Friday, January 17, 2020

BMA Meeting Reveals City Illegally Ordered GMSD Utility Pipe; Also Land Swap and Smart Code Change

Below is the embedded video of the January 13 BMA meeting. For those who do not have the time to watch a two and a half hour meeting, but want to follow the story, I provide time stamps with links to the video, and brief summaries of content on the three non-routine agenda items-

1. The land swap with GMSD and possible water tower,

2. The definition of stand-alone apartments in Smart Growth code changes, and

3. A fund transfer from utility fund to GMSD building fund to correct for improper payment for water line from school bond funds.

Please see the Commercial Appeal article or the Daily Memphian article which both give overall summaries of the meeting.

Germantown Aldermen Approve Land Swap Send Controversial Agreement to School Board 

Germantown Aldermen Approve Land Swap, review multi-family guidelines

My opinions on some issues are at the end of this post, in blue font.  You can skip to those if you have already listened to the meeting, or read the news articles. Among other things, we were told that the City ordered a utility-sized water pipe at Forest Hill Elementary without proper authority, and at the meeting Rocky Janda, liaison for the Finance Commission, had the audacity to characterize this as an "accounting error" that needed correction. In fact, the procedures that the City followed show that there was a flagrant violation of the law.

In addition to speaking to the water utility pipe issue, I throw in my two cents on whether GMSD should accept the land swap, and where the water should be located. But first, here is the meeting, in chronological order and time stamps:

Citizens to Be Heard:

Danielle Taylor  Please vote no for land swap. Residents and GMSD don't want this. If a water tower put there, a 5G cell tower will be put there. Not worth the risk, as research shows health risk. Think about the research and impact of decision. Do what is best for citizens and children who can't speak for themselves.

Brian Edmonds  A yes vote is for abandonment of protocol, water pipe, a public works project, roundabout method of no hearing, no design submitted, circumvents public involvement, a yes vote is saying that administration has the power to design a public works project without public input, and BMA should be more than a rubber stamp, Combining this with a Title 9 issue an insult to intelligence. Softball fields used as leverage for the City to make a deal with the devil. A water tower will be built on land. School Board will be deciding on water tower, that is not in their charter. Asking school Board to share softball fields with City but to own them and care for them-- an unfunded liability that GMSD should turn down.

Chris Price This is for the kids. Thank everyone for support of GMSD. Bodies have to work together. A water tower a sign of infrastructure. Once complete we will celebrate it. Pleasing everyone won't happen. Kids need 25 acres on site at high school (for softball). We are all Germantown. In favor of swap and water. God Bless Germantown.

Brian Curry Mentality that south of Poplar not as valuable as other parts of City. Already put out bids for water tower. Why were water pipes rolled up into school construction? Should have been a stand-alone project and handled as such. The land behind HHS should be separate issue from water tower. Johnson Road makes more sense as a location than by FHE but "some citizens more equal than others" (Animal Farm).

Susan Threlkeld attended Environmental Commission, problems supplying water, need elevated water storage, does not care where it is put, on high ground in eastern part of City, lives near other water tanks and not a problem at all, no noise, eats at Casablanca, all of Germantown needs this. We need resiliency and redundancy, Congratulations for Baldrige award.

Brandon Wellford These matters should be separated (ball field and FHE land). GMSD has not voted.

Stephanie Van Arsdale A doctor, firmly believes that it is not the best place to put it on school property, has grandson attending the school, concerned about potential for cell tower to be built, that would be the wrong decision, 

Erica Harle  Concerns about land swap, son has autism, possibly put son at risk from possible 5G tower on top of water tower, work at St. Jude, knows about concerns of cell tower placement, where are other options, lots of land for sale, why by kids school? 

Public Hearing (Second Reading) of Smart Code changes 

Cameron Ross: Defines stand-alone and single-use apartments, purpose is to ban "stand-alone" apartments except when part of an overall Smart Growth development.


Brian Edmonds Vested interest as resident, Smart Growth is snake oil, developers 
at expense of aesthetics, traffic, parking and common sense. The changes won't do anything to solve the issues. One coffee shop alone for several buildings enough to build apartments. Linguistic deception, this is a red herring to line pockets of developers. Eliminate mixed-use category. Apartment under any other name is an apartment.


Forest Owens Spoke in favor of it, likes adherence to small area plan, thanks staff, urge support

Rocky Janda  this meets what we are trying to accomplish

Scott Sanders The amendments were developed by staff, not Planning Commission, just presented there. Condominiums, which many residents support, should not be lumped in with apartments. These changes allow us to chip away at apartments a little bit, so better than nothing, Residents don't want more apartments. Hard decision. Asks if Planning Commission played any role in drafting it.

Cameron Ross Staff has planning professionals, presented over time, met with PC several times,  PC had dialogue with staff about research, and one-on-one meetings, collaborative effort

Scott Sanders  Appreciates staff, asks question, and Cameron Ross answers, about input from Planning Commission  

The Vote The second reading passes 4-1, with Alderman Massey the only one voting against the measure, and it moves to third and final reading next BMA meeting. 

Agreement GMSD Land Exchange

Jason Huisman (see Commercial Appeal article for details), Assistant City Administrator presents the plan--deeds softball fields and parkland by HHS to GMSD in exchange for 15 acres by Forest Hill Elementary. Softball fields would also still be used by City,  Three acres reserved by FHE for possible utilities (water tower).


Mary Anne Gibson Moves to accept this exchange and then speaks in favor. I know the neighbors have had challenges. Charged with balancing needs of all Germantown. Best interest of citizens and students. Appreciates work. 

Scott Sanders What other locations under consideration, Mayor says this is the only location. Mr. Mills, Engineer: Looked at other sites no action taken. Also Johnson Road.

Sanders- Why wasn't a facilities usage agreement sent by GMSD in January shared with aldermen? (muddled "I don't know answers" from 
Mayor and Mr. Huisman). In March, GMSD passed request to City for park near HHS, and it was sent to the City. Was that shared with aldermen? Answer by Mayor: It is a public document, so anyone could see this. Sanders-why wasn't it shared by City since sent to City? Answer by Mayor: City had been working with professional staff at GMSD and Mr. Heisman. The resolution of GMSD did not meet needs of both organizations. Sanders cites an agreement drafted by GMSD attorneys. Was that shared and why not? Mayor: There were multiple drafts between both organizations and legal teams. What you see now is summation. Sanders: At GMSD meeting that Mayor attended, a joint work session between GMSD and BMA was requested. Anything done to facilitate that? Mayor said they offered to work with Chair of GMSD, Mr. Manuel, and legal team and did not hear back.

Dean Massey: Who decided on language and agreement? Mayor: I met with Superintendent. Massey: To Mr. Sanders, point, it would have been beneficial to have an open meeting with members of school board on this issue, as requested by GMSD. Simple solution is lease or conveyance of softball field for team to use. Don't see any reason to use this issue to coerce Schools to give up land by FHE. Administration has excluded elected officials and not acted in good faith (back and forth with Mayor). When was School Board notified that the City intended to use the water line under discussion? Bo Mills: As soon as realized close to Johnson Road, and near ridge line I contacted City Administrator. Massey: Which elected officials at school board were notified that you intended to use the water line? Bo Mills Talked with superintendent and deputy superintendent, no elected officials.

Scott Sanders  Support our schools, but not this agenda item. I have met with many people. Recommend that GMSD not relinquish land. We have very little land left. Unfortunate that City did not consult with elected representatives. No public meetings. Nobody given opportunity to discuss. Vote no and force the City to return to negotiations and let citizens be at table. Two issues should not been tied together. Would have transferred one softball field. Water tower would render land near school unusable for expansion.

Forrest Owens I read emails, and listened. Worked by Bo Mills and trust him, have to balance needs of overall City with small area, need a second tower, multiple phases to go through, the land swap begins process of finding piece of land

Dean Massey Made a motion to postpone vote, and Scott Sanders seconded, then discussion, due to information in Executive Session, Mr. Sanders seconded, Administration disclosed an error in paying for water line, Mayor tries to derail discussion, Bond money got allocated for a utility for City, City Administrator says a conversation with Comptroller who said that was okay, but aldermen have no first hand knowledge of conversation, should not vote on this issue until we have chance to talk with Comptroller, because this could be a cover-up for something that could be illegal. This should be investigated.

Scott Sanders Supports postponement to look into how agreement came about, will provide copies of back and forth with school board that elected officials were not aware of. Not opposed to water tower just not at this location.

Rocky Janda Knew about what GMSD proposed from Facebook or some place. Would not agree to it. Staff needs to come up with agreement and vote yes or no. Don't need to try to take over full time staff on decision making process. 

Dean Massey During the time we postpone it, would like to schedule joint work session with GMSD to have open debate. No evidence that School Board wants this agreement. It is the job of elected officials, not staff. Residents would appreciate open discussions.

Scott Sanders  Agrees with Mr. Massey, only about ten days ago first saw the agreement voting on tonight. When met with Mr. Manuel, he had not been provided copies of this agreement. School Board members had not seen the agreement when talked with them--this week! Gone about the wrong way and postponement would leave time for review and joint meetings.

The motion to postpone the vote fails. Massey and Sanders vote to postpone, and Janda, Gibson and Owens vote no. 

Original Motion Passes   Massey and Sanders vote no, and Janda, Gibson and Owens vote yes.  

Agreement Land Use GMSD

Jason Huisman  Raising the money for all the improvements on land behind HHS will take time, City will share land after transfer until City acquires land elsewhere. Maintenance and utilities responsibility of school district, but will only have primary usage of one of three fields.

The motion to approve was made by Alderman Janda, and seconded by Alderman Gibson. Alderman Janda states that this is an excellent agreement, allows to move forward on master plan on parks plan.

Alderman Sanders Has a question, open ended statement on use of facilities, until City has built new fields, no expiration date? Huisman says City intends to build fields. Sanders asks does building fields at Cameron Brown depend on something else first? Huisman said this agreement written this way so that Parks Plan would not be disrupted. Sanders says this sounds like this will be a long-term use, will hinder School Board. Where will the lacrosse field go? Schools won't be able to build one. Now a TSSAA sport.  Cannot support this.

Dean Massey  Which parties at GMSD desire to have this exchange as stated in contract? Mayor says standard language of contract. Massey- Did they express this desire? Mayor says mutually worked on together, Multiple exchanges, says City Attorney, and Superintendent agreed to language. They were representing to them that this is what their Board agreed to. Jason Manuel agreed to this, no elected officials present. Massey says seems fraudulent to say that all parties desire this, when elected officials not part of it.

Mary Anne Gibson The staff are there as representatives of their two organizations. Can only speak for BMA not School Board. GMSD can ask their questions and make suggestions. 

Dean Massey Our vote tonight puts the school board in a position to accept agreement, undue pressure. Should have had work session and negotiated. School Board being coerced. School became impetus to justify rezoning in FHH, which now necessitates water tower. Not fair to those who purchased homes there to force changes. Could move water tower. GMSD just needs a softball field. Why not a simple lease?  Everyone should oppose this.

Rocky Janda  Appalled that colleague doesn't know how things work, staff members negotiated this, just vote yes or no. Most came from GMSD legal team. One softball field won't work for Foundation. Can't kick can down the road with water tower, but not voting on that now. No coercion. Schools can get park back if they need it for expansion. Good agreement, schools don't have to vote for it.

Forrest Owens Asks Bo Mills about placing water tower south of Winchester. Consultant was asked and he said not feasible because of the distance from the 24 inch mains that connect the plants. 

Scott Sanders  What is the cost to GMSD of maintaining the new property by HHS? Staff does not have than information. That is an issue, why is school being saddled with this when do not get full use? Better just to give the softball field for now. This accelerates the cost for school district when they are not using it.

Mary Anne Gibson We need highest and best facilities for children, competing with Collierville and private schools. Need to plan for entire campus. Lacrosse is coming quickly. Supports this.

Mayor Palazzolo cuts the microphone off for Dean Massey, claiming that he has used his time. After checking with the parliamentarian, he cuts it back on and says he can make a motion.

Dean Massey moves to postpone the vote in order to have time for a joint meeting with GMSD. Scott Sanders seconds the motion. Imperative to get opinion of School Board on how to operate land use agreement, City primary user of softball fields, but GMSD is saddled with the bill. We control their funding and ultimately City has greater bargaining power. It could be that GMSD doesn't even want the two extra fields.

Scott Sanders Need a postponement to look at cost of maintaining fields, might want a 50/50 split of cost of maintaining the fields since City has continued use. Mayor Palazzolo says GMSD has an 18 million dollar operating reserve.

Mary Anne Gibson Starts to ask Pam Beasley a question about cost of maintenance of fields but is cut short by Mayor Palazzolo.

Rocky Janda Have two parties, staff negotiating, and agreed to present, vote no or yes, not our decision to make for GMSD.

Dean Massey  It is our responsibility to debate this publicly and have joint session with GMSD, elected officials should take lead, not staff. Wants the Mayor to look into a possible lease of property to GMSD.

Vote The vote to postpone the vote on the land use agreement failed 3-2. Aldermen Janda, Gibson, and Owens against, Aldermen Massey and Sanders in favor. 

Vote on Original Motion Vote on the land use agreement passed 3-2. Aldermen Janda, Gibson, and Owens in favor, Aldermen Massey and Sanders against.   

Correction of "Error"-- Fund Transfer   

Jason Huisman Authorizes transfer of $232,000+ from utility fund to general fund to reimburse the school fund bond proceeds for the sewer line extension and the 24 inch water main line that potentially services an elevated water tower. School bond proceeds paid for it but it was part of the approved capital improvements budget in utility fund. The bond proceeds need to be restored by this amount. This allows the school system to use the money for school construction.

Rocky Janda moves to approve the motion, and Mary Anne Gibson seconds. Alderman Janda, explains further. GMSD requested a refund for the amount in utility fund, all we are doing is an accounting procedure. The school ended up costing more money. No coverup. We had to figure out the logistics to make this happen. GMSD wearing him out about it.

Scott Sanders   Water line and sewer line payment incorrect. GMSD paid for it out of bond fund. The sewer and water line now belong to the school district and it is on their books. Not a City asset. If the Board decides to put an elevated water tank at that location, then it can purchase these back from GMSD and pay for it through utility funds. The BMA was supposed to have voted to expend these funds, and it never did. The BMA would have had to vote to decide where the tower would be and then how to get the water to tower, not an accounting error. We have not decided where tower goes. We don't know for sure that the Comptroller okayed this. This is risky. GMSD had no authority to buy and bury a sewer line, not voted on by BMA. Only BMA can authorize projects paid for out of the utility fund.  

Dean Massey  Agrees with Alderman Sanders and calls for a review of how it came about that a City water line was forced on the school district. There was a reference to the Comptroller's office being notified but that was communicated just before the Executive Session (before the meeting), no first-hand knowledge about the City's discussions with the Comptroller, and it was discussions with the Comptroller that is said to have necessitated the vote tonight. We need to know what the City Administrator disclosed to the Comptroller, and how the Comptroller responded. Unwise to take the risk of voting on this tonight not knowing any more about whether acting within the law. Someone should look at whether this was intentional wrong doing or just an accident. There should be ramifications and accountability for this error. (My note: Patrick Lawton did not attend the meeting and could not be questioned about his contact with the Comptroller).

City Attorney  The original plat showed this line as a City utility. The Comptroller is not interested in having school districts in the utility business.The pipe, up until the meter, belongs to the City. From the meter to the school belongs to the school. The problem is that the plat said "proposed" line, yet it was built.

Dean Massey In any other scenario would be accountability. Every time an error City Administrator calls "oops". Citizens are tired of it. 

Mayor Palazzolo The item is on the agenda in full transparency. We are a Baldrige city but we don't get everything perfect.

Dean Massey Calls for postponement of vote to review information that was conveyed to Comptroller. The motion was seconded my Alderman Sanders.

Alderman Sanders Postponing this would allow City Administrator to provide aldermen with verification that the Comptroller and MTAS say that this is the appropriate thing to do. No attachment in agenda item to let us know that we are doing the right thing.

Alderman Massey If we want an opinion from attorney we need a formal, written legal opinion. This will give us a look at documents from state that support the action. 
The vote to postpone the vote on the fund transfer failed 3-2. Aldermen Janda, Gibson, and Owens against, Aldermen Massey and Sanders in favor.

Alderman Sanders Cannot vote for this without evidence ensuring that we are not misappropriating utility funds. 

Rocky Janda We had a Capital Improvements Project budgeted item that we voted on this. GMSD accidentally submits this to us and we pay it out of bond fund. (my comment: I laughed when I heard this characterization. GMSD did not accidentally do anything. GMSD would not have built the 24 inch pipe had it not been for strong arming from the City. Without a vote from BMA authorizing releasing the money from the utility fund, the action was illegal. It completely ignores the City code, and bypasses appropriate bidding procedures. Even if this had been itemized there is no way it could have legally been paid out of the utility fund without the BMA releasing the funds). 
-Dean Massey  Was told that the City was withholding the money to try to get school board to go along with the agreement. Mr. Massey asked when this was known. Mr. Huisman said this item was not itemized by School Board.  When did the City request money from the water line? Huisman cannot remember. Why didn't the City pay for this in the first place, rather than through the school bond fund? Why didn't the School Board recognize why they were not responsible for the water line? Mayor says he can't answer for school board

Forrest Owens Believes the attorney and City Administration that this is the correct procedure. 

The vote to authorize the transfer of funds from the utility fund to the school construction fund passed. Aldermen Janda, Gibson, and Owens for, and Aldermen Massey and Sanders against.

Often I try to give my own take on things in these meeting summaries and express them in blue font. I have lots to say about the pipe payment issue because I have more than a decade of experience as a finance director of a non-profit that used fund accounting.

What should have been done about the $232,000 owed GMSD bond fund from the utility fund?  

1. The City illegally added a utility project to a school funded by bonds, without having that project flow through the BMA.  Code requires that the BMA vote on specific projects and contracts. Having the project in the capital improvements budget does not provide the proper authority for expenditure of the funds. But the deed is done, and now the question is how to handle the mess. My best guess is that the vote for the fund transfer is the way to handle the issue, but a guess is no substitute for having a documented answer from the state, so the vote should have been postponed until there is written documentation from the state that the Comptroller's office wants it handled this way, after looking at the circumstances. The state's so-called "approval" was based on second hand information about contact between Patrick Lawton and the State comptroller's 
office. He did not attend the meeting and thus was unavailable for questioning.

2. There needs to be an investigation into how this occurred. We know that GMSD on its own did not decide to order 24 inch pipes for a water tower. It had to have been forced to do this by the City. Again, neither GMSD nor the City had the appropriate authorization to order the utility expenditure. Who signed off on the contract? Alderman Massey is correct. Saying "Oops" is not enough. We need to know the sequence of events. Whether a "mistake" or not, this was an illegal action. Are our leaders unaware of the code requirements, or do they just not care?

I was a Finance Director for over ten years and have extensive experience in fund accounting. I would have been fired if something like this had happened under my watch, and that would have been the correct action. 
Had the City had a permanent Finance Director at the time, would this have occurred?

Come on people, we are not a one-horse town. We have lots of horses. Lots of horses AND a Baldrige award. It is unacceptable for City business to be conducted this way. 
Brian Edmonds (see above, second speaker in Citizens to be Heard) did a great job explaining everything wrong about the pipe issue, and I do not need to expound further on everything he said.

Why did GMSD think that the $232,000+ for the water pipes was being withheld by the City until the land swap was approved? 

The Mayor at one point asked Alderman Massey why he thought that the City was holding the funds and only paying if GMSD approved the land swap. If you read Abigail Warren (Daily Memphian) account of the GMSD work session, you will see that the first agreement drawn up by City attorneys had the payment of the $232,000 as the last item on their  land swap agreement, and the GMSD Board members unanimously believed that should not be part of the contract, because it suggested coercion. Obviously in its talks with the City, GMSD insisted on being paid back first, and these issues are now separated. 

Should GMSD approve the land-swap agreement?  

No. Without even getting into the water tower issue, I would reject it because of the strings put on the transfer of the fields alone. Houston High is responsible for all the expenses, but does not get full benefit of the fields until some open-ended, unknown time period in the future, when the City builds new fields. I am not sure any lawyer would advise a client to sign such a contract. I find it shocking, actually. Back to the drawing board!  A joint BMA-GMSD work session should be held.

Where should the water tower be located?  

The location by the school is a poor choice. 

There has been no formal analysis presented on whether we need a water tower over a pumping station. I am still scratching my head as to why I experienced no problems with air in my pipes (the alleged reason for the water tower) when I lived in Memphis, which has but one water tower inside the loop. Fire fighting works fine in Memphis. But, if, indeed, the City needs a water tower, and south of Winchester is too far from the main lines, then the City needs to talk to property owners in the area, and try to find another place to locate it. It is no secret that Mr. Mills wants it as close to Johnson Park as possible. I predict the City will once again sacrifice south of Poplar residents so that north of Poplar residents will not be disturbed, as Brian Curry pointed out in Citizens to Be Heard. 

As a way of compromise, I feel that Mr. John Duke, a supporter of the Mayor who is planning a development of expensive homes in the area by Forest Hill Elementary, should approach the City, and suggest moving the water tower to a spot on Poplar Pike by the furniture store. The tower then would not be by the school, nor in the middle of a subdivision next to planned one million dollar homes, but on the edge of a commercial area. Mr. Duke, in exchange for this land, could receive the more desirable three acres by the school that was targeted for a possible water tower. 
How about it, Mr. Duke? How about it, City and GMSD?   

What about the water lines already built and not properly approved? That is a sunk cost, and distasteful as it is, having expensive water pipes running to nowhere is better than having the water tower placed by a school in the middle of a new, expensive, subdivision.

Was a lesson learned? Will the City ever learn to play by the rules? Don't hold your breath.  Meanwhile, I am waiting to see how the auditors handle this mess.

Thursday, January 9, 2020

Contacting Elected Officials- Cell Tower and Water Tower, Oh, my!

Because of cell tower/water tower issues coming up before our two elected boards next week (held practically simultaneously on Monday), now is a good time to remind citizens that they have a voice in these matters. Often elected officials announce the number of emails they receive on a particular subject at the meetings. And, even if you have the time to attend meetings, very few people can be at two places at once.

Therefore, for your convenience, here are the emails of our elected officials, in a format that you can easily copy and paste, if you desire to communicate your thoughts on these issues 

Board of Education- Linda Fisher, Betsy Landers, Rebecca Luter, Angela Griffith, Amy Eoff  

Board of Mayor and Alderman-Scott Sanders, Mary Anne Gibson, Dean Massey, Forrest Owens, Rocky Janda

Why a water tower? And why a land swap?

Abigail Warren in The Daily Memphian wrote about the Park Commission meeting discussing the proposed land swap:

Germantown Parks Commission voices support for proposed land swap with school district

There are two development projects that are currently on hold now in the southeastern part of the City-- one is Goodwin Farms, a development of moderately sized homes on Winchester near Crestwyn, and Viridian, a stand-alone apartment project exempt from the ban on stand-alone apartment complexes on the border with Collierville on Winchester. The likely reason these developments have not come back before our commissions and the BMA for further approvals is that the water pressure is inadequate to support the number of units being planned.

The City's solution is building a water tower by Forest Hill Elementary on land the City does not currently own. A new water tower will ensure that developers will not have to pay for boosters for water pressure, and the City will have extra water for fire calls that more development inevitably brings. In exchange for the land by FHE, the City proposes to give GMSD land by Houston High
. (Houston High needs this for the softball team, or it is in violation of federal regulations). 

Despite repeated requests by citizens and some elected officials, the City has not studied the possibility of building a pumping station rather than a water tower.   

Details of the meeting Monday can be found here. There are links to the agenda and the agenda packet.

For more information see my blog posts:

Proposed Water Tower/Softball Field Land Swap Meets with Skepticism by GMSD Board 

Water Tower Bidding Process Begins Without Designated Location

Please Note that in the GMSD Work Session, where the Board expressed skepticism about the land swayp, Mayor Palazzolo agreed to a joint GMSD/BMA work session on this matter. Despite that, sources have confirmed that repeated requests to schedule a work session by the GMSD board were ignored by the Mayor.

Some parents have commented that cell towers are often put on top of water towers, which brings me to the next issue-

Cell Tower

And, coming before the GMSD Board is a request to change a lease agreement for a cell tower by Dogwood School. The details of the meeting and agenda are found here

For more information see my blog post 

Dogwood Cell Tower Foes Fighting Powerful Financial Interests