'Maneuver' breaks Bend council tie on water issue

Reviving old resolution puts city back on path to membrane filtraton

BEND, Ore. - It's not news that Bend city councilors remain sharply split on controversial, complex plans to upgrade the city's water supply system. But there was a novel new wrinkle Wednesday night that broke a tie and led to a 4-3 vote to end years of delay and again choose a membrane filtration treatment for water pulled from Bridge Creek, rather than a less-expensive ultraviolet system.

The $24 million pipeline project just won a revised Forest Service permit to proceed – but a renewed threat by Central Oregon Landwatch lawyer Paul Dewey to again go to court to block it. That debate is largely about the need, pros and cons of replacing the aging pipes, or as some prefer, have the city rely solely on groundwater wells.

Meanwhile, the just-about-as-costly water treatment choice, delayed by the council for years to review, still faces an October 2014 federal deadline to treat Bend's surface water for cryptosporidium (unless it's pushed back yet again).

After getting guidance from City Attorney Mary Winters and the Oregon Government Standards and Practices (ethics) Commission, Councilor Mark Capell once again declared a potential conflict of interest and sat in, but kept quiet during the hours-long work session and regular-meeting discussion of the many water treatment pros and cons that ranged from the level of threat of major wildfire in the city watershed to the cost differences and their impacts on ratepayers.

Capell stepped back, as he has since 2011, because his brother works for a Portland engineering firm, HDR Inc., that has been doing water-project work for the city. But he again noted that his brother, Paul, went to work for HDR after the council approved the contract in 2010, has no association with the project (he works with Pacific Power and the BPA on hydro projects) and had to sign a statement when he took the job that he would not benefit from its work with Bend.

"Since then, I have continually stated a potential conflict, and declared an actual conflict (and not voted) on contract approvals with HDR," Capell said. He also pointed out that the city's contact with HDR would let them design either the membrane or UV filtration, without a new contract approval.

As usual, there was a lot of discussion, slides full of numbers and public comments from those urging them to get on with it after a five-year delay, including long-time developer Mike Hollern. Tim Casey of the Bend Chamber of Commerce said their board voted last week to support the membrane option.

Casey warned against "analysis paralysis," and on a personal note, he told of going to REI to buy a water filter before a trip to China, and said "the question that went through my head is, what's an acceptable level of fecal matter in my water?"

But after all that, and as apparently was expected, Capell's six colleagues reached what Mayor Jim Clinton saw was a 3-3 stalemate on a resolution to choose the $31 million membrane option favored by Scott Ramsay, Jodie Barram and Victor Chudowsky over the $14 million UV choice – actually quite possibly $26 million, with the proposed addition of more groundwater wells -- supported by Clinton, Doug Knight and Sally Russell.

And so, in a move that apparently took at least some colleagues by surprise, Chudowsky quickly offered a different motion – to repeal parts of a 2010 resolution that put the treatment choice on hold, and thus revert back to a 2008 council decision, thus letting the membrane option proceed. Ramsay seconded the motion, and when it came to a roll-call vote, Capell voted yes, and it passed 4-3 – much to the chagrin of some colleagues.

"This resolution is not on the agenda," Clinton said after the proposal was made. "We shouldn't go about business in this way." He called it a "parliamentary maneuver" and said it "should be a straight up-or-down vote" instead.

Knight said he wouldn't support it – no surprise there – and Russell also was quite peeved at the move: "That's why we get in trouble. It's a back-door approach. It's not transparent."

After the meeting, Capell told NewsChannel 21 that they had two approaches to the matter. First, Oregon statute allows someone with an actual conflict of interest to vote, if there's not enough votes that a decision can be made – as long as they stay silent during the deliberations.

"That was the assumption we were going to go under" Wednesday night, he said.

"And then today, I was told by the ethics commission I didn't have an actual conflict, but a potential conflict," Capell said – and thus the option arose, to instead remove the earlier resolution's delay, allowing him to vote, regardless of which path they took.

So why not just vote on the new resolution, but instead revert to one from the time before Capell's family conflict arose?

"We were just being ultra-cautious, to make sure I did everything correctly," he said. "I wanted to do the right thing and the legal thing."

So, was the rarely-quiet Capell biting his tongue through all that discussion? Not really, he said: "Victor, Jodie and Scott did a very nice job, arguing all of the points – they said everything I would have said."

But what about perception and appearances, as colleagues pointed out? In other words, what about the political fallout?

"Politically, the community was ready for us to make a decision, one way or another – and we've been talking about it for five years," Capell said. "It's not like we've short-circuited the public process. There have been votes on this three times, by three different councils. I think there's been plenty of time."

Capell added: "It's democracy at work."

Earlier, when Capell declared his potential conflict of interest, Knight had asked whether Capell also was stating he would make a decision "free of any biases." But Winters, the city attorney, noted that such language is required in regards to conflicts during land-use (quasi-judicial) proceedings, not a policy vote like this.

Capell said he was acting "under the best advice of our legal counsel and the state ethics board" – and besides, he told Knight, "If we're going to be talking about biases, we could be at this for six hours."

Indeed, the rules are different on land-use matters, such as the ones Knight faced in his years on the planning commission. And those are the ones that could again land the water-pipeline part of the city's plans back in court yet again in coming weeks and months.

"Central Oregon Landwatch has cost the city of Bend a lot of money," Capell said.

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