HomeMy WebLinkAbout11-20-2012 rice public commentMEETING AGENDADATEI.~
ITEM #4
RECEIVE D
NOV 2 0 201 2
AIR POLLUTION CONTROL DI5 T
SAN LUIS OBISPO COUNTY
Tuesday, 2012 November 2 0
Mr. John Hamo n
San Luis Obispo County Air Pollutio n
Control District Board Chai r
3433 Roberto Cour t
San Luis Obispo CA 93401-712 6
(805) 781-591 2
jhamon(cprcity .coi n
VIA HAND DELIVERY & EMAIL 2012 NOVEMBER 2 0
NOTICE OF PENDING LITIGATION PURSUANT TO GOV . CODE 454956.9(b)(3)(C )
SUBJECT : RALPH M.BROWN ACT CURE OR CORRECT DEMAND ; NOTICE O F
POTENTIAL ACTION (GOV . CODE §54960.1 )
This letter shall serve to call your attention to, and demand that you "cure or correct",
substantial violations of central provisions of California's open meeting laws (Californi a
Government Code §54950 et seq .)l, to wit, the Ralph M . Brown Act (hereinafter, "Brown Act").
These violations infringe upon the people's right to remain informed and retain control over th e
people's business and directly address their public servants . Furthermore, these violations may
jeopardize the ongoing business and finality of actions taken by the San Luis Obispo County Ai r
Pollution Control District Board .
This Brown Act violation cure demand letter is submitted on behalf of myself, Kevin P .
Rice, individually and as a citizen and taxpayer of the State of California and user of Ocean o
Dunes State Vehicular Recreation Area ("ODSVRA"). I am, and have been, a long-tim e
advocate working in the public interest to preserve and enhance public access and use o f
ODSVRA . To that end, I have participated in all manner of public issues regarding ODSVRA ,
including events, forums, official proceedings, letter writing, public advocacy, communit y
service, web site postings, electronic mail and other venues . This is particularly true pertaining t o
the public's right to access and use their beaches and parklands within ODSVRA .
All further statutory references are to the California Government Code, unless otherwise indicated .
KEVIN P. RIC E
PO BOX 1410 7
SAN LUIS OBISPO CA 93406-410 7
(805) 602-261 6
kriceslo(wgmail .com
Mr. Larry R . Alle n
Air Pollution Control Office r
Air Pollution Control Distric t
3433 Roberto Cour t
San Luis Obispo CA 93401-712 6
(805) 781-591 2
lalien(~1co .slo .ca .u s
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RALPH M . BROWN ACT CURE OR CORRECT DEMAN D
My participation in San Luis Obispo County Air Pollution Control District ("District")
proceedings in regards to ODSVRA is unparalleled . I have attended District Board meetings ,
workshops and events for years, especially pertaining to ODSVRA and the rulemakin g
proceedings surrounding Rule 1001 . I have supplied oral testimony, written correspondence, an d
evidence pertinent to ODSVRA, and documented every public SLOAPCD workshop on video .
On November 14, 2012, the San Luis Obispo County Air Pollution Control District held a
hearing that violated several provisions of the Brown Act . (Gov . Code § 54950 et seq .) Pursuant
to § 54960 .1, "any interested person may commence an action by mandamus or injunction fo r
the purpose of obtaining a judicial determination that an action taken by a legislative body of a
local agency in violation of Section 54953, 54954 .2, 54954 .5, 54954 .6, 54956, or 54956 .5 is null
and void under this section ."
The nature of the violations with respect to the Board are as follows :
1.The Board has taken action on items not appearing on a posted agenda (§54954 .2(a)(1 )
and (a)(2)).
2.The Board has neglected to opportune the public with adequate and effective public
comments to directly address the legislative body on agenda items before or durin g
consideration of each item when the items are not properly placed on the agenda .§
54954 .2(c )
I demand that the District cure or correct its actions in violation of the Brown Ac t
by rescinding all actions taken at the November 14, 2012 hearing with respect to Rule 1001 ,
as more specifically described in this letter, and by informing the public of the rescinde d
matter so that interested persons know the true status of Board direction with respect t o
the implementation of Rule 1001 .
I .
Facts
On November 14, 2012, the District held a hearing where substantial time was spen t
discussing the status and implementation of Rule 1001, the draft Particulate Matter Reductio n
Plan (PMRP) submitted by State Parks, and the lawsuits filed by Friends of Oceano Dunes an d
Kevin Rice, and joined by State Parks challenging the Rule 1001 .
At the meeting, District Chair Hamon decided to "open this up to discussion" on Rul e
1001 for an extended period of time . Board member Patterson wanted to know what option s
were available to the Board and what actions can the Board take to respond to an alleged inactio n
by State Parks :
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RALPH M . BROWN ACT CURE OR CORRECT DEMAN D
"This concerns me immensely . Phil Jenkins gave his word they were a partner ...
the letter from Ms . Beland concerns me as it reiterates DPR contesting an d
challenging APCD in whether activity on dunes is responsible for PM10 . I'm
wondering if CCC—as a player in this—knows the status of things, and will CC C
weigh in .Also,what options does APCD Board have to move this forward? Lega l
actions?Implement Rule 1001 without DPR participation?It looks like we may
have another windy season with nothing in place .What actions can we take, if
any?"(Emphasis added .)
During this discussion, Board member Patterson proposed the option that the board chai r
draft a letter of concern to the new director of State Parks, the Governor's office, the head of th e
Natural Resources Agency and other lawmakers :
"I hate to wait another two months . Based upon Larry's letter to Phil Jenkins, I'd
like our Board to communicate our concerns to the new Director of State Parks ,
bring them up to speed, and copy that letter to Laird and to Assembly Membe r
Achadjian and Senator Bill Monning . It's clear to me that DPR isn't interested in
mitigating the problem .I'd like to see our Board chair draft a letter and send i t
off"(Emphasis added.)
After the discussion, four additional board members agreed that this action should b e
taken : Karen Bright, John Hamon, Jan Man, and Paul Teixeira. Chair Hamon inquired whether a
consensus had been reached so that the board could proceed with the letter :
"Let's see if we have consensus ... a letter?The date/timing of this is a concern ...
Nov 30 .I'd say, with direction, launch that letter .I'd still like to see a phone cal l
from myself to Jenkins . At this point we haven't seen any failure to date, but it's
getting close ..."
In fact, board member Patterson was hoping the letter would influence the process :
Well I think we have seen failure . I think we need to get the letter off
immediately. It might actually influence the content of the Nov 30 deadline .I
agree with Fonzi that we need to provide the backbone . We are the Board... they
have not kept their side of the bargain, so we have to let these new folks (ne w
parks director, Monning, Laird) know what's going on ." (Emphasis added .)
At one point Chair Hamon stated that "we can't really take any action," implicitl y
acknowledging that the item was not on the agenda . But then Chair Hamon took a vote ,
and the majority voted yes :
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RALPH M . BROWN ACT CURE OR CORRECT DEMAN D
"I guess the question is now, or wait til after November 30th . What is the
flavor on that one?"
[Board majority raising hands and stating, "Now ."]
"Larry, let's go ahead and have you do that ."
After Chair Hamon stated that the Board had reached a consensus, District Counse l
Biering cautioned that "...[I]'ve been very careful not to weigh in on this . I didn't want t o
overstep my bounds in my concern that we don't want to take a formal action on a matter that's
really not even on the agenda ."(Emphasis added.)
II .
Violations of the Brown Act, Gov . Code §54950 et seq .
The District violated the express terms, intent and purpose of several provisions of th e
Brown Act that are central to the people's right to participate in the conduct of theft government's
business :
A.
The District Violated § 54954 .2(a)(1): The Agenda Must Contain A "Brief Genera l
Description" of Each Item of Business Transacted or Discussed at the Meeting .
The Brown Act expressly mandates that the District include a "brief general description "
of each item that will be discussed as well as items that might be the subject of action by it :
"At least 72 hours before a regular meeting, the legislative body of the loca l
agency, or its designee, shall post an agenda containing a brief general
description of each item of business to be transacted or discussed at the meeting ,
including items to be discussed in closed session ." (Emphasis added .)
The District posts agendas on its website at least 72 hours before its meetings, accordin g
to its website :(http ://www .slocleanair .org/who/board/meetings .php )
Agendas a Minute s
The Uccomina Air Pollution Control Board Meetings table below will display a link to the agenda tor :he next ocard
meeting at least 72 hours char to the meeting . Agendas tor past meetings are disoiayed in the Archived Air Pollutio n
Control Board Videos table below .
The minutes for past meetings are posted in the Archived .Air Pollution Control Board Viceos table below . Th e
Minutes for a recently held meeting will appear when available .
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RALPH M. BROWN ACT CURE OR CORRECT DEMAN D
However, the posted agenda did not provide a "brief general description" of the ite m
discussed and acted upon by the District . Rather, the agenda simply stated that an "update "
would be provided on Rule 1001 implementation :
APCO'S REPOR T
1)U pdate on South County Community Monitoring Project
2)Update on Rule 1001 Imple nation jcorrespondence aftach e
Correspondence
(link :http ://slocounty .granicus .com/GeneratedAgendaViewer .phn?view id=7&clip id=1384 )
Section 54954 .2(a)(1) expressly recognizes that a "brief general description of an ite m
generally need not exceed 20 words ." So it would not have taken much time or expense for th e
District to provide a few more words to describe briefly the substantive nature of this item so tha t
the public would know what matters would be discussed at this meeting .
The purpose of the brief general description of the items on the agenda is to inform th e
public of the nature of the business to be discussed or transacted at this meeting so that the publi c
can decide whether to attend . Compliance with this Brown Act requirement is essential t o
providing the public with an opportunity to be informed and to participate in the public's
business . As stated in Carlson v. Paradise Unified Sch . Dist .(1971) 18 Cal .App .3d 196 when
interpreting similar agenda requirements in the Education Code :
"We think the legislative intent of section 966 of the Education Code is to mak e
the notice requirement mandatory . Decisions of local governing bodies of schoo l
districts may directly affect parents and teachers alike, as well as the student s
themselves . Thus,it is imperative that the agenda of the board's business be made
public and in some detail so that the general public can ascertain the nature of
such business. It is a well-known _fact that public meetings of local governing
bodies are sparsely attended by the public at large unless an issue vitally
affecting their interests is to be heard. To alert the general public to such issues ,
adequate notice is a requisite . In the instant case, the school board's agend a
contained as one item the language "Continuation school site change ." This was
entirely inadequate notice to a citizenry which may have been concerned over a
school closure .
5
RALPH M . BROWN ACT CURE OR CORRECT DEMAN D
On this point alone, we think the trial court was correct because the agenda item ,
though not deceitful, was entirely misleading and inadequate to show the whol e
scope of the board's intended plans . It would have taken relatively little effort t o
add to the agenda that this "school site change" also included the discontinuanc e
of elementary education at Canyon View ...."
Moreno v. City of King (2005) 127 Cal .App.4th 17, addressing § 54954 .2(a) in th e
context of a special meeting, noted how the agenda's description "provided no clue" of the issu e
actually addressed at the hearing which, as here, devoted a significant amount of time t o
discussion of the issue .
I would have attended this hearing, along with Friends of Oceano Dunes, Friends' lega l
counsel Tom Roth, and State Parks—as we have many times in the past hearings of Rule 1001 —
had adequate notice been provided of the nature of substantive discussion of Rule 1001 . Al l
parties have appeared at Board hearings in the past, presented public testimony before the Board,
and submitted comment letters throughout the Rule 1001 rule-making . State Parks has had staff
members present at all hearings for the past year, and oftentimes Division Chief Phil Jenkins ha s
appeared at the hearings to present public testimony too . In fact, District staff member Larr y
Allen stated twice at this November 1e hearing that he did not see State Parks' staff in th e
audience of this hearing, noting that "[t]his is the first meeting in the entire year where there ar e
no DPR staff sitting in the audience ." The reason is that the District did not provide proper notic e
of what would be discussed and acted upon in the meeting agenda .
B .
The District violated §54954 .2(a)(2): No Action Or Even Discussion Can Be Take n
on Any Item Not Appearing on the Posted Agenda .
"(2)No action or discussion shall be undertaken on any item not appearing on th e
posted agenda,except that members of a legislative body or its staff may briefly
respond to statements made or questions posed by persons exercising their publi c
testimony rights under Section 54954 .3 . In addition, on their own initiative or i n
response to questions posed by the public, a member of a legislative body or it s
staff may ask a question for clarification, make a brief announcement, or make a
brief report on his or her own activities . Furthermore, a member of a legislativ e
body, or the body itself, subject to rules or procedures of the legislative body, ma y
provide a reference to staff or other resources for factual information, request staff
to report back to the body at a subsequent meeting concerning any matter, or tak e
action to direct staff to place a matter of business on a future agenda ." (Emphasi s
added)
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RALPH M. BROWN ACT CURE OR CORRECT DEMAN D
It is undisputed that the Board not only discussed for nearly 40 minutes the issues ,
options to address their concerns and letter regarding Rule 1001, but it also conducted a vote that
yielded a majority vote on this action .This majority vote constituted action taken, as defined in §
54952 .6 of the Brown Act (and discussed more below). This action was taken despite the fact
that at least the Board Chair and District Counsel knew at the time that this conduct woul d
violate the Brown Act in potential violation of § 54959 ("Each member of a legislative body wh o
attends a meeting of that legislative body where action is taken in violation of any provision o f
this chapter, and where the member intends to deprive the public of information to which th e
member knows or has reason to know the public is entitled under this chapter, is guilty of a
misdemeanor .")
Chair Hamon stated that "we can't really take any action,"implicitly acknowledgin g
that the item was not on the agenda . And District Counsel Biering stated that "...[I]'ve been very
careful not to weigh in on this . I didn't want to overstep my bounds in my concern that we don't
want to take a formal action on a matter that's really not even on the agenda ."(Emphasis
added.)
The Courts have made it clear that the Brown Act means what it says : No action o r
discussion can be undertaken on any item not appearing on the posted agenda with a clear brie f
description that provides notice to the public of the substantive discussion planned by the Board :
"The Brown Act (§ 54950 et seq .), adopted in 1953, is intended to ensur e
the public's right to attend the meetings of public agencies .(Freedo m
Newspapers, Inc. v. Orange County Employees Retirement System (1993) 6 Cal .
4th 821, 825 [25 Cal . Rptr. 2d 148, 863 P .2d 218].) To achieve this aim, the Ac t
requires, inter alia, that an agenda be posted at least 72 hours before a regular
meeting and forbids action on any item not on that agenda .(§ 54954 .2, subd . (a);
Cohan v . City of Thousand Oaks (1994) 30 Cal . App . 4th 547, 555 [35 Cal . Rptr .
2d 782].) The Act thus serves to facilitate public participation in all phases o f
local government decisionmaking and to curb misuse of the democratic proces s
by secret legislation of public bodies .(Cohan, supra,30 Cal . App . 4th at p . 555 .)"
Intl Longshoremen's & Warehousemen's Union v. L.A . Exp. Terminal,69 Cal .
App . 4th 287 (1999) (emphasis added); see also,Coalition of Labor, Agricultur e
& Business v . County of Santa Barbara Bd . of Supervisors (2005) 129 Cal. App .
4th 205 ("Section 54954 .2, subdivision (a), requires a local legislative body pos t
its agenda at least 72 hours before a regular meeting .It also prohibits any action
or discussion on an item not appearing on the posted agenda,except a brie f
response to statements made or questions posed by persons exercising their publi c
testimony rights ." (emphasis added);Epstein v . Hollywood Entertainment Dist . II
Bus . Improvement Dist .(2001) 87 Cal. App . 4th 862 .
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RALPH M . BROWN ACT CURE OR CORRECT DEMAN D
C .
The District Violated §54954 .2(c): The People's Constitutional Right to Participat e
in the People's Business .
"(c)This section is necessary to implement and reasonably within the scope o f
paragraph (1) of subdivision (b) of Section 3 of Article I of the Californi a
Constitution ."
Article I, § 3(b)(1) of the California Constitution vests the people with a right of access t o
information concerning the people's business :
"(b) (1) The people have the right of access to information concerning the conduc t
of the people's business, and, therefore, the meetings of public bodies and th e
writings of public officials and agencies shall be open to public scrutiny ."
(http ://www .leginfo .ca .gov/.const/.article 1 )
The California legislature expressly declared in § 54954 .2(c) that § 54954 .2 requirements
for posting an agenda containing a brief general description of each item of business to b e
transacted or discussed and prohibiting action or discussion of any item not properly appearin g
on the agenda was needed to implement the people's Constitutional right to participate in the
people's business . The Legislature wanted to make it clear to boards that they exist to assist i n
the conduct of the people's business :
"54950 . In enacting this chapter, the Legislature finds and declares that the publi c
commissions, boards and councils and the other public agencies in this State exis t
to aid in the conduct of the people's business . It is the intent of the law that thei r
actions be taken openly and that their deliberations be conducted openly . Th e
people of this State do not yield their sovereignty to the agencies which serv e
them. The people, in delegating authority, do not give their public servants the
right to decide what is good for the people to know and what is not good for the m
to know . The people insist on remaining informed so that they may retain contro l
over the instruments they have created ." [Gov . Code, § 54950]
The District's failure to properly place this matter on the agenda to provide the publi c
notice also violated § 54954 .3 (a) of the Brown Act that again is focused on the mandate to no t
take action on items not posted on the agenda :
"(a) Every agenda for regular meetings shall provide an opportunity for member s
of the public to directly address the legislative body on any item of interest to th e
public, before or during the legislative body's consideration of the item, that i s
within the subject matter jurisdiction of the legislative body, provided that no
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RALPH M . BROWN ACT CURE OR CORRECT DEMAN D
action shall be taken on any item not appearing on the agenda unless the action i s
otherwise authorized by subdivision (b) of Section 54954 .2 ."
The public does not have an opportunity to directly address the District when the Boar d
fails to provide adequate notice in its agenda . Simply setting aside a time period for publi c
comment at the hearing does not comply with the Brown Act when the public does not hav e
adequate notice beforehand of the items to be discussed, and acted upon, at the hearing .
III.Kevin Rice, Friends of Oceano Dunes and State Parks Are Prejudiced by th e
District's Unlawful Action .
Kevin Rice, Friends of Oceano Dunes and State Parks are prejudiced by the Board's
unlawful action taken because they did not have notice that Rule 1001 implementation would b e
discussed or that the Board would take action by voting to send a letter to certain lawmaker s
concerning State Parks' implementation of Rule 1001 . They each would have attended the
Board meeting and presented their side of the argument, which may well have influenced th e
Board's ultimate action. They each believe that District staff misrepresented State Parks' action s
related to Rule 1001 . This action taken cannot be remedied unless it is rescinded and the Distric t
resets the hearing with adequate and proper notice affording these parties an opportunity t o
present their perspective to the Board and the public .
IV.The District Must Cure its Violations of the Brown Act.
Pursuant to Gov . Code, § 54960 .1(a), "any interested person may commence an action b y
mandamus or injunction for the purpose of obtaining a judicial determination that an action take n
by a legislative body of a local agency in violation of Section 54953, 54954 .2, 54954 .5, 54954 .6 ,
54956, or 54956 .5 is null and void under this section ." Discussion of the implementation of Rul e
1001 was not placed on the agenda yet the District Board members discussed implementatio n
strategies at length, reached a collective decision about what action to take, and then voted ,
producing a majority vote on the action . This constitutes action taken under § 54952 .6 : "As used
in this chapter, "action taken" means a collective decision made by a majority of the members o f
a legislative body, a collective commitment or promise by a majority of the members of a
legislative body to make a positive or a negative decision, or an actual vote by a majority of th e
members of a legislative body when sitting as a body or entity, upon a motion, proposal ,
resolution, order or ordinance."
There was no substantial compliance by the District with the Brown Act requirements . I n
fact, to the contrary, both Chair Hamon and District Counsel Biering stated or implied that th e
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R,AI .PI I M . BROWN ACT CURE OR CORRECT DEMAN D
matter was not on the agenda and therefore, it was unlawful for the Board to discuss it or tak e
action.
V.Demand for Cure of Brown Act Violations.
Pursuant to § 54960 .1 (b) I make this written demand for the District to cure or correct it s
violations of the Brown Act :
Cure or correct the actions in violations of the Brown Act by rescinding al l
actions, including the vote at the November 14, 2012 hearing on Rul e
1001 and the decision to send a letter to the aforementioned persons an d
by informing the public of the rescinded matter so that interested person s
know the true status of the implementation of Rule 1001 .
Immediately cease the drafting and/or sending of any letter from th e
District, Board or its Chair until such time that the matter is properly
noticed on a Board meeting agenda, openly deliberated subsequent to
public comment, and consensus is attained for any action taken .
Place on the agenda of the next meeting of the Board an item relating t o
the deliberations and discussions which took place without notice o n
November 14, so that the public may be properly noticed and comment o n
the matter.
Ensure all meetings, business and actions of the Board comply with th e
Brown Act .
As provided by § 54960 .1, the Board has 30 days from the receipt of this demand to cur e
or correct the challenged actions and inform me of your actions to cure or correct or inform m e
of your decision not to do so . If you fail to cure or correct as demanded, such inaction will leav e
me no recourse but to seek judicial review of the challenged action pursuant to § 54960 .1, i n
which case I would seek the award of court costs and reasonable attorney fees pursuant to §
54960 .5 .
Sincerely,
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