Local agencies violate open meeting law
January 23, 2011
Requests to allow public access to meetings of a local committee formed to examine the air quality at the Oceano dunes were primarily ignored until one of the state’s leading authorities on open meeting laws warned the committee that they needed to follow the law or face litigation.
The Brown Act was passed in 1953 because of mounting concerns that government bodies were avoiding scrutiny by meeting secretly. The Act guarantees the public the right to attend and participate in meetings of legislative bodies, to have forewarning of discussion items through posted agendas and forbids a majority of board members from discussing government issues in in private.
Los Angeles County District Attorney Steve Cooley contends that a lack of participation by Bell city residents was one of the reasons that corruption in Bell flourished.
In San Luis Obispo County, some local government bodies regularly fail to properly notify the public of upcoming agenda items or discuss some public issues in open session, as required by the Brown Act.
In the case of the Management Oversight Committee (MOC), created in July by the County Board of Supervisors; the Air Pollution Control District (APCD) Board and staff from the California Department of Parks and Recreation, the committee chair and head of the APCD Larry Allen and the APCD’s attorney determined the committee did not have to comply with the law.
“It is surprising that the parties or their attorneys believe that a multimember body created by a legislative body can be exempted from the Brown Act’s requirements by use of the term “ad hoc,” said Terry Francke, the director of CalAware and arguably the foremost authority on the Brown Act. “The only ‘ad hoc’ bodies not governed by the Act are committees, populated by less than a majority of the creating body and no one else.
“Those responsible to comply with the law may wish to spare themselves some embarrassment and spare the taxpayers the obligation to pay our attorney’s fees that would result from having to be schooled on this point by the superior court,” Francke added.
In July, county supervisors, the APCD and staff from state parks and recreation approved a request by local APCD Director Larry Allen to create the MOC to explore options for reducing particulate matter at the Oceano Dunes State Vehicular Recreation Area. The committee is comprised of a nine member board that includes three members from each participating agency, two of whom are attorneys.
Allen and the attorney for the APCD, Ray Biering, drafted the agreement that created the committee. The agreement says that the committee does not have to comply with Brown Act requirements.
Both Allen and Biering did not return repeated requests for comment.
The committee held two meetings in which the public was permitted to attend, one in July and one last week, the public, however, was not permitted to speak until the end of the meetings, in violation of the Brown Act. During the meetings, both proponents and opponents of allowing vehicles on the dunes and beach spoke out against the committees’ failure to allow public participation.
At last week’s meeting, Kevin Rice presented the committee, the county board of supervisors and the APCD with a letter demanding the committee comply with the Brown Act, disclose actions of prior meetings and discussions and allow the public a meeting in which to voice their opinions and concerns about prior issues.
In his letter, Rice gives the county and the APCD 30 days to comply or face litigation.
Opponents of vehicles on the Oceano coastal dunes and beach point at a recent study by the APCD that reports that off roaders driving on the beach significantly increase the amount of dust blowing downwind to the Nipomo Mesa. Opponents would like to have vehicles banned from the beach in order to protect, wildlife, habits and air quality.
Proponents of vehicle use on the dunes point at the economic impact the park brings to the county, more than 2 million people visit a year making the park one of our counties largest economic generators.
In addition, Rice contends those involved in conducting the survey are biased because of connections to the APCD. And that if the park is found responsible for poor air quality in the area, the state will have to pay fees to the APCD, an agency that is primarily funded through fees paid by local entities found to be causing air pollution.
“The U.S. Geologic Survey says there is about 500 million pounds of dust that blows on the dunes each year,” Rice said. “Larry Allen complains that his staff hasn’t grown in the past few years and I believe he is looking at the deep pockets of the state to fund his agency.”
County Supervisor Adam Hill said that even though he is unaware of the current conflict, he supports any action that helps to promote transparency.
“I don’t have a problem with anything that will help us conform to public transparency requirements,” Hill said.