PSWID needs to stop viewing public as adversary

The following update on the Pine Strawberry Water Improvement District (PSWID) Board is provided by Water for Pine Strawberry, an organization of concerned residents whose leader's name cannot be mentioned here or the Roundup will not run his letters to the editor.)

Strawberry Hollow Well (SH3) Contract
We obtained a copy of the SH3 purchase contract which can be found here: http://www.waterforpinestrawberry.com/data%20pages/BudgetDocs.htm .

The contents of the purchase agreement are pretty much as described by the board in the meetings with the exception of some deed covenants that give the Strawberry Hollow Domestic Water Improvement District (SHDWID) first call on half the output from the well and require that the water from the well be connected to PSWID through the SHDWID water system. See pages 14 and 15 of the contract, covenants 4 and 5.

The first of those deed covenants is: “SHDWID and Grantee shall cooperate in good faith, including the operation of the wells, to provide water to each other as needed. Grantee shall provide water to SHDWID when needed by SHDWID provided that Grantee has the requested water physically available, and such water shall be provided on a parity with water Grantee provides to lands within Grantee’s district boundaries.” (Note that SHDWID would pay a wholesale rate for the water that they take).

Comment: My interpretation is that “on a parity” means that SHDWID can take an equal amount of water as PSWID from the well, if they so desire. The period over which parity is determined is not stated. Is it an hour, a day, a week, a month, a year? If PSWID has pumped the well at full capacity for a week or month, does that mean that SHDWID can then take the full output for a week or month to achieve parity? At full build out, Strawberry Hollow will have 72 homes, so maybe worst case they need 300,000 gallons in a month, which is about a fourth of the well’s output.

The second of those deed covenants is: “Water from the Well shall be delivered to Grantee through SHDWID’s water system.”

Comment: Being forced to run the water through the SHDWID water system gives SHDWID the ability to shut the water from the well off to PSWID. This basically places enforcement of “on a parity” under SHDWID control since they get first physical access to the water coming out of the well. This is much different than was described in the meetings. In the August 10th meeting where the contract was agreed to, Mr. Loren Peterson’s attorney said that the output from the well would be a “tee” to the PSWID and SHDWID sides. A couple weeks later, Mr. Gary Lovetro described is being a “vee” where there were separate connections from the well to PSWID and SHDWID.

Comment: So we paid $450,000 for a well and did not end up with full ownership of the water or control of the access to the water. Mr. Loren Peterson said at the July 3rd meeting that he wanted to sell the well and retain first rights to the water. There was general grumbling about that at that meeting, but it appears that he was successful. SHDWID basically has a backup well that costs them nothing. If the shallow aquifer well that Strawberry Hollow currently gets its water from goes dry or the well fails in some way, they can supply all of their needs from the PSWID well for as long as they desire.

Document Access
Mr. Richard Dickinson has repeatedly cited the opinion of the former PSWID attorney, Mr. John Gliege, that spending $130,000 to repair and improve the Milk Ranch well could be considered to be “due diligence” by the board. Assuming that the board has their “stay out of jail card” in written form, we put in a document request for it. Mr. David Davis, the board’s attorney, sent a reply which is at the end of this email.

Mr. Davis states that such an opinion falls within attorney-client privilege and does not have to be provided to the public.

Comment: This puts the board members in the enviable position that they can claim this opinion says pretty much anything and no one will be the wiser. This opinion is the board’s key talking point that spending money to repair and improve a private well is the right thing to do. The board is the client in this case and they control whether it is released or not. If it says what has been claimed, then it is in the board’s best interest to share it with the public. If it doesn’t say what has been claimed then it is in the board’s best interest to keep it hidden from public view.

Mr. Davis also spends a good deal of time explaining why the public should avoid requesting information from the district.

Comment: In an effort to help Mr. Davis and the district reduce the effort and cost that they spend on document requests, we would like to offer the following suggestions:

i. If a document is mentioned or presented in a meeting, post it on the website in a timely manner. If you feel that it is too sensitive to provide to the public, post an explanation and the conditions/time frame under which it may become available in the future. That way the public can pull the documents without a request, those documents are available to the general public for review, and the public will know what is futile to request.

ii. Put documents of general interest on the website. The monthly well production reports, reports on breaks, meter installs, etc. Things like audit reports, engineering reports, and master plan.

iii. Don’t view the public as an adversary that you must hide information from. While the law may allow the board to hide the information, it often doesn’t require that the information be hidden. There should be a limited class of requests which require Mr. Davis’ attention. If the board is uncomfortable with the public knowing what they are doing, that is a clear sign that they aren’t doing the right thing for the community.


Mr. David Davis’s response on document requests:
“Dear Ms. Mason:
I understand from the staff that you have made yet again another public request. This time it is for a written opinion from the District=s former attorney, John Gliege, regarding the legal concept of due diligence and how it might apply to development of the Milk Ranch Well.

I know you are not an attorney, but most folks have heard of the attorney-client privilege. It allows the client to prevent disclosure of written opinions that the attorney provides to the client. You have asked the Board to disclose opinions that John Gliege provided in writing regarding the legal concept of due diligence. This clearly falls within the category of attorney-client privilege. The attorney-client privilege trumps the freedom of information request.

To put this in perspective, I think you are fairly familiar regarding the legal battles between John Gliege and Mr. Hardcastle=s attorney, Jay Shapiro. Mr. Shapiro could not have used the Freedom of Information Act to request the documents created by John Gliege regarding his opinion of the legal issues between PSWID and Pine Water Company. This is a fairly basic legal concept.

If you have any further questions regarding this privilege, attached hereto are six different high court opinions throughout the country, in both state and federal courts, which hold that documents covered by the attorney privilege are unquestionably exempt from the Freedom of Information Act.

I do want to take this opportunity to explain the process that the Board follows when anyone makes a Freedom of Information Act request. When you send your request, the District reviews the request and attempts to locate the documents that would be responsive to the request. They then send the documents to me for legal review to determine whether or not the documents are privileged or whether or not there is some legal issue regarding the request that needs to be addressed. I review the request and review the documents, and if necessary, do some research. I then make a written recommendation to the District. The amount of time I spend on the public request depends upon the number of documents that I must review and the novelty of the request and whether or not there is any recent case law regarding the request for such documents.

The request requires my time. If the request produces multiple emails with attachments then it may take a lot of my time.

Attorneys bill for their time. Mr. Gliege billed the District $300.00 an hour. I bill the District $190.00 an hour. The Board and I have worked together and are continuing to work together to find new protocols and procedures so as to reduce the attorney fee expenditure by the District. Both the Board and I believe that the District=s budget is better spent on the steel pipes of the water main than the wind pipes of a barrister.

What I want you to understand is that every time you send in a public request the District is forced to spend more of its budget on legal expenses and less of its budget on direct improvement of the water system.

You, as a citizen, have the right to request public documents from this District. I assume you are making these requests because you have a strong interest in creation of an effective water system in Pine. What I would like you to understand is that each of your public requests make it incrementally more difficult for the Board and you to reach your common goal of an effective water system

I am not writing to discourage you from making legitimate public requests. Whether or not you continue to make public requests and the frequency at which you continue to make public requests is totally within your hands.

Just one final thought. If you are continuing to make these requests because you are worried about my client base, you can stop. I have plenty of other clients to keep me busy even if your public requests suddenly went silent.

Best wishes. I look forward to see you at the next meeting.”

This update is from the group Water For Pine Strawberry. We will provide after each of the PSWID meetings with a summary of what the board did, additional facts that are relevant to what went on, and some commentary. Updates on earlier meetings are available on our website: www.WaterForPineStrawberry.com .

Water For Pine Strawberry is a group of residents who are concerned about the communities water issues and how they can best be resolved. Visit our web site, www.WaterForPineStrawberry.com, for more information. The website for PSWID is www.pswid.org .
Clarifications can be submitted by anyone who is explicitly named, implicitly identifiable, or a board member to items in this email. Clarifications will be posted on our website. We reserve the right to post a response. Clarifications must deal with the topics discussed in the email that relate to the individual or the board. They must be in family friendly language and be non-abusive. When the clarification is accepted, it will be posted to the website and notice of that posting will be added to the next update.