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Orange County supervisors were planning to privately discuss Tuesday whether to explore using county-owned land for a veterans cemetery, but changed their agenda after Voice of OC questioned the legality of holding the talks behind closed doors.

Holding a private policy discussion is a “very fundamental violation” of California’s 65-year-old Ralph M. Brown open meeting law and could result in a court order to cancel any agreements that later stemmed from the meeting, said Terry Franke, an expert on government transparency laws and Voice of OC’s public records consultant.

The discussions were placed on the supervisors’ closed session agenda after Irvine voters this month overwhelmingly rejected a land swap that would have placed the proposed cemetery on agricultural land near the 5 and 405 freeway interchange.

Supervisor Todd Spitzer, who placed the item on the agenda, said in an interview last week: “The question for the board next week is, ‘Will you support asking the staff to do an analysis of a cemetery…in order for the board at a future date to follow up on whether it will become a cemetery?’ ”

The supervisors’ only agenda item about the property – which is in Anaheim near where the 91 freeway and the 241 toll road meet – is the closed session discussion.

But that type of policy discussion – regarding whether to use publicly-owned property for a particular use – must take place in public, said Franke.

“The purpose of the real property closed session is to allow the Board [of Supervisors] to consult confidentially with its bargaining agent, whoever that might be, on the progress or lack thereof in the negotiations. And eventually, if it goes that far, to allow [supervisors] to instruct their representatives to accept a counteroffer or to make an offer – a revised offer of some kind,” Francke said in an interview.

“Once [the supervisors have] decided that it’s a good idea [to negotiate], based on an open and public policy argument, then they could commence negotiations and start consulting with their representatives” in private, Francke said.

State law requires the supervisors’ agenda to list whom they’re negotiating with, but the supervisors’ agenda simply described the other negotiating party as “Future lessees or transferees,” suggesting the county wasn’t actually in negotiations.

“If the failure to name the [other negotiating] parties means that no negotiations have begun, then the closed session would be premature,” Francke added.

Nikki Moore, an attorney with the California Newspaper Publishers Association, agreed.

“The interest in having a closed session real property negotiation is to facilitate that negotiation and ensure that the agency isn’t…diminishing its bargaining power. It’s to protect the negotiations, which to a certain degree may need to be done in secret,” Moore said.

“But if we’re talking about policy decisions about what to do with property, those interests don’t come into play.”

The issue also goes beyond the legal implications, said Moore, the newspaper association attorney.

“Public business should be done in public. And every time elected officials take these matters behind closed doors, they diminish the democratic process,” Moore said. “They should err on the side of openness.”

Voice of OC contacted county officials for comment Monday afternoon. Later in the afternoon, the agenda was changed to show three negotiating parties for the property. It wasn’t clear Monday evening whether the county had actually begun negotiations with those three entities.

“Thank you for bringing these concerns to my attention. I hope to discuss the matter with the Board tomorrow,” said County Counsel Leon Page, the supervisors’ chief attorney, in a statement to a Voice of OC reporter via text message.

Asked if that discussion will be in open session, Page replied, “I imagine so.”

The updated agenda said the negotiating parties are “United States of America,” “California Department of Veteran’s Affairs,” and “Orange County Cemetery District.”

California’s transparency law for local government meetings – the Ralph M. Brown Act – allows county supervisors to privately give direction to negotiators about price and terms of payment for selling, buying, or leasing property.

“However,” the law states, “prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its negotiators, the real property or real properties which the negotiations may concern, and the person or persons with whom its negotiators may negotiate.”

In addition to not disclosing any negotiating parties, the original agenda also did not specify which county property in the area was being considered for the cemetery.

It described the property as a “288 +/- acre County of Orange owned open space property in the City of Anaheim adjacent to Gypsum Canyon Road and California State Route 91.”

The county owns several parcels in that area, of varying shapes and sizes, which were donated by the Irvine Company.

When Voice of OC sought last week to find out which property was up for discussion, Spitzer incorrectly identified land that was less than half the size of the property under consideration. County staff later provided a map showing the full piece of property.

The Brown Act requires the county agenda to specify the “street address, or if no street address, the parcel number or other unique reference, of the real property under negotiation.”

On Thursday, a Voice of OC reporter emailed Page, the county’s top attorney, to ask which parcel numbers were under discussion and note the law’s disclosure requirement.

Page replied the property had no specific parcel number or street address, because it’s part of a larger property.

“That being said, we did go back and review the original grant deed from the Irvine Company and, for your reference, the property at issue is a part of Assessor parcel numbers 085-071-57 and 514-012-08,” Page wrote, providing a map of the property under consideration.

“In the event the process, which has been reported in the press, goes forward, a more specific legal description will have to be developed.”

After Voice of OC’s inquiry about the location, county officials updated their agenda to specify the parcel numbers the property is part of.

Nick Gerda covers county government and Santa Ana for Voice of OC. You can contact him at ngerda@voiceofoc.org.

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