SewerWatch Files Complaint with County Grand Jury Alleging SLO County Parks Commission Violated Open Meeting Laws

"The people do not yield their sovereignty to the bodies that serve them. The people insist on remaining informed to retain control over the legislative bodies they have created."
-- The Ralph M. Brown Act

TO: San Luis Obispo County Grand Jury
DATE: 10/20/10

Dear SLO County Grand Jury,

Thank you for the opportunity to file this complaint.

Earlier this year, I believe that I was the victim of at least two apparent, and egregious, violations of the Brown Act by the San Luis Obispo County Parks Commission.

Here's the setup, including specific details, timeline, and primary evidence:

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 -- on county-owned land -- is planning a "$20 million" expansion, according to their documents, and, as I first exposed in a 1/20/10 investigative piece, at this link:

http://sewerwatch.blogspot.com/2010/01/great-san-los-osobispo-botanical-sewer.html

... according to their executive director, Liz-Scott Graham (who told me over the phone), 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 my above-mentioned investigative 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)"

Here's where it gets (even more) interesting.

I first spotted that posted agenda item about five days before the meeting.

However, I'm also aware that the Brown Act requires that a "posted" item's agenda packet be available for public inspection "72 hours" before the meeting (code cited below).

So, I deliberately -- I want to repeat that, because it is a very important point -- I deliberately waited until the 72 hour requirement kicked-in before I requested, from Parks Commission staff, a copy of the staff report for Item #8.

[Note: All e-mails cited below are easily available as evidence for this case on the SLO County government e-mail servers.]

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's egregious Brown Act violation #1: I deliberately waited until within 72 hours of the meeting, then requested the staff report for the posted item, and then, on the day of the meeting, that single staff report -- the only document I was interested in -- simply vanished.

According to the Brown Act:

"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."

and;

"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."

Egregious Brown Act violation #2, in this case, is extraordinary.

Shortly after that January 28 meeting, I sent a public records request to Parks' staff for an audio recording of that meeting. (Again, the audio recording of the 1/28/10 meeting is also amazing evidence in this case, that is easily acquired through SLO County staff.)

What I discovered on that recording left me shaking my head.

Here, according to the official recording, is what transpired at the 1/28/10 SLO County Parks Commission meeting:

First, the agenda order on the recording is 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 posted agenda, Item #2 was supposed to involve, "Nominations and Election of Commission Chair and Vice-Chair."

Even in the official minutes for that meeting, Item #2 reads:

- - -
2. Nominations and Election of Commission Chair and Vice-Chair. Commissioner (and current Chair) Nash-Karner nominated Commissioner Hilton for Chairman, seconded by Commissioner Mathews. 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 passes, 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 -- and here's where it gets very fishy -- immediately after the gavel is passed to Hilton -- after he has become the Chair, and, therefore responsible for how the meeting is conducted -- Commissioner Nash-Karner, all of a sudden, out of the blue, 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 immediately 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 Commissioner Hilton this question:

- - -
"Considering that (previous Chair) 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. (Perhaps he will respond to the SLO County Grand Jury, if you were to ask him that question.)

And to top all of this off, Item #8 was NOT "deferred until February," of course, nor was it on the March Parks Commission meeting agenda, as you will easily discover if you look into the evidence of this amazing case.

As of, March 30, 2010, Item #8 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 the public, or the members of the SLO County Grand Jury, unless you investigate this very important case.

So, to summarize, here is the timeline that clearly shows that I was the victim (there's no other way to put it) of egregious violations of the Brown Act by the SLO County Parks Commission:

I published an investigative piece on 1/20/10, where I show 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, according to their executive director, 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 (1/26/10 and 1/27/10) Parks' staff for a copy of the staff report for Item #8.

Then, on the day of the meeting, 1/28/10 -- two days after my initial inquiry, and with Item #8 STILL posted on the agenda -- a SLO County Parks staff member writes me, "That item was continued until February 25, 2010. At this point there is no report."

Then, at the meeting that night, as former Chair of the Parks Commission, and current 2nd District Parks Commissioner, as well as current Director for the SLO Botanical Garden, Pandora Nash-Karner, says, "Um, I forgot to mention earlier, that Item #8 has been deferred until February."

Then, of course, Item #8 did NOT appear on the February meeting agenda, or the March meeting agenda.

And, now, because of all of those apparently egregious Brown Act violations, the public will never know the contents of the "proposal" from Item #8. Never.

The foremost expert on the Brown Act, Terry Francke, at this web site:

http://altadenans.com/current-issues/terry-francke-foremost-authority-on-the-brown-act-speaks-on-atcs-actions/

... writes:

"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 also ask that the SLO County Grand Jury "forward" these "allegations of criminal wrongdoing" to the "County District Attorney's Office for possible investigation and prosecution," as your documents read.

Thank you very much for your time,
Ron

P.S. According to my research, alleged Brown Act violations fall under the jurisdiction of a County Grand Jury.

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[42 weeks down... 10 to go.]