Water Board’s Penthouse-Party Crashed by Pent Up Ratepayers

First posted May 17, 2012

By John Earl
Surf City Voice

A “special” meeting of the Board of Directors of the Municipal Water District of Orange County (MWDOC), originally designed by Best Best & Krieger of Irvine– the largest public agency law firm in California – to schmooze its new clients, became a public embarrassment Tuesday when the plush solitude of its penthouse-view executive board room was invaded by a small band of transparency advocates.

MWDOC meetings are normally held on the ground (and only) floor of its home office, humbly but conveniently located next to the County’s sewage treatment plant in Fountain Valley.

Despite the surprise BBK location, in addition to the usual inconvenience of morning meetings that are designed to accommodate MWDOC’s directors, most of whom are retired from professional life, but not the working public, 10 citizens at large—a rare turnout by MWDOC standards—attended, barely fitting into a small setting that clearly wasn’t intended for them.

But that setting was perfect for MWDOC’s seven water buffaloes: a towering view of Irvine’s skyline to be enjoyed with two large bowls of salad, what looked like two large dishes of lasagna, and plenty of chunky chocolate chip cookies, all nicely placed buffet style.

BBK’s recent additions, partner Russell G. Behrens and counsel Daniel J. Payne, both know what six of the seven MWDOC directors like (the seventh, Wayne Osborne, is a new comer) because they worked for them before as part of Kidman Behrens and Tague.

In January they left KBT for BBK and took MWDOC with them, entering into a five month test, according to MWDOC’s General Manager, Kevin Hunt. The purpose of Tuesday’s meeting was for BBK to seduce and corral MWDOC’s water buffaloes, thus sealing the deal.

So BBK’s managing partner, Eric Garner, used his very brief presentation to try to impress the board with the firm’s expertise in public agency law in general and water law in particular.

“When I’m not managing lawyers, I do still practice water law,” Garner cheerfully explained. “It would be a great privilege to work with the district if the opportunity ever arises for the need for my expertise. I can’t imagine ever practicing any water (sic) but water law to me. It is by far the most fascinating, interesting area in the legal world.”

Garner might get that opportunity to use his expertise sooner than he expected; but, judging from the sour look on his face, he wasn’t happy to hear former Huntington Beach mayor Debbie Cook infer that the opportunity would only arrive due to BBK’s incompetence.

At issue was a closed session originally scheduled for MWDOC’s penthouse-view meeting to negotiate prices and other financial arrangements for water that Poseidon Resources Inc. wants to sell to MWDOC. The source of the water is the ocean, from which Poseidon wants to make 50 million gallons of drinkable water per day. The desalination plant would be built in Huntington Beach, but so far the project lacks financing and permits.

Presumably under the advice of BBK attorney Payne, who specializes in water rights and open meeting law, MWDOC General Manager Kevin Hunt put the closed session on the day’s meeting agenda.

Unfortunately, perhaps, for MWDOC and BKK, California’s open meeting law, the Brown Act, requires government legislative meetings to be open to the public.

All government transparency laws have exceptions, but those exceptions are few and narrow in scope in the Brown Act.

One of those exceptions is for selling or leasing real property. Hunt previously told the Voice that water rights constitute real property and that Poseidon was selling water rights to MWDOC; therefore, the negotiations with Poseidon could be held in closed session.

But after hearing of complaints by Cook and others that the proposed negotiations had nothing to do with real property or water rights, and that the closed session would violate the Brown Act, Hunt backed down and postponed the closed session until September, pending a legal opinion by BBK which, Hunt previously said, had told him the closed session was okay in the first place.

BBK’s managing partner, Eric Garner, listens to Debbie Cook slam his firm’s Brown Act compliance. Photo by John Earl

“If you are not able to identify a parcel of land for which you are negotiating,” Cook told BBK’s lawyers and MWDOC’s directors, as they quietly listened from their penthouse view overlooking Irvine’s majestic skyline, “then any meeting in closed session will be illegal, whether it is done today or postponed to September.”

Cook had a copy of a related legal analysis of the Brown Act’s real property exception by the California Attorney General, as well as a related opinion BBK wrote for Santa Margarita Water District.

The Attorney General said that real property exceptions were to be applied narrowly. But BBK’s opinion justified, after the fact, that agency’s closed session negotiations with Cadiz, a company that wants to sell it water from a Mohave Desert aquifer.

Cook handed the documents over to the directors to review “as you consider whether or not to retain their [BBK’s] services.”

Other speakers, including Joe Geever of the Surf Rider Foundation and Conner Everts of the Desal Response Group also spoke.

Geever warned that MWDOC, in contrast to its handling of the Dana Point desalination project, was leaning away from transparency with its handling of the Poseidon project and was further going down the wrong path by following in the footsteps of the San Diego County Water Authority in its dealings with Poseidon on an identical desalination project in Carlsbad. “You can get attorneys together and argue for minimal transparency,” he said, “and probably have a lot of legal battles over that, or you can lean the other way toward as much transparency and public participation as possible, like you have in Dana Point.”

Everts, who used to be a water buffalo himself for the Casitas Municipal Water District, also spoke about transparency. He suggested that MWDOC hold its meetings in the evenings and on weekends. “I think it’s really important for the public. These are controversial issues and we actually would like to participate because we think that we have something of value.” Everts sarcastically commented on the food being served, wondering if there would be enough for everyone and if parking would be validated. “But maybe we get cookies,” he said.

But the Poseidon-related closed session was off the agenda, for now, and Garner’s presentation about BBK was mercifully brief. After only 18 minutes into the meeting it was time for lunch, announced MWDOC’s president, Jeffrey Thomas, followed by a different closed session about a lawsuit.

BBK’s Russell Behrens: “Please don’t eat everything.” Photo by John Earl

“No, no, no, no,” Director Brett Barbre quickly interjected, joined in protest by Director Larry Dick. They didn’t want to put pleasure before business, the food could wait.

“Please don’t eat everything.”

Russell Behrens, BKK legal counsel

Thomas agreed and the directors, along with their new attorneys, went to another room to deliberate behind closed doors on another legal matter.

But before they left, Behrens, who is BBK’s new partner and MWDOC’s renewed general counsel, admonished the rest of us, “Please don’t eat everything. The directors haven’t had lunch yet either.”

Most of the public attendees, including this reporter, decided to go home. At the 15th floor elevator entrance we saw Director Wayne Clark arriving just in time for lunch. Director Susan Hinman did not attend. Other attendees were Kevin Hunt, MWDOC Secretary Maribeth Goldsby, Directors Brett Barbre, Larry Dick, Wayne Osborne (10 minutes late), Joan Finnegan and Jeffrey Thomas. Also present was John V. Foley, MWDOC’s appointee to the Metropolitan Water District of Orange County.