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No agreement on how to fill PAWSD board vacancy

The Pagosa Area Water and Sanitation District Board of Directors met in regular session Tuesday night in what certain board members and staff have described as a lengthy and contentious debate. By meeting’s end — nearly five hours after it began — the board failed to act on one key item, while agreeing to share travel expenses for a future visit from opposing counsel.

Last May, Roy Vega and Allan Bunch were elected to fill two PAWSD board slots open by term limitations. Since, district meetings have become increasingly confrontational, as new ideals have clashed with longstanding points of view. Such was the case again Tuesday, as the four remaining directors grappled with how to fill a board vacancy resulting from Bob Huff’s sudden resignation for health reasons.

To initiate the discussion, board chair Steve Hartvigsen read a brief memo Huff had addressed to him, director Windsor Chacey and acting District Manager Shellie Peterson, dated Sept. 6, 2010.

It read, “Regrettably, I find that I must resign my position as a PAWSD Director effective on Sept. 14, 2010. Medical problems have developed that make it impossible for me to continue as an active, effective board member. I wish the board and the PAWSD organization the best in the future.”

With that, Hartvigsen suggested that the board consider offering Sue Walan an opportunity to take Huff’s place, since she received the third most votes of five candidates in the May election. He added that Walan’s engineering background might also prove valuable, much the way former director Karen Wessels’ was.

In response, Bunch insisted that neither Walan or the other candidates (Ray Finney and Ron Decker) have shown any interest in attending PAWSD meetings since the election, but that the new “Water Resource Committee” (Community Water Supply Planning Group) is “ ... a whole bunch of highly motivated, conscientious, diligent people who care about water and are knowledgeable, and who show up at your meeting.”

Bunch then suggested there might be a potential candidate within that “outstanding pool” to fill Huff’s seat.

Chacey then reminded fellow board members that, while Walan had not attended PAWSD meetings since the election, neither had Vega attended any before deciding to run for the board. She added that she didn’t see that as a lack of interest on Vega’s part, and that it shouldn’t be seen as such in respect to Walan.

Chacey went on to suggest that Walan’s “water background and engineering expertise” is appealing, and insisted that she often found Wessels’ similar background useful in the past.

In response to Chacey’s comments, though, Vega mounted a heated oratory, often criticizing her beliefs as “silly to think that you need expertise on the board.” He claimed that expertise wasn’t even worth mentioning, since the district already retains a paid engineer to do its bidding.

Vega failed to mention, however, that he has openly disagreed with the district’s “paid engineer” in previous meetings. Tuesday night, he merely concluded that “we don’t need engineers, we don’t need scientists, we don’t need lawyers, we don’t need anything special. That’s a silly requirement.”

Hartvigsen quickly disagreed, citing an earlier question dealing with insurance issues, upon which he immediately asked Vega’s advice. Among other things, Vega offers commercial financial and insurance services to the greater Pagosa Springs community.

The argument continued, with Bunch and Vega insisting that the board vacancy first be offered to members of the Community Water Supply Planning Group (CWSPG), while Chacey and Hartvigsen preferred advertising the need within the community, then selecting the most qualified candidate, as done in the past.

Eventually, Chacey moved to advertise the opening across the community and Hartvigsen seconded the motion. The measure failed to pass, however, with a two-to-two vote.

With that, Vega moved to offer the vacancy to just CWSPG members, which also failed by a two-to-two tally.

(According to state statute, should the district fail to fill the board vacancy within 60 days of the date of resignation, the Board of County Commissioners can appoint someone to fill the seat.)

In another matter, Vega, Bunch and a number of CWSPG members now question the legality of the PAWSD Water Resource Fee (WRF), an assessment levied on all new construction to help pay for future water development made necessary by growth.

PAWSD initiated the fee a few years ago, as district engineers insisted new water storage would soon be necessary. At the time, a panel of community volunteers decided that new growth should pay its own way, thus resulting in the WRF and other “impact” fees imposed by other local districts, the town and Archuleta County.

Before implementing the WRF, PAWSD looked into how similar communities funded future water development, as attorneys from Collins, Cockrel & Cole (Denver, Colo.) analyzed legal options. Near the end of 2005, the district board approved the fee.

While the question of the fee’s legality has come up before, the district recently asked Collins, Cockrel & Cole to weigh in again. As a result, the firm recently issued a memo supporting the district’s authority to impose such a fee.

“You have asked that we provide an opinion and analysis on the questions of: the District’s legal authority to impose its Water Resources Fee; and the District’s legal authority to construct a project that includes a water storage reservoir,” the memo began.

“In response to both questions posed above,” it continued, “it is our opinion that the Pagosa Area Water and Sanitation District (PAWSD) does have complete legal authority.”

Citing statutory authority to impose such a fee, the memo continued, “The District, through its Board of Directors, is expressly authorized to impose fees, including a water resource fee, under Title 32 of the Colorado Revised Statutes.” It added, “ … the District is authorized to fix, and from time to time to increase or decrease fees, rates, tolls, penalties or charges for services, programs or facilities furnished by the special district. … The board may pledge such revenue for the payment of any indebtedness of the special district.”

The eight-page memo went on to cite case law supporting Title 32 authority to impose such fees, even as Vega took exception to the document, particularly in reference to the terms “expressly authorized” in the paragraph above.

According to district personnel, another long and contentious discussion ensued, before the PAWSD board ultimately voted three-to-one to approve “sharing” travel expenses for Jenny Russell, a Telluride attorney known for questioning the legality of water resource fees. Russell has also represented opposing sides in past litigation with the district.

Apparently, the CWSPG has asked Russell to visit Pagosa Springs, address the panel and render her own opinion on the PAWSD fee.

chuck@pagosasun.com