Late Communications Reveal Gap in Brown Act

Huntington Beach bridge. (Photo credit: unknown)

Huntington Beach bridge. (Photo credit: unknown)

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Monday, July 19, 2010 | This spring, the owners of the Huntington Shorecliffs mobile home park presented the City Council with a plan to subdivide the park’s lots and allow the residents to purchase spaces. Most of the park’s residents wanted nothing to do with this plan.

In fact, many residents thought that the owners were trying to stick them with the costs of a drainage problem that causes the park to be in a perpetual state of flooding. Stagnant water is a constant in the park, and algae and mold grow unabated. As a result, residents say, their homes are unmarketable and would never pass an inspection, let alone be suitable collateral for a loan to purchase the spaces.

The issue came to a head at a May public hearing before City Council. The residents showed up in force to argue against the plan, but council members sided with the owners, with is a consortium of limited partnerships represented by Robert Coldren of Hart, King and Coldren.

However, before the public hearing began, new information was made available that could have helped the residents’ cause. City Attorney Jennifer McGrath had assembled a summary of case law that supported their arguments.

City Clerk Joan Flynn quickly announced the communication, but without any description of its nature or significance. McGrath’s summary concluded that if there was suspicion that the owner of the property had no real intention of having residents purchase their lots, the council could have solid ground to say no to the owner’s request.

What McGrath handed in to the city clerk that evening was one example of a so-called late communication, correspondence or emails to the city that come in too late to be included in the normal agenda packet.

One Huntington Beach resident says the city uses late communications as a tool to hide important information.

And the Brown Act has nothing to say about them.

“There are no rules regarding late communications — zero,” said Terry Francke, general counsel for Californians Aware and Voice of OC’s open government consultant.

Tim Karpinski, a Huntington Beach resident who recently helped fight and win a battle against a proposed RV parking lot adjacent to his neighborhood, says that lack of jurisdiction over late communications can open the door to city manipulation of the public hearing process.

Karpinski suspects that city staff can use late communications as a means to make certain information harder to get. He also doubts that McGrath stumbled onto the case law at the last minute and scrambled to put together a summary.

“You mean to tell me that document was prepared that day?” Karpinski said. “I don’t think so.”

Late communications aren’t always posted online with the rest of the staff reports attached to the agenda, especially if they come in on the evening of a meeting. They are typically available in a separate packet at the council meeting, but Karpinski says there are rarely enough copies for every meeting attendee.

Francke said it would be difficult to reform the Brown Act so that late communications are banned. The problem, he said, is that cities and counties can argue that they are often bound to make decisions on deadline.

However, Francke said there are other ways to reform the Brown Act and seal the seeming gap in transparency. One way to reform the law, Francke said, is to make it so the city clerk’s announcement includes a brief summary of the communication and its significance.

“It doesn’t do the audience much good if it’s given some kind of vague label and they’re not reminded they can get a copy,” Francke said.

Please contact Adam Elmahrek directly at aelmahrek@voiceofoc.org, and follow him on Twitter: twitter.com/adamelmahrek. And add your voice with a letter to the editor.

 

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