Supervisors’ Secret Policymaking is Updated Amid Legal Questions

The Orange County Board of Supervisors. From left: Michelle Steel, Shawn Nelson, Todd Spitzer, Lisa Bartlett, and Andrew Do. (Photos by Nick Gerda and Katlin Washburn)

Orange County supervisors questioned their longstanding practice of using secret policy committees without a specific ending date, suggested it was inconsistent with government transparency laws, and updated their approach.

The issue centers on “ad hoc” committees, in which supervisors appoint two of their five members to meet in secret on a particular policy issue – like mental health services, overhauling the county Civic Center, and general county real estate issues – and ultimately impact policy decisions by the whole board. The results of the ad-hoc discussions and decisions typically are not revealed publicly.

“The public gets very suspect, and sometimes rightfully so, that…the board is formulating policy behind closed doors,” said Supervisor Todd Spitzer.

The supervisors “sanction a policy issue” to an ad hoc, he added. “In general the ad hocs meet without public scrutiny.”

California’s transparency law for government meetings, the Ralph M. Brown Act, requires legislative bodies of public agencies – including county boards of supervisors – meet in open and with public notice of the meeting agenda. This allows members of the public to observe the deliberations of their elected representatives, and provides them an opportunity to comment before decisions are made.

The Brown Act generally prohibits city councils, county board of supervisors and other local governing boards from having a majority of its members discuss policy issues in secret – either in person or by phone, electronically or otherwise.

But the law allows “ad-hoc” committees of less than a majority of the board to meet privately and discuss a specific issue for a limited period of time. If such committees are not “limited” in their term, they become a “standing committee” that must meet in public with advance notice.

Orange County supervisors, meanwhile, have met secretly in ad hoc committees that existed for years without a specific ending date, according to county records.

The supervisors’ creation of ad hocs had been “informal” up until this week, the board’s chairman, Andrew Do said Tuesday at the supervisors’ regular meeting.

He asked his colleagues to approve a policy to require ad hoc committees have a “definite termination date, to meet with the legal requirements.”

At Do’s request, the supervisors on July 31 dissolved their existing ad hocs and set a January 2019 ending date for a set of new ad hocs, which could be extended further at that time. At the same time, they created new ad hocs that effectively extended some of the ad hocs that have existed for years, with the option of further extensions in the future.

[Click here to see the list of ad hoc committees supervisors disbanded Tuesday. Click here for the new ad hocs.]

The county’s lead attorney, Leon Page, told supervisors a leading court decision on the topic was in Taxpayers for Livable Communities v. City of Malibu.

“The court did say that an ad hoc committee will not need to meet the requirements – the open meeting requirements of the Brown Act, if it exists for a specific purpose and for a limited time,” Page said.

“If it does become a standing committee, then that committee has to…post, for example, an agenda 72 hours in advance. It has to conduct its meeting in an open place and is open to the public.”

Several of the supervisors’ committees lasted more than five years without a specific ending date, according to county records.

One secretly-held committee, the “Real Estate” ad hoc, was created in July 2013 to discuss “general real estate issues,” according to the county. It apparently did not have an end date, until supervisors dissolved it Tuesday as part of Do’s request.

Do’s agenda item for Tuesday originally included the proposed list of ad hocs, but did not disclose the existing committees he was proposing to eliminate. After Voice of OC asked for a list of the existing committees, Do’s office updated the agenda to disclose the committees, including when they were created.

The list showed 16 existing ad hocs as of Tuesday’s meeting, one of which was created more than a decade ago, in 2007. Four ad hocs were created three years ago, in 2015, apparently without an established ending date.

One of the ad hocs created in 2015 – on the “Delivery of Mental Health services” – was continued by the Board of Supervisors in their action Tuesday. Do and Supervisor Lisa Bartlett serve on the ad hoc, along with representatives of the hospital industry, medical providers, and law enforcement. The hospital and medical industries, as well as county law enforcement unions, are among the largest political contributors in Orange County supervisor elections.

Two of the supervisors’ ad hocs – “Civic Center Facilities Master Plan” and “IT Shared Services/Centralization” – were listed as having an “Unknown” starting date.

The IT committee was not renewed this week, through supervisors did keep in place the Civic Center ad hoc, which focuses on the county’s at-times-secretive plans to overhaul the county Civic Center area with new buildings.

Do and Supervisor Shawn Nelson serve on the Civic Center ad hoc.

Voice of OC asked county officials if there was no defined end date to any of the 16 ad hocs committees that existed before the supervisors’ action Tuesday.

“The existing ad hoc committees were project-based, meaning that they would naturally terminate when the particular project under review was completed,” Page, the top county attorney, replied via text message.

Regarding the length of time the ad hocs lasted, Do said supervisors usually need significant amounts of time to accomplish what the ad hocs set out to do.

“On real estate, [information technology], [Office of Independent Review] – all of the ad hocs that we have formed, we have needed a lot of time to do some of the fact-finding, outreach, reaching out to stakeholders,” Do said.

At the end of the discussion Tuesday, Spitzer noted that a future Board of Supervisors could undo the new policy requiring an ending date for ad hoc committees.

“A new board could unwind this,” Spitzer said. “This is just a resolution.”

Later in the meeting, Spitzer asked for future discussion of a bill that passed in the state legislature he said would grant people charged with crimes the right to a mental health evaluation.

Spitzer wanted the discussion to be in public, and asked the county’s public health and finance staff for information about how the bill could impact the county, particularly staffing and funding requirements.

Do said it would be better handled in an ad hoc committee, adding it was “premature” to schedule a public discussion of it. No supervisors besides Spitzer expressed support for a public discussion.

Page, the county’s top attorney, then offered to take the lead in coordinating county departments to provide the information Spitzer requests, and said he could provide a “confidential memo” to the supervisors.

“That’s a great point,” Do said of the confidential memo offer.

“Yeah, I’m totally great with that,” said Spitzer. “I think that’s a great suggestion, and I support it 100 percent.”

Contact Nick Gerda at ngerda@voiceofoc.org and follow him on Twitter @nicholasgerda.