Attorney: GA ‘crossed the line’

Groundwater committee addresses Brown Act violation

Attorney: GA ‘crossed the line’Ridgecrest City Attorney Keith Lemieux confers with Mayor Peggy Breeden during last week’s meeting of the Groundwater Authority. — Photo by Laura Austin

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By BRIAN COSNER, News Review Staff Writer

City Attorney Keith Lemieux addressed an ongoing Ralph M. Brown Act compliance issue with the Indian Wells Valley Groundwater Authority board last Thursday during the agency’s monthly meeting. Lemieux is acting legal counsel for the Authority while Mayor Peggy Breeden sits as board chair.

The Brown Act was passed more than 60 years ago in an effort to prevent government agencies, boards and councils within the state of California from privately meeting to discuss matters under their purview.

News of Authority “pre meetings” was brought up during last week’s Ridgecrest City Council meeting, when council directed Breeden to vote against the Authority’s proposed pumping fee amid numerous concerns – one of which was a lack of transparency.

“It is a set meeting and it’s been going on for quite a while,” said Policy Advisory Committee Chair Donna Thomas during the Thursday meeting.

“There’s no agenda, no notification, no posting of the meeting … there are some concerns about the attendance of two of the boardmembers of this ongoing meeting.”

The two members in question are the Authority chair and vice-chair, currently Breeden and IWV Water District Director Peter Brown. Other members of the Authority board include Kern County 1st District Supervisor Mick Gleason, Inyo County 5th District Supervisor Matt Kingsley and Bob Page from the administrative office of San Bernardino County.

While Breeden and Brown don’t constitute a traditional quorum of the five-member board, they are two of the “big three” voting members – the third being Gleason. Any action item requires support from at least two of the big three. Conversely, any two big three voters can prevent an item from passing.

County Counsel Phil Hall was rather explicit during the Authority’s May meeting that having two of the big three members on one committee would present a transparency problem. The discussion came up when the public was asking for a finance committee of the Authority board.

“The city, [Kern] County and the water district cannot have two of its members on that finance committee,” said Hall. “That would create a Brown Act problem.”

Lemieux said that any meeting regardless of the presence of a quorum that meets on a regular basis constitutes a standing committee, so is a Brown Act meeting and must adhere to transparency guidelines.

“We have a meeting that started informally that included the chairs from [the Policy Advisory and Technical Advisory] Committees, some staff and, over time, some of the board members,” said Lemieux. “It was never formalized in any way, shape or form, but they were attending and it was thought to be ad hoc.”

The Brown Act differentiates between standing committees and ad hoc committees, which are temporary committees composed of less than a quorum of the members of a legislative body to accomplish solely a temporary task. These advisory committees are exempt from Brown Act rules.

“But it’s been going on a while now,” continued Lemieux. “It looked to me like we had crossed the line into a standing committee.”

Lemieux said he recommended that the practice cease immediately, and the two boardmembers reportedly removed themselves from that morning’s pre-meeting.

“Those events will not continue in that form,” he said. “If we have a regular meeting with committee chairs, it will be staff only so it can’t be construed as a standing committee of the board.”

Gleason admitted that he was partly to blame for the practice.

“When I was chair, I wanted to have a pre-meeting with the TAC and PAC chairs and vital staff with the express purpose of trying to create an efficient meeting and to get in and out of items quickly,” he said.

He recalled that he eventually invited Breeden to attend the meetings. Since then, at least two boardmembers have been regularly attending.

“I started the problem,” Gleason said. “I thought we fixed it, but I guess we didn’t. It worked really good for the chair to be there because it irons out a lot of things to help the meetings go quickly.”

But Lemieux was clear that boardmembers shouldn’t be attending at all.

“We have to be sensitive to the fact that this kind of ‘meeting before the meeting’ is exactly why they adopted the Brown Act,” he said. “We can make sure that vital information gets to the chair before the meeting starts if something comes up.”

The News Review reached out to the Kern County District Attorney’s office for clarification on the repercussions of Brown Act violations.

“As a general manner, we would send a ‘cure and correct letter’ asking them to cease the violation, which it sounds like they’ve already done,” said Deputy District Attorney Christopher Dominguez,

He said criminal action is rarely taken, and that no one to his knowledge has been successfully prosecuted under the Brown Act.

“The criminal standard is very hard to meet and very hard to prove,” he said. “They can always just say they didn’t intend to withhold information.

“But elected officials shouldn’t be able to reach consensus beforehand. Meetings like this are exactly what the Brown Act is supposed to prevent.”

Dominguez added that citizens or an office like the district attorney’s are able to take civil action to invalidate any actions taken as a result of meetings in violation of the Brown Act, but such action is “rarely effective” as an agency can just bring an item back to the board for another vote.

Story updated 07-30-18.

Story First Published: 2018-07-30