DWP Panel Is Ineligible to Rule on Roof Issue

The Los Angeles Board of Water and Power Commissioners cannot decide the controversial question of whether to put a roof over Elysian Reservoir because of a possible conflict of interest one of its members faces, the city attorney has ruled.

As a result, the matter of the aluminum roof must be decided by the City Council’s Board of Referred Powers, according to the city attorney’s opinion. Both sides in the 1 1/2-year debate over the reservoir fear that could mean further delays before any decision about construction is reached.

The possible conflict involves Commissioner Walter Zelman, who is also the executive director of California Common Cause. It arose when the Center for Law in the Public Interest filed a lawsuit against the Department of Water and Power on behalf of an Elysian Park environmental group that opposes the roof. That same law center sometimes represents Common Cause on other matters.

No Stake in Matter

The opinion stressed that Common Cause is not part of the reservoir situation and that Zelman has no personal or financial stake in the matter. Nevertheless, the opinion written by Assistant City Atty. Charles W. Sullivan and approved by City Atty. James K. Hahn states that Common Cause and the law center have a continuing attorney-client relationship.

“Because of that relationship, we are of the opinion that members of the public might well question Commissioner Zelman’s objectivity in acting in the matter,” the opinion declares.

Zelman said he originally asked for an opinion on his situation when he learned that the Center was representing the Citizens Committee to Save Elysian Park in a lawsuit demanding that an environmental impact study be done on the roof proposal. Zelman said an informal, verbal opinion led him to believe that he would not be in conflict by voting on the reservoir issue. He said he was surprised by the subsequent formal and written opinion and called it “pretty strange.”

Won’t Challenge Opinion

Zelman said he was upset that the entire commission was disqualified because of him. “To imply that I am going to have influence on the other commissioners is unreasonable and inefficient. We have been following this issue for a long time. We know a lot about it. So, to say the whole board cannot act on it is not the wisest,” he said, adding, however, that he will not challenge the opinion because Common Cause has often pointed out conflicts of interest in other government matters.

Rick Caruso, president of the Board of Water and Power Commissioners, described the opinion as “really ridiculous” and said he would ask Hahn to reconsider it. Caruso said Zelman faces no real conflict of interest in the reservoir issue and that the city attorney is being overzealous in saying that there might be an “appearance of evil” in this case.

Sallie Neubauer, president of the Citizens Committee to Save Elysian Park, said she too was angry about the city attorney’s ruling because it meant that all the testimony from several public hearings might have to be repeated before the Board of Referred Powers. “It’s bad news for us,” she said.

She said her group would not drop the lawsuit even if dropping it would possibly erase Zelman’s conflict. “We feel that any environmentally inclined judge, even slightly environmentally inclined, would rule in our favor,” she said. The Department of Water and Power has said an environmental impact study would be costly and time-consuming and is not needed to place a roof over the water.

The Department of Water and Power staff, under state pressure to improve water quality, proposed the $4-million roof as a way to protect the drinking water from pollution and vandalism. Elysian Reservoir has a 55-million gallon capacity and provides water to parts of downtown and Northeast Los Angeles. Neubauer’s group and others worry that a roof will destroy the beauty of the 7.1-acre reservoir and of surrounding areas in Elysian Park.

Neubauer speculated that the DWP might have hoped for such an opinion from the city attorney as a way to get rid of the politically sensitive issue. “They may be saying, ‘let’s see if we can pass it on to someone else,’ ” she speculated.

Zelman denied that. “I would prefer to make the decision and I know the other commissioners feel the same way. We are not trying to duck something.”

Made Up of Council Members

The Board of Referred Powers is made up of five City Council members and acts on matters that may pose a conflict of interest for a city commissioner. For instance, the board last year approved the construction of the Gene Autry Western Heritage Museum in Griffith Park instead of the city’s Recreation and Park Commission acting on the matter; that was because the husband of parks commissioner Mary Nichols works for the law firm that represented the Autry museum.

In January, the Water and Power Commission delayed any final decision on the roof until the election of a new City Council member for the then-vacant seat in the 1st District where the reservoir is situated. The goal was to have the council member help decide whether a roof should be built. Gloria Molina won that seat in April but has not taken a stand yet on the matter, so neither has the commission.

Molina and her staff met recently with both sides in the dispute to discuss possible compromises, such as replacing the reservoir with underground water tanks and returning the property to park use or turning the reservoir into a lake not for drinking water.