How did Los Osos get to where it is today?

(Due to the length and complexity of the amazing Los Osos sewer story, it takes a while to completely wrap your mind around what makes it so amazing. That's why, if you're new to the story, or you're a sewer junkie looking for one-stop shopping on how Los Osos got to where it is today, the following is for you. I just kind of lay things out a little matter-of-factly here -- strung together using choice stuff from SewerWatch. All of the claims below are described in detail and heavily sourced throughout SewerWatch.)

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There is/was no rationale behind the mid-town, "Tri-W" siting for the early CSD's second sewer plant. Zero.

The previous Los Osos CSD Board was about to build a sewer plant in the middle of town for no reason whatsoever -- several out-of-town sites were much cheaper, technically feasible and environmentally superior.

The only reason the CSD gave to the California Coastal Commission on why their second project had to be located at Tri-W, was false.

The initial CSD told the Coastal Commission that there was a "strongly held community value" in Los Osos that any sewer plant must also double as a centrally located "recreational asset." As SewerWatch has exposed, that "community value," understandably, never existed. It was fabricated by the CSD Board in 2000-01, because without that "community value" there would have been no reason to site their second project at Tri-W.

And it was (and, apparently, still is) very important to a small group of people in Los Osos that the initial CSD Board's second project be built at Tri-W, because, in 1998, a 16-member citizens' group known as the Solution Group promised voters a "better, cheaper, faster" sewer project, with a "drop dead gorgeous" treatment facility at that exact location. That project, marketed heavily and unscrupulously by the Solution Group, was directly responsible for getting the Los Osos Community Services District formed in 1998, and three Solution Group members elected to the initial board, and dramatically altering the way Los Osos is governed.

The problem for the Solution Group was that numerous water quality professionals, before the election that formed the CSD on the coattails of that "better, cheaper, faster" project, were telling them that their plan was simply not going to work in Los Osos. But the Solution Group would exhibit a marketing strategy pattern (that still exists today, by the way) of attacking and falsely discrediting any study, survey, engineer, water quality professional, or journalist that countered their inaccurate information.

Shortly after officially taking office in January 1999, the initial CSD Board -- three of five were Solution Group members -- voted to stop a county designed sewer project, and begin their futile pursuit of the "better, cheaper, faster," "drop dead gorgeous" sewer project that numerous water quality professionals had already told the Solution Group was not going to work in Los Osos.

The official pursuit of that project lasted from early 1999 to late 2000. After nearly two years, the initial CSD Board finally came to the conclusion that their "better, cheaper, faster," "drop dead gorgeous" sewer project was not going to work, just like all those water quality professionals said two years earlier, before the election that formed the CSD on the coattails of the Solution Group's terribly designed project.

It's important to note that the Solution Group's plan relied on a treatment facility that required a large piece of land -- about 50 to 70 acres. At the time, the rationale the Solution Group gave for the Tri-W selection in their "better, cheaper, faster" project was because it was the only plot of land in the area that could accommodate the size of their facility.

When the Solution Group's plan failed, the pressure was on. Two years had been wasted.

In late 2000, the initial CSD/Solution Group Board had the opportunity to go back to their community and say:

"The project that got us elected and the CSD formed is not going to work, just like all those water quality professionals said, two years ago... before the election. What should we do now?"

But the initial CSD Board did not do that in late 2000.

That was the pivotal decision in the entire Los Osos sewer controversy, because when the board decided not to go back to their community and admit their massive and embarrassing failings, they, instead, hastily and quietly developed another project -- their second and much more expensive project -- in less than a year, and that haste led to another terribly designed project. That project was then hastily approved by State agencies that had grown frustrated and angry during the two years that the initial CSD/Solution Group Board wasted in the futile pursuit of their poorly conceived first project.

However, the treatment facility in the initial CSD's second project only required about 5 - 7 acres -- ten times less land than the Solution Group's treatment facility required. The second facility could have easily been moved out of town to land that was much less expensive than the centrally located Tri-W site, and sites that were also "technically feasible" and environmentally preferred by State agencies.

But if an out-of-town site had been selected by the 2000-01 CSD Board for their second project, it would have revealed that the "better, cheaper, faster," "drop dead gorgeous" sewer project that got them elected and the CSD formed, had failed.

So, the 2000-01 Los Osos Community Services District Board, in a desperate attempt to unnecessarily retain the Tri-W site for their second project, fabricated a "strongly held community value" that any sewer plant in Los Osos must also double as a centrally located "recreational asset."

Tri-W was the only centrally located potential sewer plant site large enough to accommodate both a sewer plant and an elaborate and expensive park (a park that the community had already showed through the ballot box that they did not want to be taxed for).

Which is why the 2000-01 Los Osos Community Services District Board publicly stated that the "strongly held community value" was the reason why Tri-W was also selected for their second project... so it could double as a centrally located sewer-park, that the community "strongly" wanted, according to the initial CSD Board and staff.

Armed with that false "community value," the initial CSD Board was also able to convince the Coastal Commission to allow the second treatment facility at Tri-W for the sole reason of a centrally located sewer-park, with, among other things, a tot lot and amphitheater, that the community "strongly" wanted in their sewer plant.

Shortly after coercing the Coastal Commission to reluctantly sign-off on Tri-W because of that false "community value," the initial CSD Board and staff removed the park from the plan almost entirely.

As SewerWatch reveals, a massive amount of excellent, credible evidence exists that shows that the "community value," reasonably and understandably, never existed. It was fabricated by the CSD Board in 2000-01, because without that "community value" there would have been no reason at all to locate their second project at Tri-W, and the embarrassing failure of their first project -- the project that got them elected and the CSD formed -- would have been exposed. They needed something to justify Tri-W for their second project, and the fabricated "strongly held community value" was it.

The early CSD Boards -- Solution Group members made up five of the first eight CSD Directors -- were able to cover all of this up for more than five years because the Tribune, the only media outlet in the county with the resources to cover a story as complex as the Los Osos sewer issue, completely fell asleep on the story and did not write one investigative piece on the intensely newsworthy failure of the Solution Group's "better, cheaper, faster," "drop dead gorgeous" sewer project, even though I wrote a New Times cover story in August 2000, showing that the plan was about to fail. One month after the publication of my cover story, the Solution Group's plan was officially off the table, and the haste to quietly develop a second project had begun.

Modesty (what little I have) aside, one of the main reasons why the no-rationale-behind-siting second project was able to advance as far as it did -- until a successful 2005 recall election killed it (apparently) -- was because no one -- not one regulatory agency, not one reporter, not even a community member opposing the downtown sewer plant location -- asked the question, "What's the source of that 'strongly held community value'?," until I did in my second New Times cover story, in September, 2004, where I showed that the only reason the CSD gave to the Coastal Commission for the Tri-W siting in their second project, was false. If the Coastal Commission had asked that question in 2002, and followed up on the CSD's response, they could not have allowed the Tri-W site for the second project due to the amount of Environmentally Sensitive Habitat Area found on the property. State law prohibits the destruction of ESHA for no reason.

(Note: If the Tribune had done its job, and covered the demise of the Solution Group's plan, and then adequately covered the haste to develop a second project, I would have never written another word on this subject after I left as editor of The Bay Breeze (now The Bay News) in 1999. I have a phrase I use to describe the Tribune's coverage of Los Osos over the last seven years: "Worse than nothing.")

There simply is no source for that "community value." The former CSD will tell you it's in a 1995 document called the Vision Statement. It's not. It does not exist, and never has, of course. That "community value" was fabricated, made-up by the initial CSD Board and staff in 2000-01, and successfully used to unnecessarily lock in the Tri-W site for their second project, in a coordinated effort to avoid public humiliation and potential civil penalties resulting from the embarrassing failure of the Solution Group's terribly designed, yet heavily marketed, "better, cheaper, faster," "drop dead gorgeous" sewer project. The quiet transition from the Solution Group's failed project to the forced mid-town location of the second project would slowly, yet eventually, result in massive controversy, and deeply divide Los Osos. That division continues today.

All of the evidence uncovered by SewerWatch shows that the exact opposite "community value" existed in Los Osos at the time of the Tri-W site selection for the second project. All of the evidence, reasonably, shows that the community "strongly" did not want to be taxed for an expensive park, and then have that park dictate an expensive, mid-town sewer plant location for their already-very-expensive sewer system.

And, of course, again, the Tribune has not written one story on this extremely newsworthy angle, despite the fact that my second New Times cover story exposes all of it.

And that's that. I realize it's a lot to digest, but when you're able to wrap your mind around all of it, it becomes clear why Los Osos is a tragic, yet very interesting, war zone today. It makes perfect sense.

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[Here's an example of the Solution Group's marketing tactics. It's a newsletter that includes members' names.]

(Again, all of the claims above are described in detail and heavily sourced throughout SewerWatch.)

The SewerWatch CDO Defense: Six Mirrors

Before one of the "Los Osos 45" -- the 45 randomly selected property owners in Los Osos that were issued a Cease and Desist Order by the Regional Water Quality Control Board earlier this year -- says a word in their defense at the April 28 meeting regarding this matter, the Regional Water Quality Control Board needs to answer a question:

How is the train wreck in Los Osos not the RWQCB's fault for allowing the initial CSD Board to waste two critical years on a project that the RWQCB knew wasn't going to work?

An analogy:

If Exxon had told the federal government at the time of the Valdez oil spill, that their plan to clean up the oil was to sprinkle fairy dust on it, and the government said, "That ain't gonna cut it," but then just sat back and watched -- for two years -- while Exxon sprinkled fairy dust on the oil, who would be more at fault when the shores of Prince William Sound became a barren wasteland because the fairy dust wasn't cleaning up the oil? At that point -- two years later -- who would be more responsible for the barren wasteland? Exxon, for the initial spill, or the federal government for allowing the spill to fester for two years?

I'm not an attorney, but I'll play one on my blog, I think there's a legal term for that situation... and I believe it has something to do with culpability.

So, who is more culpable for the current situation in Los Osos? The property owners in Los Osos, many of whom weren't even around when Briggs and company at the local Water Quality Board were sitting on the sidelines, watching, as the initial CSD Board sprinkled fairy dust on Los Osos' wastewater problem from January 1999 to late 2000, or the only agency that had the authority to bring the initial CSD Board back to reality and save two precious, critical years, but failed to do so?

I've got to go with the latter on that one.

Which, for me (and you if you chose the latter, too), makes all of this a very interesting situation: The agency that is in large part responsible for the mess in Los Osos, is penalizing the people of Los Osos for that mess. Wow.

If I was defending myself against one of those CDOs, I'd show up at that April 28th meeting with six copies of my open letter to Roger Briggs and six mirrors. Then I'd pass them out to each member of the board, and Briggs, and then I'd say, "I rest my case."

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Language in 2001 Public Opinion Survey "Obviously Biased"

"Unconstitutional practices [often] get their first footing in their mildest and least repulsive form."
-- United States Supreme Court, 1886


When I wrote in a recent post that it was blurry whether the public opinion survey commissioned by the Los Osos Community Services District in 2001 was a survey to gauge public support on an upcoming ballot measure, or if it was campaign material, funded by Los Osos taxpayers, in an effort to influence voters on that measure, I didn't know how right I was. Now, thanks to the great State of California and a local public opinion research company, that blurred focus is becoming much clearer.

I recently phoned California's Fair Political Practices Commission to follow-up on my "opinion survey or campaign material" hunch, and they immediately referred me to a very interesting court case, Stanson v. Mott. If you're like me, you've never heard of Stanson v. Mott either. Apparently, it's the famous 1976 court case that clarified what is considered campaign material, paid for with public funds, and used by a governmental agency in California, like the 2001 Los Osos CSD.

Stanson v. Mott made it illegal, understandably, for a governmental agency in California to expend public funds for "promotional" rather than "informational" purposes when it comes to ballot measures that benefit that agency.

In a nutshell, Stanson v. Mott conclude that the director of the California's parks department, at the time, "lacked authority to expend public funds for the purpose of promoting the passage of the 1974 park bond issue."

It takes about five minutes of reading through Stanson v. Mott, and another legal decision on this issue (more on that later), to realize that the $13,000, 2001 LOCSD Wastewater Public Opinion Survey was an interesting, yet ultimately tragic, misuse of public funds. (Clarification: In an earlier post, I originally wrote that the survey cost $28,000. The study itself was $13,530. It was part of a $28,000 public relations package with the firm Singleton, Tacket and Associates, that included other tasks.)

I argue in my earlier post that the language in the 2001 survey, where some 300 - 400 property owners in Los Osos were directly contacted by a professional research company commissioned by the LOCSD, in an election that included only property owners, is written in such a way that the survey was essentially an effective campaign tool, masked as an opinion survey, and used by the previous CSD Board to influence an election. The language in the survey is egregiously leading, misleading, and/or completely false, and highly promotional.

For example, in the 2001 survey, it reads:

"Let me read you some statements we have heard from various people about the wastewater treatment measure on which you will be asked to vote."

One of those "statements" read to every property owner contacted in the survey -- 90-percent of which said they would either "definitely vote" (69-percent) or "probably vote" (21-percent) on the measure -- reads:

"This measure includes funds to build a large park for the citizens of Los Osos. The park would include ballfields, a picnic area, gardens, walking paths, an amphitheater, and even constructed wetlands."

Robyn Letters, a public opinion survey specialist with Opinion Studies, a San Luis Obispo based company, laughed after I read her that statement.

"We call words like 'even,' loaded words," she said, "and we are very careful to avoid them."

"It appears that someone writing that question had an agenda," Letters said. "It's obviously biased." She added that her firm is extremely careful when it comes to the wording in their surveys.

Additional "statements" from "various people" in the 2001 survey include:

"This measure is our last chance to approve a wastewater system for Los Osos."

and

"... unless this measure passes, property owners could be subject to fines of as much as ten thousand dollars per day."

and

"Unless we pass this measure, our drinking water is at risk..."

and

"We need to pass this measure now to ensure that we have safe, clean drinking water for the future."

and

"We will not be able to come up with a wastewater treatment plan that offers a better balance of effectiveness, safety, and affordability."

and, unfortunately for Los Osos taxpayers, much, much more.

Further complicating things for the 2001 Los Osos CSD is that the "funds to build a large park" that they told voters were "included in the measure," did not end up in that measure, as I originally reported in Three Blocks Upwind of Downtown, in 2004.

In other words, the same "bait-and-switchy," park-in-park-out scam that the early CSD Board successfully used on the California Coastal Commission to retain the Tri-W sewer plant location for their second project, they also used on the citizens of Los Osos, through a Los Osos taxpayer funded public opinion survey.

The scam went a little like this: According to documents, the 2001 CSD Board hired a public opinion research company, and then had that company phone hundreds Los Osos voters and tell them that the assessment, at "$19 a month," would fund, among other things, a "large park" loaded with community amenities, yet, just a couple months later, that same CSD supplied those same voters a ballot for that measure that did not include any funding for those amenities, even though those same amenities were pictured all over the cover of the Final Project Report, yet that report did not allocate one penny to pay for them. (Nice scam if you can work it, and the early CSD got so good at it, they did it twice! First on the people of Los Osos in 2001 in an effort to influence a crucial assessment vote, then on the California Coastal Commission from 2001-04 to unnecessarily lock in the controversial Tri-W location.)

Sources have told SewerWatch that if the 2001 assessment vote had failed, it is likely that the Tri-W project would have collapsed.

In Stanson v. Mott, the State concluded, in part:

"... the constitutional commitment to "free elections" guarantees an electoral process free of partisan intervention by the current holders of governmental authority..."

(Note: When I attended a CSD meeting in Summer, 2005, just months before the recall election, attached to every copy of that night's agenda were newspaper accounts on the rising cost of construction material. According to sources, those copies were made on CSD equipment, using CSD staff time. I'll go ahead and lump that in as "partisan intervention by the current holders of governmental authority," as well.)

In another Attorney General decision, this one recent, involving a community college in California that used public funds to conduct a public opinion survey to gauge support on an upcoming bond measure, the Attorney General concluded, "that while funds could properly be used to assess public support, they could not be used if the purpose or effect is to develop a campaign to promote approval of the bond measure."

("... unless this measure passes, property owners could be subject to fines of as much as ten thousand dollars per day.")

I called the company that conducted the 2001 survey, Fairbank, Maslin, Maullin & Associates, and asked to talk to their representative that was the liaison with the Los Osos CSD, David Metz.

Metz did not return my call, and that's unfortunate, because I wanted to give him an opportunity to respond to the following questions:

On the FMM&A web site, it says:

"FMM&A applies its expertise through voter surveys and other research techniques to first ascertain the feasibility of passing a funding increment ballot measure and then, if that measure is to be placed on the ballot, to help shape the communications for winning the necessary approval from voters."

SewerWatch: Considering that language from the FMM&A web site, and considering that the 2001 assessment measure in Los Osos was already "placed on the ballot" at the time of the 2001 survey ["There will be a special election in a few months..."], did FMM&A, according to your company's own words, "help shape the communications for winning the necessary approval from voters" with that publicly funded survey?

METZ'S RESPONSE:

(SW: I mean, c'mon, think about it... if it's already on the ballot, then what's the point of a voter survey to "ascertain the feasibility" of passing a ballot measure? The election is going to happen, regardless of the feasibility of the measure passing. At that point, it's a little too late in the game to ascertain that feasibility. At that point, it's pure campaigning.)

SW: Are you familiar with the court case Stanson v. Mott?

METZ'S RESPONSE:

SW: How is that 2001 survey not campaign material?

METZ'S RESPONSE:

With a bit of luck, the State Attorney General's Office will be more successful than SewerWatch in wringing out the answers to those important questions.

Although the 2001 Los Osos Wastewater Survey does include "more statements" from "various people" on why voters would be inclined to "vote no" on the measure ("People just can't afford anymore taxes, no matter what the government says about groundwater contamination." No matter what the government says about groundwater contamination?), in four out of five of those "statements," the majority of respondents did not "believe" the information.

Both the San Luis Obispo County District Attorney's office, and the State Attorney General's office declined comment for this story.

For me, the beautiful part of this area of the law -- the Stanson v. Mott area -- is that it doesn't care how much public funds were misused to pay for the campaign material (in Stanson v. Mott, only $5,000 was at issue), nor does it care about the type of campaign material that was created through the misuse of public funds -- from newspaper ads, to flyers, to public opinion surveys... you name it. It doesn't matter. All of that is moot.

The beautiful part of this area of the law is that it says, in no uncertain terms, that a governmental agency can not use public funds to pay for that agency's campaign material, period. To do so would be sleazy. To do it under the guise of a public opinion survey, where the voters contacted are unaware that they are even being campaigned, well, that's just disgusting.

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