Towards Sewer District Referendum Reform

COMMENTARY

PROPOSITION: IF School District Election Reform, THEN Sewer District Referendum Reform

By: Wolf von Baumgart, Staff Writer

Senate Bill 165, currently before the Delaware General Assembly, if enacted, will afford citizens the opportunity to vote by mail-in ballots in Delaware public school district elections once a year on the second Tuesday in May. The elections will be conducted by the Delaware Department of Elections – not the local school boards. Logically, another question emerges:

Why not sewer district election reform?

The Problem:

The basic legal and administrative principles of general elections should also apply to school and sewer district elections in that they should be secure, impartial and held in a time, place and manner convenient to the electorate at-large. We have heard numerous allegations of multiple voting in various school district referenda, apparent electioneering on the part of some school districts, etc. that may, from time to time, cause reasonable public concern.

Speaking from actual experience, sewer district referenda (at least in Sussex County) are in need of serious reform. The major systemic flaw and inherent conflict of interest here is that the government entities (school districts or counties) having a vested interest in and supporting the positive outcome of a given referendum (of school property tax increases or creation of sewer districts and assessment of rates) are the same people in charge of the elections. Ergo, transferring exclusive control of said elections to the Delaware Department of Elections as a third party in the greater public interest is a formal step in the right direction.

A Case Study in Sewer Realpolitik:

As a glaring example, Sussex County (ca. 2000) proposed creation of an inordinately large sewer district for the greater Oak Orchard area when only a relatively small area in Oak Orchard and Riverdale had problems with obsolete failing septic systems. Initially, the proposed annual rate was estimated at between 1100 and 1200 dollars. The high figure (well in excess of federal guidelines that annual sewer rates not exceed 1.5 % of median area income as determined by the last decennial census) raised alarm among residents in lower income brackets. The rate structure (itself based on the obsolete front footage method of assessment) was arguably inequitable. The situation was further complicated by Sussex County’s long-standing policy that sewer hookup and plumbing costs as wells as inspection fees are the sole responsibility of tenants in cases of rented land.

The proposal as it stood was actively supported by the Sussex County Council, regardless of its high rates and personal impact. One (now former) County Councilman in the district actively sided with the developers in promoting the project, thereby giving many residents a clear impression of “political fixing”, backdoor deals, class prejudice, favoritism, cronyism, pseudo-elitism, externally imposed social stratification, condescension, marginalization and other “sleaze factors”. Unfortunately, some local residents were even afraid to vote in the referendum and actually believed that the sewer was coming whether people voted for it or not and some immediately placed their houses on the market.

In response, a small group of area residents formed the Oak Orchard Citizens Wastewater Commission (O2CWC) whose purpose was independent research, survey, analysis, cost reduction and public information. The O2CWC, acting within the scope of 9 Del. C. , proposed boundary reductions and informed citizens of their little-known right to petition out of a proposed sewer district and submitted a map to this effect. Eventually, Sussex County contracted the Oak Orchard Sanitary Sewer District (OOSSD) boundaries more accurately to the affected area, thereby reducing planning and construction costs. The group also researched low-cost innovative and alternative small-flow wastewater treatment options and applicable government programs, using publicly available information.

Sussex County held a number of public hearings in which the O2CWC actively participated and raised both fundamental and complex technical questions in the public interest. The group held its own public meetings in an ongoing community outreach. The sewer district proposal was itself, controversial. Despite a highly-charged and politically polarized atmosphere, the O2CWC adopted an integrated creative, objective, trans-disciplinary, scientific, technical and economic think-tank methodology, coupled with a legal and consumer advocate/investigative public interest research approach – taking nothing at face value.

In one instance, its independent investigation quickly determined that a mass mailing (from a nonexistent local group) in favor of sewer district creation, purporting to be environmental advocacy, was in fact the work of a local developer who had a direct economic interest in establishment of a sewer district and it subsequently publically exposed this fact to the media and community at-large. From an ecological standpoint, it is interesting to note that, beyond relatively standard static textbook calculations of Nitrogen, Phosphorus, Total Suspended Solid (TSS) and Biological Oxygen Demand (BOD) reduction at existing environmental loading levels, no agency or official involved in the OOSSD public process was inclined to precisely answer the emergent dynamic and multivariate question of net environmental impact of sewer-related development , projected higher densities and other resultant loading factors, as a more comprehensive predictive model was apparently not applied in the project’s environmental impact study.

There was also some talk of building a gambling casino in Oak Orchard at the time. This would have required significant property transfer, as the immediate area had a higher population density than its surroundings. To build up the suspense, on at least on one occasion, the stretched limousine of a prominent NJ casino developer with its personalized license plates was spotted cruising through the Oak Orchard area. One local letter to the editor even claimed that prosperity is just around the corner as the advent of central sewer would somehow bring back “the Good ‘Ole Days”.

Sussex County then held an informal closed door meeting with selected concerned persons regarding the outcome of sewer district referendum, including county engineers, local developers, a plumber, the R&D Director of the O2CWC et.al., in which the plumber (who had a direct economic interest in sewer hook ups) promised Sussex County government a “slam dunk” in the referendum. The O2CWC subsequently informed area residents of the situation and raised further questions of electoral integrity. In retaliation, local thugs targeted and punctured an O2CWC member’s tires during a public meeting in a very crude, but unsuccessful attempt to intimidate and silence the group.

In a heavy-handed attempt at official intimidation, former Sussex County Administrator, Bob Stickels, tried to corner the O2CWC’s R & D Director in the Administration Building. He declared that the O2CWC was an illegal organization and ordered its immediate and unconditional disbanding under threat of a lawsuit. (This was reportedly on the advice of the County Attorney, in reference to a statute regarding establishment of government commissions as entities exclusively by the State of Delaware that was intended for and limited in scope to Delaware political subdivisions.)

After responding to the demand with the famous Battle of the Bulge quote of “NUTS!”, the R&D Director calmly explained that the OAK ORCHARD (geographic location) CITIZENS (legally operative modifier) COMMISSION (form) was convened under Article 1, section 16 of the Delaware Constitution that enumerates the right of the People to assembly, petition and remonstrance; and thereby, the statute alluded to was inapplicable to a freely-associated ad hoc citizens group. Furthermore, any Sussex County SLAPP* action could be legally considered as a state and/or federal civil rights violation and would be acted upon in an appropriate court of competent jurisdiction. Stickels, whose bluff was called, backed down after being reminded that his authority was limited to administering county government — not commanding a Panzer Division.

Subsequently, a rather crude attempt to refuse acceptance of filing the O2CWC’s report of its independent findings in response to the county’s legally questionable one-week public commentary period was made one day before the deadline by a lower ranking official of the Sussex County Engineering Department. The report ( a work product containing three new sources of federal HUD, EPA and USDA grant programs, a community survey , public commentary, a willingness-to-pay curve and information on low-cost alternative wastewater treatment technology) was filed as public record after it was pointed out that arbitrary rejection of filing would constitute an actionable civil rights violation.

It turned out that the first referendum passed by one vote, but was invalidated by Sussex County after the O2CWC raised questions about the handing of some absentee ballots. Also, some people eligible to vote in the referendum reported being turned away from the polls. The second referendum eventually passed by about 15 votes. The O2CWC’s willingness-to-pay survey came in closely at $ 50 over the standard federal guideline. Sussex County (despite its publicly adversarial posture) actually followed up on the O2CWC’s suggested federal funding sources (that its officials were admittedly previously unaware of) and received three additional major grants that enabled significant rate reduction. As a result, fewer people sold their homes to escape unaffordable sewer rates and, true to form, the county politicians claimed full credit for the “windfall” reduction in sewer rates in a staged waterfront public media event.

Possible Solutions:

The fact that people are generally not afforded the opportunity to vote on low-cost innovative and alternative small-flow wastewater treatment systems as an additional ballot option instead of YES or NO to larger expensive central sewer systems raises fundamental questions of state environmental and technology assessment policy as well as local economic development matters that are beyond the scope of this article. However, a third alternative on the ballot can be a useful mechanism.

One possible remedy for similar situations would be to transfer sole sewer district election authority from the counties to the Delaware Department of Elections. Mail-in ballots for sewer district referenda could also be handled as in SB 165. This will ensure maximum voter participation in both sewer and school district elections and be presumably more politically reflective of the will of affected community at-large.

Additionally, the common issues and objectives of school and sewer district election reform are:

1] The actions of PACs and other political groups in these elections should come under existing state campaign finance laws.

2] Corporate entities as stakeholders directly affected by school property tax rate and sewer district questions should also have their right to vote through their legally designated agents more formally codified in state law instead of county or school district criteria.

3] Questions for capital improvement, boundary modification, etc. of sewer districts should also be decided by referendum as in school districts by persons so affected.

4] In any event, all ballot question language should be legally required to be stated clearly and unambiguously to ensure that a “YES” or “NO” vote means precisely a positive or negative response.

5] Government entities should be forbidden from any political activity in school and sewer district elections.

Another approach could be to have school and sewer district referenda correspond to general elections. (The same can be said for municipal elections after city charters are changed through appropriate legislation.) This would initially require an expense of reprogramming voting machines or providing separate paper ballots, but would save the people and state of Delaware even more money in the long run by eliminating separate election set-up costs.

Conclusion:

The People of Delaware deserve honest and impartial school and sewer district elections, based on objectively verifiable information and a process free of conflict of interest as well as inordinate and underhanded special interest and/or government manipulation. In addition to school district election reform, sewer district referendum reform is an idea whose time has come. Accordingly, the Delaware General Assembly should also make the neural connection and deal with this issue through appropriate legislation by extending the legal logic and intent of SB 165 to sewer districts in a separate specific and comprehensive bill with an eye towards electoral thoroughness, efficiency and economy. Delaware’s constitutional and electoral integrity depends upon it.

[ * NOTE: SLAPP –Suit Launched Against Public Participation ]

One thought on “Towards Sewer District Referendum Reform”

  1. 4/5 of the Sussex County Council is corrupt and incompetent. Planning and Zoning is another travesty etc., etc. Delaware needs an inspector general at the state and local levels.

    At least, we are rid of Vance Philips .

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