Murphys Sanitary drama continues

PUBLIC MEETING: Murphys Sanitary District, 6 p.m. Monday, 90-B Big Trees Road, Murphys.

By SEAN JANSSEN

The Union Democrat

A former president of the Murphys Sanitary District has called on the district’s general counsel and two current directors to resign.

Beth Hartline, who served as board president during part of a brief five-month stint on the panel in 2010, has often criticized district leadership in recent months. It coincides with state regulators crack down on a years-long violation of sewage sludge storage standards by the district, which will bring an estimated $225,000 to clean up by an Oct. 15 deadline.

In a June 28 letter, Hartline calls on San Andreas attorney Ken Airola, board president Patricia Davies and director Ryan Van Cleave to resign for various reasons.

The correspondence reserves the harshest criticisms for Airola, who Hartline accused of conflict of interest at a June 11 board meeting, alleging he is representing Davies, who leases office space to the district, at the same time as the district. 

Airola told The Union Democrat immediately after that meeting that he has represented the Davies family in unrelated matters. 

He sought to clarify that Thursday, saying that “I have never done any work for Pat,” but helped clear a title on property in Avery for her husband John, after his mother died.

Real estate law is Airola’s area of expertise and he said repeatedly in a phone interview Thursday that on numerous items cited in Hartline’s letter, he was either never asked by the board to advise or disagreed with her assessment.

On the lease, Airola said he differed as to whether Davies’ ownership constituted a conflict of interest with special counsel Best, Best and Krieger, opening that no such issue existed “because the lease was in existence before Pat became a director ... this is a situation where maybe reasonable legal minds can disagree and it is my opinion the district is not in violation right at this second.”

With the matter of the potential conflict on the agenda for the board’s October 2010 meeting, Davies resigned her seat before the item came up. A new five-year lease was signed in November and Davies applied, and was appointed, to the board again in December 2010.

Hartline contends that an ethics training course she and other directors and district staff attended in August 2010 made clear the arrangement was illegal, rendering the lease “null and void.”

Furthermore, the appointment of Davies and a second director, Wendy Johnson, occurred by ballot, with numerical tallies rather than a roll call vote recorded, at the December 2010 meeting, which Hartline’s letter notes “is prohibited by Brown Act government code ... (stating) no legislative body shall take action by secret ballot.”

Airola said the Brown Act provides a 90-day window in which to file objections, with certain exceptions, of which the vote is not subject. At most, the district would review the filed ballots and correct the minutes to reflect how directors voted, he said, and not nullify Davies’ appointment.

“I’m not saying it’s a great idea to have Mrs. Davies on the board,” he said. “I will be the first to say I don’t think she should (have been) reappointed to the board but I don’t run the district.”

Davies said in a phone interview Thursday that she has grown weary of the scrutiny.

“I feel like I’m being blackmailed to get off the board and I don’t really like it,” she said. “It’s really kind of irritating me right now. I don’t feel like I’ve done anything wrong. It just goes on and on.”

Airola qualified his opinions, saying “I don’t specialize in the Brown Act at all. I’m a real estate attorney. The Brown Act conflicts of interest were never my specialty or even board-employee relationships.”

Hartline’s letter states Airola ought to be replaced in part because “MSD’s board of directors, its new General Manager (Julio Guerra, hired six months ago), current employees and ratepayers ... deserve legal counsel with a strong and accurate grasp of the Brown Act, rules of conduct, ethics, board meeting protocol, board residency criteria, and who is diligent about legal contracts and agreements.”

She wrote that subpar legal advice from Airola helped bring about her board resignation, having officially stated at the time that accepting a job at the Tuolumne County Economic Development Authority and time constraints were the cause.

“I questioned Mr. Airola’s legal advice to the board on many occasions recognizing that regardless of ‘advice from counsel,’ if my vote was predicated on ignorance of the law, ignorance of the ordinance process, ethics codes, state regulations, Brown Act, labor law, public employee rights, or just bad advice, that I could be held legally responsible,” Hartline wrote. “As a vote of ‘no confidence’ in Mr. Airola’s legal opinions, I resigned my position after five months.”

Airola said Hartline privately told him “she was worried about liability from being on the board ... but I never heard her say she was concerned about my legal advice at any time until recently.”

“I respect her greatly,” he added. “She was just getting the district running the way she wanted it to and then she quit.”

He later said “I am not resigning because of what she’s printed ... or threatened” but added “I serve at the pleasure of the board and if they want to fire me, I’m OK with that.”

Airola said he does not share concerns raised about contracts with the owner of land where the district leases a holding pond and with Ironstone Vineyards to supply treated water for irrigation.

For more than two decades, less than an acre on which the pond sits were leased from Marie Cutright by “verbal contract,” he said, before she sought a rent increase in 2010. He said he advised the board to try to buy the land and when that could not be arranged “we ultimately gave her the rent increase.”

District records show a lease was signed May 1, 2010, increasing the rent from $35 to $60 monthly.

“She’s 85 years old. The board didn’t rock the boat with her,” Airola said. “There’s no need to sue an 85-year-old lady to condemn her property.”

The district has long been in negotiations with a Ironstone Vineyards on a new water supply contract but until a deal can be reached, abides by an agreement in place since 1999, Airola said. 

Ironstone owners John and Gail Kautz once agreed to modify that agreement, taking more water and allowing MSD to add 50 connections, through a signed fax and though there is no corresponding signature from a board representative, Airola said he considers it valid and “the Kautzes are bound by it and they have never said they are not ... no one ever asked me if it should be signed.”

The costly sludge burial may have been avoided if Airola heeded an August 2008 letter from Calaveras County Public Works Engineer Mel Alldrin in response to his inquiry whether the district needed a permit to excavate one of its holding ponds, Hartline’s letter indicated. 

Airola provided a copy of that letter, which states that “removal of silt is exempt from a grading permit provided that ... evidence of permits and/or clearance from applicable agencies that the material is safe to use for Mr. Kautz’s intentions.”

The letter said it was in response to “inquiry regarding permits required for silt excavation ... that is to be transported to Mr. Kautz’s property.

Airola said he sought information on a grading permit as “a whole separate issue” from state water regulatory permits.

“I am not running MSD,” he said. “Nobody asked me to look into any permit from Sacramento for removing sludge. Unbeknownst to me, the field crew stored it on our own property.”

Then-Operations Manager Ralph Emerson, recently reclassified as a field supervisor, has told The Union Democrat that he did so at the board’s direction.

Hartline’s letter also stated Airola should have never allowed Emerson to be appointed to the board of directors while a district employee for a brief 2008 tenure.

“Nobody ever even asked me about that and then I was asked to research it, I gave my opinion and he resigned,” Airola said. “I had some help on that as it’s not my expertise at all. This is the first time anybody’s ever complained about my involvement.”

Van Cleave’s eligibility to sit on the board was questioned in last month’s meeting by Director Delma Harris. In response, Van Cleave seemed unclear as to whether his ownership of a home within district boundaries that he lived in until recently, qualified him as a resident and offered to resign if need be. 

Airola advised he seek advice from his own attorney and said Thursday the board should be wary of any action to remove Van Cleave, citing a case in which Calaveras County Water District directors voted to remove a director who was spending most nights in Lodi.

Airola said Director Guy Meyer sued CCWD and won about $1 million, more than MSD typically collects in revenue each year.

“Four other board members cannot disenfranchise him. To remove him from office is risky,” he said. “If the board wants to refer this matter to the district attorney, that’s fine (but) it’s not a matter of where you sleep at night. it’s a matter of where your heart is, to a certain extent. He gets mail there, he’s there all the time.”

Van Cleave did not return a call to his business Thursday seeking comment.

Hartline has called for him to resign if he cannot prove he lived in the district when he applied to be a director.

The district is at a crossroads, she said via email Tuesday.

“Guerra is trying to save the district, while its board members are hopelessly deadlocked allowing chaotic meetings and making erratic and possibly illegal decisions while Rome burns,” she said. “Even with a well-intentioned and educated board, Mr. Guerra and professional engineer Gary Ghio will have difficulty pulling MSD back from the brink operationally and financially.”