Water District Budget Passed at 'Worst Public Meeting Ever'

OCWD directors are out of control

This article was first posted May 23, 2018 in the Surf City Voice

By John Earl

Surf City Voice

The Orange County Water District Board of Directors (OCWD BOD) is out of control and the consequences could be costly for the District’s 2.4 million customers.

That’s my conclusion after attending hundreds of OCWD board meetings and examining thousands of documents over the past five years, including hundreds that I received recently from a Public Records Act inquiry.

Those recent documents show collusion between the OCWD BOD and Poseidon Resources Inc. to build and run a $1 billion ocean desalination plant off the coast of Huntington Beach.

The root of OCWD’s accountability crisis is in its carefully guarded traditions, including how it conducts its meetings.

OCWD formed in 1933. Until 2013, when it announced its intention to team up with Poseidon, its public meetings were held in obscurity and few non-industry spectators attended.

OCWD refuses to livestream public meetings like most local government agencies do, and those meetings are still sparsely attended by comparison. That makes it easier for its board of directors to engage in questionable practices with impunity.

The Law

California’s Ralph M. Brown Act guarantees public access to and participation in meetings of local legislative bodies.

And it says:

“The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

But the OCWD BOD regularly operates by hiding important discussions from the public, including its obsession with the Poseidon project. Its obfuscation tactics range from sleight-of-hand that violates the spirit of the law to blatant if not willful disregard for the law.

OCWD’s Hidden Board Meetings

Most Orange County water agencies hold two regular board meetings per month plus multiple day-time standing committee meetings, the latter being more convenient for directors than for their constituents.

OCWD follows that pattern but convenes its five standing committee meetings as joint meetings with the Board of Directors, as stated in fine print at the top of each committee agenda:

“The (name of the committee) meeting is noticed as a joint meeting with the Board of Directors for the purpose of strict compliance with the Brown Act and it provides an opportunity for all Directors to hear presentations and participate in discussions.” — Emphasis added.

OCWD board members go over budget items at a recent committee/board meeting. Photo by John Earl

Like board meetings, standing committees have decision-making powers and are subject to the Brown Act. The local government agency must accurately announce its public meetings at least 72 hours in advance.

But whether OCWD’s joint meetings comply with the Brown Act or not is debatable.

Any interested person browsing the OCWD website calendar would at first-glance see only two regular board meetings scheduled per month and up to five “committee” meetings per month–without any mention of joint meetings.

Misleading notice: Listed as committee meetings are actually full board meetings.

Only the person who clicks on the link that opens the committee agenda and reads the agenda’s fine print will know that it is for a joint meeting of the board and the committee, at which all ten board members can be present, including five designated committee members and five designated alternates from the same board.

Listed as a committee meeting but not a committee meeting.

In effect, all board members are alternates for all committees.

If that’s not confusing enough, the OCWD practice of blending board meetings with committee meetings appears to violate the Brown Act in several ways.

First, the Brown Act requires meetings to be accurately noticed. The legislative body can’t call a meeting a committee meeting when it’s really a meeting of the full board. Doing so stifles public participation, possibly violating the Brown Act.

Second, how does a legislative body conduct a meeting with itself without defying common sense and the meaning of the law?

Joint meetings occur between separate legislative bodies. For example, the city council has a joint meeting with its planning commission.

Or the OCWD BOD meets with the Municipal Water District of Orange County Board of Directors.

If the OCWD BOD does paradoxically hold a joint meeting with itself, it must have a quorum (six of ten board members) present. Without a quorum, the present directors must adjourn the meeting.

A committee meeting (with a quorum of three) could then be held, but only if non-committee board members remove themselves from the dais and become observers, as described by the California Attorney General in a 1997 opinion:

“To permit legislative body observers to sit on the dais would grant them greater rights than members of the public. It could also create the impression that the standing committee meeting constituted a meeting of the legislative body itself. Having the observers sit in the area designated for members of the general public would eliminate any confusion as to their role in the proceedings and effectuate the Legislature’s intent of not granting special privileges to those attending ‘only as observers.’”

The District’s joint meetings often lack a quorum for the full board but are never adjourned and reconvened as committee meetings. Instead, the remaining directors shift into committee mode without saying a word. Moreover, the makeup of the committee is shifting throughout the meeting as directors come and go.

Adding to the confusion, OCWD board members who are committee alternates always sit at the dais even when there is a committee quorum, contrary to the State Attorney General’s legal interpretation of the Brown Act.

Also, if the full board and its committees are one “joint” body, then any time that three or more directors meet to discuss anything without announcing it they will violate the Brown Act.

Rubber-Stamp Meetings

At these joint meetings (mislabeled on the calendar as “committee” meetings), future regular-board agenda items are discussed in depth and are all but decided by inference or direct vote (with or without a quorum) before coming to the full board during one of its twice-monthly meetings.

The unaware public citizen, misled by the announcement of a “committee” meeting, who waits until the next regular board meeting to speak on an agenda item (first discussed in committee) would be wasting time by speaking to directors whose minds were already made up.

Local government agencies that rubber stamp agenda items at public meetings violate the spirit of the Brown Act by making public participation meaningless, like what happened when the OCWD BOD approved its 2018 – 2019 budget of $239.7 million at its regular April 18 meeting.

A quick meeting for a huge topic. Video by Debbie Cook

The budget agenda item, in that case, was divided into two sections for two separate votes:

1) A proposed increase in the Replenishment Assessment (RA) for OCWD’s producers (the 19 water agencies who pump water from the basin and must pay the RA to help OCWD refill the basin); and,

2) The rest of the water district’s budget, including the Basin Pumping Percentage (BPP)—the percentage of an agency’s total water supply that it can take from the Basin (the rest coming from imported water).

Staff’s first recommended rate increase (previewed by the full BOD previously at its April 4 meeting) was opposed by the cities of Anaheim, Fullerton, and Santa Ana and their appointed board representatives, respectively James Vanderbilt, Bruce Whitaker, and Vincente Sarmiento, who said their low-income ratepayers were hard-pressed to pay a cent more.

Following the board’s direction, staff offered “Option 4” as a compromise.

To lower the proposed RA from $27 an acre-foot (a 90-cent monthly water bill increase) to $17 (a 56-cent monthly increase), Option 4 cuts budgets for maintenance projects, increases basin pumping (to make up for lost revenue), and brings basin replenishment to a dangerous crawl during a drought (OCWD purchases imported water and injects it into the Basin).

Delayed price-hikes today mean unavoidable and even greater price-hikes for ratepayers a year from now.

Concerned ratepayers might want to have their opinions on such heady issues heard by their public officials, with the hope of persuading them to vote one way or the other.

For that purpose, a handful of OCWD ratepayers who favored the proposed $27 RA increase weighed in at the board’s regular April 18 meeting. They wasted their time, however, because the issue had already been decided at the Water Issues Committee (WIC) on April 11.

Caption: Water Issues Committee meeting. April 11, 2018. Courtesy of Debbie Cook

Present at the dais of the WIC meeting were directors Bilodeau, Nguyen, Dewane, Sarmiento, Vanderbilt, Whitaker and Green. The full board’s rubber stamp awaited their decision, as alluded to in the minutes of the WIC meeting:

“Executive Director John Kennedy recalled that at the April 4 Board meeting, staff presented three alternative budget and RA options for discussion and consideration. He stated that based on Board feedback received on those options; [sic] staff has developed an additional option, (Option 4), for consideration. He reviewed the elements of option #4 with the Committee.”

The purpose of Kennedy’s WIC presentation was to “hone in on a recommendation” that the full board could pass the following week.

Just a Ritual

Kennedy’s Option 4 presentation told the board what it wanted to hear and President Green lavished it with praise.

“I think this has come up to a really, really, good compromise with something that works for everyone,” Green said to OCWD’s General Manager, Mike Markus.

“I know it was a hard job,” she added. “You had everything ready to go and then we changed it all at the last minute.” (emphasis added).

Green tried to make a motion to approve Option 4, but Markus reminded her that the staff recommendation was informational and not up for a vote in committee.

But the vote of the full board was already in the bag, Markus hinted while stumbling on his own words.

“It’s a lot easier to have the conversation ahead of time rather than having it on—and we’ll still have the conversation the night of the vote; but in order to get things, kind of, it helps staff clarify in our minds what our recommendations will be next week to the board when we go through the ritual of the RA ARA BEA BPP and budget.”

On April 18, the full OCWD board passed Option 4 by a 9 – 0 vote (Director Stephen Sheldon absent) after deliberating for only 16 minutes, without any discussion by board members except a short comment by Cathy Green.

Worst Public Meeting Ever

Finally, Director Vanderbilt asked Markus where, other than at the WIC meeting, the rest of the budget had been discussed.

The brief answer: at the Admin-Finance Committee meeting.

Admin Finance meeting budget discussion. April 12, 2018 Courtesy of Debbie Cook

Markus also disclosed that he had discussed the budget privately with 21 department heads, after which he cut $400,000 in proposed general fund expenditures, that he expected the District to receive more Proposition 1 grant funding, and that most budget increases were due to higher staff salaries and water quality programs.

That was the end of the board’s discussion.

The entire budget of $240 million was barely discussed and then passed in 36 minutes.

OCWD’s sleight-of-hand is “bad practice” but probably doesn’t violate the Brown Act, according to David Snyder, Executive Director of the First Amendment Coalition, an online non-profit public interest group that promotes open government and public participation in civic affairs.

Full board meetings initially disguised as committee meetings probably don’t violate the Brown Act if the meeting agenda notes the discrepancy, “Snyder said by phone.

And there is no “rubber stamp” violation if “people were allowed to attend a previous public meeting where the [budget] issue was discussed by the board.”

Holding a meeting without a quorum would be subject to the District’s own rules of order, he added.

Still, President Bilodeau felt compelled to justify the meeting’s brevity.

“I will just note for the record and for the public,” he explained, “that this has gone through extensive analysis by the staff and the board over a number of meetings. This meeting may look rushed, but it’s the culmination of several months of effort.”

Huntington Beach Planning Commissioner and city council candidate Dan Kalmick also attended the meeting and afterward he had a different take.

“There was very little information given to the public,” he complained. “That was the worst run public meeting I have ever witnessed.”