Posted on 31 August 2012.
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.
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.”
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.”
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.