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Marin 2016 – Part VI: Dispatches from the front – Marin County Government
Sometimes, when all other remedies have been exhausted, residents are forced to take legal action to ensure that local government is functioning properly. However, most of us assume that when conflicts with the public arise, government will find ways to settle those differences fairly and in a way that doesn’t unreasonably waste taxpayers’ money.
In Marin County, nothing could be further from the truth.
The case of Community Venture Partners vs The County of Marin Board of Supervisors
At a County Board of Supervisor’s meeting in August of 2014, the Supervisors and staff engaged in an extensive discussion, and listened to a formal presentation about the Marin County 2015-2023 Housing Element; an item that was not posted on the agenda and for which no public notice was given. Public notice is required under our “Open Meetings” Law: the Ralph M. Brown Act.
Unfortunately, this was not an isolated incident. The Board of Supervisors had been abusing the requirements of the open meeting law for a while. Under their unique interpretation of the law, they believed they were allowed to hold impromptu hearings on any subject, without public notice, so long as the topic was introduced by the County Administrator, during his report of his own activities.
CVP’s position was that their “loophole” was illegal.
In response to their unnoticed hearing in August, CVP filed a Cease and Desist letter. The County chose to ignore it, and alleged that they had done "nothing wrong" and that CVP's claim was "all bark and no bite."
In December of 2014, Community Venture Partners, Inc. (CVP) filed a Petition for Writ of Mandate; Injunctive and Declaratory Relief in Marin Superior Court. For a complete list of the documents and filings in this case, please go to the Community Venture Partners web site.
A simple matter of the law
From the outset the presiding judge, the Honorable Roy O. Chernus, indicated that in his view, this was a fairly straightforward matter that would be decided by the letter of the law. The County of Marin had other plans.
Right off the bat, Deputy County Counsel, David Zaltsman, launched an aggressive counter attack. It was clear to me, from day one that time and money was no object in the County’s effort to crush anyone who questioned their discretionary powers.
In the private sector, it’s common for a guilty party to throw the kitchen sink at a case, in their own defense. It’s even expected. But should a county government default immediately to “scorched earth” tactics against their own constituents, particularly in a situation where the entire proceeding could be avoided by simply admitting guilt and promising to be more careful in the future?
If “pride comes before the fall,” what comes after hubris?
The County immediately submitted a Motion for Judgment to Deny the Writ, filled with novel arguments, misguided interpretations of the law, and a host of other time wasting tactics, none of which helped their case. However, one thing that was extremely unusual about their Motion was that it included the submission of two sworn affidavits, one by Judy Arnold and one by Katie Rice, attesting to their version of the events in question.
This ‘pull out all the stops’ attempt to quash the case, almost came back to haunt them, later on.
Judge Chernus listened calmly to David Zaltsman’s “reasoning,” then denied the County's Motion, which seemed to take Zaltsman by complete surprise. In addition, the judge ruled in CVP's favor on every substantive issue of law involved in this case. So, with no further legal issues left to deliberate, the proceedings would now move on to discovery.
In what in my opinion can only described as a flabbergasted impersonation of Steve Martin’s “wild and crazy guy” routine from Saturday Night Live, attorney David Zaltsman stood up in front of the Court, and blurted out something along the lines of, “Well… well, your honor… what are we supposed to do now!?” To which, Judge Chernus peered over his reading glasses and replied, “Perhaps you might want to set some guidelines for your Supervisors to follow, so this kind of thing doesn’t happen in the future.”
It was unclear how much of that registered with Zaltsman, since he seemed to still be stammering and reverberating from his semi-meltdown. But perhaps what I found to be the most pathetic moment during the whole proceeding was when Zaltsman whined, “But, your honor, isn’t this Brown Act just a hyper-technical law,” implying that the County should have broad discretion to interpret it the law as they choose.[1]
Judge Chernus noted his complaint, with the faintest hint of a sardonic smile crossing his face, as if to say, “Really, Mr. Zaltsman?” Then he moved on.
When is discovery not discovery?
In May of 2015, CVP filed a Request of Production of Documents. This is standard practice in a legal proceeding during “discovery,” where the petitioner requests public records, which may constitute evidence in the case. “Documents” refers to any and all written reports, letters, emails, books, telegrams, memos, drawings, digital data, notes, tape recordings, photos and images, or any other forms of written, graphic or audio communications (voicemails) that are or have at any time been in the County’s possession, related to the case. In other words, it’s a very broad request.
We knew that at a minimum this file of documents would include all the emails and comment letters we’d sent in to the Board of Supervisors during their Housing Element deliberations. In fact, their file would also have to include the Housing Element comment letter from CVP that was the topic of discussion at the un-agendized hearing, which caused us to file our Petition in the first place. Even the agenda for the hearing in question was technically a document created by the County. And, the recorded videotaping of the Board Meeting of August 19, 2014, which we had already submitted, clearly showed participants reading from prepared notes. So, we knew those existed, as well.
The Court gave the County a month and a half to respond. That date came and went without any documents delivered by the County.
Back to court.
Unapologetic, the Zaltsman pleaded that the County needed more time because our request was so broad, and he also took the opportunity to once again challenge the need for him to produce any documents at all. This got him nowhere but the judge gave the County another two weeks to do so. I found this somewhat bewildering and it’s my belief that had the situation been reversed, we would not have enjoyed such leniency.
But, perhaps the judge had another reason for allowing this. Maybe he wanted to give the County every opportunity and to bend over backwards, so if they lost, the County could never come back and complain that the trial wasn’t fair.
We’d have to wait to find out.
In any event, two weeks later we were back in court, again. This time Zaltsman showed up and reported, without even flinching, that there were no documents to produce. None. Not a single shred of paper. He said the County didn’t even have anything that they might want to claim attorney-client privilege about.
How was this possible? As I noted, we knew some documents existed. And what about the Arnold and Rice affidavits? Those affidavits were each several pages long and were absolutely identical, word for word. Were we really supposed to believe that Rice and Arnold both spontaneously wrote identical affidavits, without any drafts, notes, changes, comments… nothing?
The only way there could be no documents is if the County had intentionally destroyed the entire file, including all emails about the case, and the County Supervisors had done the same. In my experience, that’s called obstruction of justice. Still, the judge accepted their claim, without question. He seemed eager to keep moving forward.
Our attorney presented extensive citations from the Evidence Code and relevant case law to try to convince the court to get the County to produce documents. But these arguments were also rejected by the court, without citation or reasoning. CVP then suggested that the court narrow discovery to only those documents that were shown on the videotape of the meeting, but the court also rejected that request.
This was all getting close to denying CVP the ability to have any evidence in the case, to present, other than the videotape of the hearing.
It left us with one last option. Since the County claimed that no documents existed, we had no choice but to request the ability to depose the Board meeting participants: Community Development Director Brian Crawford (to discern what the written notes he read from said) and Supervisors Arnold and Rice (to question them about the discrepancies in their statements on the video of the hearing and those noted in their affidavits).
From the horse’s mouth
In their identical affidavits, Rice and Arnold both swore that the illegal hearing was completely “impromptu,” and was therefore not in violation the Brown Act. Regardless of the fact that the question of whether the hearing was impromptu or planned had no bearing on its legality,[2] at the hearing they had clearly acknowledged that Brian Crawford’s prepared presentation was requested by them and therefore was planned in advance[3]. County Administrator, Hymel, had even introduced Crawford by saying the Director was “asked to make a presentation” today.
These uncontested facts clearly suggested that the County knew that this discussion was going to happen, and had made a conscious choice not to give any public notice of it; a clear and intentional violation of the Brown Act and the California State Constitution.
Depositions were required. How else, we begged the Court, were we to find out what happened that day and to substantiate that this was a clear violation of the law, unless we had the ability to depose Crawford, Rice and Arnold? Without any documents as evidence, other than the videotape of the hearing, how else were we going to be able to argue our case or test the veracity of the affidavits submitted by the Supervisors?
Once again, the court denied our request, even though the actions and statements of Ms. Rice and Ms. Arnold, captured on the videotape of the hearing, clearly contradicted the facts and circumstances that they had sworn to in their affidavits… contradictions, which in my opinion, had significant legal ramifications of their own.
Since those videotaped statements and actions could also considered sworn testimony, where I come from I think those “contradictions” might constitute perjury. And perjury leads to jail time, not slapped wrists or a mildly critical write up in the Marin IJ.
At this point, I think everyone in the courtroom knew the potential implications of this case had become more serious than we’d imagined when CVP sent the County a simple Cease & Desist letter back in the fall of 2014.
Zaltsman continued to deny that any documents existed and pressed the court to dismiss the entire case. But as our legal counsel tried to counter their arguments, Judge Chernus declared that discovery was now over and we would move to final arguments.
To this day, I’m not sure why he did that. It was obvious that we hadn’t been able to really conduct any kind of actual discovery at all. And, I believe had he ultimately ruled against us, he’d just made it much easier for us to have his decision overturned in the Court of Appeal.
However, maybe Judge Chernus had already made up his mind. We’ll never know. The depositions of Rice and Arnold never occurred, saving them from questioning that would have almost certainly had them either admitting to lying in their affidavits or lying in their videotaped statements, at the hearing.
However, what I do know is that whatever it was that made Judge Chernus take the action he did; there is no question that Supervisors Rice and Arnold got very lucky that day.
Facts and circumstances
The case then moved into final arguments and rebuttals. The County’s tactics did not change. Zaltsman’s version of the facts and circumstances remained pure fiction. He cited case law that was incorrect or irrelevant. He went so far as to falsely cite the judge’s own opinions and findings from earlier in the proceedings, in an attempt to confuse the court and prolong the case. He even had the audacity to then claim that we were the ones dragging things out.
In the end, all he accomplished was to waste a lot more time and taxpayer money defending the undefendable.
On December 8, 2015, Judge Chernus issued his tentative ruling, in which he ruled overwhelmingly in favor of CVP. In it, Judge Chernus stated,
The undisputed evidence shows that the Board was well aware of the public's continuing interest in the status and content of the Draft Housing Element, based on numerous letters to the Board of Supervisors and the vocal opposition received at previously held public hearings and information sessions throughout the County.
Construing the statute to give the fullest effect to its purpose - e.g., to ensure the public's right to be informed of the transactions and discussions undertaken by their elected officials, and to attend open meetings of the Board of Supervisors, the court concludes that notice of Director Crawford's planned report on the status of the Draft Housing Element should have been posted in a timely fashion on the meeting's agenda as required by § 54954.2(a)(I). The failure to do so violated the agenda rules of the Brown Act.
He added,
Statements by the County Counsel and Supervisor Rice demonstrate they believe that the Board's past conduct was consistent with the Brown Act, from which the court concludes the County is not likely to change its practices if not directed to do so by this court.
Rather than quit while they were ahead, this only emboldened the County to deny any wrong-doing and to fight even harder.
The denouement
At the hearing following the Tentative Ruling, the County was represented not only by Assistant County Counsel David Zaltsman, but also by County Counsel, Steve Woodside, and they even dragged Community Planning Director, Brian Crawford, into court with them as an “expert” in housing law. It was a show of political pressure and a blatant attempt to intimidate the Court that made no secret of the fact that the County would be very put out if the judge’s tentative ruling were to stand.
Without a shred of remorse, the County commenced an attempt to retry the case, without citing legal authority or presenting any legal arguments to base that on. They introduced strange new arguments, claiming that their need to talk about the Housing Element that day was analogous to the urgency surrounding the Sandy Hook shootings and the crisis of children dying for lack of being inoculated. They tried to confuse the judge by misstating the sequence of events, claiming that the whole thing was a normal reaction to public open time, when in fact, open time occurred after the hearing in question was concluded.
They pleaded hardship of all things, saying that it was too much of a burden for the County to actually comply with the simple mandate to notice all discussion items: something state agencies, cities and counties have been doing for more than 40 years. Even worse, the County argued that a “mistake” on their part shouldn’t be penalized at all (even though the tentative ruling is filled with evidence that this wasn’t a mistake but was clearly intentional).
I am not a lawyer, but the County’s arguments were one of the most bizarre things I’d ever witnessed, anywhere. To a layman, it looked like their sole purpose was to prevent Supervisors Rice and Arnold, who seemed to have concocted this entire illegal scheme, from being exposed.
In my opinion, the County's disregard for the law and disrespect for the Court astonishing.
On January 4, 2016, Judge Chernus issued his final ruling in the case of Community Venture Partners vs. the County of Marin.
The Final Ruling was virtually identical to the tentative ruling issued on December 9, 2015. Once again, the Court unequivocally ruled in favor of CVP and against the County of Marin. The ruling remained replete with citations of case law and relevant facts substantiating our cause of action and the truth of our allegations. In addition and unusually, it named Supervisors Arnold and Rice as principal actors in, the "decision not to post Director Crawford's report on the Draft Housing Element or the Board's discussion of that matter as an agenda item for this meeting [Emphasis added]."
After the ruling, petitioner's counsel, Edward Yates, noted, "CVP is very pleased with Judge Chernus' decision holding that the Marin County Board of Supervisors violated the state Open Meetings Act's requirements that local agencies provide public notice for all discussion items. CVP did not go into this case looking for a legal battle but instead only made the request that the County abide by the Brown Act and not hold discussions without public notice.” Mr. Yates went on to say, “The County not only refused to agree to this simple request but also disparaged CVP's case in the press, and in its pleadings.”
In a subsequent press release, I noted, “The Ralph M. Brown Act is the cornerstone of participatory government in California. It ensures the public’s right to be involved in government decision making. What was so disturbing in this case was that the County’s decision to not provide public notice of a hearing, on a topic of intense public interest, was not an oversight, and throughout the proceedings, the County continued to try to defend their right to not provide notice. One can only hope the County will be more circumspect in the future.”
The case lasted almost a year and a half. In losing the case, one which they could have easily avoided, by simply admitting to their error, the County ended up owning CVP’s court costs and attorney fees. After some deliberations by the judge, that amounted to about $72,000.
We were grateful when it was finally over. And we’d been lucky. If we hadn’t had a dedicated, public interest attorney who’d offered to do the entire suit on a full contingency basis, we never would have been able to bring it in the first place.
Still, the biggest question that remains is why. Why would the County’s default position be to fiercely defend the undefendable, regardless of the time and cost?
In the end, even the Marin IJ, which had initially said our Petition was “not newsworthy” and who mocked our action by calling it a “kerfuffle,” finally had to admit that maybe the principles of open and transparent government might be something worth arguing for, and that the County had wasted everyone’s precious time and money.
Everything about the way the County responded during this case was absurd. Their antagonism, defensiveness, secrecy, bullying, foot-dragging and wasteful legal wrangling set the worst possible example for how a government should deal with the public. A number of prominent attorneys, with careers in public service law for other cities and counties, have commented that Marin County is unique in the harsh attitude it displays toward the public it is paid to serve.
After all accounting was settled, per statute, the County had until the end of the day on August 10th 2016 to pay the amounts owed.
They waited until 4:55 pm on that date to make payment.
A pattern of obstruction and dirty tricks
Unfortunately, as bad as our experience had been, our case does not appear to be an exception. Others have had the same experience. The office of the Marin County Counsel seems to operate without any middle ground. For them it’s black and white. If you’re not for them, then you’re against them.
In March of 2016, David Brown, a resident of Marin, filed a lawsuit against the County, based on the Marin County Grand Jury’s finding that the County failed to comply with the requirements of California Government Code Section 7507 prior to approving pension enhancements. In his argument, he alleged, among other things, that all the Supervisors except Kate Sears had a financial interest in the outcome of their deliberations and should have recused themselves. He alleged that the legal opinion secured by the County was not, as stated by Mr. Hymel, an “objective legal analysis,” as required under Section 7507. Brown wanted the court to declare that the Supervisors and staffers had a conflict of interest.
The County’s response was swift and harsh. They plopped down a retainer of $50,000 for a third party, defense lawyer and threatened that if Brown should lose his case, he could be responsible for all the County’s legal fees and court costs. Knowing that the County had unlimited funds to throw at outside legal counsel and experts, all of which he could be responsible for, Brown had no choice but to withdraw his suit.
County Counsel, Steve Woodside, vigorously defended the County’s actions, stating that the Supervisors had done no wrong and that recouping legal fees and costs was “a common practice” in these instances.
Well, for Marin County, I suppose that’s true. However, even the normally timid Marin IJ editorial page found this bullying to be a bit much. In March of 2016, they wrote,
The County Supervisors allowed county staff to spend up to $50,000 to contest David Brown’s lawsuit. His suit seeks a court ruling to bring clarity to the legal fuzziness surrounding approval of pension increases that are now a driving factor in local tax increases and cuts in public services. The county went a step too far, however, including a chilling demand that Brown pay its legal fees. It turned a quest regarding public policy into a legal poker game.
And that,
Such a heavy-handed strategy sends a message to taxpayers that they risk substantial financial penalty if they question the county in court. It was an approach that chills taxpayer challenge.
Certainly, the County or any government agency has a right to defend itself in legal actions, but in Marin, it seems that any action against the County results in a full throttle response. But, bullying, intimidation and wasting vast sums of taxpayers’ money on legal defense at the slightest whiff of controversy about issues that could easily be settled, in some cases by as little as a letter of apology, makes no sense.
A culture of secrecy and resentment
One would think that with the advent of the Internet and the ubiquitous access to facts we would see government embracing transparency, if only to avoid embarrassing disclosures. But paradoxically, the County appears to becoming even more defensive and opaque. The message seems to be, if we can spend you under the table, delay, and bully you enough to get you to go away, we will.
After the decision in the CVP v. Marin County case was published, the County continued to obstinately argue that they had done nothing wrong, in spite of the fact that Judge Chernus had specifically justified his ruling based on concern that the County would “continue similar practices” in the future. County Counsel, Brian Crawford, and even Supervisor Rice all joined in a chorus of denial of culpability.
As noted in the Marin IJ, David Zaltsman said “the County does not understand” what they did wrong. Even more boldly, Brian Crawford argued “The judge’s decision stands in stark contrast to staff’s responsibility to keep the Board of Supervisors and the public informed about important issues that are fully up for public debate, in this case both prior to and after the board received a briefing from their staff.”
In other words, Brian Crawford, the Director of Community Development, is saying I don’t care what the law is or what the courts say, if the Supervisors want me to do something, I do it.
Astonishing.
When the suit was filed, Rice adamantly argued that what she’d done was not a violation of the Brown Act. After the ruling she was quoted as begrudgingly saying, “I understand the judge’s ruling and respect it,” which is still a far cry from admitting guilt.
Worst of all, County Counsel Steve Woodside, characterized the whole thing as resulting from “differing interpretations” of the law, which sounds like code for ‘the judge was wrong.’
I have only one response to that. What in the world is wrong with these people?
This isn’t the same Marin I moved to more than 23 years ago. Back then, Marin’s small town character seemed to be reflected in every aspect of dealing with local government and local agencies.
The CVP lawsuit and David Brown’s experience are just two of many such instances of how difficult it’s becoming to get local government (or any level of government) to be responsible and reasonable. But there are also many other transgressions that might be better categorized as “systemic.” They are not specific violations but much more deeply ingrained in the way business is conducted, day to day. And they have greater consequences in the long run.
Read Part I – Is representative government slipping away?
Read Part II – Will the suburbs be hunted to extinction?
Read Part III – Dispatches from the front – Mill Valley
Read Part IV - Dispatches from the front - Corte Madera
Read Part V – Dispatches from the front – Hamilton Field
Read Part VII - What will you do when Marin is no longer Marin?
Read Part VIII - Hide the ball
[1] The Brown Act is a technical law, as are most laws. Speed limits, for example, are very specific, technical laws, but you can’t argue that you are not guilty of speeding because, after all, aren’t those limits just “hyper technical.”
[2] Unagendized hearings are not allowed regardless of how they came about.
[3] Brian Crawford had no other reason to attend the August hearing except to make his planned presentation, which he did by reading from a formal, prepared document.