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Resolve utility ‘cap’ issue

February 19, 2010
Cape Coral Daily Breeze

Cape Coral City Council's decision to raise utility rates in 2005 has come back to haunt the new board.

Tucked in the rate increase resolution was some language intended to lift the cap on which sewer rates were determined, thus hitting heavy water users twice, once with the increase in rates and again by charging rate payers who used 10,000 gallons of water or more per month for that "excess" use.

The problem, which came to light after a homeowner experienced a broken water pipe on his dock and questioned why he had to pay a sewer charge on all the water that spilled into his canal, is that the city had no authority to lift the cap by resolution, officials had to amend the ordinance providing for the cap.

While this may sound like legal hair-splitting, it is not - ordinances provide for a more involved public notice and hearing process that allows people to question, for example, why they need to pay a sewer charge on water used to fill a swimming pool.

At any rate, the problem was discovered, brought to the attention of the city's legal staff, which determined that the elimination of the cap was done illegally and so the city may have to pay back the money, an estimated $4.1 million.

Council's reaction?

Hesitate, dodge, debate the previous board's "intent" ad nauseam and proffer that, perhaps, the city should seek another legal opinion from the state or outside council in hope that, maybe, the city doesn't have to give the money back.

This is not a leadership approach.

Nor is it what the public deserves from its newly elected board.

Council needs to first, accept the legal opinion in hand. We're sure if there was any wiggle room, the city's legal staff, which has a vested interest in protecting the municipal position, would have found it.

Then move to resolution - prompt resolution - of the problem so the council can devote itself to the more pressing utility issues at hand.

That path is an easily charted road:

- Own the problem, i.e. stop worrying about what previous boards "intended"

- Fix the problem. Refund the money collected illegally and properly amend the ordinance to lift the cap if, in fact, council agrees that rate payers should pay a sewer charge on every drop of water received

- Prevent the problem from happening again. Establish a safety net of after-action legal review and make sure the public works department documents steps taken before and after rate increases are implemented. There simply is no excuse that a legal snafu of this magnitude occurred nor is it acceptable that city staff can not document that the public was properly notified of the resultant increase in rate.

Council is elected to make decisions, including the hard ones. This one should be a relatively easy fix although we agree, the money may be hard to come by. But keeping ill-gotten gains is not an option. Nor is shopping for a legal opinion that would allow the city to do so.

This council has been in office for more than three months now. It's time to assume the leadership role that goes with the office. Resolve the problem.

- Breeze editorial



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