After at least two secret meetings over the past two months, Orange County Supervisors are set Nov. 13 to begin publicly discussing vendor proposals for two historically troubled and expensive contracts worth at least $200 million, one to run the county’s computers and the other to operate the telephone systems.
Terry Francke, an expert on California open meeting laws who also has authored a number of measures to tighten loopholes, said the county has gone so far overboard to protect information coming from bidders that it appears to have violated open meeting requirements.
In addition, he said, the county is using an often utilized end run around the open meeting laws, a tactic known as an ad hoc committee, far in excess of legal limits.
Discussions of the proposed contract terms by supervisors and their staffs have become so secret in recent weeks that county officials even refused to publicly disclose when and where a special committee was meeting, saying the county had the legal right to withhold the information.
“If the county counsel considers this legitimate, they could do all of their business this way — have a [private] premeeting meeting, a dress rehearsal,” said Francke, general counsel to Californians Aware, a statewide open government watchdog organization and partner with Voice of OC on government transparency issues.
Industry interest in the IT-related umbrella contracts is high, according to a variety of county officials, including Board of Supervisors Chairman John Moorlach. Prospective vendors “were buzzing around long before the contract expired” last year, Moorlach said.
That interest is reflected in campaign contributions to the four supervisors who will be on the board in coming years and the new supervisor, Todd Spitzer, who will succeed Bill Campbell when he leaves in January because of term limits.
Altogether since 2009, according to records of county registrar of voters, the four supervisors and Spitzer have received at least $23,000 from the four top bidders for the contract. The county has a cap of $1,800 per donor for each election campaign.
“It’s one of the largest contracts we have,” Supervisor Janet Nguyen informed her colleagues in June 2010, when she and Supervisor Pat Bates formed what was supposed to be a short-term “ad hoc” committee.
The committee was supposed to review audit findings and report on their conclusions within a few weeks to the rest of the five-member board.
But according to what Nguyen told the board last month, the ad hoc committee persists. In fact, it has expanded its role from reviewing audits to working on the new computer contract proposals.
Supervisors last month allowed staff from all five offices to attend the closed meetings, ask questions and report back to the elected officials. The public, in turn, wasn’t allowed to even know where and when the committee met.
“Since the meetings of the IT Ad Hoc Committee are not subject to the Brown Act and are not open to the public, we will not be providing information about scheduled meetings,” county spokesman Howard Sutter wrote in an email responding to a Voice of OC request for meeting information.
Nguyen and Bates didn’t return telephone calls to discuss the issue.
But the day after Voice of OC made its first official request for records regarding the ad hoc committee meetings, Bates went public.
Near the end of the Oct. 30 Board of Supervisors meeting during board comments, Bates announced that one ad hoc committee meeting had already taken place and at least one more had been scheduled.
Short-term committees of less than a majority of board members are legal, Francke said, but they must have a specific purpose, exist for only a short time and publicly report their findings to the full board.
At the Oct. 10 regular board meeting, Nguyen publicly confirmed that the ad hoc committee had existed for two years and that she had tried unsuccessfully to hold meetings during the past year.
Other cities also have had issues with ad hoc committees.
Aliso Viejo backed down when faced with a CalAware lawsuit in 2011 over an ad hoc committee its City Council created that wound up dealing in private with a wide range of recreation issues.
Costa Mesa also ran into conflicts in 2010 when it used an ad hoc panel to deliberate in secret to devise a plan to outsource nearly half of the city services and lay off possibly more than 200 employees.
Francke said ad hoc committees absolutely may not be used as a way around open meeting laws, for example, by relaying information from the committees to other supervisors but not to the public.
California’s Brown Act, the 59-year-old state law that regulates local government meetings, is specific:
A majority of the members of a legislative body shall not … use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.
“The whole reason this ad hoc committee is permitted without the public is the assumption that these two members, when they make up their minds, are going to share that in a public meeting. If they start leaking that back to the other supervisors, then the Brown Act has been violated,” said Francke.
But at the Oct. 30 meeting, Moorlach read an opinion from the office of County Counsel Nick Chrisos that stated it is “perfectly acceptable for staff from each board office to fully participate in these meetings, including asking questions and receiving any materials that are distributed by other board offices or by staff. The only restriction on board staff is that they not express an opinion during the meeting that would be perceived as trying to form a consensus.”
Moorlach added, “Consequently, I expect all board offices to be provided with any information that is shared during these meetings.”
In addition, he said, Chrisos’ office declared that “it is perfectly acceptable for board staff members who participate in these meetings to fully brief their respective bosses, the supervisors, on any information that is provided during or subsequent to the ad hoc committee meeting.”
But Francke said: “If they’re going to have representatives sitting at this meeting, they may as well open up this meeting. They don’t have to voice an opinion to make it quite clear what their opinions are based on the questions they’re asking.”
“It’s a way of having the benefit of a meeting without the public,” he added.
Francke also said there is no legal requirement to keep information secret that comes from bidders if the public would be better served by knowing in advance what is being discussed.
“There’s nothing sacred about proprietary information,” he said. “Who’s the county protecting here? The county or the contractor?”
A county staff report stated that proposals were received from six vendors. It recommended that San Diego-based SAIC be awarded the contract for computer services, with Xerox as the backup bidder. The telephone contract should go to Xerox, with Verizon as backup, according to the staff report made public as part of the Nov. 13 agenda.
If supervisors agree, county staff would negotiate prices with the winning firms. Xerox recently took over the county’s current contractor, ACS State and Local Solutions.
A final contract could be approved as early as December.
The last county computer contract with ACS State and Local Solutions ran for a decade, was worth $250 million and was the subject of a series of critical audits, which led to the forced retirement of former IT director Satish Ajmani.