"Ploys" and "tactics"

Members of the public who make comments on projects before the Merced County Board of Supervisors are routinely chastised by supervisors for sending in their written comments late. This letter by attorney Marsh Burch explains the problem. Because the County could not produce a coherent packet of information for the July 1 board meeting, three items had to be continued.

To Supervisor Jerry O'Banion, who at the June 10 board meeting, accused the public of using late submissions (at the perfectly legal time of a public hearing) as a "ploy" and a "tactic," we suggest again that the ploy and tactic is the County government's, not the public's.

Since every ploy and tactic imply a strategy, citizens of Merced County must assume that the strategy of County government is the strategy of finance, insurance and real estate special interests which has produced our present national shame, our mortgage foreclosure rate. Nowhere is that clearer than when the public tries to obtain documentary background to special interest projects in Merced County.

However, today, July 1, 2008, the supervisors sullenly blinked.

Badlands Journal editorial board

131 South Auburn Street

July 1, 2008
Via Email

Merced County Board of Supervisors
County of Merced
2222 M Street
Merced, CA 95340

Re: Unavailability of Board Packets and public information for
Merced County Board of Supervisors Meeting July 1, 2008

Dear members of the Board of Supervisors:

This office, in conjunction with the Law Office of Donald B. Mooney,
represents the San Joaquin Raptor Rescue Center and Protect Our Water, groups with an interest in some of the public hearing items on the agenda for July 1, 2008. We submit the following comments regarding our inability to timely obtain the Board packet and materials relating to the items of concern.

A. Availability of Board packets/documents

We prepared comments on three items on the public hearing calendar without the benefit of reviewing the Board’s packet of materials regarding this appeal because our clients were told at 12:30 p.m. on June 30, 2008, that the Board packets were not ready for review and that staff would call when the materials were ready. The call arrived at 4:19 p.m. While our clients received some of the meeting materials for the appeal on CD at approximately 12:30 p.m. on Monday, the remaining materials were not available until the end of the day.

I have not been able to receive or review the CDs made available on Monday, nor have I seen the Board packets made available just before the close of business.

It bears mentioning that the Board may feel frustration in receiving comments the day before a meeting, or even the day of a meeting, but there is no basis for complaint when the materials necessary for the public to intelligently prepare comments regarding a proposal or project are not available to them until late in the day the afternoon before the meeting. The public right of participation is at the core of our governmental processes, including the local process. To disregard public comment as untimely when the information has not been adequately provided to inform them would be contrary to the right of public participation.

The failure to provide the Board packet for public review on this issue is also a violation of the Brown Act. Government Code section 54957.5(a) provides that any writings distributed to a majority of the members of the legislative body (the Board packet) shall be made available upon request and without delay. Subsection (b) provides that if the packet is distributed less than 72 hours prior to the meeting, it shall be made available for public inspection at the time it is distributed to all, or a majority of all, the members of the body. The Board packets were not available on Monday afternoon in the Board’s office, and so must not have been distributed to all, or a majority of all, of the Supervisors by that time.

The agenda contains 32 consent items and 22 public hearings. Some of these hearings relate to controversial issues, including fees that will have a significant impact on some members of the community. The fact that the Board will not have its packet until sometime the evening before this meeting is contrary to due process. For this reason, all of the public hearing items, and arguably the consent items, should be continued so that the public will have an opportunity to review the Board packet, as well as the Board members.

B. Lack of availability of public records and public participation

Our clients have continuing concerns regarding their ability to obtain public records in a timely fashion and in compliance with the California Public Records Act. Also, the Brown Act requirements regarding availability of materials for items on a Board meeting agenda are going unmet.

The following chronology of events took place with respect to our clients’ efforts to obtain documents relating to the meeting today, and provides a glimpse into a scenario that plays out in similar fashion for nearly every meeting where our clients seek to review the Board packet and provide comments.

As set forth in the three comment letters submitted this morning on the Robinson, Thoreson and Tate projects, we have not been able to review the Board packet for any of these items because the materials were not made available until nearly the close of business on Monday.

Our clients attempted to get the documents and materials necessary to provide comments, and had considerable difficulty. On Friday, June 27, 2008, our clients went to the Merced County Board of Supervisors office to ask for the CDs for the July 1, 2008 Board of Supervisors meeting and for hard-copies of some agenda items in the two-binder Agenda and Reports materials available at the counter.

At that time, staff first produced three packets of material, for three projects – the Robinson parcel split, Thoreson sand mine and Tate microbrewery.

Our clients also received some reports on other items.

Staff informed our clients that the CD would not be ready until Monday. Our clients asked if there would be any difference between the hard-copy and the CD files and staff replied that there would be no difference. Our clients expressed some concern about past experience with differences between the CD and the hard-copy agenda packet provided to the public, and staff assured our clients that those problems may have occurred in the past but that had been corrected.

On June 30, 12:30 p.m. one of our clients went to the Board’s office and the two-binder Agenda and Report was not available, but our client received four CDs. Staff informed our client that the Agenda and Report was not available because documents regarding the Robinson, Thoreson and Tate projects had gotten “mixed together” and that staff would notify our clients by telephone when the Agenda and Report would be available to the public. Staff also informed our client that County Counsel had been consulted and the hard-copy documents our clients received on the 27th were “courtesy copies” and that the only official information would be contained on the CD.

In going through the hard-copy reports, our clients found that half the Robinson report was included in the Thoreson report. Our clients submitted 30 documents regarding the Robinson project. Planning staff omitted a number of them, choosing the ones they felt were relevant. For example, only a couple of pages of the Reclamation Plan for the Sand Mining project, and only the Kit Fox map was included.1

On CD, staff included the entire Reclamation Plan and the River Restoration Plan (which the Staff Report asserted was “ irrelevant”). Also on the CD, they included the Sun-Star story on the AG investigation into Central Valley Cement (Robinson’s contractor on the sand mine) and they included the Delta Pumps Agreement (which was omitted from the hard-copy documents).

As of Monday evening our clients were still reviewing and documenting the differences between the hard-copy packet and the CD. But, it is fair to say that staff was mistaken about the hardcopy and the CD being identical. The difficulty our clients encountered in their efforts to review the materials for items on the public hearing agenda for today resulted in a lack of due process and violations of the Public Records Act and the Brown Act. The Board packet simply must be available for review by the public so that they will have a reasonable amount of time to prepare intelligent comments on the issues they are concerned with.

C. Conclusion

It is our understanding that comments submitted the day before or the day of meetings are considered by some to be a “tactic” of some kind. This could not be further from the truth. I personally worked to prepare these comments without knowing what would be included in the Board’s packet and never did receive that information because it was made available in Merced yesterday evening and my clients could not get the information to me. If the Board is interested in receiving comments in advance of meeting days, then the Board packets must be made available in such a way as to allow that to occur.

We respectfully suggest that the public hearing items, and possibly the consent items as well, be continued so that the public right to participate in the process is not violated.

Very truly yours,
Marsha A. Burch

cc: San Joaquin Raptor Rescue Center
Protect Our Water
Donald B. Mooney, Esq.

1. Please see attached list of Exhibits that were submitted by our clients.