Ray Gilbert, El Paso’s senior watchdog of local government, thinks the new stormwater utility that City Council set up under the water utilities’ Public Service Board is illegal.

Specifically, he said, the PSB was established under one law that calls for a five-member board to operate a water utility while the stormwater utility was set up under a different law requiring a board of at least seven members.

So, Gilbert reasons, people don’t have to pay the stormwater utility fees that have homeowners, businesses, school districts and churches up in arms.

The legal issue he is raising stumped the PSB’s in-house lawyer, Bob Andron, this week.

“It’s a good question … an interesting question,” Andron said this week after Newspaper Tree asked him to look at a potential conflict in law that Gilbert has been saying is fatal for a year.

“I’ll have to look into it some more.”

PEARSON FORUM

This Saturday’s Ray Pearson Forum, which starts at 8 a.m. at 214 W. Franklin across Santa Fe from City Hall, plans to have the PSB’s chief executive officer, Ed Archuleta, and its chairman, Ruben Guerra, as guests along with Gilbert to answer questions from host Joe Oliva and the audience concerning the stormwater utility.

Gilbert is a retired corporate executive whose stories would have one believe he has done almost everything in his 79 years -– except practice law.

But he knows his way around Texas statutes and the local government code in particular as well as many lawyers, and once he gets it in his mind that that he is onto something, he doesn’t let go.

Gilbert has long contended and often railed at City Council that much of what the PSB does is plainly improper -- from its unyielding stewardship over tens of thousands of undeveloped acres on the slopes of the Franklin Mountains, down the mesas and arroyos to the desert flats that developers love, to the money it keeps after selling pieces of land to those waiting developers.

The city has looked into those claims and carried on with business as usual, which is not to say he’s never been right.

The stormwater utility that the city established March 1 and set up under the PSB is Gilbert’s latest target.

According to the ordinance City Council approved in June 2007, it was created under the Municipal Drainage Utility Systems Act that is found in Chapter 402, subchapter C of the Texas Local Government Code.

This provision appears to allow cities to establish a municipal utility system and to set rules and fees for its operation.

Later in Chapter 402, the law gives cities the right to transfer management and control of “two or more of its water, wastewater, storm waste, or drainage system to a board of trustees” consisting of at least seven members, one of whom must be the mayor.

But Gilbert said the city did not establish its water utility and the board that runs it, the PSB, under Chapter 402 but under what is now referred to as Chapter 1502.

Under 1502, a city can establish a water utility and delegate its management and control to the city council or to a board of trustees of not more than five members, including the mayor.

And there’s the apparent conflict that Gilbert found: one law says a city can set up a second utility, including a drainage utility, under a board of at least seven members, but El Paso’s PSB is set up under a different law that limits the board to five members.

“I told them if their utility was under 402, the two utilities could be combined, but it's not,” Gilbert said.

Andron said there must be a bridge that would allow the city to create the stormwater utility under Chapter 402 even though it calls for a board with seven members.

But he couldn’t find it.

He said the city’s bond counsel, Paul Braden, wrote the ordinance to establish the stormwater utility.

“I assume he looked at both (chapters),” Andron said.

Newspaper Tree tried but could not reach Braden.

Andron said he thought Austin’s Congress Avenue law firm of Bickerstaff, Heath, Delgado & Acosta was asked to look at the issue last year.

The firm’s Hector Delgado said he didn’t field a question about the utility and contacted another of the firm’s lawyers, Syd Falk, who recalled discussing a different question for the PSB.

Falk said he remembered discussing whether certain public entities would be subject to the stormwater utility fees but did not get a question about the formation of the new utility itself.

Late Thursday, PSB spokeswoman Karol Parker said a Bickerstaff lawyer, Doug Caroom, has been asked to look into Gilbert's question and that utility officials will have an answer at Saturday's Pearson Forum.

David Crowder can be reached at dcrowder@epmediagroup.com and (915) 351-0605