Archive | August, 2012

Does Mesa Water Take Your Comments Seriously? Yes, to Your Face – No, Behind Your Back

Does Mesa Water Take Your Comments Seriously? Yes, to Your Face – No, Behind Your Back

By John Earl
Surf City Voice

Photo top right: Fred R. Bockmiller, President of the board, Mesa Consolidated Water District.

Fred R. Bockmiller, president of the Board of Directors for the Mesa Consolidated Water District headquartered in Costa Mesa, had listened to the public speak its mind at the board’s July 24 meeting.

Former Huntington Beach mayor Debbie Cook and I were the only unofficial witnesses in attendance except for Joan Finnegan, who serves on the board of directors for the Municipal Water District of Orange County.

Cook and I had come to speak about Mesa Water’s policy for disclosing public records. Proposed revisions to that policy were on the meeting agenda.

“With that, we’ve had public input,” declared Bockmiller, who took command of the meeting in his deep and officious voice. “And I do take public input very seriously because it’s rare that people de-stir themselves and take time to come down here.”

Bockmiller was right about one thing—public citizens, including journalists, are a rare sight at Mesa Water meetings, which, with the exception of the twice-monthly regular board meetings, are held during the morning or afternoon hours when most people are working.

Mesa Water’s board and its General Manager Paul Shoenberger (absent from the July 24 meeting) like to brag about their commitment to transparency. But, like other Orange County California water districts, Mesa’s public meetings are not televised or video and audio streamed online—by comparison, most city council meetings are.

Mesa Water Board

L – R: Trudy Ohlig-Hall, James Atkinson, Fred R. Bockmiller, James Fisler, Shawn Dewane make up the Mesa Consolidated Water District’s Board of Directors. Photo: Surf City Voice

Nor is there a monthly calendar online—public meetings are announced on the agency’s website only a few days before they occur.

A bi-monthly newsletter sent to the households of Mesa Water rate payers and available online (with some difficulty finding it) announces that the full board meets twice a month, but doesn’t mention the three other monthly committee meetings during which a lot of Mesa’s real work gets done.

For my own records, I preserved portions of the meeting in video and audio format, but the night’s most interesting revelations were captured – after Cook and I left – by Mesa Water’s own mp3 (audio) recording system that, untold to the public, is hooked up to the microphones of the agency’s directors and administrative staff and records everything said at each board meeting.

Also untold by Mesa Water (unless you know to ask), anybody can acquire a copy of those recordings through the Public Records Act, the topic that brought Cook and I to the meeting.

Cook is an environmental attorney and served two terms as mayor of Huntington Beach. As a long-time public official, she knows something about how local government works. For the past year she has been applying that experience to her efforts to monitor transparency issues at Orange County water districts.

Based on Cook’s knowledge of how the city of Huntington Beach deals with public records disclosures as well as my own experience obtaining public records from Mesa Water, we offered our comments. Whereas the Public Records Act intends to empower the public in its search for public records, we found Mesa Water’s policy at times to be intimidating and inconsistent with state law.

Cook compared the State Attorney General’s “clear and concise” PRA summary that “makes you feel like, yes, indeed, these are your documents, and we are here to help you” to Mesa Water’s policy, which, she said, didn’t always conform to the law and “discourages people from requesting documents.”

Bockmiller Interrupts Speaker
Like many government bodies, Mesa Water’s board allows three minutes per speaker, precious little time to make an important point. So interruptions of public speakers by officials are not only rude but can lead to legal consequences as well.

But Bockmiller abruptly cut Cook off in the middle of her speech, and admonished, “I’m going to have to stop you there and ask—you’re making an accusation that we’re not conforming with state law. So, if you are” –

“Sir,” Cook protested back.

“If you have specific information, I would like to hear it. Thank you,” Bockmiller concluded.

“But you really should not interrupt the public speakers,” Cook shot back. “After the fact, it’s clear you can ask questions. But when you interrupt a speaker, then you really do cross another legal line.”

Debbie Cook

Former Huntington Beach mayor Debbie Cook speaks to the Mesa Water board about the Public Records Act. Photo: Surf City Voice

Cook continued, citing a passage in Mesa Water’s policy that exempts from disclosure “Purely personal information contained in a correspondence, e-mail or in a Mesa water computer which is unrelated to the conduct of Mesa Water’s business (i.e. which is totally void of reference to governmental activities).”

That passage is unlawful, Cook said.

“Any e-mail that is sent using your district’s e-mail server—it doesn’t matter whether it talks about your dogs and your kids or whatever, that is all subject to a Public Records Act request, all of it open to public inspection.”

Cook went on to explain “in a nice way” how the City of Huntington Beach had gone to great lengths to place public documents online, including meeting agendas and minutes going all the way back to 1909 (by contrast, Mesa Water’s websites contains minutes and board agenda packets for 2011 and 2012 only).

Huntington Beach doesn’t have a written Public Records Act policy other than to follow the law, Cook added.

“You can save yourselves the attorneys’ fees,” she explained, by just placing helpful guidelines already published by other organizations like the California League of Cities or the state attorney general.

“I would suggest that perhaps you rethink having a stated policy because it really does just open you up to legal challenges,” Cook concluded.

Still stung by Cook’s rebuke of his rude interruption, Bockmiller quipped, sarcastically, “Thank you very much, Ms. Cook, and I appreciate the lesson in conducting a proper board meeting. Thank you very much.”

Jail Time for CalDesal Secrets?
When I spoke to the board, I pointed out that California’s Government Code requires public documents be kept for a minimum of two years, but that Mesa didn’t seem to have a retention policy (there is a retention policy, but it was not attached to the text being updated that night, nor was it available on Mesa Water’s website).

On two occasions, I added, I had been refused public documents on the grounds that they had been transferred to a private non-profit agency and were no longer in Mesa’s hands.

The documents concerned CalDesal, a secretive 501 (c) 6 non-profit organization that lobbies for desalination projects and deregulation on behalf of public water agencies and private industry.

CalDesal was officially formed by Mesa Water’s general manager, Paul Shoenberger, with the informal approval of the board. Director Shawn Dewane is the president of CalDesal and votes on its board as a representative of Mesa Water.

Speaking to the board, I referred to sections 6200 and 6201 of the Govt. Code and section 1170 of the Penal Code, both of which warn of jail or prison sentences ranging up to four years for the destruction of public records.

“There are apparently some people here who may be eligible for a jail sentence,” I cautioned.

I wondered how Dewane could serve as CalDesal’s president and never bring back any documents to Mesa Water’s office, which would have put them in the public domain.

Concluding my comments, I officially renewed my request for CalDesal related documents and asked for Mesa Water to retrieve the documents that it had previously handed over to CalDesal, at the Mesa Water’s expense, not mine.

That ended public comments.

“Mr. Attorney,” asked Bockmiller, of Mesa’s legal counsel, “does this policy conform in all respects with state law?”

“Yes, it does. It was reviewed by our office and prepared in accordance to the Public Records Act,” the attorney answered.

Mesa Water’s PRA policy is not required by statute, he added, in response to further questions from Bockmiller, but it’s not unusual for public agencies to have one, although he could not say how many do.

As for redacting incidental personal information from e-mails, the attorney was less certain.

“I would have to go back and review with them (other legal staff at his firm who approved the policy language) the specific source of this language,” he said.

That’s about when Bockmiller said that he took public comments “very seriously,” recalling that when he campaigned to for election to the board he spoke out often at board meetings and “always hoped that the district took my comments, which I made a lot of, seriously at the time.”

Mesa Water rarely hears public comments, he acknowledged, “but when we do, as Mesa Water always does, we take them seriously.”

In that context, he wanted to see legal citations for my claim that some Mesa officials might be eligible for jail sentences (those citations were provided to all board members the next day by e-mail).

By mistake, Bockmiller and Director James Fisler thought that I had singled out members of the board.

“It’s the general broad immunities that you have when you are serving on a board,” he said, explaining his view of government accountability. “[It] seems highly unlikely that we would be held responsible for that. But that’s ok. It’s always good to hear,” he said.

Director Jim Fisler, who I had not asked for records, took offence and proclaimed that “This board doesn’t provide records to Mr. Earl. This board has not been asked for records by Mr. Earl.”

Secret Records
Lacking the urgency to vote on the matter, the board decided unanimously to take the matter back to its legal counsel for review. It would be discussed at the next meeting of the executive committee, Aug. 21 at 2 p.m. and brought back later to the full board for consideration.

“With that,” Bockmiller declared, hammering his gavel, “we will adjourn for a brief recess.”

Despite Bockmiller’s rude and blustering manner, the board’s vote seemed to prove that our comments would be taken seriously, just as he promised.

But within seconds after Cook and I left the board room, Bockmiller and Administrative Service Manager Coleen Monteleone expressed their real feelings of contempt for the public.

And it was all captured on Mesa Water’s MP3 (audio) recorder.

Coleen Monteleone, left, and Denise Garcia at the July 24 meeting of the Mesa Water District. Photo: Surf City Voice

Monteleone, who had been present as acting general manager in the absence of Paul Shoenberger, speaking to Bockmiller, started the embarrassing conversation with a sarcastic broadside at Cook.

“I don’t care what the city of Huntington Beach does, but thanks for letting us know,” she said, sarcastically.

Bockmiller, laughing, also mockingly addressing Cook, cracked, “What they did when you were on the board, which you are no longer.”

Monteleone: “Right, she is not on the council anymore.”

Bockmiller: “No, she’s not on the council.”

Monteleone: (pretending to speak to Cook) “Beat it!”

Then Denise Garcia, Executive Assistant to the General Manager, entered the conversation.

“I have an experience I would love to share with you about finding records for the city of Huntington Beach.”

Bockmiller: “Yes, that would be good, to find your own records.”

Bockmiller, still feeling contemptuous, then informs Director Dewane, CalDesal’s president, that he has asked legal counsel to look into a “potential legal issues,” such as “that somehow by your touching any CalDesal document it mysteriously turns into a public record.”

“No issue,” Dewane replies.

Director Trudy Ohlig-Hall, seemingly questioning the motives of Cook and myself for our interest in public documents, offers her opinion that, “There’s something more behind it too.”

“Oh, I’m sure there is,” Bockmiller agrees.

Fisler suggests it has something to do with opposition to two ocean desalination plants, one proposed for the city of Carlsbad and the other for Huntington Beach.

Then the conversation turns back to the legal issues.

Dewane: “I would appreciate being included in that conversation.”

Bockmiller: “Yeah, we’ll get that legal opinion, since it involves you.”

Dewane: (jokingly) “I don’t want to go to jail.”

Bockmiller, more seriously, acknowledges that nobody at Mesa wants to go to jail and attempts again to reassure everyone present that nobody is going to jail.

“Yeah, I can’t think of any time when any person in the state of California, under any circumstances, was sent to jail for public records issues,” Bockmiller is heard saying.

“Most likely they might have been fined or, you know, the public records had to be produced or whatever. But it seems unlikely that anyone actually went to jail for a Public Records Act thing.”

Then director Ohlig-Hall comes up with what might be the best bit of advice offered to the public officials at Mesa Water or anywhere.

“Just keep your pants on, that’s all. Then you don’t have to go to jail.”

Postscript: On Aug. 28 the Mesa Water Board of Directors voted to accept the revised Public Records Act policy but with some additional changes. After consultation with legal counsel, it was acknowledged, contrary to the board’s previous assumption, that Mesa cannot require PRA requests to be in writing, although the agency may reduce such requests to writing for clarity. The exemption for “purely personal information” was “clarified” but not dropped.

In response to Director Fisler’s previous belief that board members did not have to act on PRA requests made of them by the public, legal counsel advised that “pursuant to both State law and the policy, Public Records Act requests made to Mesa Water, or its Directors or employees, should be directed to the District Secretary.” At the Aug 21 Executive Committee meeting It was also noted by legal counsel that materials brought back to and stored at Mesa Water are public documents.

Finally, legal costs to Mesa Water’s ratepayers for the latest revision of its PRA policy—when other much better written summaries already exist for free—is unknown at this time.

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Special Meeting:Away from public view, Mesa Water GM investigates director over alleged employee abuse

Special Meeting:Away from public view, Mesa Water GM investigates director over alleged employee abuse

By John Earl
Surf City Voice

It seems that the Executive Committee of the Board of Directors of the Mesa Consolidated Water District, whose members, along with General Manager Paul Shoenberger, like to brag about their dedication to transparency, tried but failed to pull a fast one today – to hide from public view two public meetings at which possible disciplinary action, including censure, against another board member will be considered, the Voice has learned.

Earlier today, this reporter was informed by sources that the first meeting would be held today at 3:30 p.m. in the district’s conference room. Normally, all public meetings, including committee meetings, are listed in the right-hand column of the district’s website, visible on every page.

But notices of today’s “Special” meeting and another one scheduled for tomorrow at the same time, are tucked away under two menu tabs, “Board of Directors” and “Committee Meetings”, that the website’s regular viewers, who are accustomed to the regular posting policy, are likely to miss.

A cryptic press release, also obscured behind website menu tabs, slips the following passage in between several paragraphs about Mesa Water’s long-range strategic plan and claims about what a wonderful place it is to work at:

“There was a recent report to Mesa Water’s human resources department involving District staff and one of its Board members; Mesa Water is taking this very seriously. Mesa Water is investigating the event and will report the results of the investigation after it is completed and the proper course of action is determined.”

Paul Shoenberger

Mesa Water General Manager, Paul Shoenberger. Photo: Public Records

But the agendas for the two meetings are even more cryptic, listing under Action Items, “Mesa Water Staff (no enclosure)” and “Other (no enclosure),” without a clue given to the nature of the accusation or which board member was allegedly involved, much less the context also missing from the press release—a long-festering dispute over budget matters between Trudy Ohlig-Hall and Paul Shoenberger.

Shoenberger’s hostility toward Ohlig-Hall was obvious as he sat, red-faced, at the Aug. 20 meeting of the two-member Finance Committee of Director James Atkinson (chairman) and Ohlig-Hall.

One could easily say that Ohlig-Hall nit-picked the GM on various contract items but also hit the nail on the head about over $200,000 dubiously spent on a public relations consultant to help with “branding” and media relations—including, documents obtained by the Voice show, probably thousands of dollars spent teaching Shoenberger how to respond to inquiries from this reporter and researching my background.

Shoenberger was already red-faced about pointed questions this reporter asked moments before during the same meeting, about tens of thousands of dollars of hidden labor and service expenditures by Mesa Water involving CalDesal, a secretive desalination lobbying organization originally incorporated in Shoenberger’s name under the direction of the Mesa Board.

The next day, Aug. 21, at the Executive Committee meeting, chaired by board President Fred Bockmiller with Director James Fisler, Shoenberger dropped the bombshell about Ohlig-Hall, without mentioning her by name, under another cryptically placed agenda item and in a memo from Shoenberger to the committee. In that memo, Shoeberger described the following incident that allegedly took place prior to the Finance Committee meeting the day before:

“On Monday, August 20, 2012 prior to 12:00 noon, I observed an employee sobbing. It was reported to me that two employees had a difficult interaction with a Director over the phone that included the Director allegedly yelling and using curse words. Unfortunately, this is not an isolated incident.

“We are looking into various options as to controlling the interaction between Board members and the staff, which may include Directors speaking only with the General Manager and the Administrative Services Manager.”

A discussion ensued, without mentioning Ohlilg-Hall by name (she was not present) in which various but options limited by law were discussed, including censure, stripping the director of all her committee assignments, and, the one that Shoenberger seemed to prefer, requiring that all the directors speak only to him and his assistant, Administrative Services Manager Coleen Monteleone—an option that would further insulate from accountability a man who already has a substantial amount of independent power over the financial affairs of the district .

Bockmiller rejected Shoenberger’s power-grab option as potentially divisive and “unacceptable,” to which Shoenberger quickly warned, “Our HR attorney said the potentially worse case could be a lawsuit [by the alleged employee/victim]. First and foremost, we need to protect employees from harassment.”

Bockmiller opined that the district would have no legal liability if the director had acted outside of his or her job description, but acknowledged that “This kind of thing is about as bad as it gets.”

But was the alleged incident really that bad?

Since Shoenberger was not privy to the contents of the phone conversation, only the alleged victim of harassment and Ohlig-Hall could know the answer to that question.

Ohlig-Hall told the Voice that she was very sorry for the incident and had sent an apology by e-mail to the employee the next morning, but that the incident had been overblown.

At the time of the phone call she was upset, she said, because she had been booked by the employee at a hotel for a San Diego water conference, partly paid for by the district with an upgrade that she prepared to pay out of pocket, on a night for which the conference had been cancelled. During the conversation, she claims, she did raise her voice but did not use curse words. By her account, in frustration, she said, “Screw it, I’m not going [to the conference].” In fact, she didn’t attend any of the two-day conference.

It’s no secret around Mesa Water that Ohlig-Hall, who has served three terms on the board, can be temperamental at times, something even she acknowledges. Add to that her strong German accent and trouble with the English language – sometimes it’s impossible for this reporter to understand what she is saying from the dais – and it’s easy to see how misunderstandings might occur between her and staff.

But on its face it’s hard to see why her latest incident is being taken so seriously by her fellow board members at this time.

As Director Fisler pointed out at the Executive Committee meeting Aug 21, one solution for the employee who feels abused over the phone is to “just hang up.”

Ohlig-Hall’s behavior, by her own account, was unacceptable, but there may be another reason for Shoenberger’s and the rest of the board’s sudden concern for employee rights.

Her often annoying habit of belaboring or nit-picking a budget point to death causes some other board members to accuse her of micromanaging, something she says is part of her job of looking out for the interests of Mesa Water’s rate payers and that she will never apologize for.

In any case, Ohlig-Hall’s hearing today, held in a public meeting without her active participation and despite potential legal concerns about the right to privacy of the alleged victim, may lead to a greater understanding of what goes on beyond the public’s view at the Mesa Water Consolidated Water District.

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