Future of Jackson water to be hammered in private, after council approves confidentiality agreement with DOJ

Jackson City Council discusses water issues at a previous meeting.
Jackson City Council discusses water issues at a previous meeting.(WLBT)
Published: Oct. 7, 2022 at 12:45 PM CDT
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JACKSON, Miss. (WLBT) - A settlement that could determine the future of Jackson’s water system will be hammered out behind closed doors.

At a special called meeting on Thursday, the Jackson City Council approved entering into a confidentiality agreement with the U.S. Department of Justice regarding settlement talks related to the city’s water system.

The measure was approved on a 4-3 vote, with Councilmen Ashby Foote, Vernon Hartley, and Kenneth Stokes voting against it. Council members Angelique Lee, Virgi Lindsay, Aaron Banks, and Brian Grizzell voted in favor.

Lee says she backed the agreement because DOJ would not continue talks with the city if the agreement was not in place.

“And we were subject to litigation if we didn’t sign it because it would show we were not willing to move forward with them,” Lee added. “With so many violations, this is an effort to fix those violations. If we were not going to sign the agreement, we would be subject to litigation.”

Foote voted against the measure saying the city needs to “maximize sunshine and transparency in this exercise.”

Hartley had similar concerns. “We haven’t been told the plan. We haven’t been given anything, and now you want us to not have a seat at the table when these discussions are happening and you want us to do a confidentiality agreement?” he asked. “You want us to, you know, just be dumb over in the corner, and that just doesn’t work for me.”

Foote reached out to DOJ to see if the council could be included in the settlement talks, but DOJ said no.

“It is... the U.S. Department of Justice’s practice in negotiations with municipalities... to direct all settlement communications through legal counsel for the municipal executive, with an understanding that the executive will present settlement terms to the municipal council for review and approvals as necessary,” Assistant Attorney General Todd Kim wrote in a September 28 letter. “Indeed, this was precisely what happened in the United States’ prior negotiations and settlement with the city... over wastewater system violations.”

DOJ rejects a request from Council President Ashby Foote to include council members in...
DOJ rejects a request from Council President Ashby Foote to include council members in negotiations regarding Jackson's water system violations.(Special to WLBT)

The vote comes less than two weeks after the DOJ said it was prepared to take legal action against the city, citing multiple Safe Drinking Water Act violations.

However, the agency said it would hold off on those efforts if the city entered into talks with the agency to draw up “a judicially enforceable settlement” to address those issues.

Karl Fingerhood, senior counsel for DOJ’s Environmental Enforcement Section, said in an email to City Attorney Catoria Martin that confidentiality is needed to “facilitate open and frank settlement discussions amongst the entities involved.”

He also told Martin that the agreement would be similar to the one put in place governing the city’s sewer consent decree renegotiations.

Jackson entered into a wastewater consent decree in 2012, to bring its sewer system into compliance with the federal Clean Water Act.

In December, U.S. District Court Judge Tom Lee reopened the case to allow the city, EPA, and DOJ to renegotiate the decree, in part, because the Lumumba administration said the city can’t afford to implement the decree’s mandates.

As part of the renewed talks, Jackson had to submit various pieces of information, including a financial model showing how the city would fund sewer system repairs once the new decree is in place.

WLBT attempted to obtain that financial model from the city and the Environmental Protection Agency, but both requests were turned down. EPA said releasing it “could reasonably be expected to interfere with enforcement proceedings.”

The Office of the City Attorney, meanwhile, said the information was “privileged attorney work product prepared in anticipation of litigation.”

In December, a federal magistrate put a protective order in place governing consent decree talks, citing “the confidentiality of certain information and [the need to] facilitate the discovery and resolution in this matter.”

Fingerhood said DOJ could not ask the court for a protective order regarding water settlement discussions, because there was no action pending before the court.

We have reached out to DOJ for a comment and will include that comment if it is made available.

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