July 8, 2009 City Council Avoids Discussion about Its "Policy" of Automatically Doubling Sewer Rates for Outside Customers

City Council met yesterday at 4:00. It was a short agenda that was dispensed with quickly.

During the public comments portion, I asked the council about the double rates charged to outside sewer customers. I asked if they have any cost study or any report by anyone showing that it costs twice as much to provide sewer service to customers who live outside the city limits. They do not.

[The sewer consultant who came up with the new increased sewer rates lumped ALL sewer customers (inside and outside) together to come up with a single new rate structure. Then the council, pursuant to "policy," automatically doubled the consultant's new rate structure for outside customers.] See my previous post.

With no cost study for outside customers, the next question was why do you arbitrarily and capriciously charge outside customers twice as much? City attorney Dick Jessee advised the Mayor and council not to respond to that question, so I rephrased it "why do you charge outside customers twice as much?" Jessee did not object to that question, but there was still no answer from the Mayor or council.

In the end, it really didn't matter how the question was phrased, the Mayor and council will not engage in open discussion about the double outside sewer rates and for good reason. They don't have any justification for charging outside customers twice as much. Someone just decided to slap on a punitive double charge years ago, no one ever questioned it, and now they don't want to listen to any questions about the double charge policy.

The Mayor and council don't like the question in any form, but let's get real about this and look at state law and case law. When you just hit someone with a double sewer charge as a matter of policy without a cost basis, that is just about as "arbitrary and capricious" as you can get. Policies can be erroneous, without basis, and illegal. [Remember Jim Crumley's ill-fated "moratorium" on garbage service to new city businesses that was later determined to be indefensible by attorney Dick Jessee?]

One of the newest members of the current council, Bob Garrett, has already told the council and city staff in an open meeting that the policy of charging double sewer rates is "illegal." Bob knows the law in this area. He worked for the water system for decades and knows that rates have to be lined up with costs---not just set up to punish one set of customers and favor another set. Bob spoke the truth, and I would imagine that there were several conversations afterward about such openness and honesty in a public meeting.

The Mayor and council can sit quietly and ignore the "arbitrary and capricious" double sewer rates, but the issue isn't going away. There can be different rates---but only if there is a cost basis for the different rates. A "policy" of charging twice as much--pulled out of thin air--is not a cost basis. There is no justification for the city continuing to treat some of its sewer customers unfairly.

It may be painful, but it's time for the city to stop avoiding the situation and take care of this matter. It's a matter of fairness because that is what the law requires. Rates must be fair and equitable. Bob Garrett knows that and has told the council as much. I have repeatedly asked the city to charge the same rate to inside and outside customers until and unless the city performs an outside study and finds that its costs for service to outside customers justify a higher rate and the amount, if any, of that higher rate.

The city's recent rate study by Lamar Dunn lumped the costs for all customers (inside and outside) together and came up with a single fair rate for all customers (inside and outside) based on those costs.

Lamar Dunn's report did not say that it costs twice as much to serve outside customers. The city simply took Dunn's single rate structure (inside and outside) and then applied its "policy" of automatically doubling Dunn's cost study rate and charging outside customers twice as much. Arbitrary and capricious? In my opinion, yes. Unfair? Yes. Needs to stop? Yes.

A rezoning ordinance for a Weigel's Store (2750 N. Davy Crockett Parkway and a portion of Cherokee Park) passed 5-0-1. Kay Senter abstained without comment and Gene Brooks was absent.

A change order for the airport renovation was approved.

Several fire department promotions were approved.

The council then convened as the Beer Board and approved four beer permits:

Maria Isabel Flores, Don Pancho Mexican Restaurant, 1134 South Cumberland.
Misael Martinez, Locanda Italian Restaurant & Pizza, 1590B Buffalo Trail.
Jaymin, Inc., Shell Gas Station, 2564 Buffalo Trail.
Kenneth E. McMullen, Weigel Stores, Inc, 2750 N. Davy Crockett Parkway.

The work session that followed was lengthy. Two companies gave health/wellness presentations, seeking city business to set up a local clinic for city employees. The presentations ran so long that three councilmen and the local "news"paper reporter left during the presentations.

When Councilman Frank McGuffin left, reporter Bob Moore followed him and called for Frank by name. Bob was gone for quite a while and missed a lot of the first presentation.

Bob finally came back. Councilmen Claude Jinks and Doc Rooney left separately. Then Bob Moore left again (permanently) and missed a lot of the second presentation as well.

At the end of the second presentation, there were a few city employees still around, a few members of the public, and only these elected officials: Mayor Barile, Kay Senter, and Bob Garrett.