June 6, 2008
The city has responded to a lawsuit challenging the new stormwater utility by defending its legality and asking the court to order the plaintiffs to pay the city’s legal expenses if they lose.
The lead plaintiff, Ray Gilbert, wonders when City Council authorized such a response.
“When did the city have a meeting that allowed the attorneys to fill this? They haven’t discussed it in executive session yet,” said Gilbert, who asked at this week's City Council meeting why the city attorney’s office had yet to brief City Council on the two-week-old lawsuit.
Mayor John Cook said the PSB, not the city attorney’s office, is handling the lawsuit and authorized the response. [Editor's note: View response via the link below.]
PSB General Counsel Bob Andron said the board, which includes the mayor, was briefed on Gilbert’s suit and authorized the response by the outside law firm that advised the city on setting up the stormwater utility in the first place, Austin’s Bickerstaff, Health, Delgado and Acosta.
In the response, Bickerstaff lawyers Doug Caroom and Alejandro Acosta say the city initiated a study of the city’s stormwater management system after the storms and flooding in August 2006 that caused more than $210 million in damage to public facilities and private property for which the city took responsibility.
On the basis of the study’s results, the city moved to create a stormwater utility and to make the PSB responsible for its operation and funding.
In doing so, the suit states, the “operation and management of this utility has been (sic) validly delegated to the PSB.”
In the suit filed two weeks ago, Gilbert and the two other plaintiffs, accountant Joe A. Dominguez and Dr. Charles P. Cavaretta, contend that state law doesn’t permit that delegation of power and that the utility should have been established under City Council, not the five-member PSB.
They are seeking a declaratory judgement on the legality of the City Council’s action.
To avoid delays in getting the issue before County Court-at-Law No. 3 Judge Javier Alvarez, Gilbert said, he and his plaintiff partners chose to cancel today’s hearing on a temporary injunction to stop the city from collecting stormwater fees.
“All we’re asking for is early action to get an early decision on the law itself,” Gilbert said Thursday. “If we won an injunction to stop the PSB from collecting fees, they city would appeal and we would go down that track and it would greatly extend the damage to the people of El Paso.
“We need it settled as early as possible.”
In its response to the suit, the city asked the court to require the plaintiffs to post a $7.2 million bond, if the injunction were granted, equal to the six months of stormwater fees the city would lose.
Alvarez has scheduled a status hearing on the case for Tuesday morning.
The suit has the backing of an organization called the Concerned Taxpayers of El Paso, which is also sponsoring an initiative petition drive to give City Council control of the utility and a recall petition drive against Mayor John Cook over the stormwater utility issue.
The El Paso Apartment Association has also sued over the stormwater utility, charging that the city and PSB are discriminating against poor tenants -- specifically, poor Hispanic tenants – by imposing fees on them.