Brown Act Violation Forces Re-Vote – January 18, 2010
CITY HALL – A Brown Act violation has led to disclosure of the lobbying that influenced an Arcata City Council appointment.
The circumstances behind the appointment of a representative to the Humboldt Waste Management Authority (HWMA) were revealed at the Jan. 5 City Council meeting. A council majority’s decision to replace Councilmember Shane Brinton as Arcata’s HWMA rep was significantly based on the lobbying of a least one boardmember of the Arcata Community Recycling Center (ACRC), which is vying for a recyclables processing contract in a competitive process.
About three weeks earlier, a majority of councilmembers voted to appoint Councilmember Michael Winkler to the HWMA’s Board of Directors, over Brinton’s strong objections.
Brinton was mystified with his colleagues’ insistence on replacing him and Arcata Mayor Susan Ornelas told him that an HWMA boardmember had talked to her about the appointment.
Councilmember Alex Stillman said she’d gotten “public calls” about it.
The minimally-explained matter seemed resolved with a 4-1 vote to replace Brinton, who was the dissenter. At last week’s meeting, however, Brinton asked that the item be revisited because he believed Stillman had violated the Brown Act by discussing the appointment in separate phone calls with himself and then Winkler.
The Brown Act sets standards for open public meetings and forbids serial meetings or chains of private communication between three or more councilmembers.
When Ornelas asked whether or not it had been confirmed that a violation took place, Stillman said, “My understanding is that we do have a Brown Act violation because I spoke to both people,” referring to Brinton and Winkler.
The violation was discovered by Brinton when he watched video footage of the previous meeting and noticed that Stillman mentioned that she had talked with Winkler. It gave Brinton a chance to call for a re-vote on the item, as required by law. And the truth behind the re-appointment process was revealed – it wasn’t members of the HWMA board that Ornelas and Stillman had been talking to but rather, one or more boardmembers of the ACRC.
Brinton set the stage for the revelation by saying that he’d been “hit like a ton of bricks” when the council majority moved to replace him. Since then, he continued, he’d “learned more” and “it actually appears to me that there was an effort to lobby councilmembers to appoint Councilmember Winkler instead of myself and this was actually a significant factor in the vote.”
He invited councilmembers to correct him if necessary but none did. Brinton elaborated, saying that the ACRC is “actively lobbying against someone who has expressed a willingness to consider the different options for the future of recycling in Humboldt County and not have a predetermined decision.”
Brinton was referring to the HWMA’s review of Requests For Proposals (RFPs) for recycling services. Two RFPs are competing against each other, one from ACRC and the other from Solid Wastes of Willits.
When Brinton told Ornelas that she’d made a mistake at the previous meeting by saying she’d been contacted by a boardmember of the HWMA, Ornelas said she had corrected herself and had disclosed that it was actually an ACRC board member.
But Ornelas had never made such a correction and observers of the meeting were left thinking that it was an HWMA board member.
They found out otherwise when Brinton asked his colleagues if they’d been contacted by ACRC boardmembers or staff. Ornelas and Stillman said they had and Councilmember Mark Wheetley was silent about it.
Asked if the discussions included the RFP process, Stillman said hers didn’t.
She changed tracks by asking a process question related to other appointments that had been lumped together with the HWMA one.
When the discussion resumed, Brinton gave some background and said the HWMA had concluded that it could take over ACRC’s Samoa processing facility and run it more cost-effectively.
Brinton was part of an HWMA board minority that favored entering into negotiations for purchase of the facility but when that motion failed, he joined the vote that authorized the RFP process.
Brinton said that in contacting councilmembers, the ACRC made “an anti-competitive move to put someone in the seat that they feel would be more open to their bid.” He asked that he be re-appointed.
The other councilmembers didn’t respond and Wheetley moved to appoint Winkler. They didn’t refer to what Brinton had talked about, with Wheetley saying that it’s “healthy to rotate” appointments and Stillman saying that “we sort of roll around here.”
Winkler, however, was more direct. He said he’d be open-minded and that ACRC boardmembers have a democratic right to lobby councilmembers “and I don’t think they should be ashamed of doing so.”
Brinton said the RFP documentation includes a prohibition on communicating with HWMA member agencies to gain an advantage. “I am concerned about that effort, of a private interest, to influence a local government to get what they want,” he continued.
The vote was taken with the same result as last time, with Winkler appointed to the HWMA.
That action had been preceded by another bit of appointment process cleanup, as Stillman had indicated at the previous meeting that she’d agree to have Brinton replace her as the City’s representative to the Redwood Region Economic Development Commission (RREDC).
That had followed the uncomfortable debate about the HWMA appointment and seemed like a conciliatory gesture. But realizing that she had not been appointed to any regional agencies, Stillman asked that the vote be repeated so she could resume her RREDC representation.
The council unanimously supported her request.