(UN)SAFE HARBOR
The summary of this closed session states that “no action taken on Items 7(B), 7(C) and 7(D).” Frank Sieh, Ventura County’s County Counsel, advised Quaintance that it was reported in this matter because finalizing the MOU was contingent on the Oxnard City Counsel and the developer approving it. “A decision had to be made on that date about whether to commence California Environmental Quality Act (CEQA) litigation (by the County against the developer),” Sieh told the Reporter. “We would have had to have authorization that CEQA litigation, in that closed session, on that day. The Brown Act requires a report to be made when final is to be taken. It is not required to make that report if authorization was taken. No final action was taken because the agreement, or proposed agreement, was conditional upon the City at a later time.”
“The way the Brown Act is constructed, ordinarily the notices of closed sessions do give the public some indication of what particular subject matter is being discussed in closed session,” Sieh continued. “The exception to that, and perhaps the legislature might want to address this at some point in time, is the decision to initiate litigation. The reason that the subject matter is not disclosed in connection with the ‘safe harbor language’ in the Brown Act, meaning if you do something in the prescribed manner it is declared to be lawful. So with respect to closed sessions, the Brown Act itself sets forth certain language for each of the closed sessions authorizations. For example, if the issue deals with instructions deals with real property negotiations, if you follow the language set forth in the statutes, identifies the negotiator and the parties, then that will be deemed, as a matter of law, to be adequate notice under the Brown Act.”
Quaintance could hardly disagree more. “What happened here is that the County didn’t agendize (the MOU) at all. They just went ahead and acted on it. I don’t think there is any question, really. You don’t need any new legislation for that. I guess I wouldn’t expect Mr. Sieh to say to you ‘oh jeez, we screwed up,’ but the idea that some kind of additional legislation is needed is not the case. Existing law says that you have to agendize the items you are going to have to discuss in closed session. And they didn’t do so. It’s not on agenda and yet it was acted on this is flagrant fashion.”
“Assuming that Agenda Item 7(c) for the Board’s September 10, 2002 agenda is the sole basis for the closed session consideration of the MOU, I see no conceivable argument that the County provided proper notice,” John T. Buse, staff attorney for the Ventura-based Environmental Defense Center, told the Reporter. “The Brown Act requires sufficient notice to inform interested members of the public about the subject matter under consideration so that they can determine whether to monitor or comment on the matter. The notice here falls well short of this standard. It does not refer to the Seabridge project at all, much less to the negotiation of a potential settlement of the dispute between the County and Oxnard. Accordingly, I believe that the County violated the letter, as well as the spirit, of the Brown Act.
Making his way back to his Camry on Victoria Avenue, Quaintance pauses to kick the mud off of his Timberland topsiders, a stiff wind gusting through his light brown hair. “This kind of secret backroom dealing with developers could become the ruin of Ventura County,” he said, blue eyes burning brightly. “We’re going to end up like Los Angeles or Orange County if we continue to allow this kind of thing.”
