Local agencies violate open meeting law

January 23, 2011

By KAREN VELIE

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.

Larry Allen

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.


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DuneDude

A 1994 report on the adverse effects of particulate air pollution, published in the Annual Reviews of Public Health, noted a 1 percent increase in total mortality for each 10 mg/m3 increase in particulate matter. Respiratory mortality increased 3.4 percent and cardiovascular mortality increased 1.4 percent. More recent research suggests that one possible link between acute exposure to particulate matter and sudden death may be related to sudden increases in heart rate or changes in heart rate variability.


The Environmental Protection Agency (EPA) has declared that “tens of thousands of people die each year from breathing tiny particles in the environment.” A recent report released by the nonprofit Health Effects Institute in Cambridge, Mass., agrees with the EPA assessment. This study was reviewed by Science magazine and clearly shows that death rates in the 90 largest U.S. cities rise by 0.5 percent with only a tiny increase – 10 micrograms (mcg) per cubic meter — in particles less than 10 micrometers in diameter. This finding is similar to those of other studies throughout the world. The case is stronger with this study, because it eliminated several factors that could confound the interpretation of the data, such as temperature and other pollutants.


The number of deaths due to cardiac and respiratory problems may be small when looking at individual cities with small particles in the environment. The combined long-term effect of studies in several large cities predicts 60,000 deaths each year caused by particulate matter. This is a staggering loss of life that can be eliminated by stricter emissions standards as proposed by the EPA.


whatisup

DuneDude – Where are you getting your information from? Your 1994 report was revoked in 2006. The concern is PM10 particulate matter blowing off the dunes. The following is directly from the Environmental Protection Agency’s (EPA) Particulate Matter Webpage:


EPA revised the air quality standards for particle pollution in 2006. The 2006 standards tighten the 24-hour fine particle standard from the current level of 65 micrograms per cubic meter (µg/m3) to 35 µg/m3, and retain the current annual fine particle standard at 15 µg/m3. The Agency decided to retain the existing 24-hour PM10 standard of 150 µg/m3. The Agency revoked the annual PM10 standard, because available evidence does not suggest a link between long-term exposure to PM10 and health problems.


The Clean Air Act requires EPA to review the latest scientific information and standards every five years. Before new standards are established, policy decisions undergo rigorous review by the scientific community, industry, public interest groups, the general public and the Clean Air Scientific Advisory Committee (CASAC).


Kevin Rice

If you’re going to attempt to quote science, at least try to get it right:


(1) It’s ug/m3 not mg/m3

(2) Concentration means nothing without duration of exposure. So what is the duration in both studies?


You’re complete lack of presentation of these critical points underscores a lack of understanding of the realities involved. You are mixing apples and oranges in the same bowl and don’t even know the difference between the two fruit.


In short, you present a ruse.


Furthermore, it has nothing to do with the article. Do you support secret government meetings?


DuneDude

I guess I will have to take the medical article I quoted put before you for some peer review. Not one word was mine. Go to American Heart Association to read the full article with numerous scientists cited as authors. Sorry to trot out facts.


Kevin Rice

DuneDude– It’s not the you didn’t paraphrase a real article, but you LEFT OUT THE FACTS and didn’t bother to cite your source.


PM exposure is not measured by concentration, it’s measure by duration of concentration. You cited only a concentration devoid of whether it was a 1-hour, 24-hour, or other exposure.


Furthermore, most PM studies are in the context of diesel exhaust and industrial emissions which are very different.


More recent research has challenged, if not disproven, some of the PM research done by agencies such as CARB and EPA who have a vested “empire building” interest in gaining more regulatory authority.


Further still, you are still acting as if nature isn’t part, if not the majority, of the issue.


Please provide COMPLETE facts and a cite, not just a portal window view.


DuneDude

Gilmour, MI, et al. Comparative Toxicity of Size Fractionated Airborne Particulate Matter Obtained from Different Cities in the USA. Inhalation Toxicology, 2007; 1:7-16.


Graff, DW, et al. Assessing the Role of Particulate Matter Size and Composition on Gene Expression in Pulmonary Cells. Inhalation Toxicology, 2007; 1:23-8.


Samet, JM, et al. A Comparison of Studies on the Effects of Controlled Exposure to Fine, Coarse and Ultrafine Ambient Particulate Matter from a Single Location. Inhalation Toxicology, 2007; 1:29-32.


Frampton M.W., et al. Inhalation of Ultrafine Particles alters Blood Leukocyte Expression of Adhesion Molecules in Humans. Environmental Health Perspectives, 2006; 114(1): 51-58.


Peng R.D., et al. Coarse particulate matter air pollution and hospital admissions for cardiovascular and respiratory diseases among Medicare patients. Journal of the American Medical Association, 2008; 299(18): 2172-9.


Kevin Rice

sigh… and the article you paraphrase from in your original post is? Just listing other articles hardly makes any point.


DuneDude

A few extension courses at Cal Poly does not a scientist make.


WiseGuy

Those meetings and all such meetings in the future should absolutely be open to the public. The County Supervisors should be among those making sure they are open and should make a public statement saying so. That’s why we elect those people—to make sure the interests of the public are being well-served.


It doesn’t matter what opinion you have on the dunes controversies. Everyone who values democracy and fairness should be demanding that these types of meetings be open to the public.


WiseGuy

Why would someone “dislike” the above comment? Would someone who wants these meetings to remain shrouded in secrecy explain how citizens benefit from that?


Cindy

It’s not about what’s reasonable or even true to “some people”, it’s about winning the fight.


unoudo

I agree since the participants are meeting to do the public’s business.


According to Terry Francke, the Brown Act was “written specifically to exempt ‘ad hoc’ bodies populated by less than a majority of the creating body and no one else.” The MOC referred to in the article was created by the Air Pollution Control Board which is comprised of 12 members: the five County Supervisors and one Council Member from each of the seven incorporated cities in SLO County. From that ‘creating body’ one member sits on the MOC – clearly not a majority.


My understanding is the ‘ad hoc’ exemption in the Brown Act exists to expedite the public’s business, as the ‘ad hoc’ committee reports to the full ‘creating body’ who then rules in a public forum. Which suggests the public will have the opportunity to comment and be involved in the resulting action, such is true if the ruling by the ‘creating body’ considers public input in conjunction with the recommendation of the ‘ad hoc’ committee.


The MOC meeting protocol may not be palatable nor reasonable to those who wish to be involved at that level; however, it is not in violation of the Brown Act.


Kevin Rice

unoudo,


Here is where you erred:


“less than a majority of the creating body and no one else”


The requirement is that NO ONE ELSE (other than members of the legislative body) may sit on such a board. The MOC contains nine persons, none of whom sit on the board of the creating body.


I don’t know who you think is the “one member” on the MOC who is on the creating body. There is not one.


The MOC is meeting secretly in violation of the Brown Act.


unoudo

SLORider,


Semantics. I see.


There is, Bruce Gibson.


If they are meeting in secret, how is it you know?


Kevin Rice

The interpretation of the law certainly is not “semantic”, it has been well defined by many court opinions. Don’t think the APCD isn’t the first agency to have tried such games.


Gibson isn’t on the MOC, so how does your legal interpretation hold water now?


“Secret” means out of view of the public. Such meetings have been readily admitted to as well as the nature of the business conducted in secret.


So, do you support illegal meetings and the corruption of the APCD, then?


DuneDude

Isn’t that something like the Federal law suit you recently lost. Didn’t the court use the word “sham” in voiding your trademark of “Safe Beach Now,” a truly grass roots local organization. You must have a brace of barristers to keep track of the people and entities you have threatened with law suits.


Paladin

Never fails, a good story about what the government is or isn’t doing and everyone turns it personal.

MMBA is very important, it is one of our rights as citizen, yet you guys have to turn it into something petty.


Kevin Rice

Agreed. Yet, closed process is how Larry Allen is foisting his rigged science upon the public to close our park. That is personal.


But in your favor, the discussion here should be directed at watchdogging this agency in particular and county government in general. There are many things that are slipped by us every day. More transparency and accountability, please.


Bill Denneen

Kevin P. Rice is the highly paid lobbyist of the Vehicle Corporations. Vehicles disrupt the crust of the dunes releasing P10 particles which come to Nipomo Mesa & are measured by the APCD monitoring

station near me (Nipomo Park). I have terrible lung congestion confirmed by my Nipomo Doctor

who claims many on the Mesa are also afflicted.


The Oceano Beach is for walking and listening to the waves—-NOT a road. We need to get away from the vehicles that we have become addicted to & have taken over our lives.


Cindy

Bill, that is an argument that you are supposed to be making before the board and the APCD. This article is about making certain that you know when and where those meetings are being held and that you’re given the opportunity to make your voice heard at those appropriate times.


Great article CCN and thanks to Terry Francke for standing up and letting them know that he has no problem running through the court system if they don’t stop skirting the Brown Act. Imagine that, attorneys trying to tell us that the law doesn’t apply to their groups activities? Does it ever stop and has anyone checked on legitimacy of their jurist doctorate degrees? Just saying……….


Kevin Rice

Oceano Dunes has been a “road” since 6:30 a.m., Monday, September 4, 1769. It is the first and most famous road in California history (El Camino Real), established by the Gaspar de Portola expedition. Oceano Dunes has been continuously open as a highway for 241 years–the longest of any road in California. [Source: Portola Diaries]


The notion that blowing sand near 20 miles of dunes is not natural is forwarded by Mr. Denneen and others who have had ulterior motives to close California’s ninth most popular state park for decades. It is mere convenience to ignore nature to support one’s long-time cause.


Cindy

I have no personal interest in this item as I do not frequent the dunes but I do understand all sides of this highly contentious debate. The fact that the Oceano Dunes is such a major source of economic revenue and a top tourist destination in the state is perhaps the best argument to maintain the status quo. As for the local homeowners, well they knew what the existing conditions were when they purchased their property and if it’s now about the sand particles effecting the air quality rather than the noise, well they do have an argument. The HOV’s clearly do damage the hard crust and inhibit the natural grasses that contain and protect the airborne sand from the elements ie; the wind. Good luck, this is a hard call but one thing for certain is that no one needs the “self serving “special interest who are looking to expand their own agencies on the backs of the taxpayers. I’m talking about the APCD. It’s no wonder they are willing to break the transparency laws and exempt themselves from the Brown Act, they appear to have plenty to hide.


WiseGuy

SLOrider, for your information, no one in Portola’s expedition were using motor vehicles. Secondly, the path the expedition followed was NOT a “road” or a “highway” in any shape or form when Portola explored the region.


So, with that said, I will have to brand your comment, like so many others from you, as blatant, misleading and self-serving propaganda that does more to obscure the truth than to reveal it.


Finally, if you wish to ride a horse in the dunes, as some in Portola’s expedition did, that opportunity exists right now,


Kevin Rice

El Camino Real is well-established as California’s first highway. The term highway does not require motor vehicle use. Per Webster: “a main public road”. If you wish to mince words, fine. Oceano Dunes has hosted motor vehicles as long as they have existed as well.


WiseGuy

SLOrider, you are wrong. There was no coastal “road” or “highway” whatsoever in any shape or form, no “El Camino Real”, no Highway 1, NOTHING, when Portola and his men explored California.


In fact, Portola made a dire, deadly mistake by sticking to a coastal route, contributing to the deaths of several members of the expedition. Rather than turning away from the coast at Avila and following San Luis Creek which would have facilitated their journey immensely, the expedition stuck to the coast through Big Sur, a route that was near impossible to travel at the time and created tremendous hardship and loss of time, and loss of men.


Sticking to the coast at that point is considered one of the greatest and deadliest blunders of the Portola Expedition.


SloRider, trying to use pre-Civil War “history” to support riding FWD and motorcycles in the dunes is so completely lame. You embarrass yourself and make OHV supporters sound like ignorant, desperate nincompoops. Sorry. Maybe YOU should stick to driving on “El Camino Real” and not make the same mistake Portola did. Believe me, if Portola had a chance to travel on Highway 1, he would have chosen that over the Dunes. If you don’t believe that, you truly are a fool of the highest order.


DuneDude

If you think any corporate entity would pay someone of his ilk, you will sadly disappointed.


whatisup

There is over 840 miles of beach in California. In addition, there is 18 miles of local dunes. The Off Road Vehicle Park is 5 1/2 mile of the dunes. This leaves you 12.5 miles of local dunes and over 830 miles of CA beach to walk and listen to the waves. Bill Denneen, stop being so selfish.


whatisup

The monitoring station in Nipomo Regional Park is not a SLO Air Pollution Control District (APCD) monitoring station, but is a CA Air Resources Board (ARB) permanent air quality monitoring station. There is also a similar CA ARB monitoring station in Santa Maria on South Broadway.


The PM10 (particulate matter) readings on South Broadway in Santa Maria are consistently higher than the PM10 readings at Nipomo Regional Park, not that either are a health problem. This information is available for all to view right on the CA ARB website.


This information was left out of the Oceano Dunes Study by the SLO Air Pollution Control District because it does not support there claim of a PM10 particulate matter health concern on the Nipomo Mesa.


Now the committee chair and head of the SLO APCD, Larry Allen, and the APCD’s attorney determined the committee did not have to comply with the law and allow the committee meetings to be open to the public.


He is trying to cover-up and hide the truth, the question is why?


Bill Denneen

I have lived on Nipomo Mesa for 50 years. I have terrible lung congestion. My Nipomo Doctor

tells me there are a lot of folks on the Mesa with the same condition. Near me on the Mesa is an

an APCD station collecting data on the P10 particles which come from the vehicle area of the dunes.


Kevin P. Rice is the highly paid lobbyist of the vehicle corporations. No one pays me. I just want to have the air I breathe to be free of these 10 micron particles produced because vehicles disrupt the

crust thus producing what is killing me. Why should I have to wear a gas mask to breathe??


I suggest a moratorium on vehicles during heavy use (e.g. a week during 4th of July) to compare the air quality with & without vehicles.


I am consulting a lawyer to bring legal action against what is killing me. CA State Parks should be concerned.


Kevin Rice

Lung congestion. 50 years next to 500 million pounds of blowing sand each year and a 20-mile dune complex might explain it. Or, like the man with the oxygen mask on the front page of the Times Press Recorder, it might be years of smoking (not mentioned in the TPR article). In any case, the lacking component is proof. Plenty of individuals suffer respiratory issues, including Jack Lalanne.


Mr. Denneen is a liar about anyone being paid. Sorry to use such a harsh word, but Denneen has been corrected on numerous occasions. Bill, please stop lying. It is simply your belief sans facts or knowledge.


Typoqueen

Mr. Denneen, when say things such ‘Kevin P. Rice is a highly paid lobbyist’ you really hurt any credibility that you might have had. That absolutely isn’t true. Do you sleep okay when you tell porkies like that?


I’m not convinced that there are more than usual respiratory issues on the Mesa. You and Nell have wanted those Dunes closed and you are looking for anything you can to get those dunes closed.


You are threatening legal actions because you say you’re getting sick from dune PM. You’re going to need more proof than your doc telling you that a lot of folks on the Mesa have the same condition.

Smoking pot can cause lung congestion,,,just saying.


Kevin Rice

What you’re ‘just saying’ is true…


“M.J. my medication”

http://calcoastnews.com/2011/01/medical-marijuana-rally-event-photos/?pid=6242


Cindy

Is that Bill? I remember him from the rally, I thought he was a real ham and fun guy, HI Bill, I was the small blond (no pic’s of me on that thread)

I’m not so certain that smoking pot causes congestion. It makes people cough a lot and they spit all that stuff up? Glad that I’m not in this fight.


whatisup

Did Bill’s doctor prescribe he smoke medical marijuana for his lung congestion?


zaphod

It can help loosen and bring up coagulated mucus useful for asthma because it is a mild vaso-dilator, why do you ask?


zaphod

So Jack Nicholson still smokes cannabis after all these years(ya wanna be a bird.. won’t take much to get ya up there) and had this to say

‘I don’t tend to say this publicly, but we can see it’s a curative thing. The narcotics industry is also enormous. It funds terrorism and – this is a huge problem in America – fuels the foreign gangs. More than 85 per cent of men incarcerated in America are on drug-related offences. It costs $40,000 a year for every prisoner. If they were really serious about the economy there would be a sensible discussion about legalisation.’

just sayin


whatisup

Form the National Institutes of Health website:


Effects on the Lungs

Numerous studies have shown marijuana smoke to contain carcinogens and to be an irritant to the lungs. In fact, marijuana smoke contains 50-70 percent more carcinogenic hydrocarbons than tobacco smoke. Marijuana users usually inhale more deeply and hold their breath longer than tobacco smokers do, which further increase the lungs’ exposure to carcinogenic smoke. Marijuana smokers show dysregulated growth of epithelial cells in their lung tissue, which could lead to cancer;6 however, a recent case-controlled study found no positive associations between marijuana use and lung, upper respiratory, or upper digestive tract cancers.7 Thus, the link between marijuana smoking and these cancers remains unsubstantiated at this time.


Nonetheless, marijuana smokers can have many of the same respiratory problems as tobacco smokers, such as daily cough and phlegm production, more frequent acute chest illness, and a heightened risk of lung infections. A study of 450 individuals found that people who smoke marijuana frequently but do not smoke tobacco have more health problems and miss more days of work than nonsmokers.8 Many of the extra sick days among the marijuana smokers in the study were for respiratory illnesses.


Zaphod – Your pretending doesn’t change the facts. I hope Mr. Deneen is not going before the Board of Supervisors and the SLO APCD claiming the OHVs at Oceano Dunes are causing him severe lung congestion while at the same time he is a regular marijuana smoker (and presumably has been since he was a teenager).


Dexter

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.


I voted for this guy but oh what a disappointment … typical political hack who speaks with forked tongue


Bill Denneen

I too voted for Adam Hill but feel he has been doing a GREAT job as Supervisor.


Kevin Rice

Bill, you live in Katcho’s old district. There’s no way you voted for Adam Hill.


Cindy

Geeez, that guy really is a liar!


MarkJames

I find it amazing that 4 people can’t grasp the concept of a person not being able to vote for a supervisor who is running outside the voters district. HELLO – where you live is where your voting district is… yet somehow we are supposed to believe that they can grasp the concept of PM and it’s natural verse unnatural effects upon the environment. Go figure?


danika

I grew up across the highway from the PatMar Dairy in Templeton. On any given day, the smell of manure would waft into our home. We didn’t appreciate the smell, but hey, we built our home there, right? If you build your home near a sand dune, your gonna get sand in the air as particulates will blow. Don’t l ike it? Move. Might I suggest not moving to Glammis?


Kevin Rice

(1) These open meeting law violations are not about the study. Not directly, anyway. Larry Allen is trying to move his agenda forward behind closed doors without any scrutiny; thus, he created a closed Committee and self-appointed himself as chair.


And this affects everyone. Mr. Bill Denneen stood up last Wednesday and complained he couldn’t hear. The committee was set up in a circle and half the committee faced away from the audience. The Brown Act requires ADA compliance for Mr. Denneen, and anyone else that needs special accommodations.


The two “public” meetings so far have just been for show. The bulk of the committee business has occurred in closed meetings and conversations. Completely illegal. This is the public’s business and it should be occurring in the open.


(2) Unquestionably, there is sand/dust in homes… nearby is 20+ miles of naturally occurring dunes and hundreds of millions of pounds of more sand naturally blowing onshore every year.


What is unfathomable, is that Larry Allen’s “study” doesn’t even mention this, nor does it cite any of the literature that does. The media goes along with the study because–honestly–they never read past the “Executive Summary” — all the pretty charts look credible enough to them. I found this out speaking to a reporter when I asked him to look at a specific page–he didn’t even have the study, just the summary!


(3) Another farce is the bloviated exhaust pollution claims by anti-beach protesters. Did you know that vehicles drive 7,810,550 miles per day on SLO County streets? [2008 DOT figure] Each and every car in the dunes would have to drive THOUSANDS of miles per visit to equal that! Larry Allen’s study does at least give one sentence to this: “study data shows combustion exhaust particles are not a significant component” — predictably, this one fact from the study is the one part that is ignored by the anti-beach throng.


Typoqueen

Go get em Kevin! The APCB doesn’t want anyone to know what’s going on because their study is so very flawed. Supposedly the dune sand is making all these people sick. Not one home nor one person was studied to see if there is dune dirt in their homes. First the people were getting sick from the refinery, then it was the open burning, then it was the dirt roads, then it was the farms now it’s the dunes. There’s not one study to even demonstrate that people do get sick more on the Mesa then other places. This study was joke and they don’t want you to snoop around and find out the truth.