By FELICIA ORTHThank you to the Los Alamos Republican Party for hosting a Forum on August 21 on the merits of Question 2 on the November ballot: Should Article V of the County Charter be repealed in its entirety and replaced to reconfigure the relationship between the Board of Public Utilities and the County Council?
Proponents of the new Charter provision stated that it is critical that the Board be “fully functional,” given its important role in County governance. Their focus was on Board members as individuals who might become impaired. On this basis they assert that “accountability is lacking” and a mechanism must exist for Council to remove a Board member “without cause.”
The focus on Board members as individuals is misplaced. The proposed Charter provision is objectionable because it undermines the Board’s full functioning to protect citizens as ratepayers. This point is not yet being acknowledged or addressed by its proponents. The Charter Review Committees are to be thanked for reminding us why the relationship between Board and Council is so intricate but the repeal and replacement of Article V should be rejected.
The current Charter states that an individual Board member may be removed by Council for several reasons: failure to appear at Board meetings for 90 days, moving out of Los Alamos County, conviction of a crime of moral turpitude, an ethical violation or other violation of Charter prohibitions. While it is not unthinkable that an individual Board member could suffer an impairment, it is highly improbable that County Council would ever have to “remove” a Board member, particularly “without cause.” The hypothetical possibilities do not represent a sound basis to replace an entire section of the Charter that has served us well since 1968.
Only by moving from Board members as individuals to the function of the Board as a whole can we can see the dangers inherent in the proposed Charter provision.
The Charter generally vests the County’s powers in the County Council. To protect ratepayers, one of the few exceptions expressly provided in the Charter is set out in Article V, Utilities, establishing a Department of Public Utilities to operate the County-owned electric, gas water and sewer utility systems under the jurisdiction and control of the Board of Public Utilities. Board members are appointed by Council to serve staggered five-year terms; one term expires every year.
Article V sets out a number of express powers for the Board, and limits the reach of those powers by requiring Council approval of all significant actions, including appointment or removal of the Utilities Manager; rate-setting for electricity, gas, water and sewer service; budget formulation; and the issuance of municipal bonds.
This model is recommended by the American Public Power Association. Communities around New Mexico and the rest of the country not operating on this model often find utilities revenues diverted to non-utilities projects so funds are not available when needed for infrastructure, which leads to higher utility rates.
In Los Alamos, the importance of the arms-length relationship has become clear over the last 46 years in at least three contexts: 1) the transfer of revenues from Utilities to the General Fund, 2) the allocation of expenses to the Department, and 3) the expense of providing infrastructure for anticipated development. In each context, the Utilities Board and Department were presented with proposals that would have either diminished reserves intended for utilities infrastructure or had a devastating effect on ratepayers. And in each of these contexts, the current configuration of responsibility and authority among Council, Board and Department prompted discussion and negotiation which resulted in resolution. The special status of the Department and Board assured that issues were resolved at a high level and that the resolution occurred in public, in front of Council.
The proposed Charter provision undermines the arms-length relationship by allowing Council to unilaterally make decisions that must currently be shared or negotiated with the Utilities Board. It further allows Council to unilaterally remove Board members “without cause.” The proposed Charter provision will compromise the Board’s ability to fully function as a Board to guide the operation of the Department and continue to maintain reasonable rates for Los Alamos ratepayers.
As this community considers whether to move to a model of utilities governance that does not allow the Board to fully function at arms-length from Council, the discussion on the way to the ballot should be focused on the probable consequences, not the improbable ones. Vote “no” on Question 2.