Relay for Life Cancer Drive May 30-31

 

This year’s Falls Church Relay For Life, sponsored under the auspices of the American Cancer Society, will be held May 30-31 on the track at George Mason High School.  The Relay will start with a reception for cancer survivors at 5 p.m. Saturday May 30, followed by an opportunity for survivors to participate in a ‘Survivors Lap,” a walk around the track as part of the opening ceremony.  For more information about the event, or to register as a survivor, go to www.fallschurchrelay.org.

OPINION: No More School Budget Cuts

Read more

School Chairman: We Must Fund Our World-Class Schools

Read more

OPINION: I’m Not a Numbers Gal, but Budget Time’s Up

Read more

Water War Part 4: The Authority Strikes Back

By the summer of 2008 Falls Church clearly had lost the initiative in the Water War.  Twice defeated in federal courts, the City had declined to appeal its case against the Fairfax County Water Authority to the Supreme Court.  No longer on the offensive, its options now were limited.  Would Falls Church decide to seek an accommodation with its adversary or continue to claim exclusive water rights in certain areas of the County?

Defeated But Defiant

In spite of the rulings against it, the City still believed that Fairfax Water could not, in the words of City Manager Wyatt Shields, “force our customers, including developers, to hook up to its system.”  Whether FCWA actually forced or attempted to “force” Falls Church service area customers to switch is not clear.  What is clear is that the Authority filed suit against the City in Fairfax Circuit Court in December 2008 claiming, among other things, that Falls Church had threatened legal action against a developer who had planned to switch to Fairfax Water.

The site in question, known as the Halstead Project, involves the construction of approximately 1,000 residential units near the Dunn Loring Metro station.  In its complaint the Fairfax Authority states that the City’s March 12, 2008, letter to the developer “implied criminal sanctions against [it] if it moved the [water] lines without the City’s permission,” and that Falls Church had claimed the “right to object to any interference with its service territory and the existing water mains on the property.”  Because the letter was sent before the City’s 2007 case against FCWA had been rejected by the appellate court, Falls Church theoretically could still maintain that it held exclusive water rights.

However, Falls Church continued to press the developer even after the appeal had been turned down.  On July 15, the City informed the developer that “the plans must show the buildings connected only to the City of Falls Church water system,” and that “[u]nless the plans show the buildings connected only to the City of Falls Church water system, the relocation of the existing water line is not acceptable.”

Terming the City’s actions “willful and flagrant,” Fairfax Water’s lawsuit alleges that Falls Church had obstructed the developer’s ability to fulfill its proffer commitment and that its policies were designed to monopolize water service.  Stating that the utility will suffer $7 million in damages from the loss of the connection fees and future charges, the complaint asks for treble damages ($21 million) and punitive damages against the City not to exceed $350,000.

In a recent letter to the News-Press, Fairfax Water Chairman Philip Allin maintained that the Authority had asked Falls Church to stop blocking what he termed “competition” but that the City declined, leaving FCWA no alternative to litigation.

Most lawsuits do not result in a retaliatory claim.  However, the City may have invited one by continuing to claim exclusivity after its defeat in federal court.

Defeated on Demurrer

Now in the role of the defendant, Falls Church asked for dismissal via a demurrer on February 13, 2009, essentially asserting that the Authority’s complaint did not constitute a legally valid claim, even if its factual allegations were accurate.  Circuit Judge Jonathan C. Thacher overruled the City on all counts on March 13 and ordered the case to proceed.

In reference to Fairfax Water’s claim of monopolization of water services and request for relief under the Virginia Antitrust Act, the judge noted, “The Court finds the Water Authority’s construction to be the reasonable one.  It recognizes and respects each local government’s right to exercise the authority granted them by the statute within their own geographic limits.  It also strives to avoid wasteful and costly legal conflicts between local governments . . . . If the code sections the City cites authorize the City to monopolize water service in neighboring Fairfax County, what precludes the City from monopolizing water service in Norfolk, or Richmond, or Bristol?”

In one particularly scathing passage concerning the City’s denial that it interfered with a business expectancy (i.e., obstructed the developer), Judge Thacher wrote, “This argument appears to be entirely without merit because the City’s alleged means [to protect its water service boundaries] include improper means [emphases added], such as falsely threatening with criminal and civil sanctions those residents who wish to connect to the Water Authority’s service; and misrepresenting to residents that the City has the exclusive right to provide water service.”

The Charter Challenged

The City’s Charter, as approved in 1988, authorizes it to maintain and operate a “water works” system both “within and without the City.”  Under a 2003 revision it grants it the power to set rates and charges for water as the City sees fit.  Although Falls Church currently charges customers the same rate regardless of their location, it has charged County residents a higher rate in the past and could do so in the future.

Among the grievances set forth in the Authority’s lawsuit is a request that the Charter be declared unconstitutional to the extent it allows the City to use its water fund surpluses to subsidize its general governmental operations.  The complaint alleges that this practice allows Falls Church to lower the property tax rate for its own citizens and constitutes an illegal, extraterritorial tax on those in Fairfax.

This may be the most significant charge in the entire filing.  Such a challenge is a serious matter for a small independent city since, if upheld in court, it might well encourage similar challenges on matters related to water rights and possibly on unrelated matters as well.

But Will it Go to Trial?

The case currently is scheduled for trial in September.  Fairfax Water’s complaint requests that it be heard by a jury.

Assuming such a request were granted, Falls Church likely would ask for a change of venue, since a jury drawn from the County probably would not be impartial, given the Authority’s claim that the City’s water rates constitute an illegal tax on Fairfax residents.

However, many a civil case is settled “on the court house steps,” as it frequently is in neither party’s interests to proceed to an actual trial where one might lose and the other achieve only a pyrrhic victory.

Certainly Falls Church would suffer a heavy defeat if held liable on all counts.  Fairfax Water’s demand for monetary damages is equal to nearly one-third of the City’s operating budget.  Given the current financial crisis, it is in no position to incur such a loss, even if spread over several years.

City Council members have been hesitant to discuss a pending litigation, but Mr Shields’ statements to the News-Press would seem to indicate at least some willingness to negotiate.

When asked what a mutually agreeable resolution would look like, he responded, “The City of Falls Church and Fairfax County should be sitting down to discuss what the County’s long-term objectives are and, through dialogue, determine what is feasible.”

Unfortunately, the City now would enter such negotiations in a weaker position than two years ago, and Fairfax Water may no longer be willing to compromise.

Of Beginnings and Endings

Historians often dispute the date wars actually started.  Some argue World War Two began, not in 1939 when Germany invaded Poland, but eight years earlier when Japan invaded Manchuria.

Such is the case with the Water War.  A Falls Church historian would argue it began when Fairfax first served notice in July 2005 that it would compete for water rights.  A Fairfax historian would say it began in February 2007, when the City filed against the Authority.

Regardless of when it started, this war will end and one side will emerge the victor.  When and how it will end are still very much open questions. Hopefully we are near the beginning of the end and not, as Churchill speculated after El Alamein, at the end of the beginning.

This concludes the Falls Church Times’ 4-part Water War series.

Part 1: A Tale of Two Lawsuits

Part 2: How City Lost Suit Against Fairfax County

Part 3: An Appeal Denied

Schools Provide Data, Talking Points for Budget Discussion

Falls Church City School officials have provided talking points and data for City Council in response to Mayor Robin Gardner’s proposal to reduce the 2010 school budget by $170,000 to restore two city government positions.

The City Council will meet at 7:30 p.m. Thursday, April 23, to hear public comment on proposed cuts to the schools and other programs.

At Monday night’s City Council session, Councilman David Snyder asked school officials to provide more information on the impact of a $170,000 budget reduction on school operations. He also asked school representatives to encourage residents to share their views.

The 2010 school budget will be among the lowest in years as a percentage of the overall City budget: 40.8 percent. The current year percentage is 39.3 percent, the first time in recent years it has dipped below 40 percent of the City budget. The school budget has generally remained around 41 percent of the City budget, with variations of up to 44.4 percent in 2002 and down to 40.4 percent in 2006.

The City and school budget figures for 2001-2010 are as follows:

Year             City Total Budget      Transfer to Schools             School Transfer as % of Total

FY2001        $37,517,267              $15,688,143                      41.8%

FY2002        $41,043,931              $18,209,736                      44.4%

FY2003        $45,722,529              $19,430,187                      42.5%

FY2004        $48,543,560              $21,159,675                      43.6%

FY2005        $55,444,555              $22,781,478                      41.1%

FY2006        $62,088,445              $25,107,302                       40.4%

FY2007         $67,036,258             $27,652,094                       41.2%

FY2008          $70,790,648            $29,076,300                        41.1%

FY2009          $76,621,966            $30,117,600                        39.3%

FY2010           $72,585,677           $29,624,825                        40.8%

*          *          *          *          *          *          *          *          *          *

In addition to the school budget data, Superintendent Lois Berlin provided the following talking points:

• In our last work session with City Council on the School Board’s budget (April 2, 2009), a request was made by Council members for background information that could help them explain why school employees could receive any improvement in compensation when general government employees will experience a salary freeze. Listed below in bulleted form are a number of reasons and data points to help explain why, in such tough times, school employees will receive a raise.

• The schools are a critical economic engine for the City’s economy.

• Because of our schools’ reputation, people pay 10-15% more for housing in the City than in the surrounding areas. This adds revenue to our City coffers.
• Hiring and keeping the best staff is key to our continued excellence and reputation. All of our staff members interface and are responsible for the health, safety and education of our children.

• For a number of years, we have been hampered in our efforts to hire the best staff in hard to hire areas such as math, science and special education and we have lost candidates for these positions because our pay scales are lower than our neighbors in Arlington and Alexandria and were lower than Fairfax and Loudoun with whom we compete.

• We have begun to make progress with our scales but continue to be behind at least two neighbors (Arlington and Alexandria) by significant amounts. The result is that a teacher who has worked with us for 10 years can leave us and go to Arlington and make $13,000 more a year or to Alexandria and make $10,000 more a year. Our turnover of 25-35 teachers each year is due, in part, to pursuit of higher salaries OR more affordable housing.

• In many cases, our pay is below average, not above average or the best. Our goal is to get our salaries to a fair rate and the modest amount proposed helps us minimally to do that and, more importantly, keeps us from sliding further back.

• The forecast for the economy could result in this being the last raise for school employees for years to come.

• Additional points can be made about general government employees and school employees:

• General government and school employees are paid differently and always have been because the jobs they do and their missions are different.

• General government employees are compensated similarly to their general government peers in Fairfax, Arlington and Alexandria while school employees are paid similarly to their peers in our neighboring school divisions.
   
• There is a difference in how general government and school employees are paid salary and benefits. For example, school employees pay 5% more than general government employees for their health insurance. This is because the School Board pays 75% of employee health insurance costs for school employees whereas the City Council pays 80% of health insurance costs for general government employees. 

• There is precedent of paying general government and school employees differently. Both Arlington and Alexandria are giving raises to school staff but not to general government staff next year.

• The School Board reduced staffing by 8 full time positions for the 2008-2009 budget. Despite growth in enrollment numbers, additional staff has not been added. In fact, a .5 position was cut from the Superintendent’s proposed budget.

Thursday night’s Council meeting is at City Hall Council Chambers at 7:30 p.m. Information on contacting individual City Council members is available here.

(Gardner photo: Washington Post)

Water War Part 3: An Appeal Denied

The first battle of a war is seldom the last.  News of an initial defeat often hardens the vanquished to greater resolve, leading to another battle or, more likely, more battles.

Defeated in federal court, Falls Church faced a decision in May 2007: seek a truce in the Water War and perhaps negotiate a treaty, or fight another round with the Fairfax County Water Authority.

Beaten But Unbowed

City officials understandably were disappointed with Judge Hilton’s opinion.  “We felt we had a good case and that the outcome could have been different,” said Mayor Robin Gardner in an interview with the News-Press.

After maintaining that FCWA was still approaching potential customers in Falls Church’s service area, and noting there had been no substantial contact with Fairfax officials in several months, Ms Gardner observed, “The outstanding issues here do need to be resolved.” Evidently the mayor and the city council soon decided to again seek resolution of those issues in court, as Falls Church filed an appeal within days of the interview.

Hopes were high.  City Attorney Roy Thorpe told the New-Press, “I am confident that upon appeal the ruling will be reversed.”  Ironically, Mr Thorpe himself did not argue the case in the appeals court, as the City chose to retain outside counsel.  Late that year he would announce his intention to leave his post, having served since 1996.

Mr Thorpe retired in June 2008 and was replaced by John E Foster who, in a further irony, had served the past eight years as an assistant county attorney in Fairfax, which presumably would force his recusal from any cases involving the County.

On to Richmond

Rulings of the US District Court in Alexandria may be appealed to the Federal Court of Appeals in Richmond.  While filing deadlines are tight, matters often do not come before the Court for months.  Thus the second battle of the Water War did not commence until 2008.

The City’s appeal was heard before a three-judge panel on January 31.  Judge Allyson K Duncan, writing for Judges Roger L Gregory and M Blane Michael who concurred, handed down a 12-page opinion on April 4 which affirmed Judge Hilton’s earlier ruling.

In its brief to the appellate court, Falls Church asserted that Fairfax Water’s attempts to provide service to customers in interface areas would “interfere with the implied, but nonetheless obvious purposes and objectives of Congress in establishing the Washington Aqueduct” and therefore “stand as an obstacle to [its] . . . most effective economic use.”  Judge Duncan termed this a claim of “obstacle preemption.” [Quotations in the original.]

The judge noted that the Supreme Court instructs that a federal statute presumably does not supplant traditional state regulatory law unless Congress made its intention “clear and manifest.”   The judge found no such intention in the structure and purposes of any of the four Acts cited by the City to supersede Virginia’s traditional authority over water utility regulation.

She wrote that the 1947 statute authorized the Secretary of War merely “to permit the delivery of water” to Falls Church in language she termed “conspicuously and unequivocally permissive.”  Further, she noted that the Act allowed for the termination of water service to Falls Church “at any time.”

In an interesting footnote, Judge Duncan observed that the City did not have a supply agreement for the delivery of Aqueduct water from Arlington County until 1950 (an agreement still in effect) and that it did not connect directly to the federal government’s water filtration plant until 1961.

Thus while Falls Church may have been providing water to Fairfax as far back as the 1930s, when it was still within the county, it actually had no access to federal water, directly or indirectly, until much later.  Clearly, this served to further weaken the City’s claim for relief via the Acts of 1859, 1926, and 1947.

Unable to sustain its preemption challenge, the City argued that a loss of customers to Fairfax Water might impact its ability to meet its share of contractual obligations under a water service agreement with respect to $75 million in loans that were taken out to assist in Aqueduct improvements, as mandated under the 1996 Act.

However, Judge Duncan observed that the 1997 agreement between Falls Church and the Secretary of the Army included provisions protecting the federal government against the risk of default and that the City’s ability to meet its obligations was accounted for, at least to some extent, within the terms of the agreement itself.

All Quiet on the News Front

The City’s defeat on appeal would seem eminently newsworthy, especially considering the earlier extensive coverage of the war in the local media.  But apparently neither the News-Press nor any blog ever mentioned that Falls Church had lost a second battle.  What had been front page news on several occasions now was deemed no news at all.  Although the appellate court’s opinion officially was classified as “unpublished” (so named because it did not appear in the printed volumes of circuit opinions), Falls Church officials obviously were well aware of the finding.

Twice defeated, the City declined to file an appeal to the U.S. Supreme Court, a move which likely would have had little chance of success, given the strength of the prior rulings and the absence of a dissenting opinion from any of the appellate court judges.  The Water War, or at least the hardest fighting, seemed to be over.  Perhaps the opposing sides now would come to some sort of understanding and resolve their issues without further resort to litigation.

However, filing an action sometimes results in a counter-action by the previous defendant against the initial plaintiff.   The war would continue in 2009, and by then Falls Church would be very much on the defensive.

This series will continue with an examination of Fairfax Water’s lawsuit against Falls Church City.

Part 2: How City Lost Suit Against Fairfax County

Part 1: A Tale of Two Lawsuits

City Council Proceeding with Additional School Cuts

Last night the Falls Church City Council took another step toward reducing the City Schools’ 2010 budget by an additional $170,000 to fund two city government positions previously planned for elimination.  The funding shift, first proposed last Thursday by Mayor Robin Gardner, would leave school officials with the decision of whether to reduce a planned half-step teacher pay increase or take the money from other areas of the school budget.

After a time-consuming discussion of smaller budget cuts, including whether to hold the annual Halloween party, Councilman David Snyder asked for a discussion of the proposed school cuts, requesting to hear from school representatives in attendance.  School Board Vice Chairman Susan Kearney, representing the Board, and Superintendent Lois Berlin addressed the Council and responded to Snyder’s inquiry as to the likely impact of the proposed cut.  Kearney noted that the School Board was working to estimate the impact and would meet formally to discuss the matter Thursday, April 23.  Optimal determination of how to absorb such a cut would be difficult in a such short time, she stated, but pledged to provide the Council the Board’s analysis as quickly as possible.

“If it were $10,000, or $20,000, it would be easier,” Kearney said.  “This is a large amount of money.”

Kearney defended the half-step pay increase planned for teachers by pointing to the large teacher turnover that had occurred in recent years as Falls Church schools fell behind their peers.  Whereas turnover once was typically around a dozen teachers a year, she said, last year the city schools lost almost three times that number.

“The board is very deliberate in its budgeting,” Kearney said.  “Our budget request is what we need, not what we want.”  The schools’ budget request was not a negotiating position, she said, and the Board does not invest in “fancy buildings or the latest technology,” but rather “small classes and excellent staff.”

Councilman Daniel Sze stated that while he had supported the school budget request and in his “heart of hearts” wanted the half-step teacher pay increase, the extraordinarily poor economic situation caused the Council to consider the matter in the “spirit of shared sacrifice.”  Sze asked the Board to think carefully about it over the next few days.

Councilman Nader Baroukh asked City Manager Wyatt Shields to identify which city government positions would be saved as a result of the proposed school cuts.  Shields replied that the specific positions had not been determined, and that the Council could either specify which positions to save or direct Shields to determine them as a way mitigate City Hall’s own budget cut impact.  Shields indicated that the focus should be on three full-time positions marked for elimination.

Baroukh pushed Shields to be more specific, stating that it was “only fair” for the City to provide its own impact analysis if the schools were being asked to do so.

Councilman Dan Maller suggested that strong opposition from the School Board might lead to an additional half cent increase in the City real estate tax, which “would not be gigantic in the scheme of things.” But Maller asked Kearney first to look into whether federal stimulus funds or the schools’ $250,000 contingency fund might be used to make up the loss.

Kearney pushed back on the use of contingency funds, noting that the Board anticipates using the $250,000 now in the fund for additional teachers and a large trailer to serve excess student populations at Mt. Daniel Elementary.  Federal stimulus monies, she noted, could not be used for ongoing operating expenses, but rather were designed for items with multi-year life expectancy, such as the replacement of aging technology equipment at the schools.  Failure to use stimulus funds as Congress intended for 2010 would likely mean the loss of such funds for 2011, she said.

Snyder indicated to Kearney his desire to hear from interested citizens quickly due to the short time before the Council’s April 27 budget vote.  Kearney agreed to spread the word to interested parents, noting that because of the Board’s extensive email lists they could “turn on the spigot” quickly.

Following the discussion with Kearney, Mayor Gardner stated that the proposed school budget reductions would be included for now as a part of the City’s balanced budget plan, and that the school’s impact analysis would be considered when received.

Gardner called another Council meeting for 7:30pm Thursday, April 23, to provide an opportunity to hear from the public prior to the final budget vote next Monday.  Thursday’s meeting will occur in Council Chambers at City Hall.

Information on contacting individual City Council members is available at http://www.fallschurchva.gov/Content/Government/Council/Contact.aspx.

« Previous Page — Next Page »