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by Debbie Cook, July 22, 2014; cross-posted from Surf City Voice.
About a dozen members of the public attended the July 16 meeting of the Orange County Water District to support Director Jan Flory’s request that staff gather information on the cost of streaming board meetings on the Internet, something many other Orange County government bodies have done for years. [See video of meeting below.]
Flory sees streaming as an important way to improve transparency and increase the public’s participation in managing its water resources.
But the stars above must have been aligned against Flory that night because, even though her proposal won five out of eight possible votes, it lost.
In earthly terms, what happened?
The answer is in the shrewd, some might say cynical, use of the OCWD’s administrative code, which specifically requires an affirmative vote of the majority of the entire ten-member board (six votes) to pass a motion, regardless of whether those members abstain or show up at the meeting or not.
Making a recommendation in committee to “table” a motion, even though there is no such action in the OCWD lexicon. Photo: SCV
Board president Shawn Dewane, who had voted to recommend tabling Flory’s proposal at a previous (July 3) meeting of the Communications Committee (he wanted it tabled for a year), and Director Denis Bilodeau, who has remained silent on the topic, were both absent.
Directors Kathryn Barr, Cathy Green, and Roger Yoh, all openly hostile to streaming meetings for public viewing, abstained–not because they had a conflict of interest, the only ethically valid reason for abstaining (apparently, they don’t want to take responsibility, on record, for killing the proposal), but out of spite.
Although a quorum was present and Flory’s proposal received a “yes” from the majority of eligible voters on the board that night (Flory, Philip Anthony, Vincent Sarmiento, Harry Sidhu and Stephen Sheldon), which might have been enough to pass it at your local city council meeting, it still failed under OCWD rules.
At least six votes will be needed to bring video streaming to OCWD meetings in the future, but even the coalition of five directors who voted to study the matter is shaky.
Director Stephen Sheldon, the weakest link in that coalition, said at a June 18 board meeting that he opposes streaming because “I don’t believe the public is asking for that.”
And he also made the original motion to table at the Communications Committee meeting. He only voted for Flory’s motion on July 16 to allow it to be studied by staff. That might indicate that he is still open-minded to public persuasion, but it still leaves a potential of only five affirmative votes.
I’m not sure which is harder to find, a director like Flory who is willing to go to bat for the public, or a public willing or able to attend a meeting of an obscure water agency.
One can only speculate why the abstainers and at least one of the absentee voters are so adverse to the efforts of public citizens, or ratepayers, if you prefer, to become more involved in board meetings. But the abstainers, especially Kathryn Barr (right), may have provided some clues in their remarks at the Wednesday board meeting.
“We’re being criticized so strongly for many things,” Barr grumbled.
She was upset that board members don’t get credit for their hard work, like reading lengthy staff reports contained in their meeting agenda packets, including a 19-pound agenda packet on one occasion.
“I can’t tell you how many days it took to prepare for that meeting,” she explained.
And nobody in Garden Grove (the area she represents) wanted streaming anyway, she said.
In fact, the Garden Grove City Council televises its meetings and gives the public easy access to video archives of council meetings online, so I don’t know who she was talking to.
But Barr probably exposed the abstainers’ biggest sore spot when she targeted Flory and the public speakers in the audience who supported streaming.
“Some of these people who are coming up here and talking to us now–I don’t recall seeing them before Director Flory came back on the board (Jan. 2014),” she explained.
“And I know you’re helping them with some of the information they’re doing,” she told Flory, accusingly. “And that’s fine, but I’ve been on the board 35 years and I mean some of these people I’ve never seen before until the last six or eight months [ago], whatever it is.”
Hmmm, I’m not familiar with the “these people” exception to the Brown Act, the state law meant to protect the public’s right to participate in its government, which states:
The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for them to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.
Without further explanation, Barr announced that she would abstain from voting.
Green and Yoh reinforced Barr’s elitist attitude with their own rationalizations for abstaining.
Pouty Green.
“I’m going to abstain. I don’t think this should have even been on the agenda,” Green pouted.
“If you table [an item], it should have died in committee,” she said, referring to the action taken by the Communications Committee that she is a member of.
In fact, the committee recommended that the board table Flory’s item, even though there is no “motion to table”, not for a year or for any length of time, under OCWD rules, as the district’s legal counsel pointed out.
Yoh said he would abstain for the same reason Green gave.
Could it be that some board members believe they are huge trees ruling over an enchanted forest, far from the normal world of accountability that the rest of us live in?
If so, that’s a shame, because without public participation at government meetings, human nature kicks in, corners get cut, conflicts of interest pop up, and money gets thrown around.
Like spending up to $1.2 million for a water education exhibit at the Discovery Science Museum or forming a biased citizens advisory committee behind closed doors in order to favor a $1 billion ocean desalination project that directors are considering building with public money.
For the citizen-watch-dog, there’s no ground more fertile for sniffing out offensive misconduct than where the water buffaloes roam, whether it’s at their “open” board meetings or at their secret executive committee meetings.
The clubby nature of water culture (hence the term water buffaloes) often leads to a fast and loose application of rules, like the Brown Act.
It is rare that I attend a meeting or read the minutes of one that doesn’t raise ethical or legal questions.
For example, at the July 2 board meeting, directors argued with the public and themselves about whether a member of the public could pull an item off the “consent calendar” for further discussion or not. Most were adamant that the public could not.
Unfortunately, the directors’ attorney, who attends all regular board meetings, didn’t tell the confused directors that their policy was printed at the top of that night’s agenda, under the heading of Visitor Participation:
“Members of the audience wishing to address the Board on items of interest to the public are requested to identify themselves. If the matter on which they wish to comment is an Agenda item, the visitor will be called on when that matter comes up for consideration on the Agenda. If the item is on the Consent Calendar, it will be removed from the Consent Calendar for separate consideration. Visitors are requested to limit comments to three minutes.”
Based on what I’ve seen while attending OCWD meetings, I wouldn’t be surprised to see this paragraph disappear soon without notice. It provides the public with too many opportunities to speak and possibly criticize thin-skinned directors.
Another source of soreness for the abstainers seemed to be a critical investigative report posted online that morning by Surf City Voice editor John Earl.
In his well-documented article, Earl revealed the contents of illegal meetings of the board’s executive committee, held without notice to other board members or the public and without their participation, going back to 2010.
The 2013 executive committee was composed of Directors Green, Dewane, Yoh, and Anthony.
Topics of discussion included personnel matters, contracts, compensation, and, most important to the public attending Wednesday’s meeting, Poseidon Resources and their ocean desalination plans.
(OCWD’s General Counsel, Joel Kuperberg, defends the secretly held executive meetings as “ad hoc” meetings. However, his advice is at odds with the law and the California Attorney General’s opinion.)
Roger Yoh (right), the third director to abstain on Flory’s motion, made a comment at the meeting that I think the public will agree with.
“I just want to make a common sense observation here,” he said, “that if there is anything we are trying to hide we could easily just make phone calls or emails or meet off site.”
Exactly!
In fact, the executive committee does meet secretly and did so 14 times in 2008 and 2009 at Director Sheldon’s office in Newport Beach, not in full public view in the OCWD board room where its meetings belonged, as reported last September in the OC Weekly.
I’m not sure which is more shocking, the fact that private meetings (for which members are paid a handsome stipend) continue into 2014 or that the board and its legal counsel condone them.
At the last communications sub-committee meeting, reporter Earl brought up 12 illegal meetings that occurred in 2013 alone. The reaction by the general manager and participating directors was both denial and an inquiry to know how the public found out.
I don’t know how the public could have known: maybe, just follow the money?
Yoh acted hurt by the sudden and unfavorable attention his agency was receiving.
“This is an open forum,” he scolded. “You are welcome to come and give your opinion…If you are going to come and make cheap shots at some of us, it is unappreciated.”
He doesn’t get it.
The “cheap shots” are legitimate concerns by public citizens who appreciate their elected officials when they honor the right of public citizens to participate in running their government.
That approach to governing has worked for over 200 years and is better than its alternatives.
200 years of citizen participation in government, cook states. works well she states. was there 200 years of streaming video of our government? naw. government has worked well without streaming video for centuries.
Secret meetings, illegal meetings, brown act violations. that is the standard mantra from the anti desal groups. how many of their charges have stuck? Zero.
Isn’t it strange that the common thread among the (supposed) bad guys is that they like desal as an additional water reliability factor?
hmmmm…………
I imagine you’re pretty familiar with phrases like ‘broken record’ and ‘one trick pony’ by now, right?
yes nipsey, though I look at as cook and earl crying wolf all the time besides broken record.
“Isn’t it strange that the common thread among the (supposed) bad guys is that they like desal as an additional water reliability factor?”
There are lots of other common threads, too. Do you really want to go there? Hmmm…
love to go there Zenger. post away, it will be interesting.
Okay, here are some common threads:
– Desire to remain anonymous/opaque to the public.
– Brown Act violations left and right.
– Phony time sheets and expense reports, blamed on staff incompetence, yet no staff disciplined.
– Secret meetings at Steve Sheldon’s office.
– Stipends for useless, ten minute meetings; stipends for a panoply of footling committee meetings.
– Using the job as a fund-raising vehicle for other offices held.
– Rubber stamping everything in front of them.
I’m sure others can easily add more examples of miscreance.
The only reason nothing has stuck is because OC has a do-nothing DA who has a lot of pals on boards across the county just like this one.
Director Fisler, maybe it’s that all these Brown Act violators violate the Brown Act because they think that’s the only way they can get projects like Poseidon past the public.
No, they didn’t have video streaming 200 years ago, but we didn’t have the big government then like we do now, the same big government that Tea Party hypocrites like you make a living off of by sucking on its big fat socialist teat.
As for the accusations not sticking, well, it took a while to find a charge to stick against Al Capone, too. In the end, he got put away by taxes and the clap.
Mesa Water District Fisler? Really? If so, that’s pretty damn embarrassing.
And there’s another Nineteenth Century agency in need of quick strangulation.
Yep, pretty damn embarrassing, but he likes to continue pretending that nobody knows who he is, like he’s the Scarlet Pimpernel. And he’s “president” of that board, which as a whole is pretty damn embarrassing too.
Mr. Earl seems like a very angry and unpleasant person. Perhaps instead of worrying so much about others he should take some time and look in the mirror.
Director Fisler, I don’t doubt that you find me quite unpleasant.
you seem to be driven by rage, pure and simple. I bet he does find you unpleasant too.
Bilodeau certainly doesn’t want anybody to know that he is pulling down a six-figure salary at the County, plus a City of Orange stipend, plus a OCWD stipend (and who knows how many other little “deals”) all during the exact same 40 hour work week.
As I recall, pulling multiple incomes from more than one public source didn’t turn out well for Chris Becker in Placentia, either!
Actually Bilodeau is the only member of the Orange City Council collecting a stipend from the city. Wonder where he was for this OCWD meeting?
My guess is that his absence was required so that there wouldn’t be a quorum (only by their own idiot rules) and Flory’s motion would fail by one vote. Of course this required the collaboration with those who abstained rather than vote no.
AND THIS SUGGESTS A COORDINATED VIOLATION OF THE BROWN ACT.
Are you saying that if nine people had shown up, and the vote was 5-0 with 4 abstentions, that the outcome would have been different? I’m not baiting you, I’m really asking — because based on this description my sense is that it wouldn’t. You get 6 votes or you don’t.
I don’t think the outcome was ever in doubt. But somebody had to be stuck with the vote.
I shouldn’t have used the word “quorum.” I meant to say “majority,” i.e. 6 affirmative votes. The key is that they actually needed a quorum to be able to hold a vote and dispense with the matter. They also needed enough non yes members (absentees and abstainers) so that it couldn’t pass.
This means that some got to be absent and some got to abstain but the issue wasn’t in doubt. Hell, I wouldn’t be surprised if some of the “aye” votes were really against it, knowing it wasn’t going to pass – in other words a free vote for reform that wasn’t going anywhere.
Anyone who doubts the likelihood of what I’m describing doesn’t know the players involved.
I agree with your analysis of motivations, including about Sheldon’s vote; I just disagreed with your math and reading of the rules. All they had to do, under the rules as you present them, is have one of the non-yes votes show up, create a quorum, and abstain. And that would be exactly the same as three showing up, or five showing up, and abstaining or voting “no” in any configuration.
P.P.S
Please note that the three “abstentions” and the two absentees are elected members of the Board – not appointed. We wouldn’t want cause problems in the next election by casting a no vote on transparency, would we?
And yes, I think Sheldon got a free “yes” vote.
“All they had to do, under the rules as you present them, is have one of the non-yes votes show up, create a quorum, and abstain. And that would be exactly the same a three showing up, or five showing up, and abstaining or voting “no” in any configuration.”
No, because the not all of them would necessarily have been in on it – It would have been really hard to get two other members not to intentionally duck the meeting. On the other hand, it would really have been quite easy to get six people to show up and vote a positive “no.” It appears that somebody went to considerable lengths to make sure than NO ONE had to vote “no,” while still killing the thing.
On a slightly different note I find it highly unusual for 3 members to abstain instead of just voting no like any honest person would have done. I bet that was orchestrated, too.
Remember that the Brown Act only constrains pre-meeting collusion among enough committee members to determine the outcome — which, in this case, would be five. So if the three who abstained worked that out in advance — or if they didn’t and just played “follow the leader” once the first person (Green?) suggested doing so — that would not be a violation. I’m less convinced than is the author that one can’t ethically abstain for reasons other than conflict, by the way. In fact, if there’s a regulation of some sort saying that one can’t abstain for any reason one wishes, I’m unaware of it.
I think that we’re somehow talking at cross-purposes regarding the earlier point — and I don’t think that it’s significant enough to pursue.
I’m not claiming they were all in on it, but my surmise is that those 3 abstentions took some coaching/polling, and if that coach was also, say, talking to one or more of the yes votes, plus the two who weren’t there, there’s a violation. And that seems to me to be a perfectly plausible scenario.
The fact that nobody voted “no” is telling.
BTW, I was on the OC Planning Commission for 8 years and abstained once that I can recall.
OK. In my years in various groups following parliamentary procedures, I’ve abstained plenty of times, for reasons ranging from not being sure to not believing that the issue was properly before us. My reasons for reaching the latter conclusion, though, have been ones that I believe that I could defend well — which I don’t think is the case for the Three Abstaineers. This just looks like pique at best.
If Zenger’s “guess” “suggests” a Brown Act violation, then what more evidence do you need? Bring on the indictments!
Okay. I’ll call it a highly educated surmise, knowing the character of several of the players. It walks and quacks like a duck.
That snobbish old crony who “has served 35 YEARS” is the very embodiment of entitlement. Her bitching over how hard it is to prepare for the meetings, how the stupid public knows so little about all ‘they’ do for their welfare and how uncomfortable having certain people criticize the board made me want to show her her rocking chair early! How fucking long does she get to suck off the guv’ment teat?????
Stream the meetings. No wonder those people hate “these people”. They fight hard to stay bossy and entitled.
*Whoa Steven….these are Public Minded folks that only do this work out of the kindness of their hearts…..who everyone knows wouldn’t even drive to MacDonalds for a measley $200 bucks? Let’s see 35 years times 20 meetings a year……oh probably more than that….pretty soon ….it starts to add up!