affects the same Mr. and Mrs. Fresno who had been led to believe that their well-being depends not on the overall capacity of a broad and complex municipal government to do its duty on a financially sound-footing but on a nice, slow election campaign that centers on whether the guy picking up their trash once a week should wear a city of Fresno uniform or a Mid Valley Disposal uniform?

Of course, Scott may be bluffing about the sorry state City Hall finances. But he’s been at City Hall for three years now. He’s overseen a police force that has lost more than 100 sworn officers through attrition — this in a city whose homicide numbers inched over 50 in 2012.

I don’t think the anti-outsourcing side thinks Scott is bluffing.

That’s why Howard at Tuesday’s news conference did something new in this long outsourcing fight. He pitched a public safety tax.

I know. Council Member Baines has been touting the public safety tax for months. Public safety is the big consumer of general fund dollars, the thinking goes, so why not add more general fund dollars through a public safety tax and eliminate the need for outsourcing?

What was new on Tuesday was that Howard said the public safety tax should piggy-back on the same special-election ballot as the outsourcing question.

In other words, Howard was saying Scott’s impending cuts aren’t necessary if Fresnans can get through the City Hall cone of silence and let the city manager know their feelings. There’s no need to wait until, say, 2014 for a public vote on the public safety tax. The anti-outsourcing side gets the required 21,828 signatures of registered Fresno voters, the outsourcing question goes to a special election in April or May, and Fresnans at the same time they’re rejecting the Mid Valley deal also vote to levy a tax on themselves to backfill the money lost from the demise of outsourcing.

No layoffs, no service cuts, no outsourcing, no FRESCA/CEQA lawsuit, no city of Fresno bankruptcy. What could be easier?

That was Howard Watkins’ message on Tuesday in front of City Hall. Dee Barnes didn’t contradict him. Howard was trotting out for a test spin the latest thinking from outsourcing opponents.

But let’s pause for a moment and look at all the pieces of this story now moving in new directions.

There are now three sources of power for the anti-outsourcing side.

1.) There’s the potential special election. City Clerk Yvonne Spence and Fresno County Clerk Brandi Orth are pouring through five boxes of petitions. If 21,828 registered Fresno voters signed, the special election — outsourcing, yes or no? — is almost a sure thing.

The only thing that could stop it is if the council — when it revisits the outsourcing ordinance, as required by state law in this situation — decides to repeal its Dec. 20 decision.

Two of the four council members who voted for outsourcing on Dec. 20 (Larry Westerlund and Andreas Borgeas) are no longer on the council. They have been replaced by Paul Caprioglio and Steve Brandau, respectively.

2.) There’s the FRESCA/CEQA lawsuit that could take months, if not years, to run its course.

3.) There’s the public safety tax, piggy-backing on the potential outsourcing ballot and designed to neutralize potential immediate cuts by Scott.

How do the anti-outsourcing folks coordinate these three sources of power for maximum effectiveness and minimum public alienation? And are there inherent contradictions among these three sources of power that provide opportunities to the Swearengin administration in the PR battle?

For example, let’s assume outsourcing opponents get the 21,828 valid signatures. How do outsourcing opponents go about getting the public safety tax on the ballot along with the outsourcing question? Do they simply ask the council to pay a few extra bucks so the ballot has two questions: Outsourcing, yes or no? Public safety tax, yes or no?

If the two questions get on the same ballot, what happens if voters reject both — outsourcing and the tax? No money from Mid Valley, no extra money for public safety. Does Swearengin send a declaration of fiscal emergency to the council?

If voters embrace outsourcing and reject the tax, then we’re back to the situation as of Dec. 20.

If voters reject outsourcing and approve the public safety tax, then the cops probably prepare for a second taxpayer-funded wellness program.

One of the big beefs of outsourcing opponents is the allegedly hurried pace of City Hall debate on outsourcing and the public’s ignorance of the deal’s nuances and impacts. The deal’s unexplored impacts on unsuspecting Fresnans is the main reason for the FRESCA/CEQA lawsuit. And this is the charge even though the outsourcing idea has been kicking around since last spring’s budget hearings and the Mid Valley deal itself was in the public domain for several months before the council’s December votes.

How will outsourcing opponents handle similar concerns when they pitch the public safety tax? Near as I can tell, the special election (if the petition drive is successful) is two or three months away. I have yet to see a report (detailed or not) on what this tax might look like. How will Fresno voters supposedly ignorant of outsourcing’s details despite months of public hearings get up to speed on that issue at the same time they’re getting up to speed on the nuances and implications of a public safety tax that is a complete mystery even as County Clerk Orth is verifying petition signatures? Would not Fresno voters say to outsourcing opponents: You rip Swearengin, perhaps with justification, for rushing something as momentous as who picks up my trash, then turn around and rush a public safety tax at me?

Outsourcing opponents say the public safety tax would be like the Measure Z zoo/sales tax. It’s hard to imagine a more lengthy and sophisticated political campaign than the 2004 Measure Z effort (done at a time when home values where going through the roof; and don’t forget the immense influence of the energetic and talented Dave McDonald from Pelco). Measure Z funds are administered by a series of interlocking boards and government agencies that makes Standard Oil’s corporate structure in 1905 look simple. Would the public safety tax campaign have similar support of top-tier talent? Would the tax funds get similar oversight? Or would the money simply be dumped into the same City Hall treasury that is overseen by the same municipal corporation that has been the source of incessant criticism of outsourcing opponents who contend it was City Hall’s fiscal mismanagement that got Fresno into this mess in the first place?

Just imagine the special election’s campaign slogan from the anti-outsourcing side: Reject outsourcing — Swearengin is a fool. Support the public safety tax — send millions more to Swearengin.

And, perhaps most important of all, is the bait-and-switch issue. Outsourcing opponents say the big problem with Swearengin’s Mid Valley deal is that all of the supposed goodies in the contract are just bait to get the deal signed and operating. The nearly 18% rate reduction with same or better levels of service? Won’t last, outsourcing opponents say. Mid Valley’s business model will fail, after which the company will come back to City Hall and demand huge rate increases, opponents say. Since all the city-owned trash equipment will be gone, the city will have no choice but to fold, opponents say. That’s why the special election is so important, opponents say. But I don’t recall any of the petitions including a provision that told potential signers: Put your signature here for a special election on the fate of outsourcing AND the fate of a public safety tax.

If that’s what is coming down the pike toward Fresno voters, then one thing is clear: It’s too late for those petition signers who don’t like the idea of a special election on both outsourcing and a public safety tax to remove their name from the petition.

And what about Council President Xiong and council members Baines and Sal Quintero? They are strong opponents of outsourcing. Are they going to vote to put the public safety tax on the special ballot? If not, why? If so, why are they waiting to the last minute to tell voters what the tax will say and how it’ll be administered? And where do they stand on the FRESCA/CEQA lawsuit? Xiong, Baines and Quintero have been Dee Barnes’ strongest allies. Is the FRESCA/CEQA lawsuit a situation, perhaps the first in Fresno history, in which sitting council members have (with one degree of separation for appearances’ sake) sued themselves and the people they represent in an effort to advance their agenda?

And what happens if the petition-drive fails? Will the FRESCA/CEQA lawsuit carry on and last as long as the L Street project lawsuit? Maybe. Will Xiong, Baines and Quintero testify on behalf of the plaintiffs? Will interim City Attorney Francine Kanne (who is hired and fired by the council) or her in-house proxy cross-examine Xiong, Baines and Quintero as hostile witnesses? If Kanne farms the job out to another law firm, who at City Hall keeps an eye on the firm’s performance since everyone (Xiong, Baines, Quintero, Brandau, Caprioglio, Clint Olivier, Lee Brand, Swearengin) has conflicting allegiances on this issue?

And if the petition-drive fails, what happens to the public safety tax? Will the same forces that came together to collect 40,000 signatures in less than a month go to the same effort to put the public safety tax measure on a special ballot? Or will Xiong, Baines and Quintero draft the proposed legislation themselves, then present it to their council colleagues for a vote that would put the proposal on a special ballot? If so, will Xiong, Baines and Quintero need five votes since there’s a chance that Swearengin, by this time perhaps in a foul mood after sustaining an outsourcing defeat and having to shoulder the political fallout from mandating more layoffs and service cuts due to the loss of Mid Valley’s money, would wield her veto pen?

And, should the petition drive succeed, how will outsourcing opponents convince a majority of Fresno voters to go to the polls when the active FRESCA/CEQA lawsuit means voting is irrelevant?

If voters support outsourcing at the ballot box, the FRESCA/CEQA lawsuit (which almost certainly would postpone outsourcing’s implementation) proceeds in its desultory fashion and all those emotional pleas from Xiong, Baines, Quintero and countless others to “let the people decide” are dropped down the memory hole.

Of course, voters could go to the polls and oppose outsourcing, thereby putting a quick end to the FRESCA/CEQA lawsuit and saving court costs. But that would be an admission by outsourcing opponents that the petition drive wasn’t about the sanctity of democracy — let the people calmly weigh the merits of both sides, then deliver a binding decision — but instead was about using American idealism to strong-arm the electorate (get rid of outsourcing or you’ll pay a pretty penny for defending the lawsuit).

And if outsourcing opponents truly believe in democracy, then why file the FRESCA/CEQA lawsuit? There’s no need for it if voters reject outsourcing. And there’s no need for it if voters embrace outsourcing since they would be using the ballot box to confirm the council’s Dec. 20 “neg dec.”

Now, all of this is the standard rough-and-tumble world of politics. There’s a lot more ahead of us.

But permit me to end with two points:

1.) Please — no more boo-hooing about sacred democracy.

2.) Fresno — it’s game on.

Responses

FresnoJoe says:

I Never Thought Somebody Could Make Clear Sense Of This Nonsense But You Did…. And It’s “Keystone Cops” Funny To Boot~!

Well Done, lol

Dan says:

Things could get interesting for the City on the CEQA front. Madera County is gearing up to sue the City regarding its land use approvals. The latest was the re-re zoning of the El Paseo project on Herndon.

The County sent the City a lengthy letter which expressed outrage that county staff had not been kept in the loop given the project’s impacts on Madera County. Most importantly from a CEQA lawsuit view was the County reminding the City that the Master EIR for the current general plan is roughly 7 years past its sell-by date-master EIRs are only valid for 5 years after approval.

The County is sending clear signals that, unless the City comes to the table and plays nice, it will shut down most development in Fresno using the courts. Tit for tat.

MollybyGolly says:

Thank you for this excellent, thorough, entertaining-in-a-car-wreck-sort-of-way article.

Dale says:

If voters reject privatization, will somebody ask why, as the Mayor claims, can a private company pay millions in fees to the City, lower prices, and provide the same service?
Is it possible the City has been mismanaging the operation of the “Special District?

Clovisorbust says:

Because the private employer will not pay the exorbitant salary-overtime-vacation-sick leave-cadillac health care-25 year work cycle followed by 30 years of over-inflated retirement benefits that are GUARANTEED, regardless of market or financial conditions. The exact reason why EVERY city, county, and state in America are on the verge of bankruptcy today.

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