08-08-10, Harry Zavos’ Unpublished Letter to the GNP Regarding Legality of GWP Transfers of Water Fees to the General Fund

Note to the Glendale News-Press regarding the following submission: As a retired law professor I have chosen my words carefully, mindful that the thrust of a legal exposition can be distorted by a different word here or a word omitted there. So, I ask, as much as possible, that you not edit the letter which is as follows:

An August 5 GNP headline read: "Utility; Rate hikes aren't enough. Water officials say even with the unpopular proposed increase they're still short." GWP figures show (1) that the water budget, which requires the rate hike, includes a 4.2 million dollar transfer of water fees to the general fund and (2) that without the proposed hike the budget will be 2.2 million dollars in the red.

But, without the 4.2 million dollar transfer, the budget would be 2 million dollars in the black and no rate increase would be urgently required. The urgent need for a rate hike is due to the City's apparent unconstitutional transfer of water fees to the general fund. Collection of water fees and their transfer to the general fund are made pursuant to the City's charter authority.

In 1996 the people passed Proposition 218 adding Article XIIID to the State Constitution which states: “Notwithstanding any provision of law, provisions of this article shall apply to all ...fees ... whether imposed pursuant to...local government charter authority". Certainly the City's charter cannot trump the State's supreme law-- cannot trump the State Constitution. Article XIIID requires that fees for property related services "shall not exceed the funds necessary to provide the related service" and that they "shall not be used for any other purpose other than that for which the fee or charge was imposed" It further prohibits the imposition of such fees for "general governmental services including, but not limited to, police, fire, ambulance and library services".

The California Supreme Court, in the 2006 Bighorn-Desert View Water Agency case, determined that water fees are property related within the meaning of Article XIIID. Yet the City of Glendale, by transferring water fees to the general fund, continues to use those fees for general services in conflict with Article XIIID's requirements and prohibition. Its actions have resulted in a water budget that threatens to go into the red absent a rate hike.

There is a prima facie case that the City has created a need for a rate hike by violating the State Constitution. Until it presents a legal argument which reconciles the requirements and prohibition of Article XIIID with the city's practice of water fee transfers, it will not only give the appearance of needing a rate hike to support unconstitutional acts; but, it also undermines its credibility and moral authority when it asks its citizens to comply with its laws. It is not morally persuasive to say: Do as I say, not as I do.”

Harry Zavos