Why OCWD pays $5000 Dues to CalDesal, and a very good Brown Act Question.

Gadfly Elliott, Ralph Moses Brown, CalDesal’s Dewane.

This story addresses TWO different important issues.  So, if you’re not interested in Water Policy Corruption and fighting the Poseidon Boondoggle, you still may want to scroll down to the middle of the story for the Big Brown Act Question.

Once a year, for the last few years, we’ve noticed with irritation that the OC Water District pays $5000 of public money in annual dues to a desalination lobbying group called CalDesalJohn Earl has written about this a few times.  Why should a board whose business is groundwater management, but is most frequently faulted for being in bed with Poseidon (the northeastern hedge fund group trying to foist an unnecessary $1.5 billion desalination plant on the county) be spending ratepayer bucks on a nonprofit lobbying group whose mission is to grease the wheels and reduce regulatory roadblocks for desal?

Better things to do than answer you ankle-biters…

At the December 2 OCWD meeting, our friend Mike Elliott thought he would ask just that!  Mike is a Huntington Beach computer systems engineer and Poseidon opponent whom this blog endorsed in his run against longtime OCWD board member and Poseidon lover Cathy Green.  Director Vince Sarmiento (now also Santa Ana Mayor) seemed a little taken aback by Mike’s impertinent query, but asked OCWD staff to get back to him.  To this day, Mike has heard nothing.

So Mike tried again at the January 6 meeting – this meeting run by his opponent Cathy Green.  “Please let me know how we ratepayers benefit from this expenditure?” was Mike’s basic question.  Cathy simply ignored his question and moved on – Mike thought, “She must really hate having had to actually do something to get re-elected and all because of me. But still – no response from anyone? This is a legitimate question after all.”

Who amongst us has actually read the Brown Act?

Mike Elliott also serves on Huntington Beach’s Citizens Infrastructure Advisory Board.  He continues, “The fact that my board does practically nothing of value does not excuse us from having to periodically fill out a form 700, take sexual harassment training and learn about the infamous Brown Act. I’ve attended other HB board meetings as well as our own, and encountered many situations where board members feel that the Brown Act forbids them from responding to public comment. Indeed, that’s what I thought I’d have to do, too, if I were ever to be in the position to respond to such public comment.

“However, when I actually got around to reading the Brown Act, I found out that such a prohibition is not only non-existent, but the Brown Act explicitly allows – and perhaps even encourages – brief commentary to public comment.  And I quote: 

“CA. Gov. Code § 54954.2(a)(3).

No action or discussion shall be undertaken on any item not appearing on the posted agenda, except that members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights under Section 54954.3.

In addition, on their own initiative or in response to questions posed by the public, a member of a legislative body or its staff may ask a question for clarification, make a brief announcement, or make a brief report on his or her own activities.

Furthermore, a member of a legislative body, or the body itself, subject to rules or procedures of the legislative body, may provide a reference to staff or other resources for factual information, request staff to report back to the body at a subsequent meeting concerning any matter, or take action to direct staff to place a matter of business on a future agenda.”

So when Mike attended the LAST OCWD meeting on Jan. 20, he asked the same question, but added that he believes the Brown Act’s prohibition on answering public commenters is a myth, quoting the first paragraph above. 

And guess who jumped in with a “Point of Order” – not answering Mike’s question, far from it, but insisting that the Brown Act does indeed forbid that?  If you know that Anaheim Councilman Jordan “Point of Order” Brandman is also on the OCWD, you will have guessed, and laughed – Comedy Central, if they covered Anaheim, could put together a 5-minute montage of this character blurting out “POINT OF ORDER!”

Now I’m thinking, how long have councilmembers, Supervisors, board members all over California hidden behind this mythical stricture against answering the public, taking advantage of our ignorance of the Act, just because they don’t FEEL like answering most questions!?  Because, when you think of it, sometimes they DO answer questions when they feel like it.  I have a message in with our favorite Brown Act expert, Kelly Aviles, to see if Mike and I are right, but it looks now like, when these politicians won’t answer our reasonable questions, it’s because they don’t WANT to and they’re probably hiding something!

Back to the OCWD and CalDesal dues…

When Rowe beat Dewane

After Jordan’s erroneous point of order, Mike tried to get any other director to answer his question, with no success.  He was especially disappointed not to get a response from the board’s most outspoken Poseidon opponent Kelly Rowe, although no doubt Kelly also shares the same misconception of the Brown Act that the others do. 

This author, Vern Nelson, managed to get a couple of answers to the CalDesal question, but outside the sacred confines of a Board Meeting – Kelly Rowe answered me on a marvelous device named Facebook Messenger:

“The CalDesal membership is probably a holdover from when Shawn Dewane set it up as a trade group and he got the $5k out of OCWD as president.  It seems that OCWD’s contribution goes toward CalDesal’s cocktail parties.” 

One-a those CalDesal cocktail parties, photo by John Earl.

Heh.  Shawn Dewane was DEFEATED in 2018 by Kelly for the OCWD seat he now holds, but for years before that, the desal fanatic and strident Poseidon booster was simultaneously an OCWD director, a Mesa Water Director, and President of CalDesal.  Conflict?  Probably but nobody with any power much cared.

And I also got a surprisingly honest answer from OCWD  executive director John Kennedy, who admitted to me yesterday, “This board is still pursuing the Poseidon proposal, and CalDesal lobbies in Sacramento to relax regulations on desalination, which could make it easier and less expensive to bring the project to fruition.”  He added that if the Board ever has a majority that opposes Poseidon, they could leave CalDesal and stop paying the dues.

More CalDesal conviviality c/o John.

Mike Elliot concludes, “This might well be a cause worth pursuing, for you and your readers. After all, if the OCWD directorship is unwilling to justify the expenditure of these particular thousands of dollars of ratepayers’ money, what else are they hiding behind phony Brown Act shields?  Maybe some of you might find time to join the next meeting, queue up for public comment and ask the aforementioned awkward question. As it’s a zoom meeting, they don’t have to actually go to Fountain Valley to speak, just spend 10 minutes or so online from the comfort of home at the start of the meeting.” 

Yes, Mike, we very well may, but now I’m thinking beyond the water board.  One of the biggest criticisms of the Brown Act is its toothlessness, its lack of enforcement.  But it looks now like it’s being used as an EXCUSE for politicians and policy makers everywhere to avoid answering uncomfortable questions, while both pretending to be respectful of the Act and taking advantage of our ignorance of its details.  I think that from now on we should come to meetings armed with:

“YES YOU CAN answer this question – CA. Gov. Code § 54954.2(a)(3) states clearly that ‘members of a legislative body or its staff may briefly respond to statements made or questions posed by persons exercising their public testimony rights under Section 54954.3.’

“So if you DON’T answer our questions, it’s just because you don’t WANT to, and probably have something to hide.”

About Vern Nelson

Greatest pianist/composer in Orange County, and official troubador of both Anaheim and Huntington Beach (the two ends of the Santa Ana Aquifer.) Performs regularly both solo, and with his savage-jazz quintet The Vern Nelson Problem. Reach at vernpnelson@gmail.com, or 714-235-VERN.