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Counsel for SHD advises directors to avoid forum

Original post made by Jack Hickey, Woodside: Emerald Hills, on Aug 28, 2014

I have posted a topic on this forum creating a "Dissolution Dialogue for Healthcare Districts". Web Link.

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.

Comments (5)

 +   Like this comment
Posted by Jack Hickey
a resident of Woodside: Emerald Hills
on Aug 29, 2014 at 1:32 pm

Mr. Zell said: "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.", 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."


I am not a lawyer, but I think it is the "interpretation and application" of the Brown Act as suggested by Hudak, and not the Act itself which violates the 1st Amendment to the U.S. Constitution or Art. 1, sec. 2 of the California Constitution.


 +   Like this comment
Posted by Jack Hickey
a resident of Woodside: Emerald Hills
on Aug 31, 2014 at 8:06 am

CORRECTION

The "interpretation and application" comment should have been attributed to Dennis Zell not Hudak.


 +   Like this comment
Posted by Jack Hickey
a resident of Woodside: Emerald Hills
on Aug 31, 2014 at 8:36 am

Public participation in discussions of healthcare district business at their Board Meetings is mostly limited to pleadings of beneficiaries who pack the audience. The scheduled time of those meetings makes it inconvenient for many to attend. It is not a lack of interest, as is shown by public participation in these forums.

Once again, I invite my fellow board members on the Sequoia Healthcare District and our counterparts on the Peninsula Healthcare District to join in these forums. I also invite the district CEOs', county supervisors, city council members and legislators to join in.


 +   Like this comment
Posted by pogo
a resident of Woodside: other
on Aug 31, 2014 at 8:39 am

pogo is a registered user.

Years ago, I attended a program on Brown Act compliance and I recall that it was not intended to impede "public discourse." Besides the notice requirements of the act, I always thought its purpose was to prevent private dealings and secret collusion on issues by elected and appointed officials outside public scrutiny.

I do not believe that the Brown Act prevents any official from making comments in a public forum, be that a letter to the editor or posting a comment on a site like The Almanac's Town Square. The public is served when officials state their position on an issue.

COLLUSION is the problem, not COMMENT.


 +   Like this comment
Posted by Jack Hickey
a resident of Woodside: Emerald Hills
on Aug 31, 2014 at 3:28 pm

Pogo, I would hope that elected officials would provide relevant facts and opinions on various aspects of the situation, not just their position on the issue. Interacting with the public would provide much needed transparency to the process.

In my initial dialogue with Dennis Zell of PHD which led to the posting of my "Dissolution Dialogue on Healthcare Districts" topic, I opened with the following:
"Dennis, I have been an elected member of the Sequoia Healthcare District Board of Directors since 2002. Dissolution of the Districts has been my objective. My current thinking is that LAFCo should pursue a ballot measure which would create a countywide successor for SHD and PHD, with funding from existing countywide taxes, i.e. no new taxes. That measure should contain a provision that should it fail to pass, SHD and PHD would be dissolved. Enabling legislation might be required for such a measure.
Would you support such a ballot measure?

The dialogue which ensued, in my opinion, would be of great benefit to the public if other elected officials participated. Instead, they are advised to avoid the forum.

As elected officials, we are sworn to bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California. Avoiding discussion of the serious issues raised by the Grand Jury and LAFCo by hiding behind legal advice that flies in the face of those Constitutions is a disservice to the public.


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