WATER WAR: Fairfax Water Presents First Witness

“There are very few disputed facts in this case.”

So commented Judge R. Terrence Ney as the Fairfax County Water Authority’s lawsuit against the City of Falls Church proceeded today in Circuit Court.

Although few facts may be in dispute, many were on parade as Fairfax Water counsel Stuart Raphael began presenting his case.

Mr. Raphael introduced expert witness Christopher Woodcock, past chairman and longest serving member of the Rates & Charges Committee of the American Water Works Association (AWWA), in an effort to demonstrate that the City’s policy of channeling water fund profits to its general fund is not a generally accepted practice.

Since 1981 Falls Church has transferred nearly $59 million to the General Fund, the majority of it in the current decade.   Fairfax Water contends this is unconstitutional and is seeking injunctive relief.

Mr. Woodcock presented several charts and tables illustrating the City’s historical water rates and fund transfers. Some of these may be seen in a report he prepared prior to trial which served as the basis for much of his testimony.  Mr. Raphael introduced many City financial reports and staff memos in support of Mr. Woodcock’s statements.

Sandy Thomas, counsel for the City, noted that industry policy does not bear on constitutionality.  He frequently objected to Mr. Raphael’s questions to Mr. Woodcock and successfully prevented the witness from offering opinions on the City’s policies concerning the setting of rates and the transfer of balances.

In emphasizing one of his rulings in Mr. Thomas’ favor, Judge Ney advised Mr. Raphael “This case will not turn on what Mr. Woodcock deems is permissible but on what I do.”

Prior to Mr. Woodcock’s testimony the Court watched a tape of  Falls Church Chief Financial Officer John Tuohy’s pre-trial deposition.  Here Mr. Raphael first attempted to show that reductions of the City’s property tax rate were due to increases in water rates, a theme he later pursued with Mr. Woodcock.

Mr. Tuohy, whose deposition was recorded in June, stated that there is not a direct relationship between the water fund and the tax rate, which is computed at the end of the City’s annual budget process and is based on operational needs.

This rather unusual proceeding was apparently agreed to by both counsels to spare the witness a second round of questioning.  Mr. Tuohy himself was seated at the defendant’s table and so had the rare experience of watching his own testimony.

Falls Church Mayor Robin Gardner dropped by for an hour this morning to observe the proceedings.