OCWD’s Casual Disregard for Law: Looking Back to Jan. 2015

Note: The Surf City Voice was hacked last December and is under reconstruction. This story was first published Jan. 4, 2015 under a similar headline.

Commentary and analysis
By Debbie Cook
Special to the Surf City Voice

The Orange County Water District runs its public meetings as far from the public view as its obsequious interpretation of the law will allow, always justified by its accommodating legal counsel, Joel Kuperberg.

So the casual disregard for the Brown Act (the California law that protects the public’s right to open government meetings) displayed on behalf of a shadowy applicant during a recent OCWD board meeting does not surprise me.

But it makes me ask, who is really more at fault, the board members and their cronies, who play mischievously behind the public’s back, or the public citizens and their news media who don’t bother to look?

The incident occurred during the Dec. 12 meeting of the Property Management Committee (PMC), held once a month to consider property related issues.

Like OCWD’s other committees, the PMC is described as a joint meeting with the full board of directors; which, as I wrote previously, is a slight-of-hand tactic used to pass suspect policies without the full public disclosure required by law.

As the PMC meeting opened, only three board members were present, committee chairman Stephen Sheldon, committee member Denis Bilodeau, and alternate Cathy Green.

Chairman Sheldon called the meeting to order and then asked, “Are there any items too late to be agendized?”

OCWD directors after a Property Management Committee meeting last June. Photo: John Earl

If we can ignore, this time, whether the PMC meeting was properly announced to begin with (a question I answer in my previous analysis), Director Sheldon was, so far, following the Brown Act, which, among other things, requires public agencies to post the agendas for regular meetings 72 hours in advance.

But, in order to add items to an agenda that has already been legally posted, the following conditions have to be met, according to the Act:

[T]he legislative body may take action on items of business not appearing on the posted agenda under any of the conditions stated below. Prior to discussing any item pursuant to this subdivision, the legislative body shall publicly identify the item.

(1)  Upon a determination by a majority vote of the legislative body that an emergency situation exists, as defined in Section 54956.5.

(2) Upon a determination by a two-thirds vote of the members of the legislative body present at the meeting, or, if less than two-thirds of the members are present, a unanimous vote of those members present, that there is a need to take immediate action and that the need for action came to the attention of the local agency subsequent to the agenda being posted as specified in subdivision (a).

Next, Director Bilodeau announced that he did have a late item to place on the agenda.

Begging the committee’s indulgence, Bilodeau wanted to make a motion to put an item on the agenda concerning “assessor parcel number 093-010-74 and 75,” a piece of land for which he had no address.

The land is located in the City of Orange, which is part of the OCWD district that he represents.

Kuperberg inquired as to the legitimacy of the motion. “Explain what it is and why it came up after–”

Bilodeau: “Ok. I was recently—this committee only meets once a month, obviously, and I was recently approached by a property owner in Orange along Santiago Creek that desires to see if we can have an interest in buying his property that is along the creek. It is eight acres. He mailed me information…The purpose is just to impart this information to the staff to let them figure if it is of any use to use and what if anything we should do with it.”

Kuperberg: And the contact came up after the posting of the agenda?

Bilodeau: Yes

Kuperberg: Okay. Then it meets the criteria

A motion was then made by Bilodeau and seconded by Green. But before the vote, Sheldon asked Kuperberg if they were following state law.

“Based upon what was described,” Kuperberg explained, “it came up after the agenda. And because it could go somewhere else, to another buyer, there is a need to take action before the end of January.”

Sheldon joked that he might be the one to buy the land.

Despite Kuperberg’s test, the item did not meet all of the legal criteria in the Act.

First, the late item must have been brought to the attention of the agency after the posting of the agenda, not to a member of the board as occurred in this case.

Second, the full board of directors would meet the following Wednesday, that’s only five days later, so there was no urgency to the matter as defined by the Act.

Third, the item was not posted an hour before the meeting as required by the Act.

But the three present members, Sheldon, Green, and Bilodeau voted unanimously to place the item on the agenda and then the discussion began.

Bilodeau explained that the parcel contains 8 acres along the Santiago Creek next to an area that the OCWD uses for recharging groundwater.

“The land is zoned for recreational open space, so I think it is of somewhat low value,” he explained, “because it’s not commercially zoned as some of the other properties we have recently purchased.”

Due to its proximity to OCWD recharge operations, he said, “I just wanted to bring it to the staff’s attention and allow them to analyze it,” to see if there’s any need to proceed.

Bilodeau added he had no idea what 8 acres of open space is worth, but noted that the “City of Orange has been somewhat adverse in giving out re-zones on recreational open space.”

Then Sheldon, after asking for the name of the property owner, disclosed that he might have to recuse himself and that, in fact, the entire board may not be able to consider the matter.

“I may have a conflict of interest,” he explained. “A member of this entity—I believe, could be I’m in a business arrangement with on a different property…I think this would even prevent the District from entering into a contract because of my arrangement.”

Sheldon was referring to California’s Political Reform Act, which prohibits individual government officials from influencing policies that they have a potential financial interest in, and to Govt. Code 1090, which prohibits the legislative body from entering into a contract where such a conflict of interest exists.

Kuperberg agreed that the possible conflict will have to be looked into and the matter will have to be dropped if there is a 1090 issue.

Topping it all off, staff member Bruce Dosier finally mentioned that staff had already been in touch with the property owner or his agent, and that the District would receive a proposal.

“So maybe that’s part of it,” he said, referring to the proposed land sale that Bilodeau was pushing, despite his disclaimers about the land’s value.

Had Sheldon not spoken up, the board would have violated three state laws instead of just one.

But it shows how vulnerable the public is to being ripped off by the OCWD’s behind the scenes approach to governance.

All of which demonstrates the need for live video streaming of all OCWD public meetings, something the board is slowly considering due to pubic pressure.

Video streaming by the OCWD would follow the modern and more democratic practice of the Metropolitan Water District of Southern California, not to mention most city council bodies in Orange County.

Turning on the video cameras at OCWD meetings would be a first for Orange County water boards and a good step forward for citizen participation.

Ultimately, however, video cameras or not, it’s up to the citizens to look in upon their government with due diligence, using whatever tools are available, even if it means trying harder to attend thinly disguised board meetings held at inconvenient hours of the day.

When we don’t participate, we elect blindly. And then we get the government that we deserve.