Good luck if you wanted to attend the Otay Water District committee meeting in late March 2010. Two directors were talking about legal issues.
The district was facing lawsuits from Chula Vista business owners who’d been drinking treated sewage for months. The water district hadn’t noticed the wrong pipe was connected to the business park’s taps.
But to know a meeting was happening that day, you would’ve needed a tip that the public agency was holding one. No announcement was made.
You would’ve needed someone to leak you a copy of the agenda. It wasn’t published anywhere. Even today, the district conceals the three topics that were on it, keeping them secret.
And you would’ve needed a code to open the gate blocking the entrance to Otay board President Jaime Bonilla’s cul-de-sac in eastern Chula Vista. The afternoon meeting was at his home.
Since the 1950s, a state law called the Ralph M. Brown Act has required government meetings in California to be open to the public. With public money being spent, the state wanted to encourage transparency and public input.
But for the last decade, the Otay Water District’s board of directors has pushed the boundaries of a legal loophole allowing its members to meet in secret. They’ve formed ad hoc committees, two-member groups with the authority to give guidance to district employees. The groups have escaped scrutiny they’d otherwise face.
Government agencies typically have standing committees that meet regularly in public on topics like finance, engineering or administrative issues. They’re allowed to form temporary ad hoc committees, too. But ad hocs are supposed to be different. They must be temporary and address only a specific task. They don’t have to meet publicly or announce meetings.
That means information is sparse about many of Otay’s ad hocs. But at least one hasn’t followed the rules. The district’s legal matters ad hoc has existed for years and hasn’t zeroed in on one specific topic.
Since mid-2009, it has discussed multiple lawsuits and vetted candidates for the district’s legal counsel. It’s met at restaurants and Bonilla’s home. During a recent August meeting, it discussed nine topics.
Exactly what is secret. The district redacted every item on that agenda and others it released under a California Public Records Act request. Only the locations, times and attendees were disclosed. The district said the rest was protected by attorney-client privilege.
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Public agencies can hold closed-door meetings to discuss lawsuits and the threat of litigation. Board members can confidentially discuss whether the district should settle, for example, so they don’t tip off the opposition. But they must typically announce what topic or case they’re discussing and publicly report any decisions. Holding secret ad hoc meetings has allowed Otay’s leaders to avoid that requirement.
Terry Francke, general counsel for Californians Aware, an open government advocate, said Otay has violated both the state’s open meetings law and its public records law. Agendas aren’t required for ad hoc meetings, but they’re public documents once they’re created, he said. The legal committee wouldn’t qualify as a temporary ad hoc because the directors have discussed numerous cases and topics for years, he said.
“That should cease and desist immediately or be reported to the district attorney,” Francke said. “It’s entirely plausible that this ad hoc committee charade could be simply a mechanism for a total subversion of the Brown Act.”
If a temporary committee exists in perpetuity to address litigation and not a specific case, “that begins to very much resemble what we think of as a standing committee,” said Michael Jenkins, a Manhattan Beach attorney who helped write a book on Brown Act compliance.
Jenkins said after a temporary committee meets for more than a year, “you need to look real closely at why — and whether it has become a standing committee.”
Two recent Otay ad hocs have existed for more than a year: The legal committee and an international issues committee that district records show existed from 2007 to 2010.
Bonilla said Otay strives to fully comply with the Brown Act. Ad hoc meetings aren’t unusual for public agencies, he said.
“It helps expedite district business and focus topics of discussion,” Bonilla wrote in a statement. “The committees are advisory only and all ad-hoc recommended action goes before the full board in a noticed public meeting.”
In at least one legal committee meeting, records suggest three board members attended, which would be a majority of the five-member board. That would be illegal. A board majority can’t discuss business without calling a formal meeting.
An agenda for the July 10, 2009 legal meeting says two directors attended. A third board member, Larry Breitfelder, was reimbursed for attending the meeting, expense records show.
Breitfelder, who stepped down last year, said he filled in for Bonilla, who was traveling. Bonilla also said he wasn’t at the meeting. But he said in his statement that the district did not have any documents listing who did. The meeting’s agenda says he attended.
Breitfelder said he believed the committee may have discussed the mistaken sewage connection.
Few issues have gotten as much attention from ad hocs. Otay paid out $3 million in settlements after business owners in the Fenton Business Center drank and brushed their teeth in water contaminated by human waste.
Four temporary groups have addressed it: the Legal Matters Committee, the Recycled Misconnection Committee, the Fenton Business Center Committee and the Fenton Business Center Legal Matters Committee.
One sitting board member, Mark Robak, was unaware of all the issues that have had dedicated ad hoc committees. He said several committees discussed issues he believes should have gone straight to the board.
Some of the biggest issues Otay has encountered have been talked about in the secret meetings. The district’s top employee has been initially reviewed by an ad hoc committee. A major desalination plant proposed in Mexico has come up in an ad hoc group. So have the district’s internal boundaries, which must be redrawn every decade. Candidates to replace a board member who resigned were narrowed by another ad hoc.
Robak said the full board should’ve been included at every step.
“We use ad hoc committees too often,” said Robak, who doesn’t sit on any committees. “I’m not clear on why, but it doesn’t encourage a robust discussion of the issues, that’s for sure.”
Ad hoc committees can be easily abused, said Francke, the open government advocate. They can allow staff members to talk with the board about issues they don’t want the public to know. And they can make it easier for directors to discuss a plan secretly and then negotiate a final agreement with other board members outside an open meeting.
A controversial retirement benefits boost Otay granted this summer first came through an ad hoc committee.
On the day that complicated proposal came to the board for public discussion — one filled with angry ratepayers opposing the boost — the board’s deliberations took mere minutes. Only Robak asked any probing questions. He was the lone vote against the plan, which guarantees district employees health care after they retire.
Francke said sending the issue to an ad hoc committee wouldn’t be unusual. But the lack of discussion is a sign the board may have hashed out its plan behind the scenes and violated state law, he said. Though hard to prove, the strongest evidence is when a complicated issue gets a rubber-stamped approval, he said.
“Things you’d expect to take some time to iron out, those things must’ve happened somewhere,” Francke said. “And if they didn’t happen publicly, I think that board has a real problem.”
Rob Davis is a senior reporter at voiceofsandiego.org. You can contact him directly at rob.davis@voiceofsandiego.org or 619.325.0529.
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