OCSD meeting under scrutiny

Paul Clinton

The Orange County Sanitation District’s 25-member board has come

under fire from one of its own members over a meeting held last week

that may have violated the state’s open meeting laws.

Huntington Beach Mayor Debbie Cook stormed out of the meeting,

held at the district’s Fountain Valley offices on Sept. 26, and later

criticized it as illegal.

Cook, an attorney who specialized in environmental law before she

was elected to the Huntington Beach City Council in 2000, said the

district inappropriately discussed a public issue by shielding itself

with an exception in state law allowing agencies to discuss legal

strategy behind closed doors.

“It was absolutely illegal,” Cook said. “They were trying to keep

the public out.”

At the regularly scheduled meeting, the district’s appointed board

members held discussions with representatives from the Environmental

Protection Agency and the Santa Ana Regional Water Quality Control

Board.

Newport Beach Mayor Tod Ridgeway, also a member of the district’s

board, said he shared Cook’s concerns.

“She’s probably right,” Ridgeway said. “It probably shouldn’t have

been a closed session.”

Members of the district’s staff defended the meeting. Tom

Woodruff, the agency’s attorney, determined that it would not violate

state law, spokeswoman Lisa Murphy said.

“We believe that the meeting was a legitimate closed-session

meeting,” Murphy said. “The district called the meeting because of

potential litigation.”

As the district moves to a higher level of treatment for the

234-million gallons of waste water it releases into the ocean each

day, officials there are worried about the possibility that the EPA

would file a lawsuit and levy harsh fines of up to $25,000 a day.

Since the mid-1980s, the district has been allowed to unload

moderately treated sewage into the ocean environment because it has

been granted a special waiver by the EPA. The waiver gave the agency,

in essence, an exemption to the Clean Water Act of 1972.

Even though the agency voted on July 17 to drop the waiver and

step up its treatment levels, the EPA would be legally required to

bring a suit, said Jim Ferryman, a board member and trustee in the

Newport Mesa Unified School District.

“The minute we don’t comply with the waiver, they have to sue us,”

Ferryman said.

To avert that suit, the board has been negotiating with the EPA. A

week ago, district officials pitched the idea of filing a preemptive

lawsuit, then asking a judge to sign a consent decree, which would

allow the district to work toward full treatment without the fines.

District engineers have estimated that 100% of the waste water

could be fully treated by 2013.

The state’s Brown Act requires public agencies to conduct business

in public and provide detailed agendas of those discussions. Private

meetings can cover personnel issues, property negotiations or

“pending litigation.”

However, even though agency leaders believe they are headed for a

lawsuit with the EPA, Brown Act author Terry Francke, an attorney

with the California First Amendment Coalition, said he agreed with

Cook.

Francke said the meeting was illegal because the district invited

a legal combatant.

“Think of it as a football huddle,” Francke said. “You have to

huddle to prevent the other team from finding out what play you’re

going to run. You wouldn’t have a huddle with the other team.”

Other legal scholars said the matter isn’t as clear cut.

David Treiman, who teaches a class on local government at Whittier

Law School in Costa Mesa, said the Brown Act doesn’t include a

specific provision the governs whether legislative bodies can meet

with other parties they intend to sue.

“The language of the law doesn’t clearly address this situation,”

Treiman said. “There isn’t an easy answer to this.”

* PAUL CLINTON covers the environment and politics. He may be

reached at (949) 764-4330 or by e-mail at [email protected].