Commentary: Another Brown Act Violation by the Board of Supervisors?

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Conaway-RanchSenator Lois Wolk must have been stunned when she attempted to meet with county staffers, in advance of Tuesday’s meeting that would first rescind the actions of December 17 that approved an agreement over Conaway Ranch, and then reconsider the agreement. 

According to her public testimony on Tuesday, she was told the Board, “A week or two ago, we did try to work on the staff level to share our substantive concerns but we were told that there really was no interest in discussing the substance of our concerns, that in fact this was a formal proceeding to deal with the Brown Act issue.”

Senator Wolk would go on to make about five modest proposals that she felt would strengthen the agreement, to address some of her concerns.  Instead, the board did not even bother to discuss her suggestions and instead rubber stamped their action from December 17.

As Chair of the Board, Supervisor Matt Rexroad told the Sacramento Bee over the weekend, he expects the same 3-2 vote.

The Bee reported, “Board Chairman Matt Rexroad said in an interview that he still feels the December vote was legal. The meeting and new vote Tuesday are just to make sure it is “absolutely rock solid,” he said.”

“I’m very comfortable with my vote on this, and I think we’re fine procedurally,” he told the Bee.

“He expects the 3-2 vote to be the same, even though Supervisor Helen Thomson retired at the end of the year and has been replaced by Don Saylor of Davis,” he told the Bee.  “Could something crazy happen?” Rexroad asked. “Yes, there’s always a risk.”

In technical terms, what happened on Tuesday may be a violation of the Brown Act, and if not the letter of the law, then the spirit.

The critical question is whether the county violated the Brown Act back in December for failing to give the required 24-hour notice for the meeting.  The county maintains to this day that they followed the law, however, they wanted to be sure, given public complaints.

Well, if that is the case, having a meeting where the outcome was largely decided before the fact belies that effort.  They need to have a true meeting on the issue, where there was the possibility of changing wording and their minds.  That did not happen.

It is very simple to show how this might be a Brown Act violation.  If the Board did not give sufficient time for public notice back in December, then the public also did not have the chance to weigh in with their opinions, to suggest modifications, or, indeed, to really study the issue.

This is a very complex issue that takes time to study.  By ramming it through as they did in December, they short-circuited public feedback.

On Tuesday, people like Senator Lois Wolk were able to weigh in with concerns.  However, the Board failed to address any of those concerns – that is of course in their realm of discretion.

However, the communication to Senator Wolk beforehand is very troubling.  It suggests that the Board and Staff simply saw this as a formality, not a chance to make substantive changes.  But by failing to take into account even the possibility of making substantive cases, they show that this is not a true open process.  And thereby they negate any benefit that a second hearing would have.

The letter of the Brown Act requires a full public notice of a meeting so that the public may be notified, to attend and weigh in.  If they short-circuited that process in December, by failing to take and honestly consider feedback from the public, they have still not met any Brown Act obligations.

In short, we are where we started out a few weeks ago.

A letter from Don Mooney at that point alleged “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 stated.

The question now turns to whether that charge was true.  If it was, then the actions of February 8, at the very least, violate the spirit of the Brown Act and the county really did not rectify the situation.

Simply rubber stamping a previous action that did not give proper notice is insufficient, because it does not undo the original charge.  The original charge is that the public did not have sufficient time to weigh in.  This time, they had time to weigh in, but the Board Majority refused to honestly and openly listen to testimony and be open to changes.

As such, the violation of the Brown Act remains.  At least the spirit of the law has been violated.  Whether the letter of the law was also violated is another question that a judicial body may have to adjudicate.

—David M. Greenwald

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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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17 thoughts on “Commentary: Another Brown Act Violation by the Board of Supervisors?”

  1. Dr. Wu

    Process matters.

    I don’t think its at all unusual for a representative to go into a meeting with “their mind made up.” But I have been to many meetings where elected representatives had their mind made up and then changed it after new information was presented.

    I am not a lawyer but I don’t think the Brown Act should attempt to read people’s minds. However, you need an open process. We’ve seen the consequences of a lack of process in Davis (e.g., zip car).

    Many elected officials (I do not know Ms. Wolk) tend to think quite highly of themselves and their own opinion. Indeed, cognitive psychologists and behavioral economists will tell you that study after study indicates that humans tend to be over confident about their knowledge/opinions, whether it be related to specific facts or the movement of the stock market.

    Allowing discussion should help. I am not an advocate of complete unfettered democracy and even a cursory reading of our founding fathers would indicate that they had a healthy skepticism of pure democracy–even Jefferson was concerned about it.

    But allowing people to bring up new information, express opinions, etc., makes sense to me. And in the case of this project I am far from convinced that our elected officials know what they are doing–I still have many questions.

  2. E Roberts Musser

    I largely agree with dmg’s assessment here. The BoS majority did not really reconsider this issue in any meaningful sense. This was just a pro-forma PERFORMANCE to make it look as if they did – just to correct a previous mistake in having circumvented the requirements of the Brown Act’s notice requirement. From a purely legalistic point of view, they may get away with this, but there has been a break in trust w the people. This was also a slap in the fact to our esteemed Senator Wolk, who took the time out of her busy schedule to thoroughly research the issue and is probably a lot more knowlegeable about this issue than the BoS. Jim Provenza also did his homework admirably.

    Matt Rexroad as Chair can put all the lipstick on this pig he wants to – but it still in the end smells like a pig…

    Shame on Matt Rexroad, Mike McGowan, and Don Saylor (who merely mouthed Helen Thompson’s position and tried to shut down Jim Provenza’s questioning of a public commenter). Their arrogance and unwillingness to allow real public input is now transparent for all to see… color me disgusted.

  3. E Roberts Musser

    And just as an aside, the biggest complaint I have with the majority on the BoS’s ridiculous decision not to take a bit more time to get this right is that their decision/contract is based on ridiculous assumptions about what the state/owner of Conaway may or may not do. The BoS has no idea what the state or the owners of Conaway ranch may or may not do. The state clearly does not know what it will do – it is in complete disarray over the Delta issue. For the BoS to have taken some time to get the language written in a way that the contract would not be based on rocky assumptions that may or may not come to pass, but instead tighten the language of the contract to benefit the county (after all large amounts of money are going to exchange hands in this deal) would seem to have been the reasonable prudent thing to do.

  4. Don Shor

    You’re absolutely right. I believe that Jim Provenza and Duane Chamberlain walked in their with their minds made up. Clearly Provenza and Chamberlain paid no heed to the arguments in favor of the water contract. Therefore they were in violation of the spirit, if not the letter, of the Brown Act.

  5. Steve Hayes

    E Roberts Musser
    02/10/11 – 09:14 AM…
    “… there has been a break in trust with the people.”

    Totally! The frenetic gaming activity to obtain approval of this project from the DCC the week before Christmas will continue to color the potential merits of this project for many of us. I think that the aphorisms “how it begins is how it ends”, and, “if the process is flawed, so shall the product be”, apply here.

  6. Roger Rabbit

    If a local community like Yolo cannot hold our local BOS accountable, how can anyone think higher officials care about what the people think.

    Louisiana Politics in just in the south.

  7. E Roberts Musser

    Don Shor: “You’re absolutely right. I believe that Jim Provenza and Duane Chamberlain walked in their with their minds made up. Clearly Provenza and Chamberlain paid no heed to the arguments in favor of the water contract. Therefore they were in violation of the spirit, if not the letter, of the Brown Act.”

    Did you watch the hearing? This is an incorrect characterization, IMHO, of Provenza’s position. He was not necessarily opposed to the contract in principle. He, together w Senator Wolk, made it clear that bc there was now no rush, it would be appropriate to strengthen the language in the contract so that certain “assumptions” about what the state/landowners “might do” would be rewritten to better reflect certainties in favor of the county if a particular trigger happens. (Lois Wolk made five specific suggestions on improving the contracts.) Any contract attorney would tell you it was a position of reasonable prudence.

    A promise is not worth the paper it is written on if there are no guarantees behind it. Essentially what the contract is saying is that the landowners promise “to be good”, but does not say what will happen if the landowners renege on their promises. Yolo can complain (have a seat at the table), but those complaints can be totally ignored. By agreeing to this contract, the county has given up its bargaining position to no good purpose, which is what Provenza was trying to point out…

  8. E Roberts Musser

    Steve Hayes: “Totally! The frenetic gaming activity to obtain approval of this project from the DCC the week before Christmas will continue to color the potential merits of this project for many of us. I think that the aphorisms “how it begins is how it ends”, and, “if the process is flawed, so shall the product be”, apply here.”

    Thank you, Steve, for taking the time to speak to this issue at the BoS. You are extremely knowledgeable about water issues bc of your personal background, and spoke eloquently at that meeting. Unfortunatley, the majority of the BoS (Rexroad, McGowan, Saylor) were not listening to anyone, including their own esteemed Senator, who knows more about this issue than all of the BoS put together…

  9. Matt Rexroad

    David:

    I am not aware of Senator Wolk’s office contacting anyone in the county on this matter and being turned away. I’m still looking to identify the person she or her staff spoke with. When I find them I will let you know. However, I do know that it was none of the people actually responsible for the issue.

    Hudson Sangree asked me a question about what I thought would happen and I answered it. That is what I thought would happen based on what I knew about the issue. You usually like it when I answer your questions honestly. I will try to remember to speak in vague terms next time we speak about county issues — although that is not my nature.

    It is hard for me to understand why I am accused of not listening to the public comment on the issues when almost every reason for the opposition were clearly refuted by the staff presentation.

    If this is such a great deal for the land owner then I make this offer. If you are a landowner in Yolo County and want to put all the same restrictions on your property I will be happy to give you what the county gave up on this — Nothing.

    You want to know how many of my constituents have contacted me about this issue? Maybe five. The people of Woodland support this effort. You may not agree but that is fine. That is why the Woodland City Council supported their effort with a 4-0 vote. I would bet that they would support the county agreement with a 4-0 vote as well. Oops. There I go again predicting a vote. Shame.

    I opposed the use of eminent domain by Yolo County on Conaway Ranch in hopes that we could work out a deal with the landowner that respected the private property rights of the land owner. That is exactly what we did here.

    You can wring your hands all you want — but this was an easy vote for me to cast. Would I write a different agreement? Sure. But you have to get what you can when you can.

    Matt Rexroad
    662-5184

  10. davisite2

    “respected the private property rights of the land owner. That is exactly what we did here…”

    This is not about private property rights but rather water rights which I believe is not ownership of the water itself but rather a right to use the water for a particular purpose that requires government approval.

  11. Adam Smith

    David –

    Since county staff does not vote on these issues, I don’t understand how their response to Ms Wolk could possibly be a vioation of the Brown Act.

    As to the BOS, my guess is that all of them have had their individuals minds made up for some time. Probably well before the December meeting. This is probably true about many, many issues that elected officials face. I hope and doubt that many of them wait to see which way the public winds are blowing before they make a decision. Perhaps something stunning and unexpected becomes known via public input. Otherwise, I want them to make the best decision they can for the community that they represent, regardless of whether the community agrees with it. Elected officials voting base on trying to win the next election has put the US and CA on very tenuous financial footing.

  12. E Roberts Musser

    Matt Rexroad: “Would I write a different agreement? Sure…”

    But you had the opportunity to do just that, and didn’t avail yourself of the opportunity to strengthen the language as was suggested by our very own esteemed Senator Wolk.

    Matt Rexroad: “I am not aware of Senator Wolk’s office contacting anyone in the county on this matter and being turned away. I’m still looking to identify the person she or her staff spoke with.”

    Pardon me, but I would note you were not aware of your office failing to act on public records requests either. Suppose you do find out who turned Lois Wolk away. What then? Will it change anything in the end? If so, exactly how? The damage has already been done. As I said before, “… there has been a break in trust with the people…” based on the improper way this entire matter was handled and the arrogant attempt to circumvent the requirement for meaningful public input. Putting lipstick on the pig of improper process does not make the pig smell any sweeter.

  13. E Roberts Musser

    AS: “Since county staff does not vote on these issues, I don’t understand how their response to Ms Wolk could possibly be a vioation of the Brown Act.”

    City staff indicating they were not interested in what Senator Wolk substantively had to say bc the meeting was only about the Brown Act in effect says: “We are not changing our previous vote that may have been accomplished at a meeting that violated the Brown Act bc the public was not give sufficient notice. We are just holding a sham meeting to make it look as if we are considering public comment when in fact we have no intention of doing so. As Steve Hayes has said “if the process is flawed, so shall the product be”. And I suspect we are going to see the flaws in this agreement as time marches on…but then we will know exactly who to thank for those flaws, now won’t we?

  14. Matt Rexroad

    E Roberts Musser:

    Thank you for your comments.

    We did not really have a chance to change the agreement in a way that would have been accepted. An agreement like this takes two parties to agree. This simple concept seems to be missed by many.

    I must not be doing a good job of communicating my efforts on tracking down the communications break down with Senator Wolk. I have affirmatively asked staff people if they had communication with her and have not been able to find out who it was that she contacted.

    You think a trust has been broken with the people but it seems to be only with about 15 people in Davis that either don’t like the agreement or don’t like people involved with it. The people of Woodland are fine.

    My experience is that when people realize they are not going to win on the merits people start complaining about process. That seems to be what has happened here.

    Matt Rexroad
    662-5184

  15. E Roberts Musser

    MR: “You think a trust has been broken with the people but it seems to be only with about 15 people in Davis that either don’t like the agreement or don’t like people involved with it. The people of Woodland are fine.”

    Senator Wolk represents more than just 15 people in Davis! She is an esteemed CA Senator who is extremely well versed on this issue, who took the time and trouble to make some very modest suggestions – and she and ALL THE PEOPLE SHE REPRESENTS were summarily ignored by the majority on the Yolo County Bd of Sups.

    MR: “My experience is that when people realize they are not going to win on the merits people start complaining about process. That seems to be what has happened here.”

    My experience is that when politicians realize they are going to win on a majority vote on a contentious issue and want to head off a groundswell of public opposition, those same politicians start ignoring process. That seems to be what has happened here.

    As I said before, lipstick on a pig does not make the pig smell any sweeter…

  16. Matt Rexroad

    E Roberts Musser:

    So under your way of thinking we would just let Senator Wolk decide? Wow. That would be smart.

    So I would ignore my constituents and pass the vote on to someone elected by people from Solano County, Stockton, Davis, and West Sacramento? Right.

    You have a strange understanding of the way local government land use works.

    Shoot — let President Obama decide. He represents the free world. If he is unavailable then we can go with Governor Brown. Then maybe Congressman Herger would like to decide.

    If you want Senator Wolk to get involved in local land use issues you should encourage her to run for the Board of Supervisors or maybe she could get appointed to the Davis City Council. Those are the bodies in our system that deal with that issue.

    Matt Rexroad
    662-5184

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