Lobbying Exec’s Talk Raises Brown Act Issues in Costa Mesa

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An open-government expert says Costa Mesa city leaders might have at least violated the spirit, if not the letter, of both the Brown Act and the First Amendment when they approved a 10-minute presentation by a representative for a construction industry trade group at a contentious hearing last month without notifying the public in advance.

In his Feb. 13 presentation on the city’s proposed charter, Kevin Dayton, state government affairs director of the Associated Builders and Contractors (ABC), criticized requirements for prevailing wages on city-funded projects. ABC represents nonunion builders, which stand to benefit from the proposed city charter’s lifting of the prevailing-wage requirements.

Terry Francke, general counsel of Californians Aware, said residents should have been made aware of the extended presentation before the meeting, so opponents of the construction industry’s position would have time to put together their own address.

“If the mayor approved the extension of time before the meeting agenda was posted … that extension — provided to whom and for what subject — should have been noted on the agenda so that opponents could have selected [and] prepared a speaker for an extended response,” said Francke.

“At the very least, if the request and approval came after the agenda was posted, it should have been announced at the beginning of the meeting to give opponents at least some time to prepare,” he added.

Additionally, neither Mayor Pro Tem Jim Righeimer, who was running the meeting in the mayor’s absence, nor the representative, Kevin Dayton, explained that Dayton has for years directed the lobbying efforts of ABC in California.

Instead, Righeimer introduced Dayton as the director of the Dayton Public Policy Institute, an organization Dayton recently formed, instead of acknowledging Dayton’s longstanding position at ABC, whose members have a financial interest in the issue that was being discussed.

The meeting’s first nearly two dozen speakers, including residents, union representatives and City Council supporters, were limited to three minutes of comment according to city policy. But Righeimer allowed Dayton to speak for 10 minutes.

Eight minutes into his presentation, however, the audience began shouting loudly in protest of the extended speaking period. Righeimer then tried to quiet the crowd.

“Audience, the man’s speaking. He’s got his time in here,” said Righeimer. “He’s about done, he has 10 minutes,” he said.

“This is how you understand what it would be like for a union to control a government,” Dayton said. He shouted “Fascism. Fascism. Fascism,” then walked back to the audience and Righeimer called a recess.

After the break, Righeimer offered 10 minutes to a union representative to speak, but the offer was declined.

The meeting’s events caught the eye of resident Bill King, who said he delivered a letter to the city attorney on March 2 asking for an investigation into the matter. “The Brown Act was enacted to ensure transparency in government. What happened in Costa Mesa that evening was anything but transparent,” King wrote.

“I respectfully request an immediate and thorough investigation of Mr. Righeimer.”

Now, nearly three weeks after he delivered the letter, King said he still hadn’t received an answer. “It would be nice to get an indication of anything, any response,” King said.

Meanwhile, Francke said Dayton was clearly able to prepare for his extended speaking time but opponents had no opportunity to plan a rebuttal.

“I saw the video of the extended commentary, and it was obvious that it had been, if not literally scripted, carefully outlined to take 10 minutes,” he said. “It was no wonder that opponents were caught off guard and unprepared.”

At the meeting, Righeimer said Dayton “contacted us earlier on” about the presentation.

“Whoever the ‘us’ was,” Franke said, “if they knew they were going to extend the time before the agenda went up they should have noted that on the agenda to allow others to prepare for an extended response.”

Reached by phone, Righeimer declined to comment, saying he doesn’t talk to “blogs” that refer to the City Council majority as being Republican.

“Get your quotes from somebody else,” he said before hanging up.

Dayton, however, says he would have preferred for prevailing wage supporters to also give a presentation, given the “many times” at other meetings when union officials were allowed to speak longer than he.

“I think it would have been better being in a workshop-type format,” he said in an interview last week, and he encouraged the council to do so in the future. “It would be great for people to hear the pros and cons of this.”

As for the lack of disclosure at the meeting that he represents the contractors’ association, Dayton asserted that he wasn’t there on behalf of ABC. He also said he plans on leaving ABC at the end of the month to focus on his new organization.

“I wasn’t speaking there as a paid representative of the firm” but “as an expert on prevailing wage” he said.

The latest openness questions in Costa Mesa come after several alleged open-meetings law violations by city leaders since early last year.

Last winter and spring, City Council members formed “working groups,” in which they secretly developed policy, including plans to outsource city services. Californians Aware threatened to sue the city for violating the open-meetings law.

And in October, the City Council secretly authorized a letter seeking federal assistance in shutting down the city’s marijuana dispensaries. It was approved under the litigation exemption, which Francke said was a violation of the Ralph M. Brown Act.

City leaders have said they want Costa Mesa to be a nationwide leader in openness, with city CEO Tom Hatch proclaiming last year that Costa Mesa would be “the nation’s most transparent government.”

Costa Mesa spokesman Bill Lobdell and City Attorney Tom Duarte didn’t return phone messages seeking comment for this article.

You can reach Nick Gerda at ngerda@gmail.com, and follow him on Twitter: twitter.com/nicholasgerda.

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