By Seth Richardson
Gadfly Dave Hughes, in one of his comments on Douglas Bruce’s guest column in the Gazette on November 23rd, said, “Not ONE of those commenting, including Sean Paige, points the the BASIC REASON the Stormwater Fee was imposed, AND the need to ‘phase it out’ rather than just stop collecting now.”
He’s right. But neither has the Council, and therein lies the root of the problem.
The crippling of the enterprise systems is a response to arrogant and incompetent governance by the Council, but it’s going to have unintended consequences for the public that need to be addressed with alacrity.
The problem is that the City Council, Mayor and City Manger abused their “enterprise” discretion and misused the concept to generate “fee” funded income to the General Fund from government services and utilities that have traditionally been paid for through taxation and are not properly supposed to be profit-making branches of government. They did this mendaciously and dishonestly. This angered the public, as well it should have. The stormwater charade was just the straw that broke the camel’s back.
And, like all laws that constrain government, a law was enacted to constrain their ability to do this, and it’s entirely the City Council’s own fault that it happened. But that doesn’t resolve the very real problems with stormwater flow, intergovernmental agreements and the Clean Water Act. Colorado Springs has obligations to its neighbors and the federal government regarding water flow and the Clean Water Act, and the government will have to continue to meet those obligations.
What this means is that City Council needs to get off its collective butt and start the campaign for a tax to meet those obligations. Council members need to simply give up the idea that they can somehow salvage the enterprise systems as a funding mechanism, because they can’t.
As Bruce says, “As of Nov. 16th, the stormwater enterprise (and all others) must cease gifts or subsidies to the city, like free work on city-owned infrastructure, or paying bills the city owes the federal government. It cannot bill fees for what it can no longer do.”
Completing stormwater improvements underway involves doing “free” work on city-owned infrastructure, which is a gift or subsidy to the city, in that the city itself does not pay fair market value for the work, as it would if it had to directly hire private contractors to do the work. That work was being paid for directly by fees collected by the enterprise from landowners. Bruce is correct in saying that enterprises, which despite the legal fiction are still legally branches of municipal government, cannot collect fees if they are forbidden to do work that comprises a gift or subsidy to the city. That provision is in effect right now.
On the other hand, the City can (and indeed must) still fund the stormwater projects by appropriating funds from the General Fund, or by asking voters to approve a tax to fund such construction, just as it would if it hired an independent contractor to do the work. Remember, Issue 300 only bans gifts from an enterprise to the city, and it only phases out payments of money from an enterprise to the general fund.
Of course, the whole point of the Stormwater Enterprise was to give it independent fee collection authority to fund the contracts that the enterprise managers made with private companies to actually do the work. But now that this fee-collection and free-work authority has been revoked, the Stormwater Enterprise is a completely redundant and pointless waste of taxpayer money. All the functions of the Stormwater Enterprise should, and arguably must, be transferred back to the city’s engineering and contract staff, where it should have been in the first place, and all the employees who work for the Stormwater Enterprise who are performing duplicate functions that can be done by city employees should be laid off as redundant, including the CEO and other administrators. Administration of the stormwater improvement projects should be done by the City Manager. That’s what she’s paid rather a lot of money to do, after all.
It appears that all other enterprises will also have to be legally dismantled as well. Issue 300 effectively bans all fees collected by any enterprise, and all work done by any enterprise, since anything an enterprise does could be construed to be a “gift” or “subsidy” to the city if city property is utilized and the costs of providing that service is not paid for out of the city coffers. Therefore, all enterprises will simply have to be dismantled in the technical, legal sense, and the fee-setting authority returned to the Council for what will simply become services the city provides, like libraries, building permits, and electricity.
This is not be a bad thing, because it returns the Council to its proper place as overseers of the city’s operations and services and makes them directly accountable to the taxpayers. The inability of taxpayers to directly hold the enterprises accountable through recall is one of the things that drove Issue 300 to victory.
There is also an interesting question as to whether Issue 300 also bans “payments in lieu of taxes.” Arguably, it does, as Mr. Bruce seems to point out in his column when he says, “The first sentence phases out over a maximum of eight years “all enterprise payments to the city.” It covers payment of money from Utilities and other enterprises, and cash reimbursements for city services to enterprises.” While this clearly eliminates the practice of the city billing an enterprise for “shared services” like accounting, the PILT program is somewhat less clear, given that PILTs have their own statutory basis, which may exempt them from the language of Issue 300. That’ll have to be discussed with the lawyers, but in my judgement PILTs are also banned.
In any event, City Council is seeing its enterprise cash cows being slaughtered, and is imprudently balking and trying to weasel its way out of the handcuffs it placed on itself. Council needs to get over it and move on with the process of asking for a tax to fund the stormwater projects in process and those improvements that are required as a part of intergovernmental agreements and federal law. It also needs to get on with legally dismantling the enterprise systems and returning their functions to the fold of city government.
In order to accomplish this necessary task, the Council is going to have to humble itself before the People and admit that it was wrong to try to raise slush-fund revenues by misusing the enterprise authority it once had. Council is going to have to bend to the will of the people and actually do their job as TABOR demands, and ask permission to impose a necessary and reasonable tax to fund necessary and reasonable government services.
This is the one thing that the Council seems completely unable to do. It’s as if they are two-year-olds balking at being told to eat their peas. Rather than choke them down and get on with life, they are going to have a temper tantrum of monumental proportions while trying every possible excuse they can think of, rational or otherwise, to avoid the inevitable. It’s simply astonishing how arrogant the Council and City Manager can be, however. Progressivism has infected even Colorado Springs, and our elected officials evidently actually believe that they are smarter and wiser than the public is. Well, when that happens, it’s time to take them down a peg or two, which is what Mr. Bruce and the voters have done.
Dear Council: Quit acting like two-year-olds, start acting like adults, and get on with the job of asking the public for the necessary funding by carefully explaining why you need it!
That’s all that TABOR requires. Just ask. Tell taxpayers the truth about why you need the money, give us the correct, complete and honest information about the necessity of the project and how much it’s going to cost, and then sit humbly by and wait for us to decide if we want to pay for it. If we don’t, then get over it and move on.
Pretty simple really.
© 2009 Altnews