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