Every once in a while, a committee of the Orange County Water District’s Board of Directors gets together behind closed doors to talk about the public agency’s most pressing issues.
According to water district officials, members of this group – known as the executive committee — decide how and when the public should be included in discussions about the agency’s business. Meeting agendas obtained by Voice of OC show they’ve been meeting for years and tackle everything from the district’s annual budget to director stipends and the hiring of lobbyists.
Every time it meets, this committee – labeled an “ad-hoc” group by the district — violates the state’s open meetings law, according to Terry Francke, general counsel at the government transparency group Californians Aware.
The law in question is the Ralph M. Brown Act, which requires that legislative bodies of public agencies meet in open and with adequate public notice of the meeting agenda. This allows members of the public to see and hear the deliberations on public policy, and it gives them an opportunity to comment before decisions are made.
Considered a cornerstone of the democratic process in local government, the Brown Act does allow for a board appointed ad-hoc committee composed of less than a quorum of the board to meet privately and discuss a specific issue. But the law doesn’t allow a “standing committee” that meets certain conditions to circumvent open meeting requirements.
At the water district, the executive committee isn’t the only ad-hoc group of board directors violating the Brown Act, according to Francke. Other committees are so broadly labeled that, if they’re meeting, are almost certainly breaking the law, he said. They include committees setup to discuss information technology, labor relations and employee benefits, and alternate energy and water efficiency.
“Over the years I’ve seen it become a habit for some local bodies to use the term ad-hoc as if it’s some sort of magic. As long as they attach he word ad-hoc they don’t have to open it to the public,” Francke said. “It’s a common misconception, or misconstruction of the term.”
Under the Brown Act, a standing committee is subject to open meetings if it has a fixed schedule set by a legislative body or it has a “continuing subject matter jurisdiction.”
According to Francke, this means an ad-hoc committee can only meet in private if its setup for a short-term purpose, and it must conclude its business and report its findings back to the parent body.
For example, a temporary committee setup to hash out a specific parking problem on a city street is an ad-hoc committee able to meet privately and without public notice. But a committee setup to look at parking issues in general is a standing committee that must open its meetings up to the public.
In the case of the water district’s executive committee, if it exists without any foreseeable end and hears on a continual basis matters that fall within its jurisdiction, it must be considered a standing committee open to the public, Francke argued.
“A committee that continually deals with a succession of issues or situations has to be considered a standing committee, because that’s really what a standing committee does. It’s there to address any issue that falls under its responsibility,” he said.
The issue has surfaced because two water activists – former Huntington Beach Mayor Debbie Cook and former Surf City Voice publisher John Earl – attended a publicly noticed committee meeting recently, but noticed that other board directors were there early, Cook said. And another director who wasn’t a member of the committee was on his way out the door.
Earl asked the district’s General Manager Michael Markus about the earlier gathering and was told it was an executive committee meeting, according to Cook. Markus gave Earl a copy of the meeting agenda, which Cook then gave to a Voice of OC reporter.
Earl had previously called out the district for holding its executive committee meetings in private, but the district didn’t do anything, Cook said.
“It seems pretty obvious to me that Mike [Markus] knows what they’re doing is not legal. But he’s got a board, and he can count to five or six,” she said.
Markus didn’t return a phone call and email seeking comment. But Director Jan Flory, who is also a Fullerton city councilwoman, asked district counsel Joel Kuperberg to address the issue at last week’s board meeting, after she had been contacted earlier that afternoon by a reporter.
Kuperberg responded that the executive committee meetings had at one time been open to the public. But at some point, the decision was made that the executive committee wasn’t required to meet publicly, so they stopped doing so.
Kuperberg’s interpretation of the Brown Act is different than Francke’s. Kuperberg said the executive committee isn’t a standing committee because it doesn’t meet regularly on a defined topic. For example, the district has a “property management” committee that only deals with property, therefore it meets publicly and provides notice for the meetings.
In an interview with Voice of OC, Kuperberg described the executive committee as essentially an “adjunct” to the general manager, who typically calls the meetings on special occasions.
“It’s things like should I schedule this for this committee before it goes to the board, or that committee… they don’t talk about any one thing,” Kuperberg said. “They don’t meet regularly. They don’t have a set subject matter.”
Francke doesn’t buy that argument. He says the fact that the executive committee has continuing jurisdiction over a wide variety of matters is precisely what makes it a standing committee subject to open meetings.
He added that another water district committee known as the labor relations/benefits ad-hoc is clearly a standing committee with open meeting requirements. This committee does in fact have “set subject matter” because it meets specifically on labor negotiations and has no scheduled sunset.
Having to negotiate labor agreements isn’t something that’s going away any time soon for most public agencies.
“That’s very different from a committee that’s formed to meet with labor representatives on a particular conflict or problem, report back and that’s over,” Francke said.
A 1996 opinion by the California Attorney General regarding a committee formed by another water district supports Francke’s interpretation of the law. It found that the committee must be publicly noticed and open to the public – even though it didn’t have a fixed meeting schedule nor a set subject matter — because it had no end in sight and was responsible for advising the parent body on a broad range of matters.
The committee in focus was the “administrative committee.” Its purpose was to “advise the board on administrative matters as appropriate,” and it was to have no “continuing subject matter jurisdiction,” according to language about the committee quoted by the Attorney General.
But the Attorney General dismissed the committee’s purported lack of “continuing subject matter jurisdiction” as “inconsistent at best,” and that this “may not be used to thwart the purposes and requirements of the Act.”
“We believe the subcommittee in question has the authority to hear and consider issues related to budgets, audits, contracts and personnel matters and that its authority needs no renewal,” the opinion states. “Its meetings are subject to the [Brown] Act’s requirements of notice, a posted agenda, and public participation.”
Cathy Green — president of the water district’s board of directors and a member of the executive committee – said she sees no issue with opening up the executive committee meetings to the public, as long as it’s not a meeting dealing with confidential topics like personnel matters.
“Other than that, I don’t care. It doesn’t matter to me one way or another,” Green said.