Zone 7 Water Agency allegedly lacked transparency and may
have committed "infractions" of the Brown Act in its 4784-acre
acquisition of Patterson Ranch land for use as a public watershed adjacent to
state reservoir Lake Del Valle. This conclusion was reached by the Alameda
County Grand Jury in its 2014-15 report.
The grand jury makes no criminal allegations, unlike the
county criminal grand jury. However, one of its duties focuses on the
"good government" function of listening to citizens' complaints about
governmental agencies. One such complaint was made against Zone 7.
Citizens' complaints are made anonymously; all testimony is
secret; and grand jurors would be committing a criminal act if they were to
divulge the identity of any source that they interviewed, said Rob Warren, the
deputy district attorney who supervises the grand jury.
The report, issued June 29, says that it does not question
the $18.6 million price that Zone 7 paid for the land, which was held in
private ownership. However, the report objects to what it calls the lack of a
public process in discussing such issues as where in the budget the money
should come from, how funding $2.7 million of it from developer drainage fees
is justified, and why it is important to acquire watershed land. The case for
these should have been made publicly and open to public comment, says the
report.
Zone 7 general manager Jill Duerig told The Independent,
"We are reviewing (the report). We don't necessarily agree with their
characterization, and we will be responding."
The report has several recommendations for Zone 7. In
additoin, the grand jury wants to see the responses in the agency's reply,
which is due Sept. 29.
One recommendation relates to providing ample time and
opportunity for public comment and participation before taking action, a
reference to the grand jury's comments about the Patterson Ranch land.
Reporting out of closed sessions the decisions, actions and
the individual votes by each board member must also be done. The report says
that records show that there were closed session items concerning Patterson
Ranch discussed eight times between the Feb. 20, 2013 and and Sept. 18, 2013
meetings. There were no reports about Patterson Ranch at those eight meetings,
says the grand jury.
Zone 7 should also be more transparent by making archived
video or audio recordings of public meetings available on its website,
according to the grand jury report.
From time to time during the past year or so, Zone 7 board
members have briefly mentioned televising the meetings and archiving them.
However, they were looking for an inexpensive way to do so.
The Zone 7 administration committee was scheduled to meet on
July 8, after the Independent's deadline, to discuss the possibility of posting
meetings on-line. According to the board packet, which compares methods and
costs, an inexpensive first step would be to shoot videos and post them within
48 hours on Youtube.
A look at the Feb. 20, 2013 meeting agenda posted on-line
shows that it listed property negotiations as scheduled to occur in closed
session. The Henry H. Patterson Trust was the only name listed on that item
with a potential publicly recognizable connection to Patterson Ranch. Price and
terms of payment were discussed, but there was no mention of the property
itself or its location.
The grand jury report said that under the Brown Act, the
listing should have been under the open meeting portion of the agenda, and
should have been discussed publicly.
Also, the board's action was not reported out to the public
after the closed session, says the report. The Feb. 20, 2013 meeting minutes
confirm that point. (All Zone 7 minutes, agendas and staff reports are
available at
http://www.zone7water.com/about-us/board-of-directors/board-meetings.)
The report says that there also was an agreement with the
East Bay Regional Park District (EBRPD), which was announced by general manager
Jill Duerig under her regular reporting spot on the agenda at the board's
meeting April 17, 2013. Until then, the public was not aware of the agreement,
says the grand jury.
April 17 occurred one day after the MOU was slated to go
into effect on April 16, 2013. There was no prior comment, says the grand jury.
The minutes confirm Duerig's verbal report on April 17. They
quote Duerig as saying that the EBRPD authorized its general manager to
negotiate and execute an MOU with Zone 7 "as previously discussed with the
board," an apparent reference to the Zone 7 board discussing the matter at
some time. There is no reference in the minutes about when or where the Zone 7
board discussed it, or voted to approve the agreement.
The report has no quarrel concerning the price, or terms of
payment. However, in buying a large piece of property at the highest purchase
price in its history, there should have been "meaningful public
participation."
The apparent lack of transparency violates three of the
eight Zone 7 policies, says the report. One is that Zone 7 meeting and
communications will be open and public, except when the Brown Act authorizes
otherwise." The grand jury concludes that Zone 7 was not consistent with
policy, by not discussing the acquisition publicly.
Also, Zone 7 policy says the agency will practice the
highest ethical standards and have open, honest communication "at all
levels of the organization at all times." The grand jury contends that
there was no chance for pubic scrutiny in the 2013-14 budget to show how
allocations were made for acquiring Patterson Ranch property.
In addition, the Zone 7 board "appeared to be rushing
to insert a watershed management solution into its Capital Improvement Program
strategic planning priorities, after the property was acquired," says the
report.
The third principle Zone 7 violated was that it will operate
in a "productive, cost-effective, transparent and efficient manner to
ensure sound financial stability," the report states.
July 9, 2015
The
Independent
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