Dead Mud Walking

A ballot measure that would create a Municipal Utility District has so many legal flaws, it's all but DOA. In fact, passing the measure might delay the advent of public power here for years.

In the wake of this year's energy crisis, the possibility of creating an agency to take over electric distribution (and, perhaps, generation) has gained great currency; pro-MUD coverage, for example, repeatedly fills the pages of the San Francisco Bay Guardian, an alternative weekly that has dwelled on the public power issue for decades and has publicly acknowledged a bias in favor of forming a MUD. But the Guardian -- and, for that matter, the city's daily news organizations, which have provided far less reportage on the issue -- has largely ignored apparently serious legal defects in both public power proposals. In fact, if it passes, the MUD is likely to be dead on arrival because of its legal deficiencies. And if it passes, it may very well drag Proposition F into the legal abyss with it; an attorney retained by PG&E says that legislative language meant to resolve control of public power if both measures win in November actually links Prop. F to the legally suspect MUD measure, making a protracted legal challenge to both likely.

In short, even according to energy experts who favor the establishment of public power agencies, the electoral success of the MUD measure so beloved by certain long-standing public power proponents could actually end up delaying the advent of public power in San Francisco for years, perhaps decades.

The legal impediments to the creation of a MUD are many, but they have received little public discussion. The "Impartial Analysis" of the MUD proposal contained in the Voter Information Pamphlet published by the San Francisco Department of Elections contains scant information about the MUD. It does not mention that even if the MUD passes in November, the district will have to come back to the voters at some unknown date for permission to sell bonds and enter the electric power business. The analysis does not describe how the MUD will finance itself until that time, or how it will be able to pay lawyers to defend itself against a barrage of utility-company lawsuits almost certain to quickly follow a MUD victory in November.

And, perhaps most interesting, the official analysis does not mention that there is substantial debate among various government entities over how many votes are needed to pass the MUD measure.

When it comes to determining whether the MUD proposal has or has not passed, the city Elections Department will apparently take a pass. Tammy B. Haygood, director of the Department of Elections, says that she does not know how many votes it will take to approve or defeat the MUD. "That is not a determination we make," Haygood says. "This is a unique election, governed by the [state] Public Utilities Code. It will take a legal determination to answer that question." Haygood says she is waiting to hear from the City Attorney's Office on how to interpret the law, but "anyone that thinks that interpretation is incorrect can sue." Besides, she says, her office will not actually decide if Measure I passes or fails. She will simply forward the vote tallies to the Board of Supervisors, which will certify the MUD as a winner or loser. In making its decision, the board will have plenty of vote-total schemes to choose from.

A spokesperson for San Francisco City Attorney Louise Renne, who is not running for re-election and is the bane of many MUD supporters, says the MUD needs a majority vote in both San Francisco and Brisbane to win. If Brisbane rejects Proposition I, by Renne's reasoning, the MUD is dead.

David Tom of the San Mateo County Registrar of Voters, which oversees Brisbane's elections, insists if Brisbane votes against the MUD, that negative vote will mean absolutely nothing. Brisbane will become part of the MUD if a majority of San Francisco voters approve the creation of the MUD, Tom says.

Harold Toppel, the city attorney of Brisbane, disagrees. He says that if Brisbane votes down the MUD, it cannot be included in the new district. San Francisco can have its MUD to itself, Toppel says, if a majority of San Francisco's voters approve it.

Attempting to settle the matter, Bion M. Gregory, the legislative counsel of California, wrote a legal opinion in March saying that if Brisbane votes against the MUD, San Francisco can still have a MUD, provided that the pro-MUD votes cast in San Francisco equal two-thirds of the combined number of voters in San Francisco and Brisbane.

And Joel Ventresca, chairman of the Coalition for Lower Utility Bills and MUD NOW, a pro-MUD campaign committee, and a candidate for the MUD board of directors, says he believes the outcome of the MUD vote will depend upon geography, not the number of votes. In Ventresca's eyes, a majority of voters residing on two-thirds of the land mass of San Francisco -- as delineated by the square footage of precincts -- will have to vote for the MUD measure for it to pass.

The utter confusion surrounding the voting issue is the stuff of lawsuits. But there is a lot of lawsuit stuffing around.

Last year, for example, PG&E notified the LAFCO that it had found a series of defects in the commission's MUD-forming methods. PG&E complained, among other things, that the petition to put the MUD on the ballot was incomplete; that the LAFCO was not correctly following the guidelines of state utility statutes; that the MUD could not be put to a vote until an environmental impact report is done (there still is nothing even remotely resembling an EIR for the district); and that the California Public Utilities Commission has to approve the creation of a MUD before it goes to the ballot.

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