by Scott Steward
On April 23, four local residents filed a formal “cure and correct” letter with the Davis City Clerk. A cure and correct calls for vacating decisions made under conditions that violate state law. The letter requests specific cure and correct actions to rectify violations by the City of California’s Ralph M. Brown Act, which “allows the public to attend, observe, monitor, and participate in the decisionmaking process at the local level of government.”
The goal of this action is to rescind an illegitimate and disadvantageous agreement executed by the City with an El Dorado Hills company, BrightNight LLC, and to restore trust in City leadership and transparency in City decision making. The four resident experts are members of the City’s Utilities Commission or Natural Resources Commission.
On March 25 the City of Davis signed an agreement to provide BrightNight a five-year option to lease City-owned land for 49 years for a solar farm. The City took this action based entirely on deliberations conducted in closed session, citing a narrow exception to the open meeting requirements of the Brown Act only for negotiating price and terms of payment for a real estate transaction.
A deal of this magnitude and complexity typically could not be conducted entirely in closed session because it would involve matters beyond price and terms of payment that fall outside the Brown Act exception. None of these other matters were ever discussed by the City Council in public.
Using this closed session process the City leadership ended up (1) approving a financially disadvantageous deal for the City, and (2) committing a fundamental violation of both the spirit and the
letter of the Brown Act. The City’s March 25 execution of the lease option enabled BrightNight to avoid a $250,000 deposit for an interconnection study by the California ISO and may have forsaken the opportunity for more than $20 million in benefits to City.
The Brown Act violations detailed in the letter may jeopardize the finality of the March 24 action, which was taken by the City Council on a 4-1 vote (with Councilmember Lucas Frerichs opposing)
granting a sole-source contract to BrightNight. This action gives the closely-held company an option to lease 235 acres of City-owned land adjacent to the wastewater treatment plant, for the purpose of installing a large 25-megawatt photovoltaic solar array.
The City continues to assert that this project will provide solar energy to Davis and contribute to Davis’s decarbonization goals, but the agreement does not address providing energy produced by the project to Davis.
The April 23 cure and correct letter alleges that the City Council and Staff violated provisions of the Brown Act by:
a) Considering in closed sessions many aspects of the BrightNight transaction beyond just price and terms of payment, and
b) Repeatedly failing to properly inform the public of essential information required by the Brown Act in conjunction with closed session real-estate negotiations, specifically the identities of the
negotiating parties and accurate identification of the City property that was the subject of the negotiations.
In accordance with section 54960.1 of the Brown Act, the April 23 Notice requests specific cure and correct actions:
1) That the City Council invalidate its March 24 approval of the no-bid agreement,
2) That the City invalidate the lease option agreement with BrightNight, which the City executed on March 25 following the City Council’s approval,
3) That the City conduct its future affairs in full compliance with the Brown Act, and
4) That the City Staff and City Council members undertake training on proper compliance with the Brown Act to ensure the same mistakes are not repeated in the future.
All four citizens filing the cure and correct letter, Lorenzo Kristov, Johannes Troost, Richard McCann, and Matt Williams, had sent individual personal letters of concern to the City Council in advance of the March 24 meeting where the BrightNight lease option was approved.
The four then collectively sent a Request for Reconsideration of Lease Option Agreement and Term Sheet with BrightNight prior to the April 7 Council meeting, further illuminating serious concerns with the closed session process and specific terms of both the lease option and the lease term sheet, as well as the City’s failure to engage with several City Commissions that had been working with City Staff to consider alternative uses of the same property, and the award of the lease