Could West Sacramento be Forced to Pay Up if the River Floods? Mayor and Residents Disagree

June 18, 2018

The Sacramento Bee

Downey Brand Managing Partner Scott Shapiro comments in a Sacramento Bee article on the potential liability the City of West Sacramento could face in response to a vote by its City Council to convert the independent district in charge of levee management into a subsidiary of West Sacramento.
See full article below or view it online at The Sacramento Bee.

By Kellen Browning for The Sacramento Bee

West Sacramento’s recent decision to accept greater responsibility for maintaining levees and drainage systems along the Sacramento River has some residents worried that the city could be swamped financially if the area floods.

The West Sacramento City Council voted 4-1 last month to begin a process that would convert an independent district in charge of levee management into a subsidiary of West Sacramento, and allow the council to replace the district’s board of directors with appointees or the council members themselves. Reclamation District 900 has operated independently since 1911, managing 13.6 miles of levees that provide flood protection along the Sacramento River.

Chief among residents’ concerns is that the city could possibly be liable for flood damages if levees were to break.

“The city takes on the liability that was structured intentionally to be separate and puts our entire government structure at risk,” said West Sacramento resident Sheila Johnston, 35, who spoke at the May 23 City Council meeting. “The city is creating a problem that didn’t exist at the expense of the residents that live in West Sacramento. Everyone in West Sacramento should be made aware of the embarrassment that our City Council has become.”

Attorney Scott Shapiro, who specializes in flood protection and water law, says West Sacramento could have a lot to lose if it was found liable for flood damages.

“If a city was found liable, the liability could raid not only the dedicated dollars for flood protection but other non-restricted funds that the city also has,” Shapiro said.

“From the perspective of a resident … having a city (maintaining the levees) is an inferior option as the resident’s general tax dollars for services such as fire and police could be used to instead pay a judgment, decreasing the services otherwise offered by the city,” Shapiro wrote in a memo about the issue.

But West Sacramento Mayor Christopher Cabaldon contends that the decision to assume greater control over the levees is good for the area. He noted that the move was recommended by the Yolo County Local Formation Commission, as part of an effort to provide “enhanced regional coordination in the West Sacramento Basin.”

Now, the board will be composed of “real residents who ought to have a voice in their own flood protection,” he said. It will “make us more effective at disaster response.”

Cabaldon said RD 900 will continue to operate independently, and insisted the city would not be liable for flood damages. City Attorney Jeff Mitchell said he’s examined the issue and does not believe “that the mere fact that the City Council becomes the governing board exposes the city of West Sacramento to liability in the event of a levee breach.”

Mitchell declined to provide documentation or analysis, citing attorney-client privilege.

Shapiro said he hasn’t researched the issue but thinks the determination of liability could come down to RD 900’s level of independence under the city.

“My understanding is it would have the same board, the City Council,” Shapiro said. “If it has the same board as the city … if the city provides insurance for this district, if the city staff provides staff for the subsidiary district, if it operates in all respects like the city, what would a court do?”

RD 900 board member Dan Ramos views the move as an ill-advised power grab.

“This is about control for our mayor,” Ramos said. “He doesn’t want or like to have any citizen oversight or other governmental bodies … having jurisdiction in West Sacramento.”

Cabaldon declined to comment on Ramos’ allegation.

Ramos said the change in oversight could have financial ramifications for West Sacramento residents even if liability does not come into play. The city does “not have any staff trained to do the highly skilled maintenance jobs required for the RD districts or the institutional knowledge of the complex drainage system and levee maintenance protocol,” he said. “When the current RD staff resigns upon takeover, there will be a very steep learning curve for the unionized public works staff and much higher costs for the districts to operate.”

Johnston, the resident who addressed the council last month, said she does not have faith in West Sacramento’s financial responsibility.

“Why should the residents believe that the city will properly allocate the funds that the voters dedicated specifically to levee and flood maintenance?” she said.

West Sacramento’s decision comes at a time when the region could be due for a huge flood. In 2015, the Sacramento district of the U.S. Army Core of Engineers video warning that the Sacramento region is “one of the most at-risk areas for flooding in the United States,” due to the low elevation of the area and the confluence of two major rivers.