The Gate Is Down

Perseverance is a great element of success. If you only knock long enough and loud enough at the gate, you are sure to wake up somebody.  – Henry Wadsworth Longfellow

A group of dedicated taxpayers began knocking on the gate in 2015 when they filed lawsuits to stop the city from transferring millions of utility revenues into the general fund.

On Nov. 8, 2017 the city settled a water and sewer utility revenue case that claimed officials illegally hiked rates while assessing millions of dollars in fees to its own Water Department, having collected approximately $91 million in so-called pipeline permit fees over the previous 10 years.

When that legal defense failure hit the balance sheet, City Hall came up with a way to get it back – Measure M.

Measure M went on the ballot, with City Hall believing that it would be provided the means to circumvent state law and once again allow our leaders to tap into utility funds.

Measure M was launched with the standby, fear-based – fix the-infrastructure argument, to “Maintain police, fire, and emergency 911 services, pave the streets, fix the potholes and decrease homelessness – and other vital services.”

The supporters who signed the ballot argument in favor were Mayor Robert Garcia, Chief of Police Robert Luna and Fire Chief Michael Du Ree

The opposition – a small taxpayer group with no money to fight the hundreds of thousands City Hall pulled in from the LBPOA and firefighters for mailers and other advertising had only their ballot argument that said, in part:

Vote NO. Stop this blatant money grab. The mayor and council want taxpayers to ignore their bad behavior and let them take millions again. Why? VOTE NO. Don’t let the mayor and council turn the Water Department into one more piggy bank for them to raid.”

The taxpayer group who produced the opposition argument included Diana Lejins, Gerrie Schipske, Tom Stout and Joe Weinstein.

The group with the LBPOA and firefighter money won with 53.8 percent of the vote.

Back to the Gate

The taxpayer group went back to knocking on the gate.

They filed a lawsuit (Lejins vs. City of Long Beach) that alleged “Measure M, a ballot measure that levied a 12% assessment on the city’s Water Department and passed along the assessment to ratepayers, was unconstitutional.”

On March 23, three months short of a three-year court battle conducted by the law firm of Benink & Slavens, the California Supreme Court denied the request of the City of Long Beach for review of the case that had previously been won at both the trial and appellate levels.

Schipske, now a candidate for the office of city attorney said, ““The courts made it crystal clear that Measure M was unconstitutional and … does not rescue the city from an independent constitutional violation…”

Schipske added that the ruling should be instructive to the city attorney, particularly since the mayor and City Council were allowed to send out flyers and emails to voters that did not provide accurate information.

She said, “these communications assured voters that Measure M was “not a tax,” the transfer of funds “would be taken from surplus,” and “would not raise water rates.”

She told them the same as was said three years before they decided to spend more taxpayer money to fight for what they legally should not have reasonably expected to get. She said, “None of that was legally correct.”

Community activist and photojournalist Diana Lejins, the plaintiff in the case said, “It has been a long road, but our victory proves that you can fight City Hall. Most of all, we have city attorney candidate Gerrie Schipske to thank for her brilliant analysis of this unconstitutional measure/tax.”

Schipske Advocates “Legal Exposure Reduction Committee” 

When asked what she will do differently as city attorney, Gerrie Schipske responded, “I will create a ‘Legal Exposure Reduction Committee’ that will establish an annual citywide and departmental legal exposure reduction goal; create proactive city attorney procedures to advise departments on various methods to reduce legal costs; create procedures to discuss areas of potential exposure; develop and implement specific strategies calculated to prevent future claims and lawsuits; provide updated training on new changes in laws and policies for each appropriate department to implement; assess the efficacy of corrective action plans; review management training and implementation of city policies; review lessons learned; discuss areas of potential exposure; and report annually on their progress and efforts.”

The Celebration

There was a celebration at the LB Convention Center following the passage of Measure M. Mayor Robert Garcia was overheard (as this newspaper reported at the time) saying, “I’ve never seen a tax I didn’t like.”

The decision by the Supreme Court will result in the city being required to pay $9 million to the water fund within a month and a balance of $21.8 million sometime within the next six months.

Beyond that, the city will experience a continuing shortfall of $9 million per year, based upon the loss imposed by the Supreme Court decision that could/should have been anticipated with sound legal judgment and advice when Measure M ignored the knocking at the gate three years ago.

In a Facebook post following news of the court decision, City Council candidate Ian Patton wrote: “This is what happens when a city attorney doesn't do his job, or honestly when he intentionally does the opposite.

The gate is down. It’s time go inside and clean things up.

Stephen Downing is a resident of Long Beach and a retired LAPD deputy chief of police. stephen.beachcomber@gmail.com.