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The Marin County Counsel’s assault on the public’s right to know

Of all the legal actions the public can bring against a municipality the two that are arguably easiest to remedy without significant cost or risk of penalties, are Cease and Desist letters and Public Records Act requests. With the former the agency only need promise to be more circumspect in the future and with the latter the agency only needs to produce the documents requested in a reasonably timely manner. This is not, as they say, rocket science, and most offices of County Counsel in the State work to ensure that these kinds of mole hills don’t turn into mountains.

But, not in Marin County.

To screw up on one of these takes a good deal of incompetence. To screw up on both takes concerted effort. But, to turn these simple situations in protracted and costly legal battles, takes real talent.

The Office of the Marin County Counsel has shown that this is an area in which it excels.

In December of 2015, we are told that County Counsel Steven Perl attended a pre-Christmas gathering in Marin. At one point in the evening, he reportedly began to pontificate to a group of bystanders, about how the County Counsel's Office loved aggressively litigating public interest cases, especially Public Records Act requests. Delay, deny and generally wear them down until one’s opponents go away.

By all accounts he was proud that they could do this with impunity, apparently oblivious to the fact that their job was that of a public servant. Among those listening to his boasts that evening were some local attorneys, one of whom recounted the incident to me the following day.

Initially, I rolled my eyes at the brazenness, then decided to ask local community and environmental attorney, Edward Yates about the Perl’s aggressive approach. Mr. Yates is particularly familiar with PRA requests and the obligations of the Office of a County Counsel, having been the Deputy Assistant County Counsel of Santa Barbara County.

Needless to say, we both found Perl’s swagger curious.

The public’s right to know

Several months later, Community Venture Partners was contacted by a neighborhood group calling themselves the Friends of West Tam Valley (FWTV). The backstory of the relationship between CVP and FWTV is described in detail in the article entitled, What’s Happening in Your Backyard? Public Records Act: An Invaluable Tool, by Lee Budish.

FWTV approached us to help them deal with a permit application for a single-family home in their area, which the Tam Design Review Board had characterized as a “Trojan Horse for a future subdivision” development.

FWTV had discovered that a development group had been quietly buying up dozens of small lots in an old subdivision shown on an antiquated map, recorded in 1919. Using this tactic, the developer apparently hoped to avoid environmental and public safety review and the associated costs of a new subdivision application. By submitting house plans one at a time, the developer was apparently attempting to illegally piecemeal the County’s review process.

More concerning was that it seemed the County Planning and Public Works Departments had no problems with this and were in fact, willing (or at the least, clueless) collaborators until it was exposed by FWTV.

After months of trying to investigate the matter and not getting straight answers from Marin County Planning, it was decided that the group should file a Public Records Act request to obtain all the documentation on the proposed subdivision, in order to be able to submit informed comments to the County, in a timely manner. This led to our introducing FWTV to Edward Yates.

Subsequently, FWTV filed a PRA request in September of 2016.

The Office of the County Counsel assigned a litigation specialist, Deputy County Counsel Stephen Raab, to the case. However, it seems that Raab had little transactional legal experience and he tended to be very curt in his responses to FWTV and Yates, if he responded at all.

For reasons that have never been explained, the County failed to fully respond to the FWTV PRA request. Some documents were produced, but others requested were not. Over the following five months Mr. Yates made three separate requests, on behalf of FWTV, to Stephen Raab, asking for copies of all documents related to the matter, but these requests were denied and ultimately ignored.

Finally, having exhausted all administrative remedies, Mr. Yates filed a Petition, on behalf of FWTV, for Writ of Mandate, Injunctive and Declaratory Relief for Violations of the California Public Records Act.

The County’s response was as quick as it was foolish. Not only did they make no attempt to settle the suit or provide the documents requested, but they filed frivolous motions: one bizarrely claiming that the FWTV suit should be thrown out, because the County received the summons the day after the Petition was served. This a classic dilatory, procedural motion that has absolutely no impact in the real world but costs a lot of money. The County then doubled-down and filed an equally bizarre action against Mr. Yates.

This retaliatory “SLAPP” suit (strategic litigation against public participation) -- which is described in detail in Marin County’s Retaliatory Cross-Complaint to Limit Access to Public Records -- made wild claims about misconduct and improper filing procedures, all of which were baseless and only intended to try to bully and intimidate Mr. Yates, FWTV’s legal representation.

As noted by Ms. Kelly Aviles, the attorney who represented Edward Yates, “The County’s egregious and meritless cross-complaint amounts to a classic, retaliatory SLAPP lawsuit.” Ms. Aviles called the County’s actions a “frivolous Cross-Complaint in bad-faith intended to harass both Yates and Plaintiff.”

Wasting taxpayer’s money

Finally, in December of 2017, after all their hyper-aggressive litigation tactics had failed, the County contacted Mr. Yates and Ms. Aviles and offered to provide the requested documents.Most of those documents were then released and FWTV agreed to settle the case, regarding FWTV’s Public Records Act request. However, County Counsel offered Ms. Aviles and Mr. Yates only half of the statutory attorney’s fees that were due them and the County continued to litigate the SLAPP case.

On January 12, 2018, the Marin Superior Court found that the Marin County Counsel’s Office had acted illegally in filing their SLAPP suit against public advocacy attorney Edward Yates. Having no other choice, the County finally agreed to reimburse FWTV as the plaintiff and Mr. Yates as a defendant, for all attorney’s fees and court costs.

That settlement was finalized in the first weeks of February 2018, and was professionally resolved under the guidance of County attorney Renee Giacomini Brewer, a fair-minded lawyer who was brought in to take over the case. Renee Brewer is now listed as the County's Chief Deputy County Counsel, and if her actions on this case are any indication, her presence is a much needed breath of fresh air at the Pink Palace.

Pride comes before a fall

Ultimately, Mr. Raab’s arrogance proved to be the County’s downfall. But, one must assume that his aggressive, anti-community tactics were supervised by the County Counsel himself, who must bear the ultimate responsibility for his office’s actions. All of this also reflects badly on the Marin Board of Supervisors. Assuming Board of Supervisors was briefed on the progress of this case, in closed session, throughout, why did they allow it to go forward?

In the end, this entire, self-inflicted fiasco ended up costing Marin taxpayers almost $90,000 in fees and court costs. If you include the costs to the County for the salaries and fees of their own staff, attorneys and consultants, the total amount of taxpayer funds wasted would probably be at least double the settlement cost: a total of $180,000 to deny documents to the public and file a frivolous suit against a respected Marin attorney.

In a time when money is tight, the County’s recklessness is extraordinary.

The County’s scorched earth tactics are all too familiar to CVP, having experienced the same level of hyper-aggression and pointless denials in our Brown Act case, two years prior. At this point I would say without reservation that this pattern of behavior and overt contempt for the public’s rights permeates the culture at the Office of the Marin County Counsel.

My question remains, why?

When the previous County Counsel, Stephen Woodside, retired, one hoped that this litigious behavior would end: he had earned a reputation in Marin for being against community rights. Our new County Counsel, Brian Washington, came from Alameda County and was supposed to be an improvement. But, it appears he rubber-stamped Mr. Raab’s intimidation tactics.

Is the rot so deep at the County Counsel’s office that the daylight of common decency and a sense of duty to the public never shines in? For all the posturing and email missives about “public participation” sent out by the County, when push comes to shove, why is it that you can count on the County Counsel to treat the public as the County’s enemy and give them no quarter?

Is this “good cop, bad cop” routine just happenstance?

The County Counsel’s intentions toward the public seem clear: crush them, attack and defame them personally, then out-spend them and litigate them into submission, so they will simply give up.

The goal of their aggressive response then is not just to win the case, but to break you. What is right, what is just, never seems to enter their calculus. So much for public service.

So, what’s a person to do?

In my opinion, this case is just the tip of the iceberg at the County Counsel’s office. It’s as if they’ve never seen an argument they didn’t want to litigate with prejudice, regardless of what it costs the taxpayers. With this SLAPP suit you might even go so far as to say, they intentionally look to pick fights. But, is that their proper role?

Supposedly, County attorneys are paid to protect the integrity of the workings of our county government. They are a servant of the people.

The County Counsel’s default setting should be to advise the Board of Supervisors and County Staff about what is or is not legal within both the letter of the law and the spirit of the law. If anything, they should be doing all they can to avoid letting situations such as this simple PRA request, turn into protracted and expensive court battles that waste the public’s time and money.

Honestly, I’m not really sure anymore that the County Counsel knows this.

The behavior of the County Counsel’s office should be of great concern to every Marin resident.

The County Counsel’s Office apparently considers itself unassailable and for all practical purposes it is. I have never seen a County Supervisor ever question the statements or actions of the County Counsel in a public hearing or published report.

The Marin County Board of Supervisors are the only ones who can effect change in this situation. Unless they do, Marin residents seeking justice, up against a legal machine funded by their own tax dollars working against them, are going to continue to have a very tough road to hoe.

Bob Silvestri is the founder and president of Community Venture Partners, a 501(c)(3) nonprofit community organization funded only by individuals in Marin and the San Francisco Bay Area. Please donate the CVP to help us continue to work on the public’s behalf.