Monday, November 22, 2010

Emde v. City of Pacifica

KRAUSE, KALFAYAN, BENINK & SLAVENS, LLP, Announces Court Ruling Allowing Lawsuit Against the City of Pacifica Alleging Proposition 218 Violations to Move Forward
SAN DIEGO, November 22, 2010
  At a hearing on November 19, 2010, the Honorable Gerald J. Buchwald of the Superior Court for the County of San Mateo refused to dismiss a lawsuit against the City of Pacifica and Recology of the Coast, a contractor hired by Pacifica to collect refuse for Pacifica’s residents. In the suit, Pacifica resident Lionel Emde claims that Pacifica and Recology are violating Proposition 218, the "Right to Vote on Taxes Act. " Proposition 218 requires affected property owners to receive a notice of a hearing and a right to protest rate increases. It also prohibits local governments from collecting fees beyond that which is necessary to operate the service. Emde alleges that the defendants are violating both aspects. For example, Pacifica generates four different types of fees from the contract with Recology which Emde alleges is deposited into Pacifica’s general fund rather than for the operation of the refuse services. And residents have no right to protest rate increases.
  Pacifica and Recology argued that because it contracts with a private entity to perform the refuse collection services, Proposition 218’s mandates do not apply. There is scant legal authority regarding Proposition 218’s application in the context of public-private contracts for property-related services and thus, Judge Buchwald’s ruling represents a significant victory for rate-payers in Pacifica.  No trial date has been set.
About Krause Kalfayan Benink & Slavens, LLP.: KKBS is a boutique law firm located in San Diego, CA representing consumers, rate-payers, shareholders, and businesses in individual and class action litigation.
If you wish to discuss this action or have any questions concerning the lawsuit or rights or interests with respect to these matters, please contact attorneys for plaintiff, Eric J. Benink at Krause, Kalfayan, Benink & Slavens, LLP, 625 Broadway, Suite 635, San Diego, CA 92101, Tel: (619) 232-0331, email: . Website:
Submitted by Lionel Emde


Anonymous said...

Lionel, looks like this case may be making some kind of precedent. (Judge Judy, funny picture Steve).

Melvin Belli said...

A frivolous lawsuit, filed by a boutique fringe law firm, to attempt to redefine law so this firm can go out and sue every city and generate massive legal fees that the taxpaying citizens have to foot.
And why do you think they picked Pacifica?
Why not! We're idiots.

A Painter of the Flemish School said...

This is the type of fee that Proposition 26 was meant to address on the state level, right?

jim alex said...

If the Citizens didn't not follow the law, we would have chaos in the streets.

If the City does not follow the law, we would have Bell, CA.

This is the job of the court to decide if the city did this right or wrong.

I guess we find out when the judge sends in his ruling.

Anonymous said...

Well put, Jim.

Sharon said...

RE Melvin Belli @6:39 pm .. sounds familiar like the CBD and Brent Plater's pocket lining schemes

Anonymous said...

Kinda funny that people like Lionel have nothing better to do then file lawsuits. Anybody want to bet not a penny is coming out of his pocket on this while the rest of us have to pay for his
phobias with increased City of Pacifica fees.
During this time of year does the word turkey come to mind.

todd bray said...

Lionel has a legitimate beef. He feels the city needs to notice rate payers about garbage increases. The city and Lionel disagree. Rather than simply throwing up his arms and walking away Lionel is pursuing his rights and his duties as a citizen.

Kathy Meeh said...

Hurray for my friend Todd...we agree again.

Anon 12:12pm, kinda funny some people have no more integrity or courage than to hide behind Anonymous names and take potshots at other people who post comments with names. As you said, "during this time of year the word turkey does come to mind."

Fee and other notification to property owners who pay that bill (similar to the sewer and other bills attached to property) may not be unreasonable. The city takes and receives over an 11% gross franchise fee on our trash bill. So, we'll see if this issue fits the notification requirements of Prop 218, Lionel and his attorneys think it does. Legislation and challenges are all part of the legal, democratic process. And this is time consuming and expensive for Lionel, so if I used such course words I would say "oh shut up". Of course, you have your rights too, so I won't say that.

Anonymous said...

Who said Lionel was paying for any of this, either in time or money? It is most probably pro bono and as Melvin Belli said filed by a boutique law firm in San Diego. If the suit had any merits, why didn't a local firm file it? Did Lionel have to hunt for a freebie? It is great to have scrupples if you're not paying and the rest of the City folks have to indulge him and his law firm's reputation. We do have a City Council, City Attorney and City Manager. Did Lionel discuss his concerns with any of them before he filed this suit? There are ways to voice your concerns that do not cost the other citizens of Pacifica money out of the City budget to fight his suits. If I thought there was even a chance he was paying for any of this out of his own money, I might change my mind.

The Watcher said...

Watch and wait.This could cost the city a million dollars. Where do you think that will come from. The law firm found Lionel. Contemplate that.

Anonymous said...

Gee, how do you think they found each other? The thought just rattles my brain but this seems to confirm that Lionel is not paying for this suit. Kathy Meeh at 12:43 pm. Want to change your opinion now that you have more facts? Law firm seeking out client to file bogus lawsuit that most probably could have been settled by client within the City of Pacifica managers and not costing all of us citizens big dollars.

Steve Sinai said...

I also support what Lionel is doing. Without some kind of restraints on city imposed fees, what's to stop the city from increasing various fees by several hundred dollars per household to make up for any new parcel taxes people vote down?

I think I know Lionel well enough to know that he's nobody's tool. He gave the city a chance to settle the dispute a year or so ago without going to court, and the city refused to do so.

Anonymous said...

I may have to change my opinion if Lionel gave the City a chance to settle the dispute and they choose not to. One thing though is that these fees are on everyone in the City and not just the ones who own their property.

Sharon said...

Re Anon @ 2:57 pm "Want to change your opinion now that you have more facts?" Call me crazy but I didn't see any facts presented. I saw a statement by Watcher @2:01 claiming "The law firm found Lionel" I didn't see any proof of that presented.

Regardless of whether I like paying for it or not, Lionel is persuing the right course, something he believes will benefit all Pacifica citizens by enforcing transparency in government actions and decisions something this city needs a good dose of, apparently. To bad it requires so many lawsuits to force our employees (public servants) to conduct themselves appropriately and lawfully.

Kathy Meeh said...

Pacifica citizens are for the most part "shut-out" from city attorney advisement, unless they push an issue at city council. At least that's my varied knowledge and experience.

And I remember when Lionel was trying to get the city (city attorney, city council, etc) to listen to him. They wouldn't, and they didn't.

An example of how "litely" this city treats Prop 218 requirements is the annual "green flyer" sewer rate advisement to property owners: "invitation to protest", impossible to protest, no financial accounting.

Cost? Why worry, this city council has thrown away millions of our money on what some might consider frivolous lawsuits, consultants, pet projects.

Lionel Emde said...

Good discussion, I will attempt to clarify how I came to file the lawsuit:

Leaving aside the backroom deal that this new garbage contract is, (See letter posted on "Jeff's Big Mouth") I became aware that some cities were following the requirements of Prop. 218, in spite of the fact that they contracted the waste collection services to outside firms.
Menlo Park, Atherton, San Bruno all follow the 218 noticing requirement.

I contacted the city manager Mr. Rhodes first, asking if Pacifica was going to follow the law of 218 and he replied that it was not necessary as it didn't apply when a private contractor was providing the service. Then, I asked what legal basis this opinion was based upon. The city attorney Ms. Quick confirmed this opinion, adding that there was "no case law" saying that a city had to comply when a private firm was performing the service, doing the billing, etc.
Millbrae is also following this legal reasoning, and is being advised by the same law firm as Pacifica.

I found this reasoning preposterous, as the city controls the negotiations and rates in the contract, as well as what services are to be provided. How could this not be regarded as a property-related service, as defined under Prop 218? The CA Legislative Analyst's backs me up on this, and Judge Buchwald found the city's and Recology's arguments unpersuasive, to say the least.

After the city attorney Ms. Quick issued her opinion, I went looking for help. My attorney's firm specializes in 218 cases, among other types of law. And yes, KKBS are doing this lawsuit at their own expense and risk, I am not paying for it.

If cities can get away with this sort of backdoor taxing, then we are lost in terms of local control. We have every right to resist when the ratepayer's interests are not represented at the negotiating table.

Anonymous said...

The City of Pacifica, CA - Comprehensive Annual Financial Report - 2006 to 2009 - The True Wealth Shown

City of Pacifica, CA 2009 CAFR

City of Pacifica, CA 2008 CAFR

City of Pacifica, CA 2007 CAFR

City of Pacifica, CA 2006 CAFR

(if the pages do not load the city website has been crashing lately with so many people now looking at the CAFR so try again latter)

Anonymous said...

PS: When a local government "says" they are in debt it is very important to see who is "funding" that debt. Could the same local government be using their "own" investment assets to fund that debt?

Most people know of what happened with ENRON. With ENRON they promoted their profits and hid their debt.

Local governments do the exact opposite: They promote their debt and hide their profit.... Promoting debt at the front door as they use their own investment assets to directly or indirectly fund the same debt through the back door.

This is specifically why in CAFR accounting they changed the showing from "Gross" to "Net". Many games are played here for local governments to hide their standing wealth holdings established over the years if not decades.

For every investment fund small and large they are power bases. Where that money is invested is the exertion of that power and the determining factor on "who" (what inside player) gets the wealth generated for themselves.

Walter Burien -

Scotty said...

Somebody's gotten into Dan Underhill's latest batch of paranoid juice.

Dale Emde said...

Anonymous should use its name on its driver's license. I like to know who is writing

Kathy Meeh said...

CAFR1 or Glen Beck, swell, thanks for city links to nowhere, with no actual examples. And a link to a "disaster website" (selling the 15 years of survival rations, rather than gold this time). Where in the complete city budgets (located on the city website) are the net revenues represented as gross revenues, and in which year did that occur?

Anonymous said...

It appears the City website is down. When they get it back up again the links will work. Why is it down I do not know -

And Kathy; There are three types of people:

1. Those that make things happen

2. Those that watch things happen

3. And those that say what happened?

You appear to be a #3

Kathy Meeh said...

Anon/CAFR1, your words "This is specifically why in CAFR accounting they changed the showing from "Gross" to "Net"." Just prove your point.

If you think these city budgets are relevant to any point you are making, tell us which part and why.

And, Anon your 3 point "folk logic" is likely a composite of what we all do interactively daily. Some of us also think about data, the implications, and whether the information is accurate-- all part of being the advanced ape with the big brain.

Paul C. said...

To learn more about "Comprehensive Annual Financial Report",go to this link to Gerald R. Klatt
Lieutenant Colonel, USAF (Ret.) he died in 2004.

Purpose of This Site:

Prove that State and local governments have huge excesses (surpluses) of the taxpayers money they are not using.

Provide the methods/tools for about anyone to determine the amount of surpluses their State and local governments have of their money.

Demonstrate the huge economic impact if these surpluses were returned to the people.

Provide a guide to the type of legislation that should be in place in order to prevent the surpluses from accumulating in the future.

Provide a system for a small group of individuals to make an impact in their community.

Pacifica IT Expert said...

The squirrels who run on the treadmill to keep the servers at city hall on, wanted the long Thanksgiving weekend off. One even called in for Monday so it looks like Wed. before the system is up and running.

Kathy Meeh said...

IT, the system is up and running, try....
1. City CAFR, 2009-04,
2. City Budget detail 2010-2006

Paul C., Pacifica has a lot of red ink debt, an annual deficit with skeleton personnel staffing, a neglected economy, "pet" city council indulgences, and outstanding infrastructure inadequacies. And, there is that employee wage/merit pay/benefits/pension issue, which is beginning to be addressed late by all levels of government (national, state, county and local). Is that what you're referring to?

Viewing the background of Gerald R. Klatt (your reference) and his archived website. Klatt's cost projection analysis would have occurred 26+ years ago (about the time the private sector began to transition more toward self-funded pensions). Because comptroller office projection accounting has always been part of sophisticated business management, I'm not sure how Klatt's version of "cross-allocation methodology" is different from other forms. Are you?

Other than not so disguised "thrifty, small government" ideology I don't know where you're going with this, do you? It takes money for government (common interest for the people) to function well. Increased efficiency would be good-- but, with party polarity, self-interest, business quid pro quo, election cost, etc. there seems to be some obstacles.

hey Kathy Meeh said...

Hey Kathy, you are part Irish right. Why can't you be fun loving and a jokester like most of the Irish People out there.

You way way too serious, You gonna end up on Xanax and happy meds

Anonymoose said...

"Why can't you be fun loving and a jokester like most of the Irish People out there."

...don't you mean a fist-fighting drunkard.

Kathy Meeh said...

Hey Shadow 7:17pm. You're funny? You must be the same "happy Anon" who is looking for the budgets on the city website, keep looking... they were there this morning.

Paul C. actually introduced a thoughtful comment regarding cost accounting projections. I spent some time with that, but reached the opposite conclusion from him. Similar to long-term planning in businesses (including financial fiduciaries) it seems that municipalities should carry a substantial cash surplus in addition to providing shared and necessary civic infrastructure and services.

Paul C. also said "provide a system for a small group of individuals to make an impact in their community." We have that in Pacifica, its not enough. But, if you think it is so some of you may be looking forward to property taxes "for basic services" coming to your ballot next Spring.

hey Kathy Meeh said...

Are you the offical apologists for the City Of Pacifica. Everyone who can boot up a pc knows the system is complete crap!

Kathy Meeh said...

Hey Shadow, not sure what you're referring to. And, if I'm an apologist for the failed non-economic strategy of the city or 8 year city council, that's news to me.

Maybe its not the accounting system that the problem, but the data that goes into it.