SLO County supervisors violated state law in groundwater management vote, attorneys say

San Luis Obispo County Board of Supervisors, from left, Adam Hill, Lynn Compton, John Peschong, Debbie Arnold and Bruce Gibson meet March 7, 2017.
San Luis Obispo County Board of Supervisors, from left, Adam Hill, Lynn Compton, John Peschong, Debbie Arnold and Bruce Gibson meet March 7, 2017. dmiddlecamp@thetribunenews.com

The San Luis Obispo County Board of Supervisors appears to have violated California’s public meeting law when it voted for a change in groundwater management policy that could cost taxpayers millions, said two First Amendment attorneys who reviewed the situation at The Tribune’s request.

The Brown Act requires public agencies to give the public adequate and not misleading notice about agenda items. The board failed to do that at a March 7 meeting, when three supervisors voted to change county policy regarding the state Sustainable Groundwater Management Act without proper notice, which prevented public participation, the two experts said this week.

I do think there was a violation of the Brown Act.

Nikki Moore, California Newspaper Publishers Association attorney

“They should have put that vote to the next meeting,” said Nikki Moore, an attorney with the California Newspaper Publishers Association. “Then you wouldn’t have the concern that the public was deprived of participating in the meeting.”

Two residents have sent letters to the county with allegations that the board broke the law, along with statements that they would have participated in the meeting had they known what was going to be discussed.

As a result, County Counsel Rita Neal said Wednesday that she is reviewing the vote and applicable law to determine whether to recommend that supervisors void the vote and rehear the issue.

“You have evidence that members of the community would have been there had the agenda complied with the law,” Moore said. “I do think there was a violation of the Brown Act.”

The March 7 vote resulted from a motion made by Supervisor Debbie Arnold to strike sections of the county’s policy about implementing the Sustainable Groundwater Management Act, which requires stakeholders in water basins in overdraft to create plans to stabilize them.

In a major policy shift, the board majority voted to take on the responsibility of groundwater planning and management in the county’s unincorporated areas, at a cost of up to $2.2 million a year for three years.

The agenda had listed the item as “receive an update on the implementation of the Sustainable Groundwater Management Act strategy.”

They did not give public notice that any policy changes were on the table.

David Snyder, executive director of First Amendment Coalition

“The description, to my eyes, does not look like an adequate description of what happened at the meeting,” said First Amendment Coalition Executive Director David Snyder, an attorney.

“It says the board is going to receive information,” Snyder said. “It does not say the board is going to make changes, let alone significant policy changes that are going to cost the taxpayer. They did not give public notice that any policy changes were on the table.”

Supervisors could have asked county staff to delay the vote for another week, so that the public could be notified, he said.

Arnold did not respond to a request for comment.

Residents did not expect the vote

Before the vote, the county policy said the county would act as a groundwater agency for unincorporated and unrepresented areas of the county only if landowners funded the studies and other costs associated with developing a groundwater management plan. Arnold proposed to strike that language.

The motion to cut that language passed 3-2 with the help of Supervisors John Peschong and Lynn Compton. Supervisors Adam Hill and Bruce Gibson voted against it. During the meeting, neither the supervisors nor Neal objected to the board taking a vote.

Public works Director Wade Horton said Friday that the vote resulted in “big changes” to the county’s policy.

Neal, in an interview Friday with The Tribune, said that, “generally, making minor changes to policy would have been within the board description item.”

When asked whether the changes made were “minor,” she said, “I think the change in policy was certainly a change in direction.”

She said that attorney-client privilege prevented her from commenting on whether she advised supervisors about a potential violation before the vote.

I (would) have attended and spoken to the item during public comment.

Paso Robles resident Laurie Gage

County residents Laurie Gage of Paso Robles and Russell Hodin, who resides east of San Luis Obispo, both wrote letters of complaint to the county and called on the supervisors to revisit their action.

“If last week’s update to the county’s SGMA strategy had been instead a hearing regarding proposed/potential changes to that strategy, not only would I have attended and spoken to the item during public comment, I would have drummed up other people to come and speak to the iniquity of moving the cost for management of the various basins to the taxpayers at large,” Gage wrote in an email to The Tribune about her letter, using an acronym for the Sustainable Groundwater Management Act.

Vote could be scratched

Neal said she expects to complete her review of the vote and the law by the end of the week.

At that time, she may recommend to supervisors that they hear the issue again. She said she is “unable to answer” whether the results of her review will be made public.

Gibson said he thinks the board should reconsider the policy.

“To be honest, I don’t know whether that action violated the Brown Act or not,” Gibson said. “But that action was extremely poor policy development in an extremely poor process.”

“(Arnold’s motion) was burst on the scene after the public had commented on the general topic of SGMA compliance,” Gibson added. “It was quite clear she came prepared, and she was going to make a drastic change to the policy.

“I think it’s important the board reconsider this policy with appropriate public input.”

Moore, of the newspaper publishers association, said that in her legal opinion, taking that action would be wise of the county because the agenda item, as written, was “under-inclusive” and could be challenged in court.

“That violation of the notice creates the opportunity for someone to challenge the vote and have a judge deem it null and void,” she said.

Monica Vaughan: 805-781-7930, @MonicaLVaughan