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,  




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          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  





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          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  





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          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.  





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           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  





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          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.