Allegations of Brown Act Violations in Letter to Board of Supervisors

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Sacramento-River-stockA group calling themselves Citizens Alliance for Regional Environmental Sustainability (CARES) sent a letter through Davis Attorney Donald Mooney* Thursday alleging a Brown Act violation occurred at the Yolo County Board of Supervisors Special Meeting on December 17, 2010, where the Board took up the issue of an agreement with Conaway Ranch and a group owned by developer Angelo Tsakopoulos.

The letter alleges “the notice for the December 17, 2010, Special Meeting violated the requirements of the Brown Act, Government Code, section 54956.”

According to Mr. Mooney, “The Brown Act mandates written notice must be sent to each member of the legislative body (unless waived in writing by that member) and to each local newspaper of general circulation, and radio or television station that has requested such notice in writing. (Gov’t Code, § 54956.) This notice must be delivered by personal delivery or any other means that ensures receipt, at least 24 hours before the time of the meeting.”

The County failed to provide the mandated 24 hours of notice to Board members or the media, the group charges, citing the December 22, 2010 article in the Davis Enterprise where Supervisor Jim Provenza charged that he had not received notice of the meeting until roughly 4:52 pm on Thursday, about 21 and a half hours prior to the meeting.

The article reported that the County emailed the notice to the Davis Enterprise at roughly the same time.

“Thus , the notice for the Special Meeting violated the mandatory notice requirements of section 54956,” Mr. Mooney states.

In addition to that charge, which has been publicly aired, the group alleges that the Board’s approval of the agreement itself also violated the Brown Act.

Write Mr. Mooney, “The notice for a special meeting must state the business to be transacted or discussed. (Gov’t Code, § 54956.) No other business shall be considered at these meetings by the legislative body.”

Instead he notes, “The agenda item for the Special Meeting failed to indicate that the Board would be considering the Agreement for approval.”

He added, “The agenda item also failed to make any reference that the Board would be taking any action on an Agreement.”

Furthermore, “At the Special Meeting, the Board also approved a Notice of Exemption for the Agreement. The agenda item for the Special Meeting also failed to indicate that the Board would be considering a CEQA document or the Notice of Exemption.”

“The Brown Act requires a description of the item under consideration sufficient to provide members of the public with an understanding of the subject matter under consideration so that they can determine whether to monitor or participate in the meeting of the body,” Mr. Mooney argued.  But that is not what happened here.  “In this case, the agenda’s failure to mention that the Board would be considering approval of the Agreement or that the Board would be considering approval of a Notice of Exemption violated the requirements of the Brown Act.”

The group asks the Board of Supervisors to “cure and correct” the action that was taken, by withdrawing and nullifying the actions, specifically the agreements signed between the County and Tri-City Water and Farm and the approval of the Notice of Exemption.

They ask the item be properly agendized, providing a “full opportunity for members of the public to comment on the item” at the board’s next meeting.

Writes Mr. Mooney, “the Board has 30 days from the receipt of this demand to either cure or correct the challenged action or inform this office of the Board’s decision not to do so. If the Board fails to cure or correct as demanded, such inaction may leave our client with no recourse but to seek a judicial invalidation of the challenged action pursuant to Government Code section 54960.1, in which case we would seek the award of court costs and reasonable attorney fees pursuant to Government Code section 54960.5.”

In this morning’s Daily Democrat the County Counsel Robyn Drivon said ” Provenza had raised an issue and absent an external prompting, which Mooney’s letter now is, there wasn’t a reason to do anything about it than simply review it.”

That is certainly an interesting approach.  So a member of the body cannot make a claim that the body violated the Brown Act?

The County Counsel added, “Now the question has been raised on a formal basis and we’ll have to evaluate that.”

Board Chair Matt Rexroad, to whom the letter was directed, told the Daily Democrat that while he would have liked to have had more time to review the agreement, he believes that the board complied with the Brown Act.

It is unclear how he arrives at that conclusion, given the letter of the law and facts.

Mr. Rexroad told the Daily Democrat, “I have heard a lot of people talking about the Brown Act, but not what part of the agreement they’re upset with.”

But I think Mr. Rexroad misses the point here, that he normally seems to understand, and that is that the process is just as important, if not more important, in an open democratic society as the outcome.

Part of the problem that people had with the agreement is that it was rushed through without the opportunity to respond, at a time when a lot of people were either not paying attention to local government as they were spending time with their families during the holidays, or they were actually on vacation.

The Brown Act protects the public’s right to be noticed of the meeting, it does not guarantee that government will ultimately vote to proceed in the manner that people support.

Normally Mr. Rexroad has been strong on open government issues and that has been an area of common ground, but I think he is wrong here in terms of whether the process violated the law.  I think it clearly did, even though it is unlikely to change the ultimate outcome.

* Full disclosure: Donald Mooney has represented the Vanguard on at least two matters unrelated to the present case.

—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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12 thoughts on “Allegations of Brown Act Violations in Letter to Board of Supervisors”

  1. davisite2

    Supervisor Provenza’s concern that the Conway Ranch agreement will adversely effect Yolo agricultural activity and income is indeed well-founded. The Yolo electorate, at the least, should have been given the opportunity, information and time to weigh in on this complex issue. The deadline pressure that reportedly prompted this “fast-track” special session process is most likely bogus.

  2. Adam Smith

    Oh good. Our county officials can waste time and money over something that means nothing. Mr. Provenza has been quoted in the Enterprise as stating that he felt that the Brown Act was not violated. Even if it has/had been violated the extra 3.5 hours that is in question would make no difference to the public’s to respond or to anyone’s further understanding.

    IMO, the BOS was not trying to conceal the decision or limit the public’s rights – they simply decided that they needed to respond quickly – Davisite2 questions the necessity of that. He may be right, but they decided it. 3.5 hours additional notice to comply with the Brown Act doesn’t help Davisite. The public would need days to review, analyze and determine its positions.

    The process that David advocates is ideal, but not always possible, or really even desirable in some situations (imagine how easy it is for folks like AKT to pick off and negotiate when the other side is slow moving and a complete open book). The Brown Act does not provide the protections that David seeks in this instance- there is no way anyone can analyze an agreement of this magnitude in 24 hours, unless you are/were very familiar with it before the 24 hour notice period began. In my view David is essentially seeking to substitute the public voting process for our representative government. The initiative process in CA is an example of what happens when the public has too much of a direct influence in legislating and governing. The public should exercise its influence in elections and letter writing – it just isn’t feasible for the public to intelligently vote for individual pieces of legislation or issues.

  3. civil discourse

    Just a comment on format: I shouldn’t have to hunt down to find the disclosure. Some won’t bother. It should be in (parentheses) right in the body of the story.

    The increased use of the “*” or “**” (see just about every post from Rifkin) should be discouraged, in my humble opinion, on this blog. Tangents or disclosures should be incorporated into the writing. The “*” discourages dialogue in my opinion, since it imbues some sort of researched authority on the matter, besides being disjointed in presentation. Just my 2 cents.

  4. Rifkin

    [i]”Citizens Alliance for Regional Environmental Sustainability” [/i]

    [b]Who is this? [/b]

    It may well be these ladies:

    [img]http://www.law.umkc.edu/faculty/projects/ftrials/manson/bald.jpg[/img]

  5. E Roberts Musser

    AS: “The Brown Act does not provide the protections that David seeks in this instance- there is no way anyone can analyze an agreement of this magnitude in 24 hours, unless you are/were very familiar with it before the 24 hour notice period began.”

    Apparently it appears it was not even enough time for the BoS to even properly notice the public, either time wise or or in terms of subject matter. That in itself is very telling – this was a rush job, not well thought out, and the public was virtually shut out of the process. Not enough thought was even put into the legal process required to properly notice the public.

    As a consumer law/elder law attorney, I always, always advise clients if someone is pushing them to make a rush decision, DON’T DO IT, TAKE THEIR TIME. RUSH DECISIONS DON’T GIVE THE OPPORTUNITY FOR PROPER RESEARCH, COMTEMPLATION, CONSIDERATION, AND OBTAINING SECOND OPINIONS IF NECESSARY.

    dmg:”That is certainly an interesting approach. So a member of the body cannot make a claim that the body violated the Brown Act? The County Counsel added, “Now the question has been raised on a formal basis and we’ll have to evaluate that.””

    In other words, until faced with the possibility of a lawsuit, the county does not feel compelled to comply w the law?

  6. Roger Rabbit

    Checks and balances are good for system and keeps people honest and discourages abuses.

    [quote]An informed republic is a responsible republic.[/quote]

  7. Steve Hayes

    If the Process is Flawed, So Shall the Product Be: The process was rushed because:sad:1)the offer was only good for December;(2)an assured 3-2 favorable vote by the City Council was only guaranteed through December*;and,(3)in January, the remaining four elected Council members could not provide such a guarantee.
    _______________
    * In my opinion, the 3rd assured vote in favor of the project gave Rochelle “cover” so she could more readily vote in favor of it, and ultimately provide the “comfortable” 4-1 favorable margin. Had the spotlight been on her to provide the crucial 3rd vote in favor of the project, she would have had a much more difficult vote. She is on record about her concerns about process.

  8. E Roberts Musser

    SH: “(2)an assured 3-2 favorable vote by the City Council was only guaranteed through December*;and,(3)in January, the remaining four elected Council members could not provide such a guarantee.”

    One wonders if Saylor insisted on remaining on the CC for his brief 6 mo. stint as mayor as part of his agenda to ensure the necessary votes for passage of this measure come Hell or high water…

  9. David Suder

    [quote]The increased use of the “*” or “**” (see just about every post from Rifkin) should be discouraged, in my humble opinion, on this blog.[/quote]
    Here’s another point of view on that. I appreciate the use of footnotes. Footnotes allow the writer to continue with his/her central point without interrupting the flow of the discussion, while providing a placemarker for tangential information and citations. If DMG had put the disclosure (which was neither nefarious nor particularly surprising), it would have been more difficult to follow the story.

    IMO, the disclosure of Don Mooney’s prior relationships with the Vanguard need not even have been asterisked. A simple note at the end of the story would have been sufficient.

  10. E Roberts Musser

    I certainly have no problem w footnoting. It gives interesting context. Each commenter ought to be able to choose his/her own style/preferences in how they right…

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