Wednesday, July 23, 2014

Nutting, Briggs squabble over Brown Act

From page A1 | March 17, 2014 |

Tension between El Dorado County Supervisors Ray Nutting and Ron Briggs has simmered for much of the past year, but at the March 11 Board of Supervisors meeting, it nearly boiled over. A portion of the meeting had dealt with the Ralph M. Brown Act’s requirements regarding preparation of the board agenda — specifically the appropriate use of the consent calendar. The Act broadly describes and defines what may be included in an agenda and whether or not something can be changed during a governing board meeting compared to what may have to be postponed in order to give the public advance notice before the board takes action.

At issue were notations on four consent calendar items dealing with current agreements the county has with several private consulting firms. As agendized, each item included the following, “4/5 vote required.” All four were recommended to the board by the Community Development Agency, Long Range Planning Division, and in each case that division was recommending increasing the value of the contracts contingent upon future tasks as needed. Several members of the public requested that the board remove them from the consent calendar and put them on the “Department Matters” element of the agenda. All items on that part of the agenda must be openly discussed in public before supervisors may take any action on them.

After public comment, and shortly before supervisors prepared to vote on the items, Chief Administrative Officer Terri Daly clarified that the “4/5 vote required” notation was an error and that the board could approve or deny the recommended items by a simple majority — three votes. She explained that the former applied only if the county budget did not have adequate funds in those specific accounts to cover the increases requested by Long Range Planning staff. In such a case, first the board would have to vote 4/5 to amend the budget to accommodate the desired increase. Then supervisors could vote by majority to approve the requests.

“The 4/5 vote is not required because there is money in the budget to cover the (requested amounts),” Daly explained.

Moments later, Nutting asked County Counsel Ed Knapp if the board could act based on the new information, in effect, change what the board and public had understood the voting requirement to be — as published in the agenda — without postponing for several days to allow for public comment. Knapp indicated that altering the agenda for the purpose as stated would not represent a violation of the Brown Act. Not satisfied with or convinced by Knapp’s explanation, Nutting continued to declare his view that changing the agenda in such a way would violate the law, and he would oppose the action.

Briggs disagreed and there followed a brief period of the two “talking over” each other with their opposing views of the Brown Act. Board Chairman Norma Santiago had to raise her voice demanding that her colleagues return to a more civil level of discourse. Nutting changed the tone, “Briggs, and Knight and Sweeney” (went to lunch together all the time), Nutting charged as Santiago cut him off.  The inference was that Briggs and former supervisors John Knight and Jack Sweeney routinely violated the Brown Act by gathering together at the same time. Sweeney was a four-term District 3 supervisor whose last term ended in January 2013. Knight’s one-term in District 1 ended at the same time with the election of Ron Mikulaco.

Based on consultations with County Counsel, the Mountain Democrat determined well over a year ago that Nutting’s and earlier allegations by others should not be seen as violations of the Brown Act. No evidence or reporters provided any specific examples of the supervisors conducting county business during their lunches that would be considered improper or illegal  on their part. The Brown Act further contains relatively short deadlines and timelines within which complaints must be made in order for the appropriate officials to investigate or take action regarding such allegations.

One strict view of the Brown Act holds that any time a quorum of governing officials are talking to each other in the same place or at the same time, it violates the Brown Act. A broader interpretation notes that no violation occurs if they are not talking about nor taking action nor discussing taking action on anything within their official jurisdiction. If they are talking about attending an upcoming baseball game, for example, there is no violation.

Knapp and former County Counsel Lou Green have consistently explained to the Mountain Democrat that the latter is the accurate and valid interpretation of the Brown Act.

Knapp’s e-mailed discussion Wednesday was more specific to the meeting the day before:

“In some instances involving the situation where an applicant needs to give us more money and we need to amend the consultant contracts, like the five items yesterday, a budget amendment is necessary, and that’s why the initial thought was that a 4/5 vote was required.  However, when these 5 items were called and the requirement for four votes was questioned, the county budget officer looked at these specific items with a critical eye and determined that, in fact, no change to the budget was actually required, so the minimum vote requirement issue was corrected at the meeting.”

The Brown Act furthermore does not require the governing entity to “cite” in the agenda the number of votes needed to pass an item. Therefore, “Merely changing the gratuitous reference to the minimum number of votes required did not alter the ‘brief general description’ of the matter to be discussed and was therefore immaterial to the validity of the agenda as posted,” Knapp wrote.

Eventually the board voted 4-1 to approve the agenda items as recommended. Nutting voted “no.”





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