by John Earl, July 16, 2014, cross-posted from the Surf City Voice
[Note: The characterization of the Executive Committee meetings as “secret” is the writer’s term and his term only.
The wording of the opening paragraph was not meant to imply otherwise.]
An Orange County Water District director, infuriated over being misled by OCWD staff and other directors about secretly held and possibly illegal executive committee meetings, plans to speak out at tonight’s board meeting, July 16, the Surf City Voice has learned.
“Since I have been copied with agendas for recent executive committee meetings,” Director Jan Flory told the Voice in a phone interview, “I am very disturbed that they are not copied to the rest of the board before its meeting. The scope of issues it talks about far exceeds what I have been told the Executive Committee deals with.”
The previously secret agendas and other documents were shown to Flory by the Voice, which obtained them through multiple requests under the California Public Records Act.
Flory is one of three appointed OCWD directors on the ten-member governing board. She represents the city of Fullerton and started her term last January. The other seven board members were elected by districts.
Flory said she will ask Fullerton’s city attorney to look into the legality of the Executive Committee’s meetings.
At the June 18 OCWD board meeting, Flory asked about the Executive Committee, following up on inquires made by the Voice and public comments made at previous board meetings.
“I’ve heard grumblings among some of the members of the public who feel excluded by the process,” she told the board. “They are suspicious of what goes on, and I guess I would like an explanation of what is the executive committee really all about,” she said.
Stumbling over his words, OCWD president Shawn Dewane claimed that the Executive Committee is an ad hoc committee and is, therefore, not required under California’s public meeting law, known as the Brown Act, to be open to the public.
“Is that correct, Mr [Joel] Kuperberg?” he asked of the District’s legal counsel.
“That’s correct,” Kuperberg answered. “It does not have a particular subject matter by which I understand it takes up issues that either the president or the general manager think are important to be taken up by the committee, as to water issues or property management, and it doesn’t have regular meetings scheduled. Because of those two factors, it is not required to be a publicly noticed meeting under the Brown Act.”
Dewane explained further that, “In my experience, the meetings are held at random and for no particular purpose other than the example of something that would be, of no particular purpose other than an item of emergency, let me put it that way.”
The “item of emergency,” he explained, would be a “piece of legislation introduced that is affecting the district or something like that.”
There have been relatively few executive meetings since he became board president in 2010, he said.
General Manager Mike Markus then told Flory that he was usually the one who asks for the “ad hoc” meetings. There have only been two executive committee meetings in 2014, he said.
“I haven’t discussed any – I’m just trying to think from the last one,” Markus feigned, as if trying to remember what would be a typical – and innocuously legal – executive committee topic.
He had been invited to be the keynote speaker at a conference in China, he explained, to be fully reimbursed by the party putting on the conference.
Not to be “bothering the entire board about it, I bounced it off the board president, vice president, past presidents, so I can kind of get some concurrence that I am headed in the right direction.”
Director Stephen Sheldon, recently caught by the Voice for violating conflict of interest laws (see No Comment on Poseidon Vote), told Flory that the Executive Committee meetings are “no different than you or I getting together and talking about an issue. That would not be a violation of the Brown Act.”
But the previously hidden agendas, plus director expense reports examined by the Voice, and legal opinions on file with the State Attorney General’s office, either directly contradict virtually every explanatory claim about the Executive Committee made to Flory by Markus, Dewayne and Sheldon or render them irrelevant.
The records reveal that Dewane’s claim that the Executive Committee met for emergencies is impossible, because the criteria for emergency meetings under the Brown Act, which guarantees the public’s right to open public meetings, were not met–there were no urgent matters requiring action to curtail disruption of District facilities listed on a single executive committee agenda.
Also, the complete minutes of emergency meetings must be posted as a matter of public record, and no such records exists, according to OCWD staff responding to a public records inquiry by the Voice.
The Brown Act is complex and sometimes calls for nuanced interpretations, but its basic guiding principles, stated in section 54950, are fairly simple:
In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.
The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
Section 54950 also provides the backdrop of a legal opinion published by the State Attorney General’s office in 1996, which applies to the way OCWD conducts its executive committee meetings.
The opinion found that the term “permanent”, used to define a committee of a legislative body–that falls under open meeting requirements of the ACT– “, may be commonly defined as ‘to endure, remain’”, and that the term “continuing” as in “‘continuing subject matter jurisdiction’” (referred to by OCWD legal counsel) means “needing no renewal”.
The opinion also found that “‘subject matter’ means ‘matter presented for consideration’” and that “‘jurisdiction’ means ‘power, right or authority to hear a cause,’” such as budget issues, contracts and personnel matters “and that its authority needs no renewal.”
Thus, “We thus follow function over form in carrying out the Legislature’s purpose,” the legal opinion says.
All else is irrelevant.
The committee, whatever it is called, must be open to the public if its responsibility is to give advice “on budgets, audits, contracts, and personnel matters upon the request of the legislative body,” e.g., the OCWD Board of Directors.
In other words, if it walks like a duck and quacks like a duck, it is a duck, even if it is called a goose.
And a good look at its agendas seems to show that the OCWD Executive Committee looks just like a duck and has its share of quacks.
Twenty-two agendas were acquired by the Voice, but there are at least five more meetings that were held for which agendas weren’t provided, the directors’ expense reports show.
Ten of the agendas disclosed to the Voice cover the period from Jan. 2013 to the July 14, 2014.
Some agendas are simple listings of topics to be covered, others contain brief or in-depth background information provided by General Manager Markus.
The names of the attending directors, who were appointed by OCWD board president Shawn Dewane, are never mentioned on the agendas, but expense records indicate that for 2013 the members of the Executive Committee were Shawn Dewane, Roger Yoh, Philip Anthony, and Cathy Green.
The agenda issues cover a wide range of topics that the full board could be expected to deliberate on, such as:
- board meeting guidelines,
- personnel issues,
- media protocol,
- annexation agreements,
- labor relations,
- legal strategies for lawsuits,
- a gym for employees,
- water assessment and replenishment fees,
- car allowances,
- proposals to cost share and merge with MWDOC,
- widespread overpayment of directors’ stipends,
- the GM’s proposal to increase his salary,
- the Bay Delta Conservation Plan,
- the District’s proposal to build a power plant in Anaheim,
- purchasing land in Anaheim,
- talking points on energy usage for ocean desalination,
- the proposed Poseidon Resources desalination plant,
- and more.
Some of the more interesting issues discussed include:
- From the July 1, 2013 meeting, item #4, “Talking Points on Energy Usage for Seawater Desalination: I [General Manager Mike Markus] have been asked by a Director (sic) to bring forward an issue to the next Leg/Com meeting (07-11-13) regarding a change in messaging when we talk about the benefits of GWRS Staff has been using the talking point that a benefit of GWRS is that it ‘uses half the energy it takes to bring imported water from Northern California and a third of the energy to desalinate seawater.’ The request had been made to just refer to the energy savings benefit for imported water and drop the reference to seawater desalination.
- From the Aug. 15, 2013 meeting, item #1, Citizens Advisory Committee: “I have attached a spreadsheet which shows the 12 applications we have received for the Citizens Advisory Committee [on the Poseidon desalination project] The deadline for applications is August 30th and I would like the Committee to consider establishing a process for the selection of Committee members along with a timeline so that we can answer any questions that may arise from outside stakeholders about the selection process.”
- Also from the Aug. 15, 2013 meeting, item #2, Poseidon Support Letter: “Poseidon has been approaching different water agencies about writing letters of support to the Coastal Commission for the Huntington Beach project. I told Scott Maloni that I could not write any letter until I ran the idea past the Executive Committee. I would like to discuss how the Committee would like to approach this issue.”
- Again, from the Aug. 15, 2013 meeting, item #8, General Manager Pay Adjustment: “I am requesting a 2% salary increase for cost-of-living (same as all other employees) retroactive to July 1, 2013 and a contribution to my 457 retirement account of $23,000, which would serve a non-base building merit increase. I have attached a spreadsheet which shows the General Manager compensation for 9 other water/sanitation agencies. The average total compensation under the “current” table is $255,877, which puts my existing total compensation 5.4% below the average. The average total compensation under the “proposed” table is $257,402, which would put my proposed total compensation right at the average.”
- From the Nov. 12, 2013 meeting, item #1, Poseidon Project: “I have attached the current white paper that staff has prepared evaluating the proposal we have received from Poseidon for the purchase of water from the proposed Huntington Beach Desalination facility. Please consider the information confidential at this point in time as it contains data that is protected in the confidentiality agreement we have with Poseidon. Before we release the paper to others, we want to make sure we have Poseidon’s concurrence that the information can be made public.”
- Also from the Nov. 12, 2013 meeting, item #4, Director Expense Reports: “Recently there have been public records requests for Director Bilodeau’s expense reports. A detailed evaluation of his records has shown that there have been staff errors, which led to discrepancies between claimed meetings and meeting minutes. These discrepancies led to internal investigations for other Directors and we have uncovered widespread errors with most directors being affected. I will provide a handout at the meeting detailing the mistakes and a report as to how new procedures have been developed that will keep this from happening in the future.”
That report, which the Voice has sought in a new information request, may help explain the discrepancy between directors’ expense records, which indicate 13 Executive Committee meetings for 2013 and the number of meeting agendas – seven – obtained by the Voice for the same period.
Coming to Light
The agendas were discovered circuitously by the Voice after several information requests made under the California Public Records Act.
The secret executive committee meetings were first mentioned in an article published by the OC Weekly online on September 24, 2013, that asked why Director Bilodeau was still billing ratepayers for “No-Show Meetings.”
Based on directors’ expense reports, the article said that Bilodeau and three other directors at the time, including Sheldon, Wes Bannister, and Philip Anthony attended 14 secret executive committee meetings at Sheldon’s Newport Beach office.
The article noted that the OCWD board policy manual indicated that the Executive Committee is a “standing committee,” which means that it must be held in public and properly noticed with agendas and minutes provided to the public.
But an OCWD spokesperson told the Weekly that the executive committee was an “ad hoc committee,” so the Brown Act didn’t apply, no matter what the manual said.
The spokesperson also told the Weekly that “the manual does not include a definition of standing.”
The Weekly reporter was led to believe that there were no agendas or minutes serving as records of the supposedly ad hoc executive committee meetings.
In April of this year, the Voice followed up by requesting a copy of the 2013 OCWD Board of Directors Policy and Procedure Manual.
The manual is a detailed explanation of board policies based on the OCWD Administrative Act, which is required by state law and cited throughout.
Strangely, I found that the manual listed the Executive Committee as an ad hoc, not standing, committee.
To find out why, this reporter contacted OCWD secretary Janice Durant last April by phone.
According to Durant, the 2013 manual – which was written that year, she said – had erred in depicting the Executive Committee as a standing committee, so a correction was made.
She added that the manual is revised every year and that it was never meant to be a board-authorized manual, and that it was started when she came to the District 23 years ago.
The other 2013 version board manual cited by the Weekly, and also obtained by the Voice, clearly calls the Executive Committee a standing committee and says its mission is to “evaluate and propose new District policies and initiatives as appropriate” and that it meets “as needed.”
That description describes the function of the OCWD Executive Committee presented in the now-revealed meeting agendas.
Flory is skeptical about the “error” cited by Durant.
“All of a sudden it’s an ad hoc committee? When did that happen?” she asks.
Durant said that there is no record of when the board created the Executive Committee and the only way that she knew the 2013 manual was in error was by the legal definition of the difference between a standing and ad hoc committee–a definition that it now seems many OCWD officials don’t understand.
Subsequent to my conversation with Durant, this reporter–wondering how such an invasive error could have remained standing for 23 years, or at least since 2010, asked for copies of the board manual for each year in that period.
But, in a written response, Durant said that I had already been presented with those copies – by which she meant the two versions of the 2013 manual (in electronic form), but she didn’t say which one was in use from 2010 to 2013.
Durant had also told this reporter that there were no documents recording how many executive meetings were held or when they were held except for the directors’ expense reports.
Flory finds that assertion, along with other false or misleading accounts of the secretly held Executive Committee, told to her by staff and some of her board colleagues, “absolutely infuriating.”
The meeting will be held tonight at 5:30 p.m. at the Orange County Water District, located at 18700 Ward St., in Fountain Valley. Enter the parking lot off of Ward. Flory will also try to discuss her proposal to video stream and archive board and committee meetings, which President Dewane and some other board members tried to table for one year at a recent committee meeting, as part of her, so far, one-person-effort to create greater transparency and increase public access to OCWD meetings.