Goin' for Brown Act History
[Note: The following e-mail is to Terry Francke, founder of Californians Aware.
According to his bio, "Francke previously served 14 years as executive director and general counsel for the California First Amendment Coalition, after a 10-year post as legal counsel for the California Newspaper Publishers Association.
Francke has fielded tens of thousands of phoned and e-mailed queries on press and citizen rights, taught journalism law at the Department of Communication at Stanford University, and served as an expert contributor to the 1994 major revisions to the Ralph M. Brown Act.
Since 1980 Francke has been helping journalists, citizens and public officials understand and use their First Amendment, open government and public information rights."]
Dear Mr. Francke,
I think you are going to find this (rather lengthy) e-mail very interesting, because it involves potentially making Brown Act history.
Recently, I (and, by extension, the rest of the public) was the victim of at least two apparent, and egregious, violations of the Brown Act by the San Luis Obispo County Parks Commission, and I have filed a complaint with the SLO County District Attorney's office asking them to investigate. A spokesperson from their office told me that they are, "Looking into it."
The reason I'm writing you today, is because I came across this web site:
http://altadenans.com/current-issues/terry-francke-foremost-authority-on-the-brown-act-speaks-on-atcs-actions/
... that cites you as stating:
"As for criminal prosecution, there have been about five or six initiated in the Brown Act’s (57) year history. Only one went to trial, and it resulted in a hung jury. A conviction imposes on the prosecution a proof burden nearly unique in the law: that the member attended a meeting at which a violation occurred, and did so knowing that the violation was occurring, and intending that the public be deprived of information it is entitled to by law."
That's exactly what happened with my case, and therefore I've also asked the DA's office that they prosecute my case as a criminal violation of the Brown Act.
If they do, there's a chance -- and, considering the circumstances, a very good chance, in my opinion, at least -- that my case would be the first case in the history of the Brown Act to get a criminal conviction, and if any case deserves a criminal conviction, it's this one, as you're about to read.
Here are the details (and, it's my guess, that when it comes to Brown Act violations, you have probably seen it all, but I'm willing to bet, you've never seen this):
A current San Luis Obispo County Parks Commissioner, Pandora Nash-Karner, also currently sits on the Board of Directors for a local non-profit agency, the San Luis Obispo Botanical Garden.
That facility -- that leases county-owned land -- is planning a "$20 million" expansion, and, as I first exposed in a recent investigative piece, published on my blog, at this link:
http://sewerwatch.blogspot.com/2010/01/great-san-los-osobispo-botanical-sewer.html
... the one proposal the SLO Botanical Garden received to design the expansion was from the SWA Group, where Nash-Karner's husband, Gary Karner, is a "Managing Principal and Senior Project Manager for 27 years and is currently retained by SWA," according to his bio.
Shortly after I published that piece on 1/20/10, I noticed that on the Parks Commission meeting agenda for January 28, was this item:
"8. Proposal from San Luis Obispo Botanical Gardens – Dave Porter (7:00)"
Here's where it gets interesting... er.
When I first spotted that posted agenda item, it was something like five days before the meeting. However, I know that the Brown Act requires that a "posted" item's agenda packet be available for public inspection "72 hours" before the meeting. So, I deliberately -- I want to repeat that, because it is a very important point -- I deliberately waited until within the 72 hour requirement before I requested, from Parks Commission staff, a copy of the staff report for Item #8. As you can imagine, after publishing my investigative piece, I was extremely interested in finding out what that "proposal" was.
On the morning of 1/26/10, well within the "72 hour" Brown Act requirement for the January 28 meeting, I sent SLO County Parks Planner, Jan Di Leo, this e-mail:
- - -
On the agenda for this Thursday's Parks Commission meeting, it reads:
"Proposal from San Luis Obispo Botanical Gardens – Dave Porter (7:00)"
Please e-mail me the staff report for that item, and the proposal.
Thanks again,
Ron
- - -
After not receiving a reply for 24 hours (even though I had received prompt e-mail replies from her previously) I sent Ms. Di Leo another e-mail on the morning of 1/27/10:
- - -
Hello Jan,
Yesterday morning I sent you an e-mail requesting the staff report for the following item on this Thursday's Parks Commission meeting agenda:
"Proposal from San Luis Obispo Botanical Gardens – Dave Porter (7:00)"
That was 24 hours ago, and I've yet to receive a response, although you were kind enough to promptly respond to my other e-mails... and thank you for that.
That meeting is tomorrow, so PLEASE, is there any way I can get that report today? (And, frankly, I'm a little disappointed that the report isn't linked on the Parks Commission web site, like they are with other SLO County government agencies, like the Planning Commission, and the Supes.)
So, again, please e-mail me the staff report for that item, and the proposal (if available) as soon as possible. And, please don't force me to do a public records request to get that staff report, as those take up to 10 days to fulfill, and the meeting is tomorrow.
Thanks again,
Ron
- - -
The next morning, on 1/28/10 -- the day of the meeting -- Ms. Di Leo finally replied:
- - -
Ron,
That item was continued until February 25, 2010. At this point there is no report. I believe Dave Porter was simply coming to give a report. Our web site has the Parks Commission agenda and staff reports. So, prior to the February meeting (around Feb. 19th) you should be able to down load the agenda and the report (if there is one).
Jan Di Leo
Parks Planner
SLO County Parks
- - -
Please note, Ms. Di Leo writes, "I believe Dave Porter was simply coming to give a report," when Item 8 clearly says, "proposal." Then, Ms. Di Leo writes, "Our web site has the Parks Commission... staff reports," when it does not.
That was egregious Brown Act violation #1.
[54954.2. (a) At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.
54954.1. Any person may request that a copy of the agenda, or a copy of all the documents constituting the agenda packet [bolding mine], of any meeting of a legislative body be mailed to that person.]
Gets better.
Egregious Brown Act violation #2, in this case, is the one I'm willing to bet that you've never seen before. It goes like this:
Shortly after the January 28 meeting, I sent a public records request to Parks' staff for a copy of the recording for that meeting.
What I discovered on that recording left me shaking my head.
Here's what transpired at the 1/28/10 SLO County Parks Commission meeting:
First, the agenda order on the recording was different than that of both the posted agenda, and even the agenda order listed in the minutes, at this link:
http://www.slocountyparks.com/information/pcommprevmeetmins.htm
For example, on the agenda (and minutes) Item #2 was:
- - -
2. Nominations and Election of Commission Chair and Vice-Chair. Commissioner Nash-Karner nominated Commissioner Hilton for Chairman, seconded by Commissioner Mathews. Motion passed 4-0. Commissioner Hilton nominated Commissioner Gonzales for Vice-Chairman, seconded by Commissioner Nash-Karner. Motion passed 4-0.
- - -
However, on the recording, that agenda item is not #2. It's Item #7 (for reasons I'm not clear on), and here's why that appears to be a HUGE problem.
Immediately after that motion passed, I can hear the sound of applause from the people in attendance -- which, apparently, consisted of the Commissioners, Parks' staff, and one member of the public -- congratulating Hilton on his election to the Chair.
I can also hear Hilton say, "I'll take the gavel."
Then, immediately after the gavel was passed to Hilton -- after he was now the Chair, and, therefore responsible for how the meeting was conducted -- Commissioner Nash-Karner says, "Um, I forgot to mention earlier, that Item #8 has been deferred until February."
Then, Hilton pauses, and says, "O.K."
Then, Nash-Karner says, "So, Item #9 is all yours."
Then, Hilton says, "So with that, we have Item #9..."
After listening to the recording, I e-mailed Hilton this question:
"Considering that Nash-Karner 'forgot to mention' that Item #8 had been 'deferred,' shouldn't Item #8 have been your first official item to discuss, and not Item #9?
With this quote:
'Um, I forgot to mention earlier, that Item #8 has been deferred until February.'
... it seems like she acted as the Chair, AFTER you were elected Chair."
He never replied to my question.
And to cap all of this off, Item #8 was NOT "deferred until February," of course, nor was it on the March Parks Commission meeting agenda.
As of today, March 30, Item #8 has simply disappeared, the moment after I started inquiring about it, and not only will I now never know the contents of that "proposal," but neither will you, or a judge, or a jury, or the public... as they are "entitled to by law."
So, to recap:
- I published an investigative piece where I showed that San Luis Obispo County Parks Commissioner, Pandora Nash-Karner, also sits on the Board of Directors of a local non-profit agency, the San Luis Obispo Botanical Garden -- a facility that leases county-owned land, and is planning a "$20 million" expansion, and the one proposal they've received to design the expansion was from the SWA Group, where Nash-Karner's husband, Gary Karner, is a "Managing Principal and Senior Project Manager for 27 years and is currently retained by SWA," according to his bio.
- Then, just a few days after I published that piece, I noticed on the Parks Commission meeting agenda for January 28, this item: "8. Proposal from San Luis Obispo Botanical Gardens – Dave Porter (7:00)"
- Then, I deliberately waited until within the 72 hour Brown Act posting requirement before (twice) asking Parks' staff for a copy of the staff report for Item #8.
- Then, on the day of the meeting -- two days after my initial inquiry, and with Item #8 STILL posted on the agenda -- a SLO County Parks staff member wrote to me, "That item was continued until February 25, 2010. At this point there is no report."
- Then, at the meeting that night, the former Chair of the Parks Commission, and current Director for the SLO Botanical Garden, Pandora Nash-Karner, said, "Um, I forgot to mention earlier, that Item #8 has been deferred until February."
- Then, Item #8 did NOT appear on the February meeting agenda, or the March meeting agenda.
- And, now, because of all of those apparent, and egregious, Brown Act violations, the public will never know the contents of the "proposal" from Item #8.
You wrote, that for a criminal violation of the Brown Act to have occurred:
"That the member attended a meeting at which a violation occurred, and did so knowing that the violation was occurring..."
Commissioner Nash-Karner has been on the Parks Commission for nearly 20 years. Furthermore, she was also a Los Osos CSD Director from 1998 - 2000, where she received formal Brown Act training. So, considering her nearly quarter century as a public official, if anyone's going to know that they are violating the Brown Act, it's her. Clearly, she KNEW she was violating the Brown Act with Item #8, at a meeting she "attended."
and;
"... intending that the public be deprived of information it is entitled to by law."
Mr. Francke, "the public" -- including me and you -- will never know the contents of the "proposal" from Item #8. Never.
Finally, there's another reason why I wanted to make you aware of all of this -- other than I thought you would find my case very interesting, because of its Brown Act history making-ness.
As you've probably noticed, my complaint involves a SLO County government agency, and I've filed my complaint with the SLO County DA's office, another SLO County government agency. In other words, I'm asking the SLO County DA's office to criminally prosecute another SLO County agency, and my research shows that the SLO County District Attorney, Gerald Shea, evidently, is on a long time, first-name basis with Pandora Nash-Karner, of course.
So, if my case gets all weird, and conflicted, and the DA's office doesn't do the right thing, I will be bringing my case to the California First Amendment Coalition for attention, and I wanted to give you a "heads-up" on my case, in the event it comes to that.
If you have any comments, or questions, involving my case, I would be very interested in hearing them.
Thank you very much for your time,
Ron
P.S. I've published this e-mail on my blog, SewerWatch.
###
[13 weeks down... 39 to go.]
According to his bio, "Francke previously served 14 years as executive director and general counsel for the California First Amendment Coalition, after a 10-year post as legal counsel for the California Newspaper Publishers Association.
Francke has fielded tens of thousands of phoned and e-mailed queries on press and citizen rights, taught journalism law at the Department of Communication at Stanford University, and served as an expert contributor to the 1994 major revisions to the Ralph M. Brown Act.
Since 1980 Francke has been helping journalists, citizens and public officials understand and use their First Amendment, open government and public information rights."]
Dear Mr. Francke,
I think you are going to find this (rather lengthy) e-mail very interesting, because it involves potentially making Brown Act history.
Recently, I (and, by extension, the rest of the public) was the victim of at least two apparent, and egregious, violations of the Brown Act by the San Luis Obispo County Parks Commission, and I have filed a complaint with the SLO County District Attorney's office asking them to investigate. A spokesperson from their office told me that they are, "Looking into it."
The reason I'm writing you today, is because I came across this web site:
http://altadenans.com/current-issues/terry-francke-foremost-authority-on-the-brown-act-speaks-on-atcs-actions/
... that cites you as stating:
"As for criminal prosecution, there have been about five or six initiated in the Brown Act’s (57) year history. Only one went to trial, and it resulted in a hung jury. A conviction imposes on the prosecution a proof burden nearly unique in the law: that the member attended a meeting at which a violation occurred, and did so knowing that the violation was occurring, and intending that the public be deprived of information it is entitled to by law."
That's exactly what happened with my case, and therefore I've also asked the DA's office that they prosecute my case as a criminal violation of the Brown Act.
If they do, there's a chance -- and, considering the circumstances, a very good chance, in my opinion, at least -- that my case would be the first case in the history of the Brown Act to get a criminal conviction, and if any case deserves a criminal conviction, it's this one, as you're about to read.
Here are the details (and, it's my guess, that when it comes to Brown Act violations, you have probably seen it all, but I'm willing to bet, you've never seen this):
A current San Luis Obispo County Parks Commissioner, Pandora Nash-Karner, also currently sits on the Board of Directors for a local non-profit agency, the San Luis Obispo Botanical Garden.
That facility -- that leases county-owned land -- is planning a "$20 million" expansion, and, as I first exposed in a recent investigative piece, published on my blog, at this link:
http://sewerwatch.blogspot.com/2010/01/great-san-los-osobispo-botanical-sewer.html
... the one proposal the SLO Botanical Garden received to design the expansion was from the SWA Group, where Nash-Karner's husband, Gary Karner, is a "Managing Principal and Senior Project Manager for 27 years and is currently retained by SWA," according to his bio.
Shortly after I published that piece on 1/20/10, I noticed that on the Parks Commission meeting agenda for January 28, was this item:
"8. Proposal from San Luis Obispo Botanical Gardens – Dave Porter (7:00)"
Here's where it gets interesting... er.
When I first spotted that posted agenda item, it was something like five days before the meeting. However, I know that the Brown Act requires that a "posted" item's agenda packet be available for public inspection "72 hours" before the meeting. So, I deliberately -- I want to repeat that, because it is a very important point -- I deliberately waited until within the 72 hour requirement before I requested, from Parks Commission staff, a copy of the staff report for Item #8. As you can imagine, after publishing my investigative piece, I was extremely interested in finding out what that "proposal" was.
On the morning of 1/26/10, well within the "72 hour" Brown Act requirement for the January 28 meeting, I sent SLO County Parks Planner, Jan Di Leo, this e-mail:
- - -
On the agenda for this Thursday's Parks Commission meeting, it reads:
"Proposal from San Luis Obispo Botanical Gardens – Dave Porter (7:00)"
Please e-mail me the staff report for that item, and the proposal.
Thanks again,
Ron
- - -
After not receiving a reply for 24 hours (even though I had received prompt e-mail replies from her previously) I sent Ms. Di Leo another e-mail on the morning of 1/27/10:
- - -
Hello Jan,
Yesterday morning I sent you an e-mail requesting the staff report for the following item on this Thursday's Parks Commission meeting agenda:
"Proposal from San Luis Obispo Botanical Gardens – Dave Porter (7:00)"
That was 24 hours ago, and I've yet to receive a response, although you were kind enough to promptly respond to my other e-mails... and thank you for that.
That meeting is tomorrow, so PLEASE, is there any way I can get that report today? (And, frankly, I'm a little disappointed that the report isn't linked on the Parks Commission web site, like they are with other SLO County government agencies, like the Planning Commission, and the Supes.)
So, again, please e-mail me the staff report for that item, and the proposal (if available) as soon as possible. And, please don't force me to do a public records request to get that staff report, as those take up to 10 days to fulfill, and the meeting is tomorrow.
Thanks again,
Ron
- - -
The next morning, on 1/28/10 -- the day of the meeting -- Ms. Di Leo finally replied:
- - -
Ron,
That item was continued until February 25, 2010. At this point there is no report. I believe Dave Porter was simply coming to give a report. Our web site has the Parks Commission agenda and staff reports. So, prior to the February meeting (around Feb. 19th) you should be able to down load the agenda and the report (if there is one).
Jan Di Leo
Parks Planner
SLO County Parks
- - -
Please note, Ms. Di Leo writes, "I believe Dave Porter was simply coming to give a report," when Item 8 clearly says, "proposal." Then, Ms. Di Leo writes, "Our web site has the Parks Commission... staff reports," when it does not.
That was egregious Brown Act violation #1.
[54954.2. (a) At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session.
54954.1. Any person may request that a copy of the agenda, or a copy of all the documents constituting the agenda packet [bolding mine], of any meeting of a legislative body be mailed to that person.]
Gets better.
Egregious Brown Act violation #2, in this case, is the one I'm willing to bet that you've never seen before. It goes like this:
Shortly after the January 28 meeting, I sent a public records request to Parks' staff for a copy of the recording for that meeting.
What I discovered on that recording left me shaking my head.
Here's what transpired at the 1/28/10 SLO County Parks Commission meeting:
First, the agenda order on the recording was different than that of both the posted agenda, and even the agenda order listed in the minutes, at this link:
http://www.slocountyparks.com/information/pcommprevmeetmins.htm
For example, on the agenda (and minutes) Item #2 was:
- - -
2. Nominations and Election of Commission Chair and Vice-Chair. Commissioner Nash-Karner nominated Commissioner Hilton for Chairman, seconded by Commissioner Mathews. Motion passed 4-0. Commissioner Hilton nominated Commissioner Gonzales for Vice-Chairman, seconded by Commissioner Nash-Karner. Motion passed 4-0.
- - -
However, on the recording, that agenda item is not #2. It's Item #7 (for reasons I'm not clear on), and here's why that appears to be a HUGE problem.
Immediately after that motion passed, I can hear the sound of applause from the people in attendance -- which, apparently, consisted of the Commissioners, Parks' staff, and one member of the public -- congratulating Hilton on his election to the Chair.
I can also hear Hilton say, "I'll take the gavel."
Then, immediately after the gavel was passed to Hilton -- after he was now the Chair, and, therefore responsible for how the meeting was conducted -- Commissioner Nash-Karner says, "Um, I forgot to mention earlier, that Item #8 has been deferred until February."
Then, Hilton pauses, and says, "O.K."
Then, Nash-Karner says, "So, Item #9 is all yours."
Then, Hilton says, "So with that, we have Item #9..."
After listening to the recording, I e-mailed Hilton this question:
"Considering that Nash-Karner 'forgot to mention' that Item #8 had been 'deferred,' shouldn't Item #8 have been your first official item to discuss, and not Item #9?
With this quote:
'Um, I forgot to mention earlier, that Item #8 has been deferred until February.'
... it seems like she acted as the Chair, AFTER you were elected Chair."
He never replied to my question.
And to cap all of this off, Item #8 was NOT "deferred until February," of course, nor was it on the March Parks Commission meeting agenda.
As of today, March 30, Item #8 has simply disappeared, the moment after I started inquiring about it, and not only will I now never know the contents of that "proposal," but neither will you, or a judge, or a jury, or the public... as they are "entitled to by law."
So, to recap:
- I published an investigative piece where I showed that San Luis Obispo County Parks Commissioner, Pandora Nash-Karner, also sits on the Board of Directors of a local non-profit agency, the San Luis Obispo Botanical Garden -- a facility that leases county-owned land, and is planning a "$20 million" expansion, and the one proposal they've received to design the expansion was from the SWA Group, where Nash-Karner's husband, Gary Karner, is a "Managing Principal and Senior Project Manager for 27 years and is currently retained by SWA," according to his bio.
- Then, just a few days after I published that piece, I noticed on the Parks Commission meeting agenda for January 28, this item: "8. Proposal from San Luis Obispo Botanical Gardens – Dave Porter (7:00)"
- Then, I deliberately waited until within the 72 hour Brown Act posting requirement before (twice) asking Parks' staff for a copy of the staff report for Item #8.
- Then, on the day of the meeting -- two days after my initial inquiry, and with Item #8 STILL posted on the agenda -- a SLO County Parks staff member wrote to me, "That item was continued until February 25, 2010. At this point there is no report."
- Then, at the meeting that night, the former Chair of the Parks Commission, and current Director for the SLO Botanical Garden, Pandora Nash-Karner, said, "Um, I forgot to mention earlier, that Item #8 has been deferred until February."
- Then, Item #8 did NOT appear on the February meeting agenda, or the March meeting agenda.
- And, now, because of all of those apparent, and egregious, Brown Act violations, the public will never know the contents of the "proposal" from Item #8.
You wrote, that for a criminal violation of the Brown Act to have occurred:
"That the member attended a meeting at which a violation occurred, and did so knowing that the violation was occurring..."
Commissioner Nash-Karner has been on the Parks Commission for nearly 20 years. Furthermore, she was also a Los Osos CSD Director from 1998 - 2000, where she received formal Brown Act training. So, considering her nearly quarter century as a public official, if anyone's going to know that they are violating the Brown Act, it's her. Clearly, she KNEW she was violating the Brown Act with Item #8, at a meeting she "attended."
and;
"... intending that the public be deprived of information it is entitled to by law."
Mr. Francke, "the public" -- including me and you -- will never know the contents of the "proposal" from Item #8. Never.
Finally, there's another reason why I wanted to make you aware of all of this -- other than I thought you would find my case very interesting, because of its Brown Act history making-ness.
As you've probably noticed, my complaint involves a SLO County government agency, and I've filed my complaint with the SLO County DA's office, another SLO County government agency. In other words, I'm asking the SLO County DA's office to criminally prosecute another SLO County agency, and my research shows that the SLO County District Attorney, Gerald Shea, evidently, is on a long time, first-name basis with Pandora Nash-Karner, of course.
So, if my case gets all weird, and conflicted, and the DA's office doesn't do the right thing, I will be bringing my case to the California First Amendment Coalition for attention, and I wanted to give you a "heads-up" on my case, in the event it comes to that.
If you have any comments, or questions, involving my case, I would be very interested in hearing them.
Thank you very much for your time,
Ron
P.S. I've published this e-mail on my blog, SewerWatch.
###
[13 weeks down... 39 to go.]
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