Minutes - Board - 2012-05-16Item VII. A. 2.
COSTA MESA SANITARY DISTRICT
MINUTES OF BOARD OF DIRECTORS SPECIAL MEETING
MAY 169 2012
CALL TO ORDER The Board of Directors of the Costa Mesa
Sanitary District met in special session on
May 16, 2012 at 9:07 a.m. at 628 W. 19th
Street, Costa Mesa.
ROLL CALL DIRECTORS PRESENT: Robert Ooten, James Ferryman, Jim
Fitzpatrick, Art Perry, Mike Scheafer
STAFF PRESENT: Scott Carroll, General Manager; Alan Burns,
District Counsel
OTHERS PRESENT: Jim Mosher, Newport Beach resident, CMSD
rate payer; Robert Dickson, Costa Mesa
Planning Commissioner
PUBLIC COMMENT
President Ooten invited members of the public to address the Board.
Jim Mosher reported having never met Director Fitzpatrick other than having attending
two previous Committee meetings. He stated having read about the issue in the
newspapers and felt it a waste of time and rate payer money. He referenced a 1999
legal opinion by the State Attorney General's office and felt Director Fitzpatrick is doing
the correct thing in stepping down from his other office. He expressed. concerns
regarding the public's business being conducted out of public earshot, referenced
Brown Act requirements and felt that many agencies hold an inappropriate amount of
closed sessions.
Mr. Mosher questioned CMSD's reference to existing litigation since he was unable to
find any records in the Orange County Superior Court regarding People v. Jim
Fitzpatrick. He felt that rather than existing litigation it is litigation being considered and
the reference to Quo Warranto requires a private individual to request permission from
the Attorney General to sue a public official and CMSD is not a private individual. He
COSTA MESA SANITARY DISTRICT PAGE 2
MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING
HELD MAY 16, 2012
felt holding a closed session without a director participating is not in the interest of good
governance. He felt that open discussion would highlight the issues and bring them to a
more rapid conclusion and urged the Board to reject Legal Counsel's recommendation
and discuss the matter in public.
Robert Dickson, Costa Mesa Planning Commissioner, reported that Mr. Mosher
addressed many of the points he wanted to address. Specifically, he referenced the
Attorney General's opinions regarding the Water District and the Planning Commission,
referenced Health and Safety Code 6480(B) noting that it contains no definition of a
legislative body. However, there is one within the Brown Act, including the Planning
Commission. He expressed disappointment that there were no efforts to seek
compatibility and with Director Fitzpatrick's resignation from the Planning Commission.
He spoke in support of Director Fitzpatrick and commended his passion for issues of
concern. He urged CMSD to move forward and put the issue to rest.
Jim Fitzpatrick noted he is an elected member of the CMSD and that the action of the
other Board Members has forced him to rise from his elected position and join the ranks
of the public. He felt the actions have been personal and reported that he has resigned
from the Costa Mesa Planning Commission, not because he believed there was a
conflict of interest. He referenced the Health and Safety Code 6480(B) noting it
provides a legislative exemption to allow a legislative body to serve on both agencies
and listed examples of people doing so as precedence. He requested that the Board
stop this action immediately and hold the deliberation in public so that the public can
have the benefit of the deliberation.
Seeing and hearing no one. else wishing to address the Board, President Ooten closed
the public comment portion of the meeting.
Legal Counsel Burns responded regarding the appropriateness of holding a closed
session. He reported the need to seek permission from the Attorney General's office
before the filing goes forward, noted this is an administrative step and that the Brown
Act allows closed sessions for litigation /adversarial proceedings as well as lawsuits and
matters that have not been filed, but are sought.
In response to Director Fitzpatrick's inquiry, Mr. Burns affirmed that the Board has the
ability to waive the closed session and hold the deliberations in public. .
Director Fitzpatrick noted a member of the public has asked for the proceedings to be
public and urged the Board to do so.
Discussion followed regarding a possible conflict of interest existing if Director
Fitzpatrick were to make a motion for a public hearing.
COSTA MESA SANITARY DISTRICT
PAGE 3
MINUTES OF THE BOARD OF DIRECTORS SPECIAL MEETING
HELD MAY 16, 2012
Director Fitzpatrick reiterated the public request as well as his request for a public
hearing and stated he defers to the Board with the knowledge that the Board is able to
change the closed session to a public hearing.
There was no motion offered.
President Ooten adjourned to closed session at 9:21 a.m.
ADJOURN TO CLOSED SESSION WITH LEGAL COUNSEL TO DISCUSS EXISTING LITIGATION
(PEOPLE V. JIM FITZPATRICK - QUO WARRANTO TO DETERMINE IF DIRECTOR FITZPATRICK'S
APPOINTMENT TO THE COSTA MESA PLANNING COMMISSION CAUSED A VACATION OF HIS
OFFICE AS DIRECTOR AS BEING INCOMPATIBLE) (GOV. CODE § 54956.9)
RECONVENE TO OPEN SESSION AND MAKE ANY APPROPRIATE ANNOUNCEMENTS
President Ooten reconvened to open session at 9:55 a.m. and noted the Board took no
reportable action.
ADJOURNMENT
President Ooten adjourned the meeting at 9:56 a.m.
Secr ary
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