Neither the staff or the Board of the Merced Irrigation District can run a legal public meeting

The Merced Irrigation District has been in the news in recent days because there is evidently some conflict over its 2009 budget, set off by a staff proposal to sell $3 million worth of water during a severe drought. Proposals like that make farmers nervous. In the course of the conflict, as Merced Sun-Star articles below indicate, the issue of how well MID runs a public meeting has come up. Since fall 2007, MID has held a series of meetings of Merced Area Groundwater Pool Interests, a consortium of water districts in the eastern and central parts of the county. The purpose of this series of meetings was to develop a groundwater management plan sufficient to the requirements of the state Department of Water Resources for MAGPI to qualify for a grant for an "integrated" regional water management plan (the integration of both surface and groundwater supplies in one big plan). Several environmental groups attended all the meetings, unlike the MID board, whose representative as we recall only attended one of them. As the drought continues, the issues surrounding groundwater (well water) -- particularly with MID recharging the aquifer, the issue of who owns groundwater? – gain importance. MID itself now has more than 140 groundwater wells within its district boundaries, some competing with the farmers’ private wells.  Neither MID or its consultants informed the public of these public meetings with any consistency. The agenda for one meeting varied according to the mailing list of recipients. Perhaps the most important issue of the entire series of meetings appeared without notice to the public and the meeting was declared a public hearing in order to adopt it.  MID staff and legal staff do not run clean meetings. There is a buffoonish playfulness and arrogance about MID's legal counsel, but the malevolent intent toward public process is always clear. In one article below, the Sun-Star reporter dutifully regurgitates a quote by Lawyer Robbins:  Kenneth Robbins, MID's general counsel, maintained that the process has been open. "The budget has been fully vetted and sunshined," he said, pointing out that all public meeting laws have been followed. We’re certain neither the Sun-Star nor Lawyer Robbins can substantiate those statements. The following letter, written by legal counsel for two environmental groups that have been involved in MAGPI since its inception nearly a decade ago, is addressed to MID counsel concerning MAGPI issues. It sheds some light on MID’s habitual conduct regarding public meeting laws. December 12, 2008 Arthur F. GodwinMason, Robbins, Browning & Godwin100 Loughborough Dr. Suite DMerced CA 95348 re: Merced Area Groundwater Pool Interests -- Brown Act Compliance Dear Mr. Godwin,  This office, in conjunction with the Law Office of Don Mooney, represents the San Joaquin Raptor Rescue Center and Protect Our Water, groups with an interest in groundwater management and the activities of the Merced Area Groundwater Pool Interests ("MAHPI"). This serves to respond to your letter of November 17, 2008, regarding the MAGPI Board's actions on July 30, 2008, and addresses our clients' ongoing concerns regarding the Board's future compliance with the Ralph M. Brown Act. As an initial matter, we have become aware that your law firm Mason, Robbins, Browning & Godwin acts as general counsel for Merced Irrigation District ("MID"). MID is a member of MAGPI, which includes several other interests. Our clients' concerns regarding open meetings extend to the potential conflict of interest your firm has in representing MAGPI, while having a conflicting duty in representing the best interests of just one of MAGPI's members. In order for this arrangement to be without conflict, one would have to assume that every member of MAGPI has identical interests. Such an assumption would be unrealistic. We request some assurance from your firm that in representing MAGPI, the interests of MAGPI are indeed being placed before the interests of MID. With respect to future meetings and compliance with open meeting requirements, our clients do not agree that documents were available for the July 30, 2008 meeting as set forth in your letter, and will continue to attend MAGPI meetings to carefully monitor compliance with the Brown Act. we request that MAGPI comply with all Brown Act requirements, and specifically request the following: 1. In compliance with Government Code section 54954.2(a), at least 72 hours before a meeting MAGPI must prepare and post an agenda containing a brief general description of each item to be transacted or discussed, including items that will be handled in closed session. we note that it has occurred in the past that some agendas e-mailed to the public differed from the actual agenda for the meeting. we request that MAGPI staff finalize a single agenda and endeavor to avoid confusion associated with multiple agendas for the same meeting. 2. We request that agendas and all writings distributed to all or a majority of members of a legislative body for discussion or consideration at a public meeting be made available without delay to our clients in accordance with the provisions of section 54957.5. We request that copies of these documents distributed to the Board be designated as documents so distributed, and that they be kept in the MAGPI office during the 72-hour period prior to the meeting so that our clients will be able to review the documents without delay. 3. We request that where any writings are distributed to the Board members at a meeting, sufficient copies be made available to the public at the meeting. Documents distributed to the Board members at the meeting must be made available to the public at the meeting, not after the meeting. (Section 54957(b)) 4. We request that any materials submitted to the Board at the meeting by someone other than MAGPI staff be copied immediately after the meeting and made available to our clients. (Section 54957(b)) 5. We request that any documents which are finally approved in a closed session be provided to our clients at the conclusion of the meeting. (Section 54957.1(b)) 6. This letter constitutes a written request under Section 54954.1 for mailing to Lydia Miller, P.O. Box 778, Merced CA 95341, of all MAGPI agendas and meeting packets. We request that the packets be mailed to Ms. Miller at the time the agenda is posted or when the documents are provided to a majority of the members of the legislative body, whichever occurs first. In order to save time and costs, Ms. Miller is willing to receive the agendas and meeting packets via electronic mail (in lieu of U.S. Mail), at Our clients were dismayed by the approval of the two resolutions related to the Groundwater Management Plan approved at the July 30, 2008 meeting, because of the fact that documents considered by the Board were not made available to the public, and the agenda did not include both resolutions. Because of the Brown Act violations that occurred at the July 30th meeting, and MAGPI’s consistent disregard for the public’s right to access documents and fully participate in open meetings,  we request the specific actions set forth above, as well as full compliance with all provisions of the Brown Act. Our clients intend to vigilantly observe and participate in the operation of MAGPI,  and expect full compliance with the public’s right of access and comment. We appreciate your attention to these matters and look forward to hearing from you regarding the use of electronic mail for delivery of agendas and board packets to Ms. Miller, and regarding your firm’s position with respect to representation of MAGPI  while at the same time acting as general counsel for one of MAGPI’s members…-------------------------------  12-16-08Merced Sun-StarWill Merced Irrigation District increase water prices?Board members unsure of what they will vote on today...JONAH OWEN LAMB it "voting in the dark."Merced Irrigation District's board of directors is set to vote on their 2009 budget this morning. But no one, including the five board members, knows exactly what their ballots will be cast for. That includes whether the district will sell water worth $3 million or raise fees to make up for a shortfall in revenue. "We don't really know what we are voting on," said board member Wil Hunter. Hunter and the other four board members may not know what exactly they are voting on today, but Dan Pope, MID's general manager, said that he does. On Monday, his staff was busy putting together several recommendations that will go before the board, including his main recommendation -- a $2 to $5 fee increase per acre-foot, among other things.(An acre-foot is around 326,000 gallons of water, or a year's supply for an average Valley family.) Everything in the process, so far, has been open and transparent, Pope said. "I would submit to you that we have adequate notice," he said. "We've had good public input."Others disagree. Diana Westmoreland-Pedrozo, the executive director of the Merced County Farm Bureau, said that while the board got the message that farmers don't want any water sales, she would like MID to run more transparently. "I would certainly like to see them be more public," she said. As for what they will vote on today, she has less of a clue. "I have no idea because all they've done is read the agenda."But Tim Pellissier, president of MID's board, said the budget is always up in the air. That makes getting specifics to the public sooner than the day of the vote almost impossible. "It's a work in progress." he said. "How can we tell the public what is going to be before us when we haven't adopted it?"Kenneth Robbins, MID's general counsel, maintained that the process has been open. "The budget has been fully vetted and sunshined," he said, pointing out that all public meeting laws have been followed. Besides, he said, everyone who has been at any of the recent meetings knows what the options are before the board about the revenue shortfall, as well as the rest of the budget.Even if there was no public notification of a fee increase, specifically, that would not be a breach of the public meetings laws, said Robbins.If a fee increase is proposed, and the board votes to adopt the proposition, it must put the item in the next agenda to be in accordance with the Brown Act, a statewide open-meetings law. Then they can start the countywide voting process needed to pass such an increase. "They can't vote on adopting the fee increase (today)," he said on Monday. On the other hand, if the proposal before the board is to vote for a water transfer, it can be passed today, said Robbins. But since none of the proposals has been made available to the public, no one knows what MID will vote on.Maybe sunshine will come at the meeting. 12-17-08Merced Sun-StarConfusion delays Merced Irrigation District vote on next year's budgetBoard members, public didn't have time to review spending plan...JONAH OWEN LAMB can make the water flow -- but can they pass a budget?After numerous public meetings over more than a month, Merced Irrigation District still has no 2009 budget. MID's board of directors unanimously voted to table the proposed 2009 budget Tuesday, even though it contained, among other things, a fee increase supported by many local farmers instead of a water sale to raise revenue. There were two main issues behind the failed proposal: not enough cuts by MID management and a budget the board knew too little about. They'd received it Tuesday morning."I would like to see the line items so we can go over them," said Director Suzy Hultgren about voting on a budget of more than $77 million. She had just gotten her copy Tuesday morning.Board member Wil Hunter said much the same, noting that he had just received the budget Tuesday morning and couldn't vote on it because he didn't know what was in it. The proposed budget, which was tabled, contained a $5 acre-foot fee increase, instead of a water transfer. (An acre-foot is around 326,000 gallons of water, or a year's supply for an average Valley family.) But several board members were concerned that if they were asking farmers to pony up more fees, MID management should make more cuts on its side first."I still have not seen the cuts in this district to make it more streamlined," said Hunter. A resolution eventually was passed to continue operations without a budget after Dec. 31. The next board meeting is scheduled for Jan. 6 when a 2009 budget may or may not be voted on.Aside from a hastily prepared budget, the meeting itself didn't run smoothly. Typos in the budget documents, public confusion over the proceedings and a failure to communicate with the public and MID staff characterized the gathering.One line item on the budget was wrongly priced at $10 billion, and page numbers on the board's paperwork packets were mislabeled. One board member was missing a section of his packet. And the public had no access to the packets under discussion at all.Items in the proposed budget were instead read, line by line in some cases, by MID staff as a hard-to-see projection was shown to the room of more than 30 people in Merced's civic center.Scott Hunter, Wil Hunter's son, complained to the board about having no documents to look at to follow along. "I would love to have a budget, but I don't have access to it," he said.Tim Pellissier, the board president replied, "We got this one today." Andre Urquidez, chief financial officer of MID, expressed regrets to the crowd as he explained the budget. "For those in the crowd, I do apologize," he said. "This can be made available upon request." It appeared that several in the crowd would have liked to have seen the documents before Tuesday's confusing meeting. ---------------------------  California Government Code section 54957.5.b) (1) If a writing that is a public record under subdivision(a), and that relates to an agenda item for an open session of aregular meeting of the legislative body of a local agency, isdistributed less than 72 hours prior to that meeting, the writingshall be made available for public inspection pursuant to paragraph(2) at the time the writing is distributed to all, or a majority ofall, of the members of the body.   (2)  A local agency shall make any writing described in paragraph(1) available for public inspection at a public office or locationthat the agency shall designate for this purpose. Each local agencyshall list the address of this office or location on the agendas forall meetings of the legislative body of that agency. The local agencyalso may post the writing on the local agency's Internet Web site ina position and manner that makes it clear that the writing relatesto an agenda item for an upcoming meeting.   (3) This subdivision shall become operative on July 1, 2008.   (c) Writings that are public records under subdivision (a) andthat are distributed during a public meeting shall be made availablefor public inspection at the meeting if prepared by the local agencyor a member of its legislative body, or after the meeting if preparedby some other person. These writings shall be made available inappropriate alternative formats upon request by a person with adisability, as required by Section 202 of the Americans withDisabilities Act of 1990 (42 U.S.C. Sec. 12132), and the federalrules and regulations adopted in implementation thereof.   (d) Nothing in this chapter shall be construed to prevent thelegislative body of a local agency from charging a fee or deposit fora copy of a public record pursuant to Section 6253, except that nosurcharge shall be imposed on persons with disabilities in violationof Section 202 of the Americans with Disabilities Act of 1990 (42U.S.C. Sec. 12132), and the federal rules and regulations adopted inimplementation thereof.