Water Violations: Automatic Fines Experiment for Fresno Residents?

The May 17 hearing on Fresno’s new automated water fines program hit on many key points. However, I heard no one mention red light cameras or Michael Flores.

I’ll take care of those omissions.

The City Council voted 5-2 to approve the three-month experiment involving single-family homes. Luis Chavez and Clint Olivier voted no.

The program (which I wrote about earlier this month) will run from July 1 through Sept. 30. Experts from the University of Chicago will team with Public Utilities officials to run things and digest the results.

Fresno’s approximately 115,500 single-family residential water accounts will be divided into a dozen different groups. Each group will have a distinct set of criteria for determining whether a watering violation has occurred and, if so, the size of the fine to be paid.

About half of the 115,500 accounts will be subject to automated fines based on computerized data generated by the water meter at each home. Different accounts will have different consumption thresholds before a violation is triggered. Different accounts will be subject to different fine amounts.

About half of the 115,500 accounts will be subject to the current method of conservation enforcement. The key theme here is the human touch – meter readings might identify a watering violation, but no citation is issued until a real person goes to the residence and actually sees something wrong. Here, too, the homes will be subject to different fine amounts.

The Chicago experts are expected to return to City Hall in late fall to deliver their findings. The council and the administration of Mayor Lee Brand will then decide whether a system of automated fines is the best way to nudge Fresno homeowners to the next level of water conservation.

Council Member Oliver Baines at the hearing said it’s worth rolling the dice on the pilot program – three months isn’t all that long to try something that might lead to policies of considerable benefit to Fresno’s water future.

Chavez, Olivier and Council Member Steve Brandau all expressed variations of a single theme: The experiment’s rather complex division of fine amounts and consumption triggers could lead to charges of unfairness. This concern was enough to make Chavez and Olivier hit the “no” button. Not so for Brandau.

The hearing went for nearly an hour. I recently watched the video posted on the City Clerk’s website. Dear Reader, that was one amazing hearing. It wasn’t that so many questions went unanswered. It was that so many questions went unasked.

I’ll limit myself to a few examples.

For starters, Public Utilities Interim Assistant Director Michael Carbajal pointed to additional conservation as the experiment’s main objective. But no one asked how much additional conservation is needed.

Fresno’s 525,000 residents used about 120,000 acre feet of water last year, according to the Mayor’s proposed FY 2019 budget. Fresno a few years ago used about 150,000 acre feet annually. We’re conserving like mad at the same time we’re paying the much higher Recharge Fresno water rates so Fresno can ensure it makes full use of the 180,000 acre feet (in an average rain year) we get from the San Joaquin and Kings rivers. On top of that, based on figures provided by Public Utilities on my water bill, it appears to me that the average single-family home in Fresno uses about three-tenths of an acre foot of water per year. That suggests to me that the 115,500 single-family homes use about one-third of that 120,000 acre feet per year (the rest of the water apparently used by multi-family residential complexes, industry, government, hospitals and schools).

Didn’t anyone on the council dais wonder what exactly the 115,500 single-family residential account holders must do in the way of additional water conservation before they’re allowed by Public Utilities to consume in peace some of the 180,000 acre feet of river water that they’re paying for?

You’d think the council members, even those who will never again run for public office, would want the answer since City Hall in the relatively near future will probably tackle another set of five-year water rates. As we learned in the run-up to the start of Recharge Fresno, ratepayer cynicism can wreak havoc with City Hall’s highfalutin spending dreams.

Nor did anyone bring up Fresno’s storied experiment with red light cameras. That’s unfortunate. If the past is capable of instructing the present, then the red light camera debacle is definitely a lesson worth revisiting.

The red light camera program’s similarity to the automated water fines program is threefold: A routine policy challenge infused with crisis rhetoric and missionary zeal; the use of technology to levy fines on an industrial scale and with industrial regularity; public uncertainty (which, in the case of the cameras, soon turned to public frustration and, eventually, public contempt).

The backstory takes us to 2001-2002. I was covering City Hall for The Bee at the time. In a nutshell, somebody came up with statistics “proving” that Fresno had one of America’s worst red-light runner problems. Permit me here to emphasize that I don’t downplay the danger of red-light runners. In June 2016 I was broadsided in the driver’s door by a pickup whose driver ran a red light near Fresno City College. The collision totaled my wife’s car. To put it mildly, that’s something I’ll never forget.

That being said, I was skeptical back in 2001-2002 about the red-light runner issue as it was presented to the City Council. It all seemed overwrought. But at the time Fresno and the rest of America were struggling through the after-effects of the bursting of the dot-com bubble and 9-11. City Hall needed money. A company came to town with the promise of millions of dollars in fines to be paid by red-light runners caught by cameras.

The council pounced. Cameras were installed (as I recall) at the intersections of Herndon-Blackstone, Herndon-First Street and McKinley-First. To cut to the chase, just about nothing worked as planned. The red light camera program was allowed to die a quiet death in about 2005. City Hall’s biggest beef – the promised fine revenue never materialized.

To return to 2018, we’re now in a water conservation crisis. I was born in the Valley 68 years ago. We’ve always been in a water conservation crisis. We’ll always be in a water conservation crisis. That’s our fate.

But what we haven’t had until now is the sophisticated and widespread technology that enables machines to automatically punish people for their failure in the course of their daily management of household affairs to strictly follow the government’s complex and constantly changing rules for certain household management chores.

Fresno City Hall now has that power thanks to its enhanced residential water meter technology. A council majority and Mayor Brand intend to fully exploit that power.

I suggest that the whole point of the new automated water fines program, just like with the red light cameras, is to generate fine revenue.

After all, where is the additional water conservation if this experiment merely conditions the 115,500 residential account holders to recalibrate their current consumption patterns to fit all of these elaborate consumption rules? All that operant conditioning would simply lead to the same levels of water consumption but no fine revenue.

But City Hall and the Chicago experts know full well how residential water consumers act in the real world. The variables that go into the water consumption behavior of 115,500 residential account holders and their family members spread over the 8,760 hours of a typical year are almost infinite. A large and predictable number of ratepayers, no matter how diligent, will inevitably run afoul more than once of the bewildering consumption rules.

These well-meaning ratepayers will be nailed each and every time by the computer. The fine revenue will pour into City Hall.

This, too, is our fate. No one is putting the computer genie back in the bottle. No one is dampening government’s thirst for scientific and impersonal control of the masses. But it would have been instructive at the May 17 hearing if someone from the dais had asked Public Utilities officials or the Chicago experts how this latest step down the Big Brother path is going to be any less demoralizing than Fresno’s brief but unpopular alliance with red light cameras.

Finally, there’s Michael Flores. What does the city’s independent administrative hearing officer have to do with the automated fines experiment?

Well, one of the questions raised from the dais on May 17 dealt with the recourse available to a ratepayer upset with his fine during the three-month experiment. Carbajal said the ratepayer’s options include a protest to various Public Utilities officials.

I thought to myself: Forget the Public Utilities folks. The better option is to file an appeal with Flores. He’s paid to be judge and jury on such issues.

But no one from the dais mentioned Flores or the question that Flores most likely will tackle at some point in July: Is this automated fines program as constructed for the test period legal?

Council Members Brandau, Chavez and Olivier all had their own way of approaching this fundamental issue. They all noted in various ways that it would be possible (perhaps even likely) to have three homeowners living side-by-side-by-side who would be subject to three entirely different standards when it comes to water service violations.

You could have John Smith getting fined $50 by computer because he exceeded his city-designated 300-gallon trigger point in a 60-minute period during the wrong hours of the right outdoor watering day or at any point on the wrong outdoor watering day.

Next door to Smith, you could have Jane Jones getting fined $25 by computer because she exceeded her city-designated 500-gallon trigger point in a 60-minute period during the wrong hours of the right day or at any point on the wrong day.

And next door to Jones, you could have Bob Green getting fined $12.50 by computer because he exceeded his city-designated 700-gallon trigger point in a 60-minute period during the wrong hours of the right day or at any point on the wrong day.

If the fictional Smith, Jones and Green got together and compared fines, you’ve got to imagine at least one of them saying, “Who voted for this farce?”

To a layman like me, Fresno’s automated water fines program appears to violate constitutional guarantees of due process and equal protection of the laws. Tens of thousands of Fresnans will be dumped by lottery into the various test categories. The laws dealing with consumption and fines during the three-month test period will randomly discriminate against some of these Fresnans. In essence, some Fresnans in comparison with their neighbors will be treated in the eyes of the law as second class citizens.

I sure wish someone on the dais on May 17 had turned to City Attorney Doug Sloan and said something like: “Doug, is this pilot program legal?”

If Sloan had said yes, then we’d have his explanation on the record. And we might also have on the record explanations from Brandau, Baines, Council Members Garry Bredefeld and Paul Caprioglio, and Council President Esmeralda Soria as to why they were voting for the pilot program even though its fine system doesn’t treat all account holders as equal before city law.

It’s a funny thing about voters – they often ignore the learned opinions of legal eagles and subject fairness issues to their own smell test.

I won’t go into the details, but documents on the City Clerk’s website show that the vast majority of account holders in single-family residences (based on computer data) broke the watering rules at least once in 2016. All weren’t fined because of the need to verify violations through visual inspection. City Hall simply didn’t have the personnel or opportunity.

I’m guessing that many Fresnans during the three-month automated fine experiment will receive computer-generated violations. I’m also guessing that at least one of the account holders will appeal his citation to Flores.

I’ve seen Flores in action. He listens to all sides of an argument. Then he delivers his verdict in a written decision available to the public. He’s not afraid to tackle constitutional questions.

Fresno’s automated water fines pilot program with the University of Chicago includes a “pause” option. If public reaction gets too heated and there’s a backlog of complaints, the program can be put on pause until things get sorted out.

Perhaps the “pause” button should be pushed now. Let’s get more answers before July 1.