Letter from GHD Attorney Scott on 2010-11-15 Brown Act Violation

I sincerely appreciate your very prompt reply to our concerns. I assure you that our aim is to educate and, only where necessary, to enforce compliance with the open meetings statutes, in an effort to keep the public informed and involved in the decision-making of its local agencies.

Cal Aware General Counsel Terry Francke and I have thoroughly evaluated your response to the Brown Act Demand for Correction in regard to the November 15th closed session.

While we believe your argument that subparagraph (A) of Government Code 54956.9(b)(3) might apply here, we think the probably is incredibly low. We will investigate this issue further.

Nevertheless, a court is most likely to find this to have been an improper closed session even if authorized as you contend, because of the public report of what was discussed and acted upon in the closed session. These items of business are never authorized for secret discussion under anticipated litigation, no matter what the "existing facts and circumstances."

Therefore, without some additional information of which we are presently unaware, it is likely we will initiate litigation within the time frame provided to gain a judicial determination that the Board violated Government Code §§ 54953, 54954.5, 54956, and 54956.9 in regard to its special meeting of November 15, 2010, and to void all actions taken therein. We will also ask the court to consider ordering the tape-recording of future closed sessions of the Board.

Without some information to the contrary, we will assume for the purposes of Government Code section 54960.1(c)(2) that your written response is a response on behalf of the Board in answer to our Demand for Cure or Correction, indicating the decision not to cure or correct.

As an aside, I should point out that, should the court agree with our position, any future actions by the Board dependent upon the decisions made at the November 15th meeting are likely to be found null and void.

I believe that discussion of the disposition of Stieringer's retirement was inappropriately withheld from the public. Attorney Jeffrey Scott makes a claim that he had the right to advise the board about the possibility of a lawsuit. Fine. That part could have been handled in a closed session. Then, once the attorney advised the board of the possibility of a lawsuit, the remaining part of the session should have been handled in an open session. That means they would minimize the content in closed session and open it up as much as possible, and that is the intent of the Brown Act.

I say this not just because it is the right thing to do under the Brown Act, but because earlier actions of the board, including former member Stieringer and CEO Barry Jantz, could easily be construed as attempts to offer insider dealing, because:

• It appears that the position of "projects liaison monitor" was added specifically so that Stieringer would be a viable candidate
• It was advertised so no one else knew about it
  * Stieringer was the only candidate until the last day of the application period, the other applicants just window dressing.
• if we had not blown the whistle, he may have had the political muscle to sneak into the position
• That would have boosted his retirement after only one year by a factor of ten, and ripped off the taxpayer by up to a million dollars.

This scenario is denied by Jantz and Stieringer, but other events and statements support it:

• After complaints were heard from the public, the position was quickly dissolved. This means it was not really that important to begin with
• Stieringer wanted his seat back. That means he expected to get the position, or he would not have risked losing his seat by applying.
• Stieringer said he was disappointed that they board "cowed" to pressure from critics. This means he felt the board would have normally agreed to his arrangement, and even that it was a predetermined result based on agreements he may have struck with his board member friends, CEO Jantz, and Attorney Scott.

The agenda included one item, "Conference with Legal Counsel..." and not "Vote on the disposition of Stieringer's resignation and his letter attempting to rescind his resignation." Therefore, the decision they made on this was not on the agenda, and therefore, improper to discuss at all.

This fumbling around by Stieringer, this board, CEO Jantz, and Attorney Scott only makes it more obvious that something was up. Scott will justify anything the board has done, and since he was watching as the whole thing went down, it is also a "CYA" move on his part. We may as well ignore anything he has to say on this issue. He is not defending the public's rights, he is not defending the taxpayer. He is defending his client, the GHD, and the people who currently sit on the board and as staff.

As I mentioned, Jantz should be reprimanded, at a minimum for his sloppy handling of this case. But now it appears that Scott is a member of the cabal.

--Ray Lutz

• LetterFromJeffreyScottReBrownActViolationCureDemand.pdf: Letter From Jeffrey Scott Re Brown Act Violation Cure Demand