Ches. Beach, county wrangle
Sewage treatment plant in limbo; complaint filed
Wednesday, Oct. 27, 2010
Calvert County commissioners have filed a complaint in Calvert County Circuit Court against Chesapeake Beach town officials, requesting that a judge decide whether the mayor or the town council has decision-making authority over who runs the operation of the town's wastewater treatment plant.
According to the Calvert County Board of County Commissioners, the complained was filed last Wednesday to ask for legal clarification on two issues: whether an initial contract made between the town and the county is still valid after 19 years, and whether Mayor Bruce Wahl has the authority to transfer operations of the plant from the county to the town without the majority rule of the town councilmen.
"The problem is there's an internal dispute going on between the mayor and the council over whether he has the authority to terminate this contract without consent of the majority of the council," Commissioner Susan Shaw (R) said. "His lawyer agrees with him; our county attorney does not agree with him and says the council should be in agreement."
After the county received an unbiased third party attorney's opinion on the matter, Shaw said, the attorney agreed with the BOCC as well.
"Now we're in this situation with different attorneys disagreeing," she said. "The problem Calvert County has with this is if we're turning it over, we need to turn it over legally. We don't want to be in a situation where there's a challenge made as to why we turned it over improperly."
While Chesapeake Beach owns nearly 50 percent of the plant, North Beach, northern Calvert and southern Anne Arundel County residents own the remainder. The plant is located in Chesapeake Beach and the town has been held accountable by the Maryland Department of the Environment for required upgrades, but the county has maintained control over the operations.
On May 29, 1990, Chesapeake Beach signed an agreement designating the county's Department of Public Facilities and Services as the plant operator, Wahl said and the complaint also states. The agreement, which has a fixed three-year term, "has no provision for automatic renewal," he said.
At that time, the town did not have the ability to maintain the plant itself, but now, with a qualified engineer on staff, Wahl said the town wants to take over operations. Wahl, who said the town charter gives him the authority to make the decision, said he has talked with Commissioners' President Wilson H. Parran (D) and written letters to the county several times about wanting to take over the plant's operations. He said he thought the town's amicable actions would lead to the turning over of the operation of the plant, and when the commissioners did not respond he wrote a letter on Sept. 30 stating that the town intends to take over plant operations on Nov. 1 and has instructed town treasurer to pay no invoices from the county for the operations after Oct. 31 and county employees would be denied access to the plant without permission.
Wahl said the reason for wanting to take control is, "I never want to see an untreated discharged," adding, "We have a responsibility to protect the bay."
"That's my sole motivation in all of this…and this is just ridiculous," Wahl said, referring to the lawsuit.
Parran contends, however, that the alleged lawsuit is not actually a lawsuit at all.
"I guess the format when you're asking a judge for legal clarification, it looks like we're suing everybody, but we're not," Parran said.
Because they are now pressed for time to settle the matter, he said, the commissioners have to act quickly to resolve the dispute, should the contract be deemed valid in the first place.
"I'm hoping to get a response within 30 to 60 days," Parran said. "We have people working [at the plant] now, and if there's a transition that has to be made, we want to make sure that it's a smooth transition without terminating people's jobs. We don't resist turning it over; all we want to do is make sure it's done smoothly."
"There's no money involved, it's not a lawsuit," Shaw said. "Bottom line is we just want to do the right thing."
The commissioners want a declaratory judgment declaring that the mayor may not unilaterally terminate the operating agreement and that the town council must pass an ordinance pursuant to the town charter authorizing termination of the agreement, the complaint states.
The commissioners contend that in the general provisions of the agreement it states that "either party may terminate this agreement effective after the expiration of the initial three year term, for any reason with or without cause by giving at least one year's prior written notice to the other party."
Commissioner Barbara Stinnett (D) was the only county commissioner who did not support the request for such legal clarification on the agreement and said the mayor has support for taking control of the plant and should be allowed to do so.
"The workers are in agreement with the switchover. The mayor contacted us and wants to move on," Stinnett said. "… It is not our responsibility to run the town's business, and it is spending taxpayers' money — on both sides of the fence."
She added that the town already paid a hefty fine due to a spill, acknowledging two untreated discharges from the wastewater treatment that went into the bay in December of 2009 to which Wahl referred.
Wahl said the discharges occurred because the county failed to replace a broken pump "for an extended period of time" after the town made the county aware of the needed repairs. The town made a $16,000 contribution to the Clean Water Fund in August in lieu of a penalty for the discharges in the bay assessed at $10,000 per day by the Maryland Department of the Environment.
"The discharges because of the negligence of the county are just unbelievable," he said.
As to whether he, as the town's administrator, has the right to have the operations transferred without the town council's approval, Wahl said, "This is an administrative function. I don't need the council approval to terminate the agreement," pointing out the mayor's authority in the town charter. The mayor is responsible for day-to-day operations while the town council has legislative powers, he said. Wahl also pointed out that only the mayor at the time, Gerald Donovan, signed the 1990 agreement.
The county, however, believes that the town council needs to weigh in on the decision so the complaint filed asks for a legal decision to decide if he does or not. At a June town council meeting the town put taking over the operation of the plant to a council vote, and it was a 4-2 decision with council members Pat Mahoney, Ingrid Lamb, Valerie Beaudin and Julie Spano voting against it to Wahl's surprise, he said. Mahoney also cited the town charter saying that it states that the council has the power to make agreements and it needs to be included in the decision.
"The town council wants to be part of the process," he said.
Council members don't understand the issue, Wahl said, mentioning that the town would be able to expedite repairs and it would save the rate payers money as well.
Mahoney said the reason four council members voted down the decision to take over operations was because they were not given requested additional information as to what the long term financial impacts "of growing our government" would be, and he was concerned with adding employees to the town's generous pension system.
A letter from Mahoney was sent to the Parran on Oct. 2 signed by Mahoney and the three other council members opposing the town taking over the operations. Mahoney stated in the letter that he was pleased with the county attorney's opinion "that council approval is needed to terminate the agreement."
At the town council meeting last Thursday night, council member Bob Carpenter stated that the letter, which four council members signed and sent to the commissioners, was in violation of the Maryland Open Meetings Act. Carpenter said the letter, an action of council, was sent without a public notice, a vote or a hearing with four council members collaborating. He said he plans to file the complaint with the compliance board.
Wahl said he, too, thought that the letter was in violation.
Mahoney does not see it as a violation saying, "there was no secret meeting," and that he e-mailed the letter to all council members to sign.
Carpenter reviewed plant operation costs that were charged by the county, saying that since July 1 town residents paid $20,500, North Beach $8,200, Rose Haven $4,400, and county residents on the system paid $9,800. These citizens will "ultimately pay the price of this action," he said, noting that they will pay for the town's legal fees and the county's legal fees.