In April 2004, Huntington Beach residents became alarmed by a potential Brown Act violation by the Planning Commission and city staff whereby a series of secret meetings were held to discuss water quality issues relevant to the Pacific City project. Residents complained publicly both during a subsequent Planning Commission meeting and on the hbtalk mailing list.
About a week after news of the secret meetings leaked out, a new hbtalk subscriber by the name of "Stuart Welch" began posting messages in praise of Planning Commission Chairperson Ron Davis, and trying to deflect the Brown Act focus off of Davis and onto certain other Planning Commissioners. Forensic analysis of the Stuart Welch messages revealed that they were in fact written by Ron Davis as part of a subterfuge meant to deceive the public.
This web page provides background information on this entire
mess. Stay tuned to see how it unfolds.
The California Brown Act can be summarized as "public bodies shall
meet in public". The state Attorney General has a really
excellent Brown
Act pamphlet that describes the Act in layperson's language.
The pamphlet states that the intent of the Act is to prohibit serial
information gathering meetings:
"Problems arise when systematic communications begin to occur which involve members of the board acquiring substantive information for an upcoming meeting or engaging in debate, discussion, lobbying or any other aspect of the deliberative process either among themselves or with staff. For example, executive officers may wish to brief their members on policy decisions and background events concerning proposed agenda items. This office believes that a court could determine that such communications violate the Act, because such discussions are part of the deliberative process. If these communications are permitted to occur in private, a large part of the process by which members reach their decisions may have occurred outside the public eye. Under these circumstances, the public would be able only to witness a shorthand version of the deliberative process, and its ability to monitor and contribute to the decision-making process would be curtailed. Therefore, we recommend that when the executive director is faced with this situation, he or she prepare a memorandum outlining the issues for all of the members of the board as well as the public. In this way, the serial meeting violation may be avoided and everyone will have the benefit of reacting to the same information."
The Huntington Beach City Attorney's office is of the opinion that
the long-standing business-as-usual practice of the Planning Commission
and City Council in conducting secret, serial sub-quorum information
gathering meetings designed to exclude the public is perfectly legal
and does not run afoul of the Brown Act. This opinion follows the
party line used by other cities in California, as expressed by the
League of California Cities at http://www.cacities.org/doc.asp?id=1102#SerialMeetings:
The mayor sat down across from the city manager. “From now on,” he declared, “I want you to provide individual briefings on upcoming agenda items.
“Some of this material is very technical, and the council members don’t want to sound like idiots asking about it in public. Besides that, briefings will speed up the meeting.”
The Brown Act may or may not prohibit such briefings. The Attorney General concludes that staff briefings are per se illegal.11 That point of view notwithstanding, the consensus among local agency attorneys is that staff briefings of legislative body members are allowed if staff is not used as a conduit for achieving collective concurrence, and if during the briefing staff does not disclose the views and positions of other members. Members should be cautious about discussions about local agency business with developers, advocates, or opponents and proponents on issues if such discussions could achieve a collective concurrence.
Whenever lawyers disagree, case law results. The case of Frazer v. Dixon
Unified School District found that:
The circumstances in Frazer v. Dixon appear to be substantially similar to the secret Planning Commission meetings regarding water quality issues relevant to Pacific City."(5) It is now well settled that the term "meeting," as used in the Brown Act (§§ 54950, 54953), is not limited to gatherings at which action is taken by the relevant legislative body; "deliberative gatherings" are included as well. (Sacramento Newspaper Guild, supra, 263 Cal.App.2d at p. 48.) Deliberation in this context connotes not only collective decisionmaking, but also "the collective acquisition and exchange of facts preliminary to the ultimate decision." (Id., at pp. 47-48; Rowen v. Santa Clara Unified School Dist. (1981) 121 Cal.App.3d 231, 234 [175 Cal.Rptr. 292].)
As the court in Sacramento Newspaper Guild, supra, explained, "Section 54950 is a deliberate and palpable expression of the act's intended impact. It declares the law's intent that deliberation as well as action occur openly and publicly. Recognition of deliberation and action as dual components of the collective decision-making process brings awareness that the meeting concept cannot be split off and confined to one component only, but rather comprehends both and either." (263 Cal.App.2d at p. 47.) The court further explained that the term "meeting" must be construed expansively to prevent local legislative bodies from evading the requirements of the Brown Act: "In this area of regulation, as well as others, a statute may push beyond debatable limits in order to block evasive techniques. An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors. Only by embracing the collective inquiry and discussion stages, as well as the ultimate step of official action, can an open meeting regulation frustrate these evasive devices." (Id., at pp. 49-50, fn. omitted.)"
...snip...
"(4b) The February 28, 1990, gathering of a quorum of the Board and various members of the curriculum council falls well within the definition of "meeting" as developed by the foregoing case law. In their declarations, the three Board members who attended that meeting admitted that they were all present for approximately one hour of discussion about "district goals and objectives" that plainly occurred between and among the declarants and the members of the curriculum council. The three Board members also admitted that they jointly viewed the "Holy Wars" video, which was described in the minutes as a "censorship film." It is irrelevant that the declarants deny, in *796 unison, that they participated in or heard any discussion about the videotape or the Impressions series. [FN18]"
...snip...
"What is relevant to the "meeting" issue is that the Board members who were present constituted a quorum, that they participated in discussions relating to District business, and that they were undeniably engaged in "collective acquisition and exchange of facts" relating to decisions they were charged with making in the course of their official duties, including the decision they were to make about the pending curriculum controversy. Even if there was no mention of the Impressions series per se, and no discussion after the videotape was shown, the viewing of the "censorship film" by the three Board members was itself an act of collective acquisition of information relating to the pending dispute."
Amateur botanists like me are good at cultivating plants, and that includes grapevines. This past Saturday, my grapevine told me that the Planning Commission and Planning Staff had scheduled a series of secret, sub-quorum meetings for yesterday and today to discuss water quality issues relevant to Pacific City without triggering the Brown Act agenda & public participation requirements.Here are the documents that were discussed at the secret meetings:
Water quality is arguably the single most important environmental and economic issue facing this city today. Without clean water at our beaches, the tourists won’t visit and spend their tourist dollars here. Redeveloped downtown will be a ghost town, and the waterfront resort hotels will go begging for business.
So I find it simply inexcusable that the issue of water quality was going to be discussed in secret rather than in public. Regardless of the reasoning behind the decision to meet in secret, such meetings naturally invite the public to speculate “what ARE they trying to hide?”. Such corrosive speculation is not a recipe for good local government that we can all be proud of.
I’d like to suggest that any issue complicated enough to merit additional discussions between staff and a majority of the Planning Commission should ONLY be discussed during public meetings, either during the study session portion or the televised portion. If a majority of the Planning Commission still has questions about an issue, then odds are the public does too. And if additional public discussion about substantive unanswered questions causes a public hearing to be continued to the next scheduled meeting, so what? I thought that was how the process was supposed to work.
I phoned Chairperson Davis on Saturday to suggest that the water quality issues deserve to be discussed in public. We talked again last night, and while he agreed in retrospect that certain issues are probably best discussed in public, the secret meetings would occur as scheduled this time due to staff push-back. He added that while the other Commissioners were free to attend these secret meetings if they wanted to, he was going to skip his meeting and instead ask his water quality questions during tonight’s public meeting, as well as ask staff to repeat their water quality presentation.
Now while I take Chairperson Davis’ personal change of plans to be a positive sign of improved enlightenment with respect to public participation, a public rehash of water quality issues tonight does not cure or correct the fact that the secret meetings were still held. We will never be able to know for certain what was said at these secret meetings.
There are simply no good justifications for holding these types of secret meetings. It’s more time consuming to hold 3 separate secret meetings instead of folding the discussion into a regular public meeting. And since time is money, it’s more expensive in terms of staff salaries to do it this way. Secret meetings do not inspire public confidence, and their intentional sub-quorum structure is especially troubling.
I believe these kinds of secret meetings constitute “serial meetings” that are prohibited by the Brown Act. Although actions are not being taken, “conversations which advance or clarify a member’s understanding of an issue are communications which contribute to the development of a concurrence as to action to be taken by the legislative body”, according to the state Attorney General’s office. And it’s not just the Attorney General that feels this way. In the appellate court decision for Frazer v. Dixon Unified School District, the judge found the school district in violation of the Brown Act for the same types of private informational meetings held by the Planning Commission regarding water quality.
I am disappointed that these kinds of shenanigans continue to occur in this city. Unfortunately this has not been the first time that secret Planning Commission meetings have occurred. But hopefully it will be the last time if public participation in the process is to mean more than just lip service.
I have digitized the entire 5 hour and 8 minute April 13, 2004
Planning Commission meeting for your viewing enjoyment. Click here to watch the entire video, or
choose one of the smaller video clips below listed in the order they
occurred:
On April 29, 2004 I filed an official complaint with the state
Attorney General regarding the secret water quality meetings. I
do not know how long the turnaround time is to get a response.
On May 19, 2004 I filed an official complaint with the Orange County
District Attorney. It may take as long as 6 months for the DA to
respond to these kinds of complaints.
Read the forensic analysis
to see copies of all Stuart Welch postings that Ron Davis made before
this subterfuge was unmasked and then decide for yourself whether or
not such postings are acceptable behavior for a public official.
It all comes down to this -- is it acceptable for a public official
to adopt an online disguise and then deliberately lie to the public to
make the disguise seem like a real person?
In my opinion, such behavior is not acceptable. In exchange
for the privilege of being able to make governmental decisions, public
officials have an important responsibility to always be truthful with
the public. Ron Davis has not lived up to the truth part of the
bargain, and so he must be removed from the Planning Commission if
ethics and honesty are to be restored at City Hall.
Here is what I posted on hbtalk when I unmasked this charade on
April 25, 2004:
One week ago today, somebody calling himself "Stuart Welch" subscribed to my hbtalk mailing list at http://www.bixby.org/mailman/listinfo/hbtalk in order to participate in a discussion thread regarding the Brown Act issues surrounding the previous meeting of the Planning Commission. Joey has crossposted some of these messages to the SEHBNA mailing list and elsewhere.
"Stuart" seemed preoccupied with making the following arguments:
1) Joey and other people were not justified in calling for Ron Davis to resign over the Brown Act incident.
2) It would be more justifiable to call for the resignations of the Planning Commissioners who actually attended the secret water quality meetings.
3) Certain current Planning Commissioners should be considered tainted somehow for their involvement in the events leading to last year's Kokal resignation over a Brown Act issue.
4) Ron Davis is a great guy.
"Stuart" demonstrated the kind of intimate knowledge regarding Planning Commission doings that only comes from first-hand participation in the process. Yet nobody in the activist community had ever heard of "Stuart" before, and when I asked "Stuart" if he could point to any pre-hbtalk comments he had ever made on any community issue, he remained silent on that point.
So it seemed that "Stuart" was hiding something.
In a phone conversation I was having with a friend regarding "who the heck is Stuart Welch?", this friend mentioned that Stuart's writing looked awfully similar to that of Ron Davis. Hmmm...
I quickly switched into full Internet geek mode, and within a few minutes I had confirmed beyond any shadow of a doubt that the "Stuart Welch" messages had been originating from Ron Davis' computer.
Additional semantic and syntactic analysis of the "Stuart Welch" messages turned up several unique style characteristics that I have only seen used by Ron Davis as preserved in my own personal e-mail archives and in the SEHBNA archives.
Please see attached for all of the gory details behind my forensic analysis of the "Stuart Welch" messages. Any independent Internet geeks should be able to confirm my assertions that 1) the messages originated from Ron Davis' home computer, and 2) that Ron Davis was the true author of the messages.
Now note that I did not call for Ron to resign over the Brown Act issue. I did not take that hard-line position because:
- People are human, mistakes happen, and not all mistakes are the result of nefarious intent.
- People can learn from their mistakes. I truly believed from my two phone calls with Ron prior to the last Planning Commission meeting that the odds of another similar Brown Act snafu occurring during his Chairpersonship would be minimal.
- I am more interested in preventing future anti-public activity at City Hall than seeing people punished for undesirable activity that occurred in the past.
Using his "Stuart" disguise, Ron wrote that calls for his resignation were solely about "politics". He is wrong. It has now become a matter of ethics, or more accurately the lack thereof, inherent in Ron's "Stuart Welch" deception that was intended to manipulate public opinion in a dishonest manner.
Now that the true identity of "Stuart Welch" has been revealed, it is very important for everybody to go back and reread all of Stuart's messages (conveniently provided for you in the appendix of my attachment) with the knowledge that it is really Ron Davis speaking. You will find several references where "Stuart" says he phoned Ron Davis, talked to Ron Davis, watched Ron Davis' old TV show, or watched the Planning Commission meeting.
Let's call those misleading statements what they really are -- LIES intended to make "Stuart" appear to be separate from Ron Davis.
So it's now a much more serious issue. We have a public official disguising his true identity and deliberately lying to the public in order to sway public opinion. It's hard to imagine a more worst-case scenario for City Hall.
Therefore I must now publicly call for Davis to resign and I strongly urge all HB residents who believe in honest and ethical government to do likewise.
I've done the heavy lifting for you by exposing this fraud. Now it's up to you to follow through with plenty of public outrage. Let Debbie Cook know that you think Davis needs to be removed from the Planning Commission. Make your voices heard at the next Planning Commission and City Council meetings. Accept nothing less than an honest and open City Hall.
At the April 27, 2004 Planning Commission meeting, Ron Davis made
several joking references to the "Stuart Welch" affair. Watch the video and pay close attention to
the roll call near the beginning. Concerned people in the
community do not find this to be funny at all.
A handful of community members showed up at the May 3, 2004 City Council meeting to comment on the "Stuart Welch" affair. Here are the video clips of the relevant portions of that meeting in the order that they occurred (an unedited copy of the entire City Council meeting is available from me upon request):
Here is the text of my speech
from the May 3, 2004 City Council meeting:
Hi, my name is Mark Bixby. It has always been Mark Bixby, and will always be Mark Bixby because I publicly stand 100% behind my opinions.
I am here to talk about recent events concerning Ron Davis, Chairperson of the Planning Commission. 3 weeks ago, the Commission and city staff held a series of secret private meetings to discuss water quality issues relevant to Pacific City. Davis had the option of scheduling a public study session on this matter, but instead opted to schedule the private meetings which the public was not invited to attend.
Several members of the community, myself included, felt that these secret meetings constituted a violation of the Brown Act which can essentially be summarized as “public bodies shall meet in public”. We vociferously complained at the April 13th Planning Commission meeting.
We also complained on a public Internet mailing list of mine called hbtalk. I created hbtalk to serve as a forum for discussing any topics related to Huntington Beach, ranging from the mundane such as house painter references to the important such as how certain City Hall “business as usual” practices do not serve the public interest. Everybody is welcome to join hbtalk by visiting my website at www.bixby.org.
Two weeks ago, somebody calling himself “Stuart Welch” joined hbtalk and started talking about what a great guy Davis is and also attempted to divert Brown Act attention away from Davis and onto certain other Commissioners. Stuart kept saying things like he phoned Davis, etc, to imply that Welch was a real person, but I had my doubts.
I performed a forensic analysis on the Welch messages which showed that they originated from Davis’ computer and had likely been typed by Davis himself. To see my analysis and all of the messages for yourselves, please visit www.bixby.org. I exposed the Davis / Welch charade a week ago, and called for Davis to resign from the Planning Commission.
This is not about personalities or gossip or Internet anonymity. This is also not about the Brown Act, although I should mention that I have filed a formal complaint with the state Attorney General.
Instead this is about ethics and honesty and the expectation that public officials shall ALWAYS be truthful with the public. When Ron Davis used his Stuart Welch persona to write (quote) “I called him” (unquote) in reference to Davis, he crossed over from anonymous speech to lying speech in a premeditated manner meant to deceive the public in an attempt to sway opinions. For that, Davis must resign.
Councilmember Cook, you’re one of my favorite people on the council because you can usually cut through the irrelevant B.S. and get straight to the long-term implications of whatever matter is at hand. So I am disappointed that based on your comments in the Independent, you apparently fail to see that the long-term implication of the Stuart Welch affair is that ethics and honesty are not mandatory for people serving at City Hall.
Thank you.
But unfortunately none of the speeches given on May 3, 2004 were
sufficient to cause Councilmember Cook to dump Davis. Cook's
defense of Davis centered on protections for anonymous Internet speech,
but Cook apparently did not see (or want to see) that what Davis did
was actually lying speech rather that true anonymous speech.
Read what other people have to say about Ron Davis:
