Counsel for SHD advises directors to avoid forum
Original post made by Jack Hickey, Woodside: Emerald Hills, on Aug 28, 2014
My posting was prompted by the failure of both SHD and PHD to act on the recommendation of the 2004/2005 SMC Civil Grand Jury and LAFCo's 2007 Municipal Service Review(MSR) for both PHD and SHD.
This discussion should have taken place back in 2007 when the Local Agency Formation Commission(LAFCo), in it's MSR, suggested dissolution, consolidation with Peninsula HCD or expansion to include the entire County, to resolve the "transitional" status of the "Hospital Districts cum Healthcare Districts" which no longer own hospitals. The districts instead continued to promote their individual fiefdoms with expensive PR campaigns. Each has a CEO with salary and benefits costing the districts >$250,000 per year.
I invited my fellow Directors on the SHD board and our counterparts on the PHD board to participate in this open forum, adding: "Check with legal counsel. I don't believe this violates the Brown Act" . I also invited county supervisors and city councilmembers to join in. Subsequently, Directors of SHD were advised by District Counsel, Mark Hudak, that it would be a violation of law to participate.
This is Hudak's statement in full:
"To all Directors: I stand by my original caution to you. It is a violation of the Brown Act for a majority of the Board to engage in a substantive discussion among themselves outside of a public meeting with a published agenda. There is no exception for debates in chat rooms or Internet forums or emails. If you are asked about participating in this Internet forum, you should say that you have been advised by legal counsel that it would be a violation of law."
I then asked Dennis Zell, who happens to be an attorney serving on the PHD board for his opinion. He was kind enough to reply:
"I have the utmost respect for Mr. Hudak and his skills as an attorney. Although attorneys often disagree about the interpretation and application of law, in this particular instance I agree with Mr. Hudak's interpretation of the statute. If you want a second opinion, I suggest you hire a private attorney, or ask for a formal opinion from the California Attorney General or California Fair Political Practices Commission.
We are from different districts, and thus I have no problem speaking with you per se. But I stopped communicating with you when you posted our email strings on internet blog sites and invited my colleagues on the Peninsula Health Care District, and your colleagues on the Sequoia Health Care District to participate in a public discussion of those issues (which seemed to me to be a clear invitation to violate the Brown Act).
This is not to disparage you in any way. I understand your desire to discuss these issues of public importance, especially in an election year. And perhaps an argument could be made that the Brown Act (especially as-applied to what you were trying to do) violates the 1st Amendment to the U.S. Constitution or Art. 1, sec. 2 of the California Constitution.
However, I have no personal desire to be (at worst) criminally prosecuted, or (at best) fined by the California Fair Political Practices Commission for participating in a Brown Act violation. I will therefore stay clear of further substantive discussions with you.
If you wish to have a dialogue between the Sequoia and Peninsula Health Care District, pass a resolution for whatever it is you want at a publicly noticed meeting of your own district, and forward that resolution to our District and then we can discuss it as a Board at a publicly noticed meeting.
You should know that in the name of transparency, I copied our CEO by email on our previous discussion (as I am doing this email), and at our public meeting in July I notified the other Peninsula Health Care District Board Members of the substance of our conversation and announced that the email string was publicly available.
However, since you were merely speaking on behalf of yourself (not the entire Sequoia Board) no formal discussion was held."
Terry Francke of CalAware, in an e-mail to me in response to Dennis Zell's opinion, said:
The Fair Political Practices Commission has no jurisdiction over Brown Act issues, and a district attorney thinking of prosecution for the misdemeanor violation would have to prove that participants in an online forum did so with the intent:
1. to achieve collective concurrence or consensus on a particular matter, and
2. to keep the public ignorant of matters that they were entitled to know.
I sent the thread of my communications to the media, and Angela Ruggiero produced a story in today's Daily Post entitled "Online forum triggers legal debate"
Importantly, she included comments from Terry Francke, and Peter Scheer, executive director of the First Amendment Coalition.
"It would be a violation of the Brown Act, but constitutionally protected under the First Amendment," Scheer said. In that case, the Constitution would trump the California Brown Act law, as the First Amendment would protect free speech.