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CC 2013-08-27 Items Rec'd at Mtg. gwd 8/11/13 } l -f-- -7 peril in/Pa Kevin P. Rice Julie Tacker PO Box 14107 PO Box 6070 San Luis Obispo CA 93406-4107 Los Osos CA 93412-6070 (805) 602-2616 (805) 528-3569 kriceslo @gmail.com julietacker @charter.net Friday, 2013 August 9 Gerald T. Shea Office of the District Attorney County of San Luis Obispo County Government Center, 46' Floor - San Luis Obispo CA 93408 (805) 781-5800 gshea @co.slo.ca.us VIA E-MAIL 2013 AUGUST 9 SUBJECT: South SLO County Sanitation District District Attorney Shea: This is a request for an investigation and action by your office on two matters pertaining to the South San Luis Obispo County Sanitation District (hereinafter, "SSLOCSD"): A Brown Act "Cure and Correct" Demand letter, sent under separate cover to you and the SSLOCSD Board Chair, outlines a number of Brown Act violations committed by the SSLOCSD Board of Directors. In addition to other authority prescribed by law, your office has authority to enforce the Ralph M. Brown Act (hereinafter, "Brown Act") (Gov. Code § 54950 et seq.') pursuant to sections 54960, 54960.1, and 54960.2, and we request that you do so. Furthermore, it is our understanding that numerous official SSLOCSD records and documents are being held by the former general manager of SSLOCSD, John Wallace, at his private office. Apparently, these official public records were removed from the public agency by John Wallace and transported to his private office during his tenure which ended in February. Presently, these records are either being withheld and/or the public is being billed for the slow and uncertain return of records belonging to this public agency. Immediate access to the records and documents of this public agency is critical. A dire public health disaster could result should engineering information not be accessible to the agency in an emergency. Clear and present risks of litigation, breach of confidential closed All further statutory references are to the California Government Code,unless otherwise indicated. 1 REQUEST FOR DISTRICT ATTORNEY INVESTIGATION & ACTION SOUTH SLO SANITATION DISTRICT session information, and loss of records could also result in severe financial costs to the public. It is beyond our understanding how public agency records could be transferred out of the control of the agency to which they belong. Whatever means is necessary to immediately recover any missing records should be enacted, up to and including seizure. We hereby formally request the Office of the District Attorney to investigate and take action on the above matters. Respectfully yours', Kevin P. Rice Julie Tacker cc(via e-mail): Matthew Guerrero, Board Chair <matthewguerrero @sbcglobal.net> Tony Ferrara, Board Vice Chair <tferrara @arroyogrande.org> Debbie Peterson, Director<gbadmin @grover.org> Mike Seitz, District Legal Counsel <mike @shipseyandseitz.com> Paul Karp, Interim District Administrator <pjkarp49 @gmail.com> Matthew Heber, Accountant/Secretary <matthew @sslocsd.us> 2 )6i'd 87-2-7 1/3 � i pimp.tailk r\ Kevin P. Rice Julie Tacker PO Box 14107 PO Box 6070 San Luis Obispo CA 93406-4107 Los Osos CA 93412-6070 (805) 602-2616 (805) 528-3569 kriceslo @gmail.com julietacker(7a charter.net Friday, 2013 August 9 Matthew Guerrero, Chair South San Luis Obispo County Sanitation District 1600 Aloha PI PO Box 339 Oceano CA 93475-0339 (805)489-6666 matthewguerrero @sbcglobal.net VIA ELECTRONIC MAIL 2013 AUGUST 9 SUBJECT: Brown Act "Cure and Correct" Demand RE: July 17 Board Meeting Hon. Chair Guerrero: In the public interest, we are submitting this letter to call your attention to violations of the Ralph M. Brown Act (hereinafter, "Brown Act") (Gov. Code § 54950 et seq.') by the South San Luis Obispo County Sanitation District (hereinafter, "SSLOCSD") Board of Directors (hereinafter, `Board"). These violations may jeopardize the finality of actions already taken, and future actions taken, by the SSLOCSD Board. Factual Background At its meeting of July 17, 2013, the SSLOCSD Board of Directors met in closed session. Following the closed session, the Board's legal counsel, Mike Seitz, orally reported out action taken by the Board in regards to the second closed session item as follows: "In regards to item two, under Government Code section 54957(b)(1), a motion was passed to terminate any further discussions regarding a forensic audit unless unforeseen circumstances arise, and that vote was unanimous. "2 The minutes of the July 17 meeting (SSLOCSD Board Minutes of the Meeting of Wednesday, July 17, 2013 6:00 P.M.)3, attached to this letter, reflect an identical report of the closed session action. (Id., item 9 at p. 3.) All further statutory references are to the California Government Code,unless otherwise indicated. r Transcribed from the audio recording of the July 17 Board meeting retrieved from the SSLOCSD web site. 1 BROWN ACT CURE &CORRECT DEMAND SOUTH SLO SANITATION DISTRICT The reported action was taken at a regular Board meeting, the notice for which was described on the agenda4 as, "Closed session Pursuant to Government Code section 54957 (b)(1): Appointment, employment, evaluation of performance, discipline or dismissal of a public employee." A copy of the July 17 agenda is attached to this letter. Nature of the Violations The nature of the Brown Act violations committed by the SSLOCSD Board are enumerated, as follows: (1) The agenda description of the July 17 closed session (item number two) failed to even remotely describe the action taken by the Board in that closed session. (§ 54954.5.) The action to terminate discussions of a forensic audit simply has no remote nexus to the "appointment, employment, evaluation of performance, discipline or dismissal of a public employee." There is no reasonable legal theory that can comport the agenda description of the closed session item (as an employment issue) with the action taken by the Board (to terminate discussions regarding a forensic audit). The improper agenda description grossly violates the "substantial compliance" requirements prescribed by the Brown Act for describing closed session items. (§ 54954.5.) In that the Board and/or it's Counsel may theorize the results of a forensic audit may provide cause for discussing employee performance or employment, such cause does not—and cannot— exist without a completed audit actually being in hand. Improperly describing a closed session by manufacturing obfuscated and remote theories of unknown future possibilities is an outright ruse and a sham. In the alternative, if discussion of an actual employment issue transpired (in which case an actual employee should have been given written notice pursuant to § 54957(b)(2)), then the discussion and action taken regarding a forensic audit was still illegal as it was not on the agenda. Just because a forensic audit may conceivably bring rise to an employment issue does not entitle the Board to hold discussions whether or not to pursue an audit in a covert closed session. Such a misguided conjecture would allow simple discussions such as the purchase of office supplies to occur in closed session under the guise of employee performance! After all, a discussion of office supplies might lead to discovering an employee has been over spending. Even if the Board suspects a forensic audit (or examination of office supplies) will lead to discovery of an employee issue, the Board is still not entitled to hold discussions regarding a As published in the August 7,2013 Board Packet and retrieved from the SSLOCSD web site. 'SSLOCSD Agenda,Board of Directors Meeting,Wednesday,July 17,2013 at 6:00 P.M., item 8,sub-item(2). 2 BROWN ACT CURE& CORRECT DEMAND SOUTH SLO SANITATION DISTRICT forensic audit (or office supplies) in closed session. A discussion to conduct an audit (or change office supply vendors) is a separate discussion from employee performance and must be clearly noticed and considered in open session. Such shams can only be construed as deliberate deceptions by the Board designed to deny the public from being informed and from participating in the people's business. (2) The Board considered, discussed, deliberated, and took action on an item not on the agenda. (§§ 54954.2(a)(2), 54954.3(a).) (3) The Board failed to post public notice for the item. (§ 54954.2(a)(1)). (4) The Board denied interested members of the public of their right to directly address the Board before or during consideration of the item.(§§ 54953(a), 54954.3(a).) (5) The Board considered and took action in closed session on a matter not disclosed in open session. (§ 54957.7.) Please be reminded of the Brown Act's enacting clause(§ 54950): "[TJhe Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. 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." CURE AND CORRECT DEMAND The Brown Act creates a legal remedy for illegally taken actions—namely, the judicial invalidation of them upon proper findings of fact and conclusions of law. Pursuant to that provision (Gov Code Section 54960.1), we hereby demand that the SSLOCSD Board CURE AND CORRECT the illegal action taken at its July 17 meeting,as follows: Hold another meeting, subject to valid notice, to conduct a full hearing and consideration of this matter, providing opportunity for public participation and comment, and the airing of all sides of the issues. You have 30 days from the receipt of this demand to either cure or correct the challenged action or inform us of your decision not to do so. (§ 54960.1.) If you fail to cure or correct as 3 • BROWN ACT CURE& CORRECT DEMAND SOUTH SLO SANITATION DISTRICT demanded, we will be forced to consider legal options, including the possibility of petitioning the court for judicial invalidation of the challenged action. (Ibid.) We would hope not to have to take that step. However, if we do (and prevail), please be aware that we will also ask the court to order you to pay our costs and reasonable attorney fees. (§ 54960.5). Thank you for your prompt consideration of this matter. R1P. ce spectfully yours, Julie Tacker Attachments: (1) SSLOCSD Agenda, Board of Directors Meeting, Wednesday, July 17, 2013 at 6:00 P.M. (2) SSLOCSD Board Minutes of the Meeting of Wednesday, July 17, 2013 6:00 P.M. cc (via e-mail): Gerald T. Shea, County District Attorney<gshea @co.slo.ca.us> Tony Ferrara, Board Vice Chair<tferrara @arroyogrande.org> Debbie Peterson, Director<gbadmin®grover.org> Mike Seitz, District Legal Counsel<mike @shipseyandseitz.com> Paul Karp, Interim District Administrator<pjkarp49 @gmail.com> Matthew Heber, Accountant/Secretary <matthew @sslocsd.us> 4 et .d x'/27/3 / cox 1r1P/4, /tA SOUTH SAN LUIS OBISPO COUNTY SANITATION DISTRICT -41110.-," , Post Office Box 339, Oceano, California 93475-0339 1600 Aloha Oceano,California 93445-9735 vy i T Telephone (805)489-6666 FAX (805)489-2765 <77ON 01514 www.sslocsd.org AGENDA BOARD OF DIRECTORS Meeting City Council Chambers,City of Arroyo Grande 215 East Branch Street Arroyo Grande,California 93420 Wednesday,July 17,2013 at 6:00 P.M. Board Members Agencies Matthew Guerrero,Chair Oceano Community Services District Tony Ferrara,Vice Chair City of Arroyo Grande Debbie Peterson, Director City of Grover Beach 1. CALL TO ORDER AND ROLL CALL 2. PUBLIC COMMENTS ON ITEMS NOT APPEARING ON AGENDA This public comment period is an invitation to members of the community to present comments,thoughts or suggestions on matters not scheduled on this agenda. Comments should be limited to those matters which are within the jurisdiction of the District. The Brown Act restricts the Board from taking formal action on matters not published on the agenda. In response to your comments,the Chair or presiding Board Member may: • Direct Staff to assist or coordinate with you. • It may be the desire of the Board to place your issue or matter on a future Board meeting agenda. Please adhere to the following procedures when addressing the Board: • Comments should be limited to three(3)minutes or less. • Your comments should be directed to the Board as a whole and not directed to individual Board members. • Slanderous,profane or personal remarks against any Board Member, Staff or member of the audience shall not be permitted. 3. CONSENT AGENDA Any writing or document pertaining to an open-session item on this agenda which is distributed to a majority of the Board after the posting of this agenda will be available for public inspection at the time the subject writing or document is distributed. The writing or document will be available for public review in the offices of the Oceano CSD,a member agency located at 1655 Front Street,Oceano,California. Consistent with the Americans with Disabilities Act(ADA)and California Government Code§54954.2,requests for disability related modification or accommodation,including auxiliary aids or services may be made by a person with a disability who requires modification or accommodation in order to participate at the above referenced public meeting by contacting the General Manager or Bookkeeper/Secretary at(805)481-6903. The following routine items listed below are scheduled for consideration as a group. Each item is recommended for approval unless noted. Any member of the public who wishes to comment on any Consent Agenda item may do so at this time. Any Board Member may request that any item be withdrawn from the Consent Agenda to permit discussion or to change the recommended course of action. The Board may approve the remainder of the Consent Agenda on one motion. 3A. Review and Approval of the Minutes of the July 3, 2013 meeting 3B. Review and Approval of Warrants 3C. Review of Financial Report ending June 30,2013 4. PLANT SUPERINTENDENT'S REPORT 5. BOARD ACTION ON INDIVIDUAL ITEMS: A. PUBLIC HEARING ON ADOPTION OF THE 2013/14 FISCAL YEAR BUDGET Staff recommends the Board hold a public hearing on the adoption of the Fiscal Year 2013-14 Budget; approve Resolution No. 2014-310 adopting the District's budget;and approve Resolution No. 2014-311 adopting an employee compensation package. 6. MISCELLANEOUS ITEMS A. Miscellaneous Oral Communications B. Miscellaneous Written Communications 7. PUBLIC COMMENT ON CLOSED SESSION 8. CLOSED SESSION (1) Conference with Legal Counsel pursuant to Government Code Section 54956.9; 2 cases a. Mascolo v. SSLOCSD b. SSLOCSD v. U.S. Energy (2) Closed session Pursuant to Government Code section 54957 (b)1: Appointment, employment,evaluation of performance, discipline, or dismissal of a public employee 9. RETURN TO OPEN SESSION; REPORT ON CLOSED SESSION 10. ADJOURNMENT SOUTH SAN LUIS OBISPO COUNTY SANITATION DISTRICT City of Arroyo Grande,City Council Chambers 215 East Branch Street Arroyo Grande,California 93420 Minutes of the Meeting of Wednesday,July 17,2013 6:00 P.M. 1. CALL TO ORDER AND ROLL CALL Present: Chair Matthew Guerrero,Oceano Community Services District;Vice Chair Tony Ferrara,City of Arroyo Grande; Director Glenn Marshall,City of Grover Beach. District Staff in Attendance: Paul Karp, Interim District Manager;Mike Seitz,District Counsel;John Clemons,Plant Superintendent;Trini Rodriguez, Shift Supervisor;Matthew Haber,Bookkeeper/Secretary. Others in Attendance: Shannon Sweeney 2. PUBLIC COMMENTS ON ITEMS NOT APPEARING ON THE AGENDA Director Guerrero noted that no members of the public were present. 3. CONSENT AGENDA Action: Director Ferrara moved to approve Consent Agenda Items 3A—3C as presented. Director Marshall seconded,and the motion was carried unanimously. 4. PLANT SUPERINTENDENT'S REPORT Plant Superintendent Clemons presented the Plant Superintendent's Report which shows that the Plant is running well and in compliance with regulatory limits. Plant Superintendent Clemons spoke about the hiring process regarding the OIT Intern and Laboratory Technician/Operator positions. Director Ferrara emphasized the importance of the background checks and doing whatever could be done to be cautious. Director Guerrero suggested a public records check be performed on the candidates. Action: The Board received and filed the Plant Superintendent's report. 5. BOARD ACTION ON INDIVIDUAL ITEMS A. FY 2013/14 ANNUAL BUDGET Interim District Manager Karp presented the staff recommendation that the Board hold a public hearing on the adoption of the FY 2013/14 budget. Director Guerrero opened the public hearing on the Fiscal Year 2013/14 budget. Director Guerrero noted that no members of the public were present,and he closed the public hearing. Action: Director Ferrrara moved that the Board adopt Resolution No. 2014-310 A RESOLUTION ADOPTING THE 2013-14 FISCAL YEAR BUDGET. Director Guerrero seconded,and on the following roll call vote to wit: AYES: Director Ferrara,Director Guerrero, Director Marshall NOES: None ABSENT: None; the foregoing resolution was passed and adopted this 17th day of July 2013. Action: Director Ferrara moved that the Board adopt Resolution No. 2014-311 A RESOLTUION ADOPTING AN EMPLOYEE COMPENSATION PACKAGE FOR THE 2013-14 FISCAL YEAR. Director Marshall seconded,and on the following roll call vote to wit: AYES: Director Ferrara, Director Marshall, Director Guerrero NOES: None ABSENT: None; the foregoing resolution was passed and adopted this 17th day of July 2013. 6. MISCELLANEOUS ITEMS A. Miscellaneous Oral Communications Interim District Manager Karp informed the Board that he and Shannon Sweeney would be meeting with Paavo Ogren regarding a follow-up on the District's letter sent to County Public Works back in February. Counsel Seitz said that there would be a small change to the Board bylaws incorporating the Chair being the public spokesperson. Counsel Seitz also said that another client is going through a complete review of its outside counsel in regards to its personnel manual. He will bring many of those changes to the District's own personnel policies manual at no cost to the District. B. Miscellaneous Written Communications 7. PUBLIC COMMENT ON CLOSED SESSION There was no public comment on closed session. 8. CLOSED SESSION (1) Conference with Legal Counsel pursuant to Government Code Section 54956.9; 2 cases a. Mascolo v. SSLOCSD b. SSLOCSD v.U.S. Energy (2) Closed session Pursuant to Government Code section 54957 (b)1: Appointment,employment,evaluation of performance, discipline or dismissal of a public employee 9. RETURN TO OPEN SESSION; REPORT ON CLOSED SESSION Counsel Seitz reported that the Board had met in closed session and heard a report from Legal Counsel on two cases but took no reportable action. Regarding the second closed-session item,a motion was made to terminate any further discussions regarding a forensic audit unless unforeseen circumstances arise. The motion was passed unanimously. 10. ADJOURNMENT There being no further business to come before the Board,Director Guerrero adjourned the meeting at approximately 6:35 p.m. THESE MINUTES ARE DRAFT AND NOT OFFICIAL UNTIL APPROVED BY THE BOARD OF DIRECTORS AT A SUBSEQUENT MEETING.