MWDOC GM Nixes Secret Poseidon Desal Talks after Brown Act Complaints

First published May 15, 2012

By John Earl

Surf City Voice

Confronted by complaints of illegality, the Municipal Water District of Orange County (MWDOC) dropped a scheduled closed session section of a meeting of its board of directors scheduled for today (May 15) at 11 a.m.

General Manager Kevin Hunt had scheduled the closed session in order to meet with officials of Poseidon Resources Inc., the company that proposes to build the as yet unfinanced and unpermitted $750 million ocean desalination plant that would convert about 100 million gallons of ocean water into 50 million gallons of drinking water every day.

The public meeting will go ahead minus the Poseidon item, but instead of holding session at MWDOC’s regular location in Fountain Valley, the seven board members will meet at the offices of the agency’s new legal team, Best, Best & Krieger (BKK).

Lunch will be served, according to the agenda.

The topic of discussion for the now deleted closed session item, according to the original agenda, was “price and terms of payment” for the water that Poseidon would produce.

California’s open meetings law, the Brown Act, requires that all legislative meetings be open to the public, with certain exceptions like negotiations for the sale or lease of real property. Water rights are treated as real property and Hunt, under advice from BKK, assumes that Poseidon holds water rights for the drinking water it will presumably produce, according to Hunt, a view that is disputed.

The problem, according to former Huntington Beach mayor, Debbie Cook, who opposes the desalination plant, is that “Not only are water contracts (emphasis added) not real property—transferred by virtue of a deed—but Poseidon has no title to property with any associated water rights that can be transferred.”

In that case, Cook told the Voice by e-mail, “To meet in closed session under the ‘Real Property’ exemption to the Brown Act is patently illegal. Shame on Best, Best, and Krieger for their complicity in this obstruction of open government and public participation.”

When contacted by the Voice Sunday night, Hunt acknowledged that Poseidon did not have a property deed to transfer but said that the company would have rights for water that it produces and delivers.

“I’m not trying to set a precedent here,” Hunt said, claiming that Poseidon is going through the same process for another desalination plant it wants to build in Carlsbad, in San Diego County.

Best Best & Krieger. Photo: Google

On Monday morning Hunt received an e-mail letter from Merle Moshiri, president of Residents for Responsible Desal, a local organization that also opposes the Poseidon project, complaining that the closed meeting violated the Brown Act.

“Your plans for tomorrow’s meeting rather shoots in foot your proclamations of wanting to do a better job of being open and transparent with the public,” she wrote.

But after two back-to-back Monday morning committee meetings, however, Hunt abruptly changed direction.

Still in the board room just after the meetings finished, he took MWDOC board president Jeffrey Thomas aside for a private conversation.

When he came back into the room he announced to this reporter that after considering my inquiry the night before and Moshiri’s e-mail input, “I just got permission from President Thomas to cancel the closed session with Poseidon tomorrow.”

In the conversation that ensued, Hunt said that, “In this case, there’s no urgency for it [the Poseidon meeting]. It was for the convenience of some other folks,” meaning MWDOC’s attorneys at BKK, that the item was put on the agenda, he explained.

But nothing had to be done, he added, until after Poseidon finalizes an agreement with the San Diego County Water Authority for the Carlsbad plant, which would be almost identical to the one in Huntington Beach.

“Let’s just say it was getting the cart ahead of the horse,” Hunt said.

But Hunt added that MWDOC’s board would have to go back into closed session with Poseidon in late August or September, “because that’s the only way you can discuss price.”

Hunt said BKK would first issue a legal opinion on the validity of going into closed session, but he spoke as it if validation was a foregone conclusion.

“This deal about whether you can do it [have a closed session] with desal or not is something that’s already been handled in litigation before, down in San Diego,” he said.

But Hunt conceded that he put the issue on the agenda “kind of sudden” and that it was unusual to have the meeting offsite. “I don’t want the public to get the wrong idea about that,” he said.

The reason for holding the meeting at BKK, Hunt told the Voice Sunday night, is to allow the law firm, which has been provided legal counsel for MWDOC only since last January, to introduce its staff to the full board and prove itself worthy of serving the water agency long-term.

In retrospect, Hunt said, it would have been better to have the meeting at MWDOC. Bogged down with work, and “In a weak moment, I said ‘Fine’”, he explained.

As for the inconvenience for members of the public who are used to the MWDOC location, Thomas pointed out that, as board president, he is allowed by law to hold the public meeting anywhere. “I could have the meeting in San Diego,” he joked.

Since it is an open meeting, after all, interested persons are free to speak during the public comment period.

Hunt said he thought that the meeting would take place on the penthouse floor, but he wasn’t sure. Members of the public arriving to see BKK’s presentation can check the lobby kiosk for the correct floor. The address is 5 Clark Plaza, #1500, in Irvine.

Hunt also said that anyone wishing to attend the meeting would be able to park at no cost.