Minutes - Board - 2010-10-26F- -I
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COSTA MESA SANITARY DISTRICT
MINUTES OF BOARD OF DIRECTORS REGULAR MEETING
OCTOBER 26, 2010
CALL TO ORDER
PLEDGE OF
ALLEGIANCE
INVOCATION
•
ROLL CALL
•
DIRECTORS. PRESENT:
DIRECTORS ABSENT:
The Board of Directors of the Costa Mesa
Sanitary District met in regular session on
October 26, 2010 at 5:30 p.m. at 628 W. 19th
Street, Costa Mesa.
Director Ferryman led the Pledge of
Allegiance.
Mr. Fauth gave the invocation.
Arlene Schafer, Robert Ooten, Gary
Monahan, James Ferryman, Art Perry
STAFF PRESENT: Scott Carroll, General Manager; Joan Revak,
Office Manager /Clerk of the District; Robin B.
Harriers, District Engineer; Alan Burns, Legal
Counsel; Sherry Kallab, Administrative
Manager; Tom Fauth, Operations Manager;
Marc Davis, Treasurer
OTHERS PRESENT Jim Fitzpatrick
449 Broadway
Costa Mesa, CA 92627 -2318
Richard M. Wirtz, Esq.
Wirtz, Hellenkamp, LLP
12760 High Bluff Drive, Suite 200
San Diego, CA 92130
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COSTA MESA SANITARY DISTRICT
MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING
HELD 06TOBER 26, 2010
Dean Ruff ridge
CR &R, Inc.
George Lazaruk
CR &R; Inc.
Mike Scheafer
Gina Fauth
1079 Visalia Drive
Costa Mesa
ANNOUNCEMENT OF LATE COMMUNICATIONS
PAGE 2
Ms. Revak distributed the Open House program and reported there were no late
communications.
CONSENT CALENDAR
Mr. Carroll requested Item D -3 under the Consent Calendar be pulled. Director Ooten
moved to approve the Consent Calendar. Director Perry seconded the motion. Motion
passed 4 -0.
REPORTS
MINUTE APPROVAL
Minutes of Sewer System Committee
Meeting — September 14, 2010
Minutes of Recycling Committee Meeting
— September 20, 2010
Minutes of the Investment Oversight
Committee Meeting — September 23,
2010
Minutes of Regular Board Meeting —
September 23, 2010
Refunds
The Minutes of the Sewer System Committee
Meeting of September 14, 2010 were
approved as distributed.
The Minutes of the Recycling Committee
Meeting of September 20, 2010 were
approved as distributed.
The Minutes of the Investment Oversight
Committee Meeting of September 23, 2010
were approved as distributed.
The Minutes of the Regular Board Meeting of
September 23, 2010 were approved.
There were no refund requests for the
month of September 2010.
COSTA MESA SANITARY DISTRICT
MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING
HELD OCTOBER 26, 2010
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Occupancy Report and Payment of
$196,987.58 to Costa Mesa Disposal —
August 2010
Monthly Spill Report to State Water
Resources Control Board
Waste Diversion Report for September
2010
Contract Payment of $162,197.93 to
CR Transfer — September 2010
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PAGE 3
The Trash Occupancy Count documented
no increase for the occupancy report for
solid waste collection as of October 1, 2010.
Therefore, the total for September is 21,516
and the payment of $196,987.58 was
ratified.
The Monthly Spill Report to the State Water
Resources Control Board (SWRCB) for
October 2010 was accepted as submitted.
The Waste Diversion Report dated
September 2010 was accepted as submitted.
The contract payment of $162,197.93 to
CR Transfer for recycling services and
disposal for the month of September 2010
was ratified as submitted.
Contract Payment of $12,474.31 The contract payment of $12,474.31 to CR
to CR Transfer — Santa Ana Transfer for recycling services and disposal
Heights /Newport Beach — September for Santa Ana Heights /Newport Beach for
2010 the month of September 2010 was ratified
as submitted.
Ordinance Enforcement Officer's The Ordinance Enforcement Officer's Report
Report dated October 26, 2010 was accepted as
submitted.
ENGINEER'S REPORTS
Project Status Report
Howard S. Wright Contractors Invoice
in the amount of $108,606.42
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The Project Status Report dated September
2010 was accepted as submitted.
The Howard S. Wright Invoice for work
performed through September 30, 2010 in
the amount of $108,606.42 was ratified as
submitted.
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COSTA MESA SANITARY DISTRICT
MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING
HELD OCTOBER 26, 2010
TREASURER'S REPORTS
Quarterly Budget Report as of
September 30, 2010
Investment Report for the month of
September 2010
Warrant Register for the month of
September 2010 in the amount of
$791,496.66
Directors Compensation &
Reimbursement of Expenses for the
month of September 2010.
PAGE 4
The Quarterly Budget Report as of
September 30, 2010 was accepted as
submitted.
The Investment Report for the month of
September 2010 was accepted as
submitted.
Warrant Resolution #CMSD 2011 -4 was
approved, authorizing the President and
Secretary to sign the warrant ratifying the
payment of certain claims and demands, and
specifying the funds out of which the same
were paid in the amount of $791,496.66.
Director Compensation and Expense
Reimbursements for the month of
September 2010 were approved and
ratified as follows:
President Schafer: $1,326.00 + $21.62
Vice President Ooten: $1,326.00
Director Monahan: $442
Director Ferryman: $1,326.00 + $34.50
Director Perry: $1,326.00 + $34.00
END OF CONSENT CALENDAR
Director Monahan arrived at 5:45 p.m.
WRITTEN COMMUNICATIONS
Ms. Revak reported on the communication from SDRMA acknowledging the dedicated
efforts of the CMSD proactive loss prevention and workplace safety program resulting in
no workers' compensation claims for the 2009 -10 program year.
PUBLIC COMMENTS
President Schafer requested any public comments.
COSTA MESA SANITARY DISTRICT PAGE 5
MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING
HELD OCTOBER 26, 2010
GENERAL MANAGER'S REPORTS
QUARTERLY BUDGET REPORT
Mr. Carroll presented a new report that will be provided to the Board on a
quarterly basis. The report will provide a different method of monitoring funds
and, additionally, supports Strategic Element No. 7.0 and Finance Goal No. 7.1,
developing quarterly budget reports.
STRATEGIC PLAN PROGRESS REPORT
Mr. Carroll provided a quarterly progress report on the Strategic Plan and stated
he believes Staff has made great strides in achieving these goals.
Director Ooten questioned Item 1.6 Evaluate force main conditions on a regular
basis and the comments section stating the District will be using a relining
method called "pipe bursting ". Mr. Carroll and Mr. Hamers both stated that was
incorrect and the report would be revised.
REVISION TO OPERATIONS CODE
• Mr. Carroll presented a revision to the CMSD Operations Code. A revision was
presented to the Board of Directors at the August 26, 2010 meeting and Staff
was directed to bring the matter back to the Board with more information with
regard to the Alternate District Engineer, and revisions made to responsibilities of
the District Treasurer. Mr. Carroll reported the changes were made and he is
now seeking Board approval of the Code. Mr. Carroll stated he would like to go
out to bid for an Alternate Engineer due to Mr. Mattern's previous involvement
with the CMSD and the perception by the public. District Counsel Burns stated
this is not on the agenda tonight, however, the Manager is giving the Board this
information as a "heads up ". Director Ooten stated his opinion that Mr. Mattern is
extremely qualified for the position and should be considered for the position
should it go out to bid. Mr. Hamers made a point of clarification that Mr. Mattern
was never an employee of the CMSD but was on the Public Services Staff at the
City of Costa Mesa.
Mr. Carroll stated the Treasurer had objected to some of the changes made to
Treasury responsibilities including signatories on financial documents. The
changes were withdrawn from the new Code leaving the Treasurer and the
President of the Board as required signatories for withdrawal of District funds. In
addition, language was added requiring checks and balances.
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COSTA MESA SANITARY DISTRICT PAGE 6
MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING
HELD OCTOBER 26, 2010
Director Ooten stated his belief that the Operations Code is a reflection of the
resolutions and ordinances passed by the Board and he is not sure Mr. Carroll
has the administrative authority to make the changes. Mr. Burns stated it is in
fact a document of the Board of Directors and is a codified order of the Board of
Directors on how the District operates. Mr. Burns stated Mr. Carroll is proposing
the changes for Board approval.
Director Ooten moved to repeal the District's Operations Code in its entirety and
replace it with the revised Code as Ordinance No. 79.
Mr. Fitzpatrick stated he did not see anything in the Operations Code with regard
to Scavenging.
Mr. Burns stated the Board has an adopted rule requiring the President be asked
for permission to speak and there is no cross - examination between Staff and the
public.
Mr. Burns stated section 7.01.030 prohibits scavenging. With regard to CR &R's
rates, that is stated in the Contract with the District and the Code cannot go
beyond what is stated in the Contract.
0 Director Perry seconded the motion made by Director Ooten.
Mr. Davis stated Title 4, Chapter 4.01.010 Financial Provisions should state `All
transactions made by treasurer must be made available to the General
Manager." Mr. Davis stated under Section 4.034.080 item (b) "City Treasurer
should be changed to District Treasurer.
Director Ooten moved to amend his motion to reflect these changes. Director
Perry moved to amend his second of the motion to reflect the changes. Motion
carried 5 -0.
SOLID WASTE STUDY
Mr. Carroll stated on August 26, 2010, Staff recommended to the Board the
hiring of a professional consultant to conduct a comprehensive solid waste study
with an appropriation of $75,000 to conduct the study. The Board felt this was
too expensive and directed Staff to look into participating in an internal solid
waste study conducted by the City of Newport Beach.
Mr. Carroll stated, as directed by the Board, Staff contacted the City of Newport
Beach to determine if the District could "piggyback" onto their solid waste study.
According to Newport Beach officials, the study, which will be conducted
• internally by City Staff, is not a high priority at this time.
COSTA MESA SANITARY DISTRICT PAGE 7
MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING
HELD OCTOBER 26, 2010
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Mr. Carroll stated the Costa Mesa City Council, on September 14, 2010,
discussed solid waste and franchise fees at a study session. The City Council
and Staff wanted to have an open dialogue about street wear and tear caused by
refuse trucks, the effectiveness of co- mingled systems, high rates, competitive
bidding, solid waste diversion, etc. In the end, the City Council directed Staff to
continue working with CMSD Staff on solid waste issues that will benefit the
community as a whole, however, the City would not commit to sharing in the cost
of a study.
Mr. Carroll recommended the Board of Directors direct Staff to conduct a
Request for Proposal (RFP) procedure for hiring a professional consultant to
perform a solid waste study and appropriate $50,000 from the Solid Waste
Reserves.
Directors Ferryman and Perry expressed the view they would not consider a
Study without financial support from the City.
The Board of Directors discussed the issue and Director Monahan moved to
direct Staff to conduct the study. There was not a second to the motion and the
motion died for lack therreof.
0 FIRST AMENDMENT TO AGREEMENT WITH TECHNOLOGY RESOURCE CENTER
Mr. Carroll stated the District entered into an agreement with Technology
Resource Center (TRC) on July 1, 2010, to provide maintenance services of the
District's information technology system. The cost for this service is
$10,875.00 /year.
Mr. Carroll reported approximately five computers at District headquarters are
over six years old and are approaching the end of their life cycles. New
computers and servers are needed to improve operational efficiencies and allow
storing more documents. Mr. Carroll recommended the Board of Directors
approve the First Amendment to Agreement with Technology Resource Center
and authorize the General Manager to sign the amendment on behalf of the
District.
Director Ooten questioned the historical. problems with the computers and if it
was related to TRC. Mr. Fauth stated the present equipment has been in place
since 2004 and TRC was not at fault.
Mr. Carroll explained the $20,374.00 is for installing and configuring new
technology system hardware and transferring files from old servers.
• Director Monahan moved to authorize the General Manager to sign the
amendment on behalf of the District. Director Ooten seconded the motion.
Motion carried 5 -0.
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COSTA MESA SANITARY DISTRICT PAGE 8
MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING
HELD OCTOBER 26, 2010
CAPITAL IMPROVEMENT PROJECTS CARRYOVER REQUEST - FISCAL YEAR 2010-11
Mr. Carroll recommended the Board of Directors approve the carryover of capital
improvement project appropriations in the amount of $2,860,358 from fiscal year
2009 -10.
Director Ooten moved to approve the carryover of capital improvement project
appropriations in the amount of $2,860,358 from fiscal year 2009 -10. Director
Perry seconded the motion. Motion carried 5 -0.
RECYCLING COMMITTEE
President Schafer acknowledged Mr. Jim Fitzpatrick's request to speak on
scavenging in the City. Mr. Fitzpatrick requested a meeting on the subject be
scheduled to provide a solution to scavenging in the City and to include CR &R in
the discussion.
Director Ooten presented a report on the October 25, 2010 Recycling Committee
meeting. Recycling goals were presented. A report on the School Telephone
Book Recycling Program was discussed. CR &R purchased new decals for the
containers this year with artwork that includes the Costa Mesa Sanitary District
seal. The collection dates for Christmas tree recycling will be December 27,
2010 thru January 11, 2011. Magnetic signs for the trucks have been updated
with new dates and Ms. Throop of CR &R will submit press releases to the Daily
Pilot and OC Register.
Director Ooten reported the 15th Annual Children's Water Education Festival will
be held at the Richard Nixon Library in Yorba Linda March 23 -24, 2011.
Director Ooten reported the Used Tire Round -Up took place October 23, 2010 at
the City Corporate Yard. Staff collected 140 tires, the majority dropped off by
one resident who owns a scrap metal business. The Committee recommended
the continuation of this program be discussed at the next annual budget meeting.
Director Ooten also reported on the scavenging problem in the District and the
suggestion of conducting a formal pilot program to analyze the scavenging issue.
ENGINEER'S REPORTS
PROJECT NO. 168 - IRVINE PUMPING STATION RELOCATION
Mr. Hamers reported construction of the improvements on Project #168 Irvine
• Pumping Station Relocation on June 5, 2008, including minor repairs made
October 17 -18, 2010, and the lawsuit between Back Bay, the District and
Vadnais Corporation is complete.
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COSTA MESA SANITARY DISTRICT PAGE 9
MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING
HELD'0CTOBER 26, 2010
Mr. Hamers requested the Board of Directors accept improvements as completed
and file a Notice of Completion; authorize payment of 5% retention 35 days after
the Notice of Completion is recorded; exonerate Labor and Material Bond after
the Notice of Completion is recorded and exonerate Faithful Performance Bond
one year after Notice of Completion is recorded; and, approve the Final Closeout
Agreement and Release of all Claims.
Director Perry moved to accept improvements, file notice of completion,
authorize payment of 5% retention 35 days after the Notice of Completion is
recorded; exonerate Labor and Material Bond after the Notice of Completion is
recorded and exonerate Faithful Performance Bond one year after Notice of
Completion is recorded; and, approve the Final Closeout Agreement and
Release of all Claims for Project No. 1.68, Irvine Pumping Station Relocation.
Director Ferryman seconded the motion. Motion carried 5 -0.
PROJECT No. 187 - DISTRICT YARD - ACCEPTANCE
Mr. Hamers reported on construction of the District Yard, including building and
• site improvements, was completed on October 9, 2010 by Howard S. Wright
Constructors. Mr. Hamers noted the project was very successful and is being
submitted to the United States Green Building Council for platinum accreditation.
Additionally, the building is energy efficient, "smart ", has advanced mechanical
systems and makes use of natural daylight, air and heat from the sun's rays.
The Open House and Dedication is scheduled for October 30, 2010.
Mr. Hamers recommended the Board of Directors accept improvements as
completed and file a Notice of Completion; authorize payment of 5% retention 35
days after the Notice of Completion is recorded; exonerate Labor and Material
Bond after Notice of Completion is recorded and exonerate Faithful Performance
Bond one year after Notice of Completion is recorded; and, approve the Final
Closeout Agreement and Release of All Claims.
Director Ooten moved to accept improvements as completed and file a Notice of
Completion; authorize payment of 5% retention 35 days after the Notice of
Completion is recorded; exonerate Labor and Material Bond after Notice of
Completion is recorded and exonerate Faithful Performance Bond one year after
Notice of Completion is recorded; and, approve the Final Closeout Agreement
and Release of All Claims. Director Monahan seconded the motion. Motion
carried 5 -0.
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COSTA MESA SANITARY DISTRICT PAGE 10
MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING
HELD'OCTOBER 26, 2010
SEWER SYSTEM COMMITTEE
Director Monahan presented an overview of the Sewer System Committee meeting held
October 19, 2010. Mr. Hamers reported one item of concern 'was 2115 Newport Blvd;
Crossing Church; Fountain Connection to Sewer and discarding 5,000 gallons a week.
Mr. Hamers contacted OCSD who believe they had no jurisdiction in the matter. It was
also discussed with the engineers at Mesa Consolidated Water District and they did not
want to comment on the matter. The Sewer System Committee requested the CMSD
General Manager speak with MCWD and Mr. Carroll reported he has a meeting
scheduled.
Director Monahan left the meeting at 6:28 p.m.
TREASURER'S REPORTS
Mr. Davis had no items to report to the Board of Directors.
ATTORNEY'S REPORTS
RESPONSIBILITY /RESPONSIVENESS AND PREQUALIFICATION (GREAT WEST V. IUSD)
Mr. Burns reported on Great West Contractors v. Irvine Unified School District,
noting the Court of Appeal issued a very long and detailed opinion on the
difference between a non - responsive bid and a finding that a bidder is not
responsible. In the course of discussing those subjects, the Court also touched on
the subject of pre - qualifying bidders, a method of evaluating bidders that the
District intends to employ. Mr. Burns explained the law on public contracting
statutes are of two basic types. For non - public works a fair amount of discretion is
reposed in the government which allows bids to be accepted even though they are
not technically the lowest, if otherwise in the public interest. In public works,
however, government must generally accept the "lowest responsible bidder", with
"responsible" meaning a bidder is trustworthy, has the capacity to do the work and
is qualified. Whether a bid is "non- responsive" is different as in that test whether
the bidder properly responded to the notice inviting bids. It generally does not
involve an investigation but a determination can be made from reviewing the bid
submitted.
Mr. Burns concluded the case is very timely as we employ prequalification and
otherwise take steps to avoid contracting with unqualified persons who do not have
the experience to do our work. This case now makes it clear that hearings may be
required in "non- responsive" determinations, depending on the nature of the non-
responsiveness.
COSTA MESA SANITARY DISTRICT PAGE 11
MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING
HELD'OCTOBER 26, 2010
2010 ANNUAL LEAGUE CONFERENCE HIGHLIGHTS
Mr. Burns presented highlights of the 2010 League Conference which were new
CEQA Guidelines on Greenhouse Gas Emissions. After the conference, the
California ARB voted to approve final greenhouse gas reduction targets that
regions must meet through sweeping changes to regional transportation and
development planning.
Mr. Burns reported the most significant general cases included privacy rights in city
provided pager and violation of conflict laws to accept campaign contribution when
there is strong circumstantial evidence the payment was for the award of a
contract; and invalidating an assessment as being in violation of Proposition 218.
CLERK OF THE DISTRICT REPORTS
CMSD RESOLUTION NO. 2010 -790, ORDERING THAT PUBLICATION OF ORDINANCE NO.
78 HAS BEEN PUBLISHED
Ms. Revak presented CMSD Resolution No. 2010 -790, documenting the
publication of CMSD Ordinance No. 78. Director Ferryman moved to approve
CMSD Resolution No. 2010 -790. Director Perry seconded the motion. Motion
carried 4 -0.
2010 SCHOOL TELEPHONE RECYCLING PROGRAM
Ms. Revak reported on the 2010 School Telephone Book Recycling Program. The
2010 program will occur between November 15, 2010 and December 17, 2010,
and the format of the program remains the same as in 2009.
OPEN HOUSE/DEDICATION OF DISTRICT YARD - OCTOBER 30, 2010
Ms. Revak reported the Open House /Dedication of the District Yard will be held on
Saturday, October 30, 2010 from 11:00 a.m. to 1:00 p.m. President Schafer will
speak, giving a history of the Yard and the significance of a "green" building.
Costa Mesa Mayor Allan Mansoor will present a proclamation and City of Costa
Mesa Planning Commission Chair James Righeimer will present a Green Design
Award. Orange County Supervisor John Moorlach will speak as will Lisa Kramer,
Executive Director of the Orange County Chapter of the U. S. Green Building
Council.
LOCAL MEETINGS
ORANGE COUNTY SANITATION DISTRICT (OCSD)
Director Ferryman reported the regular OCSD meeting will be held on Wednesday,
October 27, 2010; however, a strategic planning meeting was held and the focus
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COSTA MESA SANITARY DISTRICT PAGE 12
MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING
HELD OCTOBER 26, 2010
has diverted from CIP projects to operations and maintenance with less than a
year to go; then it will revert to more maintenance and long -term rehab. Director
Ferryman also stated the rates should flatten out for a few years and will not
increase as severely as in past years.
SANTA ANA RIVER FLOOD PROTECTION AGENCY (SARFPA)
Director Perry reported the SARFPA meeting will be held on November 18 and,
therefore, there is no report tonight.
INDEPENDENT SPECIAL DISTRICTS OF ORANGE COUNTY (ISDOC)
President Schafer attended a meeting on October 5, 2010 where formal Agenda
Committee reports were presented. The OCCOG Joint Powers Agreement was
discussed. Phil Anthony reported on OCCOG. Future programs were discussed
and evaluated.
LOCAL AGENCY FORMATION COMMITTEE (LAFCO)
President Schafer reported on the CAL -LAFCO Conference held in Palm Springs
and elections of new Board and Divisions. Policies were discussed.
CALIFORNIA SPECIAL DISTRICTS ASSOCIATION (CSDA)
President Schafer attended a CSDA Planning conference in Costa Mesa.
President Schafer attended meetings in Sacramento on October 21 and 22, 2010
and was appointed the Conference Chair for the Annual Conference in Monterey in
2011..
WACO
President Schafer attended the WACO meeting on October 1, 2010. Discussion
subjects included Ocean Desalination; an Alternative Perspective on
Environmental Impacts and Project Financing.
CITY /DISTRICTS LIAISON COMMITTEE MEETING
Director Perry discussed the City /Districts Liaison Committee meeting held on
October 15, 2010. Items on the agenda included an update on the Home Ranch
Development, the status of the Poseidon Project, the Fleet Maintenance
Agreement with the City of Costa Mesa, the Public Management Academy, a Solid
Waste Study and the CMSD Yard Grand Opening and Dedication being held on
• October 30, 2010.
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COSTA MESA SANITARY DISTRICT PAGE 13
MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING
HELD OCTOBER 26, 2010
MESA CONSOLIDATED WATER DISTRICT 50TH ANNIVERSARY EVENT
President Schafer, Directors Ferryman and Ooten and Mr. Carroll attended the
Mesa Consolidated Water District 501h Anniversary Event held on October 13,
2010.
. OLD BUSINESS
There'was no old business to discuss.
NEW BUSINESS
There was no new business to discuss.
At 6:55 p.m. President Schafer dismissed the attendees for a 10 minute recess prior to a
session to discuss Disciplinary Matters pursuant to Government Code Section 54957.
At 7:05 p.m. President Schafer reconvened the meeting.
• Mr. Burns stated the Board has not been briefed on the nature of the charges against
Mr. Fauth and has not reviewed any documents regarding the discipline. The item was
scheduled for a closed session so procedural issues could be discussed outside a public
hearing. However, Mr. Burns pointed out, Mr. Fauth availed himself of the right to have
the matter discussed in public session. The public discussion revealed the charges
involved a five -day suspension based on job performance and the parties estimated the
case could be heard in one day. Mr. Fauth, through counsel, requested that the actual
charges be heard in closed session.
Mr. Burns stated the District is a sanitary district, a public agency and the Board of
Directors has adopted ordinances and personnel rules that generally provide that
employees serve at the pleasure of the employer. However, Mr. Burns pointed out, when
the District physically separated from the City and the City Hall space it occupied, it hired
its own employees. A few key employees were immediately hired from the City and one
of those employees was Tom Fauth. As an inducement to hiring those employees, the
Board of Directors established that they would continue to enjoy a vested right to their job.
As a vested right employee, discipline may only be imposed on such an employee "for
cause ". The Board did not establish a due process hearing procedure as there was only
a handful of employees that came over from the City and, therefore, needed to craft one
that comports with due process for Mr. Fauth's hearing.
Counsel for Tom Fauth, Attorney Richard Wirtz, presence at this meeting, enabled the
Board to establish a hearing procedure and a mutually- convenient date for the hearing.
• Mr. Burns stated the purpose of this meeting is to establish a date for the hearing, to
obtain from both sides the length of time the hearing would involve; and whether the
Board wants to hire a hearing officer. President Schafer asked about the financial
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COSTA MESA SANITARY DISTRICT PAGE 14
MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING
HELD OCTOBER 26, 2010
implications of having a hearing officer. Mr. Burns stated it would be between $200 and
$300 /hour and each side would have to make known how long it would take to present
their case. Mr. Carroll stated the purpose of this meeting is to learn from Mr. Burns of the
options on proceeding with the hearing and set the date. Mr. Carroll stated the District's
case should take approximately two hours. Mr. Wirtz stated he believed the hearing
would take longer and the issue of whether Mr. Fauth is entitled to have his fees
compensated by the District under the rationale that the employee should not be
burdened more than the employer in an arbitration matter. Mr. Burns stated he was not
familiar with that concept but would accept Mr. Wirtz's brief on that matter and stated it
appears a full day is required for the hearing.
Director Ferryman stated not knowing the seriousness of the allegations; the Board is at a
disadvantage in deciding whether or not a hearing officer is necessary.
The Board determined to hear the case on Monday, November 15, 2010 at 9:00 a.m. and
the hearing will occur at Costa Mesa City Hall in Room 3A. Should Director Monahan be
unable to participate, the remaining four Board members will hear the matter.
The procedure agreed to includes the following:
1.
The General Manager would bear the burden of proof and production.
2.
The Notice of Intended Disciplinary Action, a copy of all materials on which the
charges were based, a copy of the employee's response, and a copy of the
Notice of Action Taken should be provided to the Board.
3.
Each party would be entitled to submit written evidence and live witnesses.
4.
Each party would be able to cross - examine the other party's witnesses.
5.
A court reporter will be present to swear in the witnesses and record the
proceedings.
6.
Each party should make an opening statement.
7.
Each party would be required to submit briefs as follows: General Manager's
opening brief by November 8, 2010, Mr. Fauth's response by November 10,
2010, and General Manager's reply on November 12, 2010. All briefs to be
emailed or faxed to Mr. Burns with a copy to opposing counsel. Mr. Burns will
forward the briefs to the Board. Every brief to be sent before 5:00 p.m. of the
date indicated.
8. Mr, Fauth may also be submitting a brief to be reimbursed for his legal costs.
That briefing schedule should coincide with the other briefings and may simply
be a separate discussion in those briefs.
9. Mr. Fauth's counsel inquired if the District had subpoena power for former or
present employees and Mr. Burns stated the District does not have subpoena
power but will cooperate in making current employees available.
Mr. Burns noted the Board must comply with due process law as well as with the Brown
Act.
COSTA MESA SANITARY DISTRICT PAGE 15
MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING
H=-LuOCTOBER 26, 2010
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ADJOURNMENT
President Schafer adjourned the meeting at 7:30 p.m.
, . of - .
Screa President
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