Judge overturns water election

Published Sept. 8, 2023 in the print edition of the Daily Post.

By Elaine Goodman
Daily Post Correspondent

A judge has overturned the results of the 2019 election for seats on the board of an East Palo Alto water company and named a new slate of directors, saying incumbent directors “manipulated the outcome” in their favor.

But the change in leadership at the Palo Alto Park Mutual Water Co. is on hold while the judge’s decision is being appealed.

If the decision by San Mateo County Superior Court Judge Marie Weiner stands, four of the water company’s five directors – Niambi Lincoln, Fidel Alas, Verna Winston and Denise Hawkins – would step down. They would be replaced by challengers from the 2019 election: Kumar Chaudhari, Ramiro Macias, Delphine Hill and Shannon Pekary.

A fifth challenger in the 2019 election, Norman Picker, moved out of East Palo Alto and is no longer eligible to serve on the board. As a result, incumbent board member Katherine Loudd would keep her seat, under the judge’s order.

Loudd is the mother of director Lin-coln, who also serves as the water company’s general manager.

The challengers in the 2019 election were from a group called Neighbors for Better Water, which has complained about the way the water company is run. Palo Alto Park Mutual provides water to about 600 homes in East Palo Alto.

Different type of elections

The water company’s elections are held differently than elections for other local offices, such as city council races, where county officials count the votes. Palo Alto Park’s directors are elected during a meeting of its members, who are property owners within the water company’s service area.

Members may also vote by proxy, meaning they submit a form designating someone to vote on their behalf. That way they don’t have to attend the meeting in person. In the 2019 election, the water company picked inspectors to review and count the proxies, a process that was overseen by observers.

The water company’s incumbent board members were declared winners of the December 2019 election, and in February 2020, the challenging candidates sued the incumbent board members and the water company to overturn the results.

After holding a court trial, Judge Weiner issued a judgment on June 26, 2023, declaring the Neighbors candidates the winners of the 2019 election. The candidates had also challenged the results of the water company’s May 2018 election, but the judge rejected those claims.

At issue in the 2019 race was the rejection of proxies from some water company members who had unpaid balances – and who supported the challenger candidates from Neighbors for Better Water. In her decision, Judge Weiner described the situation as follows: “The evidence is that Lincoln gave to the inspectors (a) list of members who submitted Neighbors proxies who were ‘delinquent’ on past bills, but did not include any delinquent members who submitted company proxies.”

“In order to achieve victory in the 2019 election, the defendants manipulated the outcome by selectively excluding a few proxies from the voting calculations,” Weiner wrote.

Who should vote?

Weiner said it was “undisputed” that members with past-due balances hadn’t been notified that their voting rights would be suspended in the 2019 election.

Brian Barnhorst, an attorney representing the defendants, said the disqualified proxies were from four members who had “flouted their payment obligations” for an extended time.

He said the water company had a “good-faith belief, based on its bylaws,” that those four members should not be allowed to vote, which would be unfair to members who were paying their bills.

“The decision rested with the election inspectors, who voted unanimously that the company was right, and the inspectors therefore disallowed the proxies of those members,” Barnhorst told the Post in an email.

Since the 2019 election, the water company has had elections in 2020, 2021 and 2022. In those elections, incumbent board members were re-elected and the results weren’t contested.

In light of the more recent election results, incumbent board members argued against being replaced.

“Appointing a plaintiff to the board to replace a current director would disenfranchise those members who voted for that director,” they said in a court filing.

The judge disagreed.

“The whole point of this lawsuit was that the failure to accept and approve the named plaintiffs as directors of the PAPMWC, pursuant to the December 2019 election, did ‘disenfranchise those members who voted for that director.’ That election violation must be remedied first.”