BILL ANALYSIS Ó SENATE GOVERNANCE & FINANCE COMMITTEE Senator Lois Wolk, Chair BILL NO: AB 240 HEARING: 6/12/13 AUTHOR: Rendon FISCAL: No VERSION: 6/5/13 TAX LEVY: No CONSULTANT: Weinberger MUTUAL WATER COMPANIES Requires mutual water companies to comply with open meeting, public record, audit, and budget requirements and allows them to impose liens to collect unpaid charges. Background and Existing Law Public water systems that deliver domestic water generally fall into three categories: Local agencies (cities and special districts). Local agency formation commissions (LAFCOs) control the cities and special districts' boundaries and local officials are responsible to their voters for their water rates. Investor owned public utilities. The California Public Utilities Commission (PUC) controls the companies' service areas and their water rates. Mutual water companies. These private entities, formed under statutes governing corporations, respond to their shareholders, usually the landowners who receive water service. Neither LAFCOs nor the PUC regulate mutual water companies. The State Department of Public Health and some county health departments monitor the quality of drinking water delivered to most households, regardless of what type of public water system delivers the water. Most mutual water companies are organized pursuant to the General Corporation Law or the Nonprofit Mutual Benefit Corporation Law. Shareholders in a mutual water company hold a right to purchase water from the company. Stock in a company is usually linked to the ownership of a parcel served by the company and transfers with the land when the parcel is sold to successive owners. This type of corporate structure allows landowners to establish, AB 240 -- 6/5/13 -- Page 2 essentially, a customer-owned water provider to serve their properties. State law exempts a mutual water company from state regulation if it is organized to deliver water to its stockholders and members, with specified exceptions. Governance of a mutual water company is generally limited to shareholders, or members, of the company. While the details of any particular company's governing structure are determined by its articles and bylaws, most mutual water companies allow only shareholders and members to vote on organizational matters and serve on the company's governing board. The Ralph M. Brown Act, first enacted by the Legislature in 1953, is the set of state laws which guarantees the public's right to attend and participate in local legislative bodies' meetings. As private corporations, mutual water companies are not subject to the Brown Act. Instead, state law gives mutual water companies broad authority to specify in their articles and bylaws how their meetings are conducted, and who may attend. In 1968, the Legislature enacted the Public Records Act, which generally requires that government records must be provided to the public, upon request, unless there is a specific reason, specified in state law, to withhold a record. Private corporations, including mutual water companies, are not subject to the Public Records Act. State law requires that mutual water companies must allow members to inspect specified records including accounting books, meeting minutes, articles and bylaws, and election results. A mutual water company's articles and bylaws determine whether non-members are permitted access to the company's records. State law requires most local governments to prepare annual budgets and requires periodic audits of most local governments' accounts and records. State law requires private corporations to prepare and distribute annual reports and other specified financial statements. In response to concerns that that some mutual water companies lacked capital to pay for needed water quality improvements and the managerial capacity to operate successful public water systems, the Legislature passed AB 54 (Solorio, 2011). That bill established training AB 240 -- 6/5/13 -- Page 3 requirements for mutual water districts' board members, made mutual water companies liable for specified fines and penalties for violating the California Safe Drinking Water Act, and expanded LAFCOs' authority to review matters related to mutual water companies. Despite these recent changes to state law, some public officials and environmental justice advocates express frustration that some mutual water companies remain unaccountable to water users who are not shareholders or members. Proposed Law Assembly Bill 240 requires a mutual water company that operates a public water system to comply with the Ralph M. Brown Act and the Public Records Act. Assembly Bill 240 requires the board of a mutual water corporation that operates a public water system to contract with a certified public accountant or public accountant to make an annual audit of the accounts and records of the mutual water company. The audit must conform to generally accepted auditing standards. A report of the audit must be filed as a public record with the mutual water company and must be sent to the State Controller and any person served by the mutual water company that submits a written request to the board. The report must be filed within 12 months of the end of the mutual water company's fiscal year under examination. Assembly Bill 240 requires the board of a mutual company that operates a public water system to adopt in an open meeting, an annual budget on or before the start of each fiscal year of the mutual water company. Assembly Bill 240 allows a mutual water company's board of directors, after providing at least 20 days' written notice and if authorized by its articles or bylaws, to authorize the recording of a lien against a shareholder's property to secure the collection of rates, charges, and assessments owed to the mutual water company by the shareholder. AB 240 requires mutual water company board members to repeat, every six years, training related to the duties of AB 240 -- 6/5/13 -- Page 4 mutual water companies' board members. AB 240 expresses the Legislature's intention to encourage collaboration among mutual water companies that operate public water systems in the City of Maywood to create a public agency that can consolidate drinking water services for the people and businesses of that city. State Revenue Impact No estimate. Comments 1. Purpose of the bill . Three mutual water companies deliver water to residents of the City of Maywood in Los Angeles County. Maywood residents have, for years, expressed concerns about the quality of water they receive, citing problems with discoloration, odors, and taste. Deteriorated water supply infrastructure may be a primary cause of these problems. A substantial portion of Maywood's residents are renters. Because they don't own real property in Maywood, they are not stockholders or members of the mutual water companies that serve Maywood and cannot participate in those companies' corporate governance. Residents express frustration that the three mutual water companies are not responsive to the needs of thousands of residents who use the water that the companies deliver. As the Legislature declared in the 2011 Solorio bill, "Regardless of the form of the organization that operates a public water system, these organizations provide a public service that remains one of the core duties of the people's government." By making mutual water companies comply with long-established state laws relating to open meetings, public document disclosure, audits, and budgets, AB 240 seeks to empower water users throughout California who are served by mutual water companies. The bill also benefits mutual water companies by granting them more flexibility to collect unpaid water charges from shareholders by recording liens as an alternative to shutting off water service to a property. 2. Private business, public disclosure . Despite some state laws that treat mutual water companies like quasi-governmental entities, they are private corporations. AB 240 -- 6/5/13 -- Page 5 The Brown Act and Public Records Act statutes are written specifically to ensure that governments uphold their responsibilities to provide public access to information about public affairs. Unlike a government, a private corporation that provides domestic water service exclusively to its stock holders does not have a responsibility to disclose to the general public how it conducts its business. Forcing private entities to comply with public sector transparency requirements is an unnecessarily broad response to the challenges of making mutual water companies more accountable to water users. As an example of an alternative approach, the "Common Interest Development Open Meeting Act" requires homeowners associations' boards to conduct meetings that are noticed in advance, open to all association members, and provide opportunity for association members to participate (AB 46, Hauser, 1995). State law also identifies numerous specific documents that homeowners associations must provide to their members. Like mutual water companies, homeowners associations are typically private mutual benefit corporations that wield significant powers over property owners. The Committee may wish to consider amending AB 240 to repeal the cross-references to the Brown Act and Public Records Act and, instead, require mutual water companies to follow requirements that replicate homeowners associations' open meeting and document disclosure statutes. 3. A narrower approach . State law exempts mutual water companies from being regulated by the Public Utilities Commission if they provide water, with limited exceptions, exclusively to shareholders or members. The governance and accountability problems in Maywood and other similar communities served by mutual water districts arise, in part, because a large portion of water users are renters who are not company shareholders or members. AB 240 responds by requiring all mutual water companies to comply with additional state requirements that currently apply to local governments that supply domestic water. An alternative policy response could define some characteristics that make a mutual water company too "public" to remain exempt from state regulation. One measure, for example, could be the proportion of water users served by the mutual water company who are not eligible to participate in the company's corporate governance. Rather than applying public sector standards to all private mutual water corporations, the Committee may AB 240 -- 6/5/13 -- Page 6 wish to consider amending AB 240 to define additional conditions that would make a mutual water company subject to state regulation. Assembly Actions Assembly Local Government Committee: 9-0 Assembly Floor: 76-0 Support and Opposition (6/6/13) Support : Central Basin Municipal Water District, Sierra Club, Union de Vecinos. Opposition : Unknown.