Comment
Secrecy may be good for politicians, but not for the public
The Yuba County Board of Supervisors has abused state open meeting laws in the past, is abusing them now, and is likely to continue to abuse them. Leopards do not change their spots.
Recently, the five supervisors met behind closed doors o discuss, they said, litigation involving the Yuba goldfields road the county had recovered through court action.
The closed session was invoked under the open meeting exception allowed -- but not required -- by California's Ralph M. Brown Act. At the same time the board members were meeting in secret on the third floor of the county courthouse, lawyers and lawyers for Western Aggregates, Inc. were at the same time meeting behind the closed doors of a jury conference room on the second floor. The purpose of the tandem meetings was to discuss a settlement offer proffered by Western in the long running and essentially concluded lawsuit dispute over access to the Yuba River and its goldfields.
For an hour and a half the supervisors remained available for messages and updates from their lawyers in the talks, County Counsel Dan Montgomery and outside attorney David Rosenfeld. At times, the two trotted back and forth bearing messages from the jury room to the board conference room and back again with directives from the supervisors.
Without going too much into the history of the long, arcane and politically charged lawsuit over goldfields access, suffice to say Western lost to the county despite repeated appeals.
Things began in Department 4 with Superior Court Judge David Wasilenko telling the parties the hearing was to be held in open court, rather than in chambers as the county and Western had asked in pleading papers.
A minute order by the court of Feb 7 that may have implied that the in-chambers conference might be held was incorrect. The hearing would be public, Wasilenko said.
Why? asked David Bromfield, Western's attorney.
Because it was "the proper way," said Wasilenko.
But we were under the impression we would be able to talk with you in private, Montgomery told Wasilenko.
Too bad, said Wasilenko. Get to it.
Bromfield asked that the judge assign them a private room, or clear the courtroom.
Clearing the courtroom would be the same as having an in chambers meeting, so Wasilenko told them that if the parties wanted to confer he would be glad to recess the court for that purpose and reconvene when they were ready to go on the record.
During the secret talks the county's scuttled between floors, carrying messages one way and coming back with their marching orders.
In between times public spectators and some of the supervisors lollygagged in the supervisors' chambers. This led to a sharp exchange between Board Chairman Don Schrader and Chuck Smith of Operating Engineers Local 3,
When Smith mentioned the supervisors calling for the executive session, Schrader barked back, rebuking Smith for being inaccurate. Judge Wasilenko had ordered the board to meet in closed session, Schrader said.
At last, the lawyers returned to the courtroom and advised Wasilenko they could not agree on Western's offer. Wasilenko handled some other lawsuit housekeeping and set the next court date for the issue.
Moments later and upstairs, the supervisors came out of closed session and Schrader announced there would be no announcements.
When reporters pressed for details, Montgomery chastised them for demanding information they were "not entitled to." The implication was that it was both unethical for the reporter to ask the question and it would be unethical for Schrader to answer it.
First of all, let it be noted that it was the county and Western lawyers who had requested the hearing be held in chambers and out of the public view. The law did not require it. In fact, as the judge pointed out, the law and rules of court disallowed it. "The proper way" to conduct the hearing was in open session.
I was evident from County Counsel Dan Montgomery's reaction Wasilenko's ruling that he was disappointedthat that part of the business, anyway, had to be done in the sunshine, not in the shadows.
At the same time and for the same reason, Schrader knew, or should have known, that. His assertion that the judge had ordered secrecy in the matter was false.
As for the press questions to Schrader and what the public the public is "entitled" to know, well, Montgomery was wrong, and also knew it, or should have.
The Brown Act exception for boards to meet to discuss litigation or business negotiations is meant to protect the board for tipping its bargaining hand. If a vote is taken -- i.e., an action decided -- the Brown Act requires that the board announce it immediately after closed-door session.
Since the lawyers reported to the judge that now agreement was reached, it is plain that a vote was taken by the board to direct the lawyers to tell Western that their offer was rejected. That was a vote. That was an official act involving county business. It wasn't reported. It should have been.
It is clear, then, that the supervisors were trying to hide something. But what? The upshot of their voting was known -- it rejected the offer. The lawyers told the judge that.
One is forced to conclude that what the board was trying to hide was not that a vote was taken, but how it went. That is, who voted for or against the deal?
The framers of the Brown Act provided the litigation exception to protect the public's bargaining position, not to shelter small town politicians from political fallout for their actions. Using it for that purpose is an abuse, and an ethically questionable abuse, to boot.
And this is not the first time that Yuba County supervisors and their current legal advisors have been caught doing abusing this provision in this way.
In 2000, the supervisors were involved in some wheeling and dealing with a developer -- not that uncommon -- and wanted to keep the matter hush-hush. They did it in a way that caught the attention of the California First Amendment Coalition, a respected watchdog organizations.
This is how the CFAC reported it Sept. 15 2000:
By cloaking how the voting went on the goldfields offer, supervisors can keep their options open. With nothing on the record, they can emerge from their secret sessions free to represent their positions on the issue to the public in the most self-serving and expedient way, and if that happens to be true so much the better. If not, who's to know?
And if they didn't figure this dodge out for themselves, it’s a fair bet some seasoned career government lawyer explained it to them.
Secrecy may be good for politicians, but not for the public
The Yuba County Board of Supervisors has abused state open meeting laws in the past, is abusing them now, and is likely to continue to abuse them. Leopards do not change their spots.
Recently, the five supervisors met behind closed doors o discuss, they said, litigation involving the Yuba goldfields road the county had recovered through court action.
The closed session was invoked under the open meeting exception allowed -- but not required -- by California's Ralph M. Brown Act. At the same time the board members were meeting in secret on the third floor of the county courthouse, lawyers and lawyers for Western Aggregates, Inc. were at the same time meeting behind the closed doors of a jury conference room on the second floor. The purpose of the tandem meetings was to discuss a settlement offer proffered by Western in the long running and essentially concluded lawsuit dispute over access to the Yuba River and its goldfields.
For an hour and a half the supervisors remained available for messages and updates from their lawyers in the talks, County Counsel Dan Montgomery and outside attorney David Rosenfeld. At times, the two trotted back and forth bearing messages from the jury room to the board conference room and back again with directives from the supervisors.
Without going too much into the history of the long, arcane and politically charged lawsuit over goldfields access, suffice to say Western lost to the county despite repeated appeals.
Things began in Department 4 with Superior Court Judge David Wasilenko telling the parties the hearing was to be held in open court, rather than in chambers as the county and Western had asked in pleading papers.
A minute order by the court of Feb 7 that may have implied that the in-chambers conference might be held was incorrect. The hearing would be public, Wasilenko said.
Why? asked David Bromfield, Western's attorney.
Because it was "the proper way," said Wasilenko.
But we were under the impression we would be able to talk with you in private, Montgomery told Wasilenko.
Too bad, said Wasilenko. Get to it.
Bromfield asked that the judge assign them a private room, or clear the courtroom.
Clearing the courtroom would be the same as having an in chambers meeting, so Wasilenko told them that if the parties wanted to confer he would be glad to recess the court for that purpose and reconvene when they were ready to go on the record.
During the secret talks the county's scuttled between floors, carrying messages one way and coming back with their marching orders.
In between times public spectators and some of the supervisors lollygagged in the supervisors' chambers. This led to a sharp exchange between Board Chairman Don Schrader and Chuck Smith of Operating Engineers Local 3,
When Smith mentioned the supervisors calling for the executive session, Schrader barked back, rebuking Smith for being inaccurate. Judge Wasilenko had ordered the board to meet in closed session, Schrader said.
At last, the lawyers returned to the courtroom and advised Wasilenko they could not agree on Western's offer. Wasilenko handled some other lawsuit housekeeping and set the next court date for the issue.
Moments later and upstairs, the supervisors came out of closed session and Schrader announced there would be no announcements.
When reporters pressed for details, Montgomery chastised them for demanding information they were "not entitled to." The implication was that it was both unethical for the reporter to ask the question and it would be unethical for Schrader to answer it.
First of all, let it be noted that it was the county and Western lawyers who had requested the hearing be held in chambers and out of the public view. The law did not require it. In fact, as the judge pointed out, the law and rules of court disallowed it. "The proper way" to conduct the hearing was in open session.
I was evident from County Counsel Dan Montgomery's reaction Wasilenko's ruling that he was disappointedthat that part of the business, anyway, had to be done in the sunshine, not in the shadows.
At the same time and for the same reason, Schrader knew, or should have known, that. His assertion that the judge had ordered secrecy in the matter was false.
As for the press questions to Schrader and what the public the public is "entitled" to know, well, Montgomery was wrong, and also knew it, or should have.
The Brown Act exception for boards to meet to discuss litigation or business negotiations is meant to protect the board for tipping its bargaining hand. If a vote is taken -- i.e., an action decided -- the Brown Act requires that the board announce it immediately after closed-door session.
Since the lawyers reported to the judge that now agreement was reached, it is plain that a vote was taken by the board to direct the lawyers to tell Western that their offer was rejected. That was a vote. That was an official act involving county business. It wasn't reported. It should have been.
It is clear, then, that the supervisors were trying to hide something. But what? The upshot of their voting was known -- it rejected the offer. The lawyers told the judge that.
One is forced to conclude that what the board was trying to hide was not that a vote was taken, but how it went. That is, who voted for or against the deal?
The framers of the Brown Act provided the litigation exception to protect the public's bargaining position, not to shelter small town politicians from political fallout for their actions. Using it for that purpose is an abuse, and an ethically questionable abuse, to boot.
And this is not the first time that Yuba County supervisors and their current legal advisors have been caught doing abusing this provision in this way.
In 2000, the supervisors were involved in some wheeling and dealing with a developer -- not that uncommon -- and wanted to keep the matter hush-hush. They did it in a way that caught the attention of the California First Amendment Coalition, a respected watchdog organizations.
This is how the CFAC reported it Sept. 15 2000:
Reacting at least in part to a letter from the California First Amendment Coalition, Yuba County Board of Supervisors has decided to reconsider a decision, made in closed session several weeks ago, to hire consultants to study a mall purchase prospect about which the public had been told nothing. The letter did not threaten litigation, but highlighted state law and suggested reconsideration.
CFAC sent the letter to Board Chairman Brent Hastey after learning from Supervisor Al Amaro that the Board had been holding closed sessions and proposed to continue the practice, ostensibly to confer with the board's bargaining agent concerning negotiations to lease a publicly unspecified portion of the Feather River Center.
"There are two anomalies in this situation in the light of the Ralph M. Brown Act," wrote CFAC General Counsel Terry Franncke in the September 5 letter to Hastey.
"The first is that there has never been any public discussion, deliberation or decision on the question of a new or extended lease of mall property-whether it is a desirable objective, whether the lease would embrace all or only a portion (and if so, what portion), how it would be financed or to what use the new or extended space might be put. So far as the public knows, these issues are a blank.
"The second anomaly is that the posted agenda items describing the closed sessions to date have stated, 'Real Estate Negotiations pursuant to Government Code §54956.8 relating to Purchase Price and Terms Feather River Center-County of Yuba and David Lanza.' Thus negotiations concerning the mall are not being pursued with the owner, but rather with a party who apparently has an option to acquire it and wants a favorable commitment from the county as a secure income stream preparatory to making a purchase from the current owner.
"The Ralph M. Brown Act, in Government Code §54956.8, states in pertinent part: 'Notwithstanding any other provision of this chapter, a legislative body of a local agency may hold a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease.'
"Here as we understand it, the other party's sole property interest in the Feather River Center is an option to buy. But that is not the interest he is offering the county nor the interest that the county is considering acquiring. The latter is held only by the center's owner, who is not a party to these negotiations. While the statute does not expressly so provide, it is evident that the Legislature contemplated the conventional situation in which one party to negotiations has a present interest to convey and the other intends to acquire it.
"Otherwise the statute could simply have allowed closed sessions concerning any discussions of potential, hypothetical or conditional prospects for a transaction. The fact of any party having proposed a mere idea or a suggestion for doing business with the county could trigger a closed session, irrespective of how remote the likelihood of realization might be.
"Add to this the fact that the county staff's description of the other party's offer, together with other material details about the proposed deal, has been kept secret from the public (the initial memorandum stamped 'confidential'), and the full dimensions of departure from the Brown Act become apparent.
"The Board of Supervisors is using a closed session intended to keep the other party temporarily unaware of its bargaining instructions to instead keep the public unaware of the contours and context of a commitment to acquire a potentially very expensive lease from someone who has yet to be in a position to provide it, and may never be.
"The other party may not know all the details of the Board's position, but it knows all about the proposed deal, which is more than the Board has chosen to share with the public.
"This is not a demand for cure or correction pursuant to Government Code §54960.1. But as the Board of Supervisors is well aware, should someone dissatisfied with any action taken pursuant to these closed sessions challenge their lawfulness under that section-a process which could commence at any time within 90 days of action being taken-a court would have the authority to set any consequent agreement aside as null and void, so long as the other party is given timely notice of the 'challenge to the validity of the action.'
"Most problems caused by the resort to closed session so far could be
remedied by an open session of the Board in which the public is given the background information describing the nature of the offer being negotiated and the county's reasons for finding it attractive and practicable. Given that kind of information, few could complain that what is lawfully authorized as a confidential conference on negotiations has been used to create a truly secret deal."
One week later, following several citizen speakers' concerns about related rumors and the use of contingency funds to hire consultants to assess the proposal, the board agreed to consider putting the consultant hiring and other negotiations on hold until a public airing of the matter was arranged. [emphasis added
By cloaking how the voting went on the goldfields offer, supervisors can keep their options open. With nothing on the record, they can emerge from their secret sessions free to represent their positions on the issue to the public in the most self-serving and expedient way, and if that happens to be true so much the better. If not, who's to know?
And if they didn't figure this dodge out for themselves, it’s a fair bet some seasoned career government lawyer explained it to them.
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