Letter to the Editor: Charter Can Make Abuse Transparent, Difficult And Punishable By Electorate

By DAVID IZRAELEVITZ, member
Los Alamos County Council

The issues raised by the proposed changes to the County Charter regarding the Board of Public Utilities (BPU) have been the subject of multiple letters to the editor. Those against this amendment seem to strike an overriding theme: some County Council will abuse a strengthened oversight function over the BPU to the ultimate harm of the electorate; specifically, it could increase transfers from utilities to the general fund, resulting in higher taxes disguised as increased utility rates.

As a current member of the County Council, I know all too well that trust may be earned but cannot be legislated, much as competence or objectivity cannot be legislated either. The fact of the matter is that the County Charter, either current or future, cannot ensure that there will never be untrustworthy, incompetent and/or biased councilors who may in turn choose untrustworthy, incompetent and/or biased  members of the BPU,  a board that controls a $90 million budget, nearly half the total County budget, and who cannot be removed except essentially if convicted of a felony. However, what the Charter can do is to make any abuse by a public official as transparent, difficult, and ultimately punishable by the electorate as possible. 

In recommending the amendment to the Charter, the authors introduced two new key mechanisms, the power of removal of a BPU member by Council, and the less dramatic but more drawn-out structured conflict resolution in the event that actions by the BPU is viewed by Council as counter to the public interest.

Neither mechanism for trumping the BPU presents an easy task for Council. The removal of a member of the BPU would require a minimum vote of 6 to 1 at a public meeting. The less dramatic step of overriding BPU decisions requires a series of at least five public meetings and multiple votes over at least a three month period, as we can see from the example below.

Let us go back to the scenario of using utility rates as a hidden tax. Currently there is a mutually agreed-to 5 percent transfer of utility revenues to the general fund as a nominal profit. What if the Council wants to increase this to X percent, but the BPU refuses? Right now, there is no defined way to resolve this impasse, but let’s count the number of public meetings required by the new dispute resolution process:

  1. Council Public Meeting #1: At the yearly budget meeting, the BPU proposes a utility budget that includes the usual 5 percent profit/fee. The Council votes down the budget and states that X percent is more appropriate, surely explaining why it chooses to disagree with the BPU.
  2. The BPU meets again and decides that it will not change the original fee.
  3. Council Public Meeting #2: The Council again votes down the utility budget and invokes the dispute resolution process, appointing a subcommittee to negotiate with the BPU.
  4. The BPU appoints a similar subcommittee.
  5. Council meeting #3 and #4 – The dispute resolution committee meets during 90 days which span at least two Council meetings where public comment is taken on this subject.
  6. Council meeting #5 – Presuming that no middle ground is found, Council votes by at least 5 to 2 to impose the X percent fee.

I am sure that by the fifth public meeting, the public will be well aware of the dispute between Council and the BPU, the value of X, and the reasons presented by the Council and by the BPU for their respective positions. I think we would agree that five public meetings over at least three months’ time, is indeed a very public and difficult path for Council to arbitrarily impose its will on the BPU.

Moreover, Council’s request for an increased fee may be totally appropriate. For example, if the utility department begins to sell its power generating capacity at a profit on the open market, as the recently signed agreement with the DOE permits it to do, there is no reason why that profit should necessarily result  in lower utility rates (which presumably would mostly benefit LANL who is the largest consumer of electricity in the county) rather than lower taxes or increased services to the community as a whole. After all, it is the county that owns this newly profitable power generating capacity.

The electorate already has the power to remove errant councilors; they are held accountable through Article VII, section 702 of the County Charter, namely recall from office. Does anyone doubt that if  Council is indeed abusing its power with respect to the BPU, the signature sheets for recall will be well on its way to thousands of names by the fifth public meeting?

The BPU has purview over a budget that is by far the largest single fund in the County with assets that are rivaled in value only by the county road network. The electorate, who in fact own the utility system, should be able to hold the BPU responsible and responsive to the citizenry, if not directly, then though its elected officials. I believe the charter amendment proposes a reasonable, public, and appropriately difficult process to do this in a way that prevents abuse while maintaining accountability of both the BPU and the County Council. It is a process that I hope I will be held to abide by should I be elected to continue on Council. I urge you to vote for Charter Amendment 2.

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