Water Board Member Cannot Serve Two Masters, Brown Opines

Monday, February 12, 2007

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Water Board Member Cannot Serve Two Masters, Brown Opines

By KENNETH OFGANG, Staff Writer

A director of the Water Replenishment District of Southern California cannot simultaneously represent a seller of water to that district on the Metropolitan Water District of Southern California’s governing board, Attorney General Jerry Brown said.

Brown, in an opinion made public Friday, said that simultaneous service in both positions violates the doctrine of incompatibility codified at Government Code Sec. 1099.

The opinion was prepared for Brown by Deputy Attorney General Gregory L. Gonot. District Attorney Steve Cooley asked for the opinion two years ago, and sources said Cooley was asked to look into the matter by West Basin Municipal Water District board members seeking to oust former legislator Willard Murray as one of the district’s representatives on the MWD board.

West Basin District

The West Basin district is one of 26 local water agencies represented on the MWD board. The MWD was created in 1927 to develop, store, and deliver water as needed by the local agencies.

The West Basin district buys water from the MWD and delivers it to cities, water agencies, and utilities in southwest Los Angeles County. The Water Replenishment District is not an MWD member agency or an MWD customer, but buys large amounts of MWD water, in part from the West Basin district.

The MWD board is made up of directors chosen by the local agencies. The West Basin and replenishment district boards are directly elected by the voters within those districts.

Brown explained that under the incompatibility doctrine, a person cannot hold two offices if one of them holds auditory or supervisory powers over the other, if there is a significant potential of a conflict of duties, or if there are other public policy considerations requiring that the offices be kept separate.

Different Interests

The rule does not prohibit a member of the West Basin board from also serving on the MWD board, Brown said, since those persons are chosen to represent the West Basin district’s interest as a MWD member agency.

Simultaneous service on the West Basin and replenishment district boards, however, represents a different set of issues, the attorney general explained.

He wrote:

“A review of the functions and purposes of WRD and MWD reveals that they have different interests. As previously mentioned, WRD is charged with replenishing groundwater supplies within its boundaries....The interests of MWD, on the other hand, are much broader in that they include developing, storing, and delivering water as needed by its member agencies. For example, WRD may favor importing water from distant areas rather than programs that might reduce groundwater supplies within the district.”

Brown continued:

“However, replenishing groundwater from distant areas may not always be consistent with MWD’s broader interests. When water supplies are plentiful, MWD might promote water sales at a time that WRD has no particular need to purchase water. A program to promote the use of recycled water might not have the same effect upon WRD’s interests as it does upon MWD’s interests. Moreover, MWD’s decisions to sell water to WRD through WBMWD and another water district will determine WRD’s success in meeting its statutory duties. Thus, MWD exercises a measure of control over WRD in the accomplishment of the latter’s policy goals. In sum, MWD may wish to adopt programs that subsidize, encourage, or discourage activities affecting its broad interests in selling water rather than promoting the limited interests of WRD in purchasing water.”

The opinion is No. 05-1113.