Closed Water Agency Meeting Violates the Brown Act

This commentary was posted May 16, 2012

Environmental attorney Debbie Cook is a former Huntington Beach City Council member and two-term mayor of that city. She served on California’s State Desalination Task Force and as a city official voted against the ocean desalination plant proposed by Poseidon Resources Inc. Cook has been monitoring government transparency at local water districts. She made these public comments at a special meeting held by the Board of Directors of the Municipal Water District of Orange County (MWDOC), May 15, 2012, in the penthouse floor that lodges the offices of MWDOC’s legal counsel, Best Best & Krieger. She addressed the board’s postponement of a closed session item concerning water rate negotiations between MWDOC and Poseidon Inc. after receiving protests. Cook explains why that meeting would violate the Brown Act, which requires government agencies to hold meetings open to the public.

There has been an unsettling trend among water agencies to conduct more and more of the people’s business in closed session under the guise of the “real estate negotiations” exception. While you can always pay an attorney to argue any absurd position, I urge you to reconsider such a course.

Debbie Cook
Debbie Cook

The Brown Act allows very narrow exceptions to conducting the public’s business in public and the real estate exception is perhaps the most narrowly drawn of all of them.

Poseidon is not selling, nor are you buying, real estate or real property within the meaning of the legislature’s intent. It is a contorted analysis that says otherwise.

Real Property is land and whatever is erected or growing on or affixed to it. But once severed from the land, things that are growing or attached to it are considered “goods.”

Best Best & Krieger in Irvine. Photo: Google

There is no “goods” exception to the Brown Act. The legislature never intended for water or mineral rights or crops to be bootstrapped onto the real estate exception. Any contrary interpretation of their intent would swallow the exception.

Further evidence of your difficulty in comporting your behavior with the Act, is in your inability to stay within the Safe Harbor provisions of the Act. The Act says that you must specify the street address or parcel number of the real property under negotiation. But your notice states: “Property interests in water produced by Poseidon Resources Huntington Beach Seawater Desalination Facility.”

The exception is not about “property interests.” Each of you may have property interests in your names or images but that does not make it appropriate to discuss in closed session. If you are not able to identify a parcel of land for which you are negotiating, then any meeting in closed session will be illegal, whether it is done today or postponed to September. Bad news does not get better with age.

Last December, the Attorney General issued an opinion clarifying what can be discussed in closed session under this exception. While not directly on point, it is informative. I will leave a copy of their opinion along with this law firm’s (Best, Best, & Krieger) analysis done for another agency, and let you ponder these documents as you consider whether or not to retain their services.

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