Commentary: Questioning the County Counsel’s Judgment

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American_Democracy_small.jpgA war of words is brewing in the County Government over the water deal signed a week and a half ago by Yolo County with Angelo Tsakopoulos.  County Supervisor Jim Provenza of Davis is accusing the county of having run an illegal meeting, chaired by his colleague in Davis, outgoing Supervisor Helen Thomson.

According to a Sunday article in the Davis Enterprise, Helen Thomson has fired back calling Jim Provenza’s accusation “a crock” and saying it was “very irritating.”

“Thomson said she has never presided over an illegal meeting, and she certainly didn’t do so during the last one of her 36-year political career, which ends Friday,” the Enterprise reported.

Jim Provenza, who opposed the deal, argued that we must insure that the public is aware of the issues that are being considered and is notified with enough time to give them a chance to participate.  In this case, he argues, the county has failed to do so.

According to the Enterprise, ” ‘Recessing from a regular meeting to a special meeting three days later complies with the Brown Act,’ Thomson said. ‘Moreover, reporters from local and regional newspapers were present at the meeting, and they knew what was going on,’ she said.”

County Counsel Robyn Drivon argued that the board had met the state’s legal standard, “I would not have allowed a meeting to go forward if I didn’t think the Brown Act had been embraced and complied with.”

And therein lies the rub, first of all, as Jim Provenza is one I probably trust most on an issue like this.  He is a lawyer with the LA District Attorneys Office and has a history of forcing government agencies to comply with the Brown Act.

Moreover, I severely have to question Robyn Drivon’s judgment all the way around.  Why would I trust that she would have forced compliance by the Board of Supervisors with the Brown Act when she has failed to force her own office to comply with the state’s Public Records Act?

While the two issues are not necessarily related, it calls into question the judgment and integrity of Ms. Drivon to allow her office to fall out of compliance with the PRA.

It was in June that I had to go before the Board of Supervisors to demand that the County Counsel’s office stop dragging its feet on public records requests in violation with the state law.

Robyn Drivon was at that meeting chaired by Matt Rexroad.  Mr. Rexroad asked her if she would handle it, and she did.  I got the records before the end of the meeting, which tells you that the office was simply dragging its feet.

Fine.  Stuff happens that the director of an office is unaware of.  But I would have expected her, after being publicly embarrassed not only by my request but by a Daily Democrat article later that same week, and by a judgment by a private attorney against the county, to clean things up.

So now, a September public records act request does not get addressed.  I cannot even get a call back from people in the County Counsel’s office.  I ask Matt Rexroad for help again, he does, and he cannot get them to call me back for over a week.

Finally I get a message from Robyn Drivon laying out a timeline for getting me the documents I requested.  A few days pass and nothing.  Then I get a call from Dan Cederborg on Friday, Christmas Eve, telling me that the person needed to get my request from September was on furlough and he would get me the records on Monday.

This did happen, although the records were not in a usable format, so they will re-run the report.  But this is only angered me more.  Why?  Because it took only a matter of a few minutes to run the report I needed to get the records, and they had dragged this out for several months.

It was not a difficult request.  It was simply a matter of Mr. Cederborg calling up the IT guy to run a report.  And that took a few months.

Why is this on Ms. Drivon?  Because she knew back in June that this was a problem with her office and six months later the problem still exists.  There are specific timelines for compliance with the Public Records Act, and they run in the days, not the months.

Ms. Drivon’s office is more than two months late with their records request, six months after it was four or five months late.  She knew about the problem.  She did not fix the problem.

So when she tells the newspaper that she “would not have allowed a meeting to go forward if I didn’t think the Brown Act had been embraced and complied with” – I lack confidence that that is the case.

Different matter, but she allowed her office to be out of compliance with the Public Records Act, why would the Brown Act be much different?

If Jim Provenza believes the county was out of compliance, I am going to believe him.  Jim Provenza is not one to create undue controversy.

The County Counsel’s Office better get its act together, because as soon as I get the paper trail together on this, I am filing a complaint with the County Grand Jury and perhaps the Attorney General’s Office as well.  This is not acceptable.  Those timelines written into the Public Recoords Act are there for a reason, they insure public access to government documents in a reasonable time frame.

I now have to question the County Counsel’s fitness for the job and wonder what other areas of the law that the county has violated.

—David M. Greenwald reporting

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About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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28 thoughts on “Commentary: Questioning the County Counsel’s Judgment”

  1. craised

    What’s is the penalty for violating the Public Records Act? Answer none What’s the penalty for violating the Brown act? None. Why make a complaint to the Grand Jury? You’re a wantabe lawyer take them to court?

  2. hpierce

    I thought that “knowingly” or “deliberately”, and “failure to remedy” were necessary tests as to whether a Brown Act ‘failure’ constitutes a misdemeanor. If no action is taken at an “improper” meeting, I believe it’s a “no harm, no foul” situation. If an action is taken at such a meeting, my understanding is that the remedy is to hold another “proper” meeting to consider and act on an item. If this is done, I believe the first meeting goes back to the “”no harm, no foul” situation. If you look at the amount of text used, this isn’t about the Brown Act. It’s about the PRA and David’s frustrations that he’s being “dissed”, IMO.

  3. jake wallace

    Greenwald, then county council (2005), now judge, Steve Basha, knowingly authorized the county to appoint now Sac probation chief, from Calaveras, Don L. Meyer, out from under a falsified felony investigation filed under PC 832.5 against Chief Meyer & two senior officials.

    The most Hon. Steve Basha, concealed these facts along with Robyn Truitt & Helen Thomson. We have documentation that proves this. GC 27641, accusations against county council, Basha & Truitt, was illicitly handled by Truitt & Thomson, by having a private meeting that protected Basha & Truiit. A clear violation of that government code. HR Nunes was called in to interfere.

    DA Jeff Reisig, has been called, mailed & emailed for years now on a recommendation from the FBI & AG’s office; Reisig, can’t touch this case w/o impacting Dave Henderson & Company & the court.

    The Yolo grand jury, starting with Presiding Judge Donna Petre, who along with Basha made the illicit appt that concealed the fabricated felony investigation in Calaveras filed by a state licensed group home on behalf of state foster youth. Petre, appt. Chief Meyer & the Yolo court is responsible for a chief PO.

    WE refiled that GC accusation only to have the BOS & county council hold a private meeting; Brown Act violation; we thank Helen Thomson & Mariko Yamada-a social worker. Basha has the grand jury covered. There is NO checks/balances in Yolo co. this is gov. running amok.

    ===========

  4. jake wallace

    Yolo County Board of Supervisors
    625 Court Street
    Woodland, California 95695

    October 13, 2009

    Jacob Tyler Wallace
    1210 N. Cherokee Avenue Apt. 316
    Hollywood, California 90038
    323-309-3115

    Re: Government Code 27641: Accusation Against California attorney acting as Assistant County Council, Daniel Carl Cederborg State Bar # 124260 for the subversion of GC 27641 filed against Cederborg’s superior county council and acting CAO, Robyn Truitt Drivon & Judge Steve Basha; Drivon’s former boss. Brown Act violation; violated Article 1; Rules Governing Meetings; Sec.2-1.101; Sec 2-1.113; Sec 2-1.208.

    Allegations:

    1)ACC Cederborg advised the supervisor’s to meet and address GC 27861 filed September 11, 2009, which was an undisclosed meeting held by local elected officials to avoid public scrutiny by holding secret “workshops” and “study sessions.” That resulted in the county council flipping the GC 27641 into a ‘claim’ against the county now being handled by Yolo Human Resources.
    2)ACC Cederborg told Wallace by phone on October 12, 2009 (530-666-8277) that Yolo had already investigated now Sacramento Probation Chief, Don Meyer, for the subversion, concealment and the production of a falsified law enforcement investigation by a subordinate Teri Hall, days before Yolo county appointed CPO Don Meyer. The facts refute that.
    3)ACC Cederborg told Wallace that Yolo had no liability as Yolo did not know of CPO Don Meyer’ alleged criminal acts before the appointment and that the acts took place in another county anyway. The facts refute that.
    4)ACC Cederborg told Wallace that the allegations against CPO Don Meyer had been lawfully investigated outside of Yolo. The facts refute that.
    5)ACC Cederborg told Wallace that the Yolo board chair, McGowan and CAO, Robyn Truitt Drivon can privately decide on what matters appear on the BOS agenda as received correspondence. The complaint was filed against Robyn Truitt Drivon and the GC 27641 never appeared as official received correspondence as of Oct 13, 2009. The facts refute that. But the GC 27641 was in fact acted upon anyway.
    6)ACC Cederborg told Wallace the GC 27641 included several supervisor’s and was fatal as the board had no quorum to act but ACC Cederborg then stated the GC 27641 had been acted upon. How would the ACC know that before a public hearing? Cited supervisor’s never had the chance to publicly oppose that allegation or disqualify themselves. ACC Cederborg’s acts continue to conceal the allegations against Truitt and Judge Steve Basha.

    Page 2 GC 27641 Filed Against Assistant County Council, Daniel Carl Cederborg
    October 13, 2009

    7)Wallace received a phone call from Yolo Risk Assessment Manager, Hugo Martinez, on Friday, October 2, 2009 (530-666-8425). Mr. Martinez stated that he had no authority to make the call nor the authority to address the GC complaint and was doing so due to the mistake of another county employee. Mr. Martinez participated in an in depth conversation and stated the county had 90-days to respond. Mr. Martinez was a tool used by ACC Cederborg to subvert the public disclosure and public handling of the GC 27641 complaint; where ever that may have led.
    8)Daniel Carl Cederborg, Yolo County Council subordinate addressed allegations against the county council. Cederborg should have recused himself for a conflict of interest and should have allowed the accusations to be cited as official board correspondence, publicly discussed and acted upon per Yolo county’s Article 1; Rules Governing Meetings and the Brown Act. No written response has been received to date though ACC Cederborg stated Human Resources had responded in writing.
    9)ACC Cederborg’s attempt to have the GC 27641 flipped into a claim against the county; counters a civil & penal code false claims act suit(s) CV06-581 filed in the Yolo superior court in 2006, where Yolo and Calaveras official’s (CV 32550) jointly hired the law firm of Angelo, Kilday & Kilduff with public funds to dismantle the suit(s) after the grand jury and an earlier GC 27641 complaint was subverted.

    Jake Wallace

    Benjamin Wagner
    United States Attorney
    501 I Street, Suite 10-100
    Sacramento, CA 95814

    Mr. Joseph P. Russoniello
    United States Attorney
    450 Golden Gate Avenue
    Box 36055
    San Francisco, CA 94102

    Sacramento Regional FBI Office
    4500 Orange Grove
    Sacramento, CA 95841

  5. David M. Greenwald

    I agree, we have given Jake enough free penning. I see no evidence to support his allegations and frankly they are libelous which is a violation of the user agreement.

    As for your comment, I haven’t been “dissed”, I’ve been denied documents in a timely fashion that I am entitled to as a member of the public. Moreover, it is not just me.

    I’m sorry but it is difficult to accept the County Counsel at face value on the other issue when she has allowed her office to violate the law on this one.

    “You’re a wantabe lawyer take them to court?”

    I think you mean wannabe, and I most certainly do not wanna be a lawyer. Regardless the remedy in court is simply that they turn over the records. There needs to be real sanctions and the law doesn’t provide for them.

  6. jake wallace

    Greenald, I am free to meet with you and show the documentation that we have. pls call me 209 470 5175. I have made this offer before. VG libelous concerns aren’t founded.

  7. jake wallace

    Greenwald, forget the grand jury; their advised by county council & the DA.
    if you want traction & fireworks file a G.C. 27641, accusation against council. This will place it on the BOS lap.

  8. hpierce

    David… my apologies… I thought your point was that the denials of information wasn’t pervasive (everyone treated incorrectly)… pervasive lack of compliance is absolutely incorrect, but could be understandable given many positions, when they become “open” remain unfilled due to budget… however, your point that, [quote]Mr. Rexroad asked her if she would handle it, and she did. I got the records before the end of the meeting, which tells you that the office was simply dragging its feet.[/quote] indicates that it may well be other than a lack of human resources.

  9. Adam Smith

    Not sure I follow the substance of Jim Provenza’s point. Does he think that another meeting or having the meeting a few hours later would change the decision? Or is this simply another “process over substance” argument?

    And with respect to David’s rant, I’ll be interested to see where this goes. We’ve all seen these emotional rants, driven by frustration apparently caused mainly by a decision that he disagrees with, evolve into nothing.

  10. Rifkin

    FWIW, our county, which is in debt $336.7 million to its employees and retirees, is paying Ms. Drivon $190,962 a year in salary + other benefits worth approximately $50,000 a year + she an incredibly lucrative pension when she “retires.” My back of the envelope estimate is that her hourly total comp is +/- $160/hour.

    I would have thought with that kind of generous income Ms. Drivon could do her job a bit better. I agree with David’s insinuation that when an employee like Drivon shows total incompetence or disregard in one area (complying with public records requests), it’s not unlikely she is incompetent in other areas as well.

  11. Rifkin

    As to Mr. Provenza’s assertion that the meeting was not properly noticed, speaking as a non-lawyer, I think the question comes down to when the December 17 special meeting was noticed. (I don’t know when that occurred.) The agenda for it says it was a “special meeting.” [quote] At the conclusion of its regular meeting on December 14, 2010, the Yolo County Board of Supervisors adjourned the meeting and continued the public hearing described below to December 17, 2010, at 1:30 p.m. … This will also be treated as a special meeting of the Board of Supervisors. [/quote] According to the state Attorney General’s office, a “special meeting” must be noticed 24 hours in advance ([url]http://ag.ca.gov/publications/2003_Intro_BrownAct.pdf[/url]): [quote] SPECIAL MEETINGS: Twenty-four hour notice must be provided to members of legislative body and media outlets including brief general description of matters to be considered or discussed. [/quote] I don’t think it matters that the agenda item and description for the December 17 meeting were not included in the agenda for December 14, as long as by 1:30 pm on December 16 the next day’s meeting was properly noticed.

    This is probably not proof that the December 17 meeting was properly noticed, but on December 15 the Sacramento Bee ran a story ([url]http://www.sacbee.com/2010/12/15/3258462/tsakopoulos-in-talks-with-yolo.html[/url]) in which they noted that the YC Supervisors would be voting on the water deal with Tsakopoulos on Friday, December 17: [quote] Supervisors scheduled a special meeting on Friday, when they plan to announce whether they’ve come to terms with Tsakopoulos. It will be an opportunity for the public to comment on the plans. [/quote] The fact that 48 hours or more prior the media knew what the Friday meeting was going to be about suggests it probably (though not certainly) was properly noticed.

  12. David M. Greenwald

    “Does he think that another meeting or having the meeting a few hours later would change the decision?”

    I suspect he thinks that he would have sufficient time to review the agreement and weigh in on the potential downfalls with it. Whether it changes the outcome is immaterial in my view.

  13. craised

    The below is a quote from Terry Franche who is an expert on the subjects of Public Records Act and the Brown Act.
    There’s no criminal penalty for not turning over information requested under the Public Records Act. Civil penalties, would only apply if the denial of a record’s existence would leave the requestor defenseless against serious harm. An example: not turning over a document that could have been used to stop a foreclosure on the requester’s home.
    “Otherwise, lying to the public about the existence of a government record may be immoral or unethical, but it has never been made illegal,”

    BTW. Since the inception of the Brown Act there has NEVER been a criminal conviction stemming from a Brown Act violation
    ______________________________________________________________________________

    Mr.Greenwald, I do enjoy the bantering on your blog and keep up the good work…

  14. Rifkin

    California Government Code Section 54956 ([url]http://law.onecle.com/california/government/54956.html[/url]) seems to be operative in this case. And it appears to me that Yolo County did follow its requirements: [quote]A special meeting may be called at any time by the presiding officer of the legislative body of a local agency, or by a majority of the members of the legislative body, by delivering written notice to each member of the legislative body and to each local newspaper of general circulation and radio or television station requesting notice in writing. The notice shall be delivered personally or by any other means and shall be received at least 24 hours before the time of the meeting as specified in the notice. The call and notice shall specify the time and place of the special meeting and the business to be transacted or discussed. No other business shall be considered at these meetings by the legislative body. The written notice may be dispensed with as to any member who at or prior to the time the meeting convenes files with the clerk or secretary of the legislative body a written waiver of notice. The waiver may be given by telegram. The written notice may also be dispensed with as to any member who is actually present at the meeting at the time it convenes.

    The call and notice shall be posted at least 24 hours prior to the special meeting in a location that is freely accessible to members of the public. [/quote]

  15. Rifkin

    RICH: [i]”I think the question comes down to when the December 17 special meeting was noticed. (I don’t know when that occurred.)”[/i]

    DAVE: [i]” If the meeting must be noticed 24 hours in advance and it was only noticed 21 hours in advance, how did it follow its requirements?”[/i]

    Let me repeat myself: I don’t know when it was noticed*. However, the Bee published a story that there would be a Friday special meeting on the water question more than 48 hours before the meeting started.

    *If you know it was in fact noticed just 21 hours prior to 1:30 pm Friday, December 17, this is the first time you have said that on your website. In fact, as far as I can tell, your claim that the notice was given “21 hours” prior to the start of the meeting is the first public claim of any sort of specific time frame for the notice. The Bee story ([url]http://www.sacbee.com/2010/12/23/3277347/yolo-supervisor-challenges-countys.html[/url]), which is where I first learned that Provenza was challenging the noticing, gave no specific number of hours. It said it was less than 24: [quote] Supervisor Jim Provenza, a Davis attorney, said in a memo to county officials that the action may have violated the state’s open-meeting law because the public had less than 24 hours to consider the agreement before the vote.[/quote]

  16. David M. Greenwald

    In the first Enterprise article Jim Provenza told Jonathan Edwards that he had received notice of the meeting at 4:52 PM for a 1:30 meeting the next day. Edwards noted that the email to the Enterprise was sent around the same time (noticing the newspaper is part of the requirement).

  17. Rifkin

    In re-reading that sentence from the Bee, I now wonder if the key term Provenza is focused on is “the agreement,” as opposed to the noticing of the meeting itself. If Provenza believed that the notice was made too late in the day on Thursday, December 16, he would have said “you violated the Brown Act.” The Bee says Provenza claims the meeting “may have violated” the law. The former is certain; the latter is less so.

    What I am wondering then is if Provenza’s argument suggests that the county made public copies of “the actual 16-page agreement” too late to consider it? I don’t know enough about the law and precedent to know if the Brown Act requires the agreement itself, as opposed to “the time and place of the special meeting” and a general description of “the business to be transacted or discussed.” California Government Code Section 54956 does not appear to require that the agreement itself be published in advance of the meeting, just the notice and a general description.

  18. Rifkin

    [i]”… he had received notice of the meeting at 4:52 PM for a 1:30 meeting the next day.”[/i]

    Well there you are. If that is correct–and I don’t doubt it–then it did not make the 24-hour notice requirement.

  19. David M. Greenwald

    Rich:

    From the December 22 Enterprise:

    [quote]
    The state’s Brown Act requires local governments to give 24 hours’ notice before holding a special meeting. The law requires ‘written notice to each member of the legislative body and to each local newspaper of general circulation and radio or television station requesting notice in writing.’

    Provenza said he received notice of the meeting at 4:52 p.m. Thursday, the same time the county e-mailed The Davis Enterprise an agenda. Friday’s meeting started 20 1/2 hours later, at 1:30 p.m.

    Provenza said ‘he’s just looking into that at this point,’ because he’s not sure if a Brown Act violation occurred. The board met three days before the special meeting, on Tuesday, Dec. 14, and recessed that meeting until Friday.

    But, Provenza said, the docket did not call the board to take a vote on Tuesday, which means carrying over the meeting doesn’t pass legal muster.

    ‘People will disagree whether this is the kind of violation that is severe enough to have taken away rights or to have undermined rights belonging to the public,’ said Peter Scheer, executive director of the California First Amendment Coalition. [/quote]

  20. Adam Smith

    Much ado about nothing. 3.5 hours more time means nothing in Provenza’s (or the public’s) ability to substantively comment on this issue. The Brown Act commentary is a red herring from crowd who dislikes the decision. If the decision was in their favor, they certainly wouldn’t be trumpeting the issue, and we likely would never had to waste our collective time reading this today.

    I think Provenza has a fair point about whether he, and others, had time to properly review, analyze and judge whether this complex agreement is good for the county. But even 72 hours probably isn’t enough for any member of the BOS that isn’t well versed in CA water policy and market, and who isn’t thoroughly familiar with the general terms of the agreement being negotiated. The members of the BOS are dependent on the county staff, and the staff of the JPA, and their hired experts, to advise them on the merits and risks of such an agreement. That is as it should be. If Provenza and other members of the BOS can’t rely on staff, then we either need new staff or new BOS members. We elected the members of the BOS for their judgment and general view of policy issues. We didn’t elect any them b/c we thought they were water experts.

    I think Craised made a point earlier about our form of government being a republic. He or she, as the case may be, is right. The public should have a right to voice their opinion, but they are not the decision makers. In this case, the members of the BOS are the decision makers. Provenza’s, and others, use of the Brown Act requirements is a waste of our time and money.

  21. Mr.Toad

    But the Brown act is about the people having enough time to let their voices be heard by the elected representatives. Provenza’s complaint is that if the public had adequate notice their participation might have changed the outcome. While it seems doubtful not doing it over leaves the impact of being out of compliance open to speculation. Provenza is correct, the rush to judgement did not allow the governed to give proper advise and consent to their decision makers. This violation of the Brown Act is a serious breach of a fundamental and well established legal principle.

  22. E Roberts Musser

    The problem here is the particular issue was a huge and controversial one, the meeting scheduled in such a way as to not give sufficient time for proper decision-making by all parties concerned, including the public. Any lapses in not following the Brown Act to the letter would be that much more concerning…

  23. Adam Smith

    I’m not sure what Mr. Provenza is suggesting, but this quote is from Thursday’s Enterprise>

    Provenza sought on Wednesday to make it clear that he did not believe the board had violated the Brown Act but that a lack of public notice means the vote at that meeting possibly could be voided in court.

    ‘In my opinion, we should do a re-do,’ he said.

    Supervisor Mike McGowan disagreed.

    ‘I’m satisfied we received good information from our county counsel and that she kept us out of trouble,’ he said. ‘I think the process, the timing, the motive were all within the required bounds. It was a solid action on the part of the Board of Supervisors.’

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