Supervisors accused of violating Brown Act

July 17, 2013
Bruce Gibson

Bruce Gibson

By JOSH FRIEDMAN

San Luis Obispo County government watchdogs are accusing the Board of Supervisors of violating California’s Ralph M. Brown Act during a discussion last week on North County water issues that did not appear on the agenda.

At the July 9 Board of Supervisors meeting, about 20 speakers during public comment requested that the board adopt an emergency ordinance restricting water usage in North County. Supervisor Bruce Gibson, who took over the board chairmanship at the beginning of the meeting due to the death of Supervisor Paul Teixeira, then asked the board to discuss the issue.

The board deliberated for nearly 40 minutes and requested staff to expedite its work on crafting an emergency ordinance.

The Brown Act, California’s open meeting law prohibits elected bodies from generally discussing or acting upon items not appearing on the agenda. It does allow boards to direct their staff to place an item discussed by the public on a future agenda. It also allows elected bodies and staff to respond to public testimony, but only in a brief manner.

Following Gibson’s direction to address the water issue, each board member spoke several times, and the board spent about 38 minutes debating approaches to crafting an ordinance.

About 25 minutes into the discussion, Deputy County Counsel Tim McNulty warned Gibson that the board is constrained by the Brown Act.

“We’ve been going on quite a long time on something that’s not on the agenda,” McNulty said.

Gibson said the enormity of the problem called for the board to provide immediate direction to staff.

On Tuesday, several speakers at this week’s Board of Supervisors meeting accused the board of denying public participation in the discussion on the proposed emergency ordinance. While the discussion on the potential emergency ordinance occurred during last week’s public comment period, the supervisors did not provide the public an opportunity to directly address the issue.

“The Brown Act would have fully allowed the public to participate in the decisions and direction that was given to your staff,” said Los Osos resident Julie Tacker.

Following public comment at Tuesday’s meeting, Gibson asked County Counsel Rita Neal to respond to the accusation that the board violated the Brown Act.

Despite McNulty’s warning a week ago, Neal said the board acted within the constraints of the Brown Act by responding to public comment and requesting staff to put an item on a future agenda.

“In our view, there was no violation of the Brown Act,” Neal said. “It was simply a response to a very lengthy public comment, and the item is coming back.”

Neal said the Brown Act allows board members to make brief comments about issues raised during public comment. However, Neal did not say whether or not the response to public testimony met the Brown Act’s definition of “brief.”

“It occurred to me that a substantive discussion of policy had occurred,” county resident Elsa Dawson said during Tuesday’s public comment period. “It seemed to me to be a flagrant ignoring of counsel’s warning.”

Members of the public have a 30-day period following an alleged Brown Act violation to file a cure and correct demand.

The water issue is expected to return to the board on August 6 for the supervisors to discuss possible emergency ordinances.

 


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SuperDave

In the meantime, while politicians squabble, vineyard owners are rushing to put in new wells, ahead of new regulations. Drive by Tower Rd. and Jardine to view the biggest water well drilling rig in the area. Just a few weeks ago, another monster well was established just down Tower Rd. Weeks before that, a 1900′ well was completed at Estrella Circle. The Jardine Rd. area is being severely overdrawn. Wake up folks, threats of coming action only encourage the rich vineyard owners to drill now! Enact something soon, or the damage will be irreversible.


Tammy

The thing is people, is that the deeper you go the “shittier” the water gets and of poorer quality, to the point it may not be fit for anything.


kayaknut

Aren’t some of the best wells from very deep sources? I was always told the deeper the water is the better it because it isn’t impacted by surface contamination and runoff, runoff we are told is a big source of problems right?


Tammy

it depends on the earth below. In the area in question, the deeper you go, the “shittier” it gets. I wish it got better, because my family has a stake in it.


Tammy

ask Eric Senter

Senior Engineering Geologist

(916) 651-9648

eric.senter@water.ca.gov


He’ll tell ya


Insight

According to the Brown act they have a 30 day time period to corrective or cure an action.


Kevin Rice

For an open session violation, any complainant must make a cure or correct demand within 30 days. The board then has up to 30 days to respond. At that point the petitioner has 15 days to file litigation or acquiesce.


Because no real action was taken, I don’t think it’s very productive to think about litigation. What is there to undo? You could ask for declaratory judgment–equal to the court saying, “Yep, they violated the Brown Act.” At that point the county *might* admit being in the wrong, but it’s not a lot to sue over.


The public beating and outcry is proper and is the best tool in this case.


Insight

Dear me 4 people dislike the brown act Section 54960.1. The Board can voluntarily take a corrective action or someone can file for corrective action. If you don’t like it contact your state legislators and ask them try to change the act, to what recourse I don’t know.


Kevin Rice

You’re essentially right on the mark, but it’s a tad bit more complicated. A board can always take any legal action and call it “corrective”. Section 54960.1 provides a means for a complainant to make a demand for correction. The legislative body can comply with the demand–or ignore it. After 30 days, the complainant can take it to court.


However, 54960.1 only provides for writs of prohibition (mandamus/injunction). In this case, what would the court prohibit to correct the overly-long discussion that already occurred? Usually, mandamus is used to “undo” an action—void a contract, law, etc. So, I’m not sure that 54960.1 is useful here.


But I am quite interested in 54960.2! :-)


Niles Q

The linchpin here is what actions were taken during this unagendized discussion?

Had they taken a motion-second-vote approach it would have been invalid anyway and the attorney would have put a stop to it, of that I am sure.

But when you’re just discussing a topic and then telling the staff — in a consensus not an actual vote — they are probably OK. At least there will be no charges or fines or anything coming out of it. And the Brown Act allows the body to take corrective actions, so big whoopie.

You just need to make sure that when there’s something official and in writing and agendized for discussion that the public gets in on the act.

Typical though, the Supes ignore an issue for years and then they get pressured to do something and they finally agree to do something and people liike Julie Tacker take them to the woodshed over it.

It’s no wonder that nothing ever appears to get done or that elected officials seem like such wimps. No matter what they do someone bashes them over the head for it.

People need to pick their fights better. Constantly complaining and challenging things as trivial as this don’t bolster your standing in the eyes of Joe Public. They make you seem petty and a cry baby.

Instead you should be happy for the people in Paso who might finally get some action taken in this. But don’t hold your breath, water rights issues can take decades to straighten out. Water rights law is just about the most complicated area of law in Califonia.

The sooner the county gets started on this the better. And the vineyards up there need to get on top of this before they end up spending their fortunes on lawyers.


Insight

I think Samuel Clemens said,” Whiskey’s for drinking but water is for fighting over.


takemeout2theballgame

Tacker didn’t take anyone but Gibson to the “woodshed”…Gibson led the charge/breaking the Brown Act, or not, she suggested Gibson cares more about Paso’s groundwater basin that he does about the Los Osos groundwater basin. She’s right about that. Paso’s vineyards = many tax / tourism dollars to the County. Los Osos is an albatross around the County/Gibson’s neck.

Tacker compared the cost of drilling a well in Paso to the assessment borne by every sewer user and accused Gibson of caring more about a handful of dry wells verses the 5,000 folks who will pay for the sewer. She pointed out Gibson has done nothing for the LOGWB in the 6 years he’s been on the board.

CCN took her comments slightly out of context. She was suggesting had the item been properly agendized ALL would have been allowed to speak to the direction given to staff. Have to agree with her there.


Lynette_Tornatzky

It isn’t up to Gibson to “do something” about the Los Osos groundwater basin. It is in the courts as an interlocutors stipulated judgement between the three water purveyors and marginally at best, the County which has one well. Ms. Tacker’s knows this fact and only took a grandstanding opportunity to punish Gibson, once again, for helping to get Los Osos a sewer and for outsmarting her obstructionist board.


takemeout2theballgame

The County is a party in the ISJ, Gibson’s been at the helm of water issues in Los Osos since he was elected in 2006. He has failed that community. He (as a geologist) understands the nuances of the water basin better than most, full well knowing it needed immediate management yet he supported wastewater sprayfields miles away from the town and continues to support dry farmers use of the resource needed most.


Gibson said it at this meeting July 9 that the County is the planning authority and that is why he pressed to have an urgency ordinance brought forward…because he can/should. He hasn’t done a thing for Los Osos, instead irked the purveyors/partners by making deals with the schools that hurt you the ratepayer. Delaying conservation hasn’t helped Los Osos either…the retrofit ordinance is too little too late. We were conserving water in the 1990’s, Los Osos didn’t start until 2004 with rate schedule changes to encourage conservation. When we lived in Los Osos we paid $20 every other month to the County and used as much water as we wanted.


We in Morro Bay are watching Gibson very closely as we navigate our way through the political process of moving our sewer. We have watched and learned from his mistakes.


Lynette_Tornatzky

Gibson didn’t fail the community, he pressed for Water Severity Level III. He didn’t take a position on the spray fields, that was the one idea the County could put forth that didn’t anger the people out in the Clark Valley area as they threatened to sue as did the cemetery owners if the plant was put at Giacomazzi. Putting it at Tonini placed the burden on the water purveyors to bring back the treated water, it wasn’t to be sprayed forever. You know the purveyors lost control of the water when the CSD lost the project due to the bankruptcy don’t you? All the water conservation measures that were part of the Tri-W project that was stopped could have saved us tons of water by now. The purveyors didn’t have the means to do what that project could do. Recycling water to the schools is part of the Coastal Devlopment Permit issued by the Coastal Commission.


Gordo

First, Julie Tacker and her husband Jeff Edwards see Brown Act violations behind every bush. They have cried wolf so many times they have lost credibility.


Second, you can bet the BOS will do anything they can to appease the vineyards and wineries at the expense of the rural residents. Conservative or liberal it doesn’t matter they all dance the same dance when money is involved. Having a thriving wine industry creates a “tony” atmosphere to used to be a little “cow county.”


When I was a boy growing up in the 1950’s and 60’s in rural Paso I remember the vast diversity that existed in our agricultural community. People raised cattle and dry farmed wheat, barley and alfalfa when the rain was plentiful. In drier years rancher and farmers might lease their land to Basque shepards who would run large herds of sheep across the landscape.


Farms and ranches were family owned and the people helped each other when it was time to gather cattle or bring a crop in. Hired farm laborers were a luxury that few ranchers could afford; I would add that the north end of Paso Robles was also a nice part of town that you were not afraid to go to, I will let you make your own connections there.


Then the first wine growers came to the county. Families like the Pesenti’s dry farmed grapes, like they did in Italy. Their method of farming matched the sometimes arid mediterranean climate that is San Luis Obispo County. The agricultural community survived and the groundwater basin, which incidentally wasn’t called the Paso Robles groundwater basin until the mid 70’s, survived


No one’s wells went dry even in tough drought years.


Then the gadfly vintners began arriving in the late 70’s and early 80’s. They drilled wells, much deeper than any ever drilled before. No one questioned it, the county officials was a wide open cow county and the vintners exploited that. Each year more and more grapes were planted and a wine industry grew, bringing more jobs, including all those wonderful farm laborers, whose children later became involved in gangs and turned the north end of Paso into a ghetto.


Now we have a 500 lb. gorilla in the wine industry. No political leader will have the courage to reign them in and curb their water usage. They will create a water management district to install meters and begin charging small farmers and rural home owners fees for pumping the water.


These fees will be used to help offset the cost of state water, some of which will be used to quench our thirst, but only after the needs of the wine industry have been met.


I don’t know whether to pray for rain or drought, because either way I know the regular people in the North County will get screwed; either by a wine industry that will continue to grow like a cancer or by government largesse that will seek even more regulation of our lives.


Gordo

Those of you who disliked my comment, please opine. Do you dispute the history I have seen lived in my 60 years in the North County or just my description of the BOS and the wine industry they live to serve?


Jorge Estrada

Gordo, the profile your words describe have some level of truth but you have left out a key ingredient to our real problem, fat and lazy people. This has allowed the hard working, risk takers, to move in and put our idle agg land to work. The alternative would be a much bigger ghetto brought to you by the housing projects full of big screen tv’s, computer life and fast food. Sure, farming the land will displace many housing project opportunities but that is what many like about their life here. The hardest hit, I would guess, is the hungry city budgets that rely on continued housing expansion. With more customers, they sell more water, sewer connections and etc.


MaryMalone

The reality of the situation is this:


Paso doesn’t have the water for more high-density housing OR agriculture OR anything else.


Paso needs to use its water sustainably or it will end up being one big ghost town.


Do you think McKinney is the only politician who is looking to leave north county for more friendly places who don’t know the role he played in the destruction of north county by vastly overusing its water resources?


Also, I would like the people of Paso to quit with the “we’ll-just-get-more-water-elsewhere to fix our city official’s gluttonous water selling.”


It is unrealistic, short-sighted, and reeks of “let them eat cake.” It is also passing on the over-water-committed problems created by Paso’s officials and the voters who put, and keep, them in office.


Much of California has over-committed its water use. Every city, town and crossroads in California is looking to keeping its water because they either don’t know how much their own water supplies will decrease in the coming decades–AND–if they are going to sell water, it will be after the price has sky-rocketed.


The water planners for water sellers like L.A.’s Metropolitan Water District have been planning for this water shortage for decades. They bought the water shares from some of the Delta rice farmers AND from the Imperial County farmers.


Believe me, any reliable chunk of water worth going has already been snapped up.


Paso needs to learn to live within its resources. The city officials should start with the vintners since they are the ones who seem to have driven the water table so rapidly downward.


heybobareebob

Good analysis Gordo. Paso is just like the third world but instead of exploiting labor the big corps exploit the water. The majority of the grape tonnage goes out of the basin to be processed ( to Constellation up in Gonzales in their mega winery) or over to the valley. Although Gallo took over Coutside up in San Miguel and Justin (Resnicks) has built its huge new facility out behind Lowes both of them are into high volume processing. Don’t expect a boutique tour at either of those alcohol factories. What surprises me is their capital investment in the basin. Maybe they know something about the aquifer that we don’t. Or they have a 10 year plan and then they are gone. I can’t figure that out.


MaryMalone

I vote for the “ten-year plan” option.


They are water-miners…they swoop in, use up all the water and, having made their profit (thanks to the ever-so-sycophantic city officials’ relatively low charges for permits and water), they are off to the next water boom-town.


Pelican1

The usual suspects, making the same accusations to yet another governing board…different day. And so it goes.


SanSimeonSam

I believe that Gibson and Hill are scum and Mecham is a gentleman, a political placebo who will do nothing that will stir controversy. I am most disappointed in Debbie Arnold who has shown no backbone since elected. She cowers in the corner and lets Hill and Gibson berate her and make fun of her in public and in private. They would never do that to men as they are cowards. However, Cal Coast news is in my opinion starting to look a little petty in their reporting. I want these scum in jail for what they have done to the homeless in our community but attacking them on weak issues supported by Julie Tacker who is only out to make money for Julie Tacker and Jeff Edwards is not good journalism. We need more meat on CAPSLO and the other flagrant abuses


takemeout2theballgame

Sam,

I was with you right up until you turned the subject into an attack on CCN/Tacker/Edwards.


takemeout2theballgame

The Brown Act belongs to all of California, it is not just a “Tacker” issue.


Gordo

I disagree with your statement. I have met and know, to varying degrees all five of the supervisors, including the late Paul Teixeira, who was a real gentleman. All of these people are nice folks, who ran for office to further their views of what the county should be. Their views sometimes conflict and they certainly can be vocal in putting their views forward or in answering their critics, but NONE of them are “scum”.


I question whether they will have the political courage to take up a populist position and support small farmers and rural residents over the interests of the wineries. But I would never be mean or rude to them.


They don’t deserve that; they ran for office to serve, whether we agree with them or not. If we take issuewith them we can exercise our franchise and vote against them in the next election.


SLOBIRD

No, Gordo, Adam Hill and his lies, abuse of power, deceitful acts are scum which is a reflection of this unethical person. As for Gibson, who he wants to bang is his business and his time. But, when he is doing it in his office, on County time, to a County paid assistant, then he is pure immortal and also scum. Yes, they are both big time dirt bags!


NorCoMod

Gibson is immortal? I was afraid of that.


MaryMalone

CCN, Edwards and Tacker are correct in their stances. Whether or not you like them or approve of how they deliver their stances is immaterial.


Reality Check

Shameful abuse of power; flagrant assault on the Brown Act. This is typical of Gibson and Hill. Where were the other two supervisors? Gibson gets away with these abuses, when his fellow supervisors don’t call him to task.


Kevin Rice

Where are the other two supervisors?


Well, IMO, Mecham is a bit too restrained and both he and Arnold realize two votes aren’t going to go anywhere. They should have spoke up, regardless, but there was practically a lynch mob at this meeting who booed Arnold for merely suggesting notice be sent to all property owners affected by the proposed urgency ordinance.


This water issue has been hyped into a frenzy to give Hill/Gibson a political boost. Hill’s viewpoint in the Trib last week was an outright political attack on Mecham/Arnold and was hardly productive as to the issue itself.


msminiver

Lets just cut the chase and elect Whitey Bulger. He will fit in fine with that group, deny, deny, deny despite the overwhelming facts!


Robert1

The difference is, Whitey got things done…..


Kevin Rice

(1) OF COURSE the Board violated the Brown Act. A frank comparison of the prolonged discussion next to the Brown Act text makes that clear.

(2) OF COURSE the county attorneys are denying it. That’s their job. “Prove it in court,” they are saying while knowing no one will.

(3) Thus, the Board gets away with it and pathologically think they followed all the rules. Go ahead. Ask them if they broke any rules.

(4) Repeat, slightly worse next time.


justchuck

I am shocked that politicos would avoid the rules!


kayaknut

or morals.


CherieMcKee

Morals? Who needs morals? Hey did Tacker ever get those Gibson emails? Where’s the follow up on that story?


Lynette_Tornatzky

Whose morals – Tacker’s or Gibson’s?


Speaking of Tacker, she has improved in her education. When she sat on a board, she had no clue what a Brown Act violation was!


MaryMalone

I hope she does a series of op-eds, dropping one huge bomb-shell, then waiting a week, and dropping another…


That way, after each group of eamils, we have time to absorb the emails’ impact on Gibson’s future in politics, before the next bombshell drops.


Lynette_Tornatzky

There are no “bombshells.” Don’t you think she’d have been lobbing them at the BOS podium by now?