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Minutes - Board - 2012-02-23 L mo- _ COSTA MESA SANITARY DISTRICT MINUTES OF BOARD OF DIRECTORS REGULAR MEETING FEBRUARY 23, 2012 CALL TO ORDER The Board of Directors of the Costa Mesa Sanitary District met in regular session on February 23 2012 at 5.30 p.m. at 628 W 19th Street, Costa Mesa. PLEDGE OF President Ooten led the Pledge of ALLEGIANCE Allegiance INVOCATION Director Scheafer led the Invocation. ROLL CALL DIRECTORS PRESENT- Robert Ooten, James Ferryman, Mike Scheafer Jim Fitzpatrick, Art Perry DIRECTORS ABSENT- STAFF PRESENT- Scott Carroll, General Manager Anna Sanchez, Administration Manager Robin B Hamers, District Engineer Alan Burns, District Counsel; Jacque Rogers, Treasurer Teresa Gonzalez, Accounting Manager AJ Cully Management Analyst OTHERS PRESENT Dean Ruffridge, CR&R; Lisa Manfredi, Davis Magnet School; Pooja Jhobalia-Pelham, Goodwill of Orange County. Mike Carey Orange Coast College Richard Pagel, Orange Coast College Kevin Shannon, Orange Coast College; Joe Serna, Daily Pilot; Robert Dickson, Resident. COSTA MESA SANITARY DISTRICT PAGE 2 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 CEREMONIAL MATTERS AND PRESENTATIONS AWARDS FOR ENVIRONMENTAL EXCELLENCE: DAVIS MAGNET SCHOOL ORANGE COAST COLLEGE GOODWILL OF ORANGE COUNTY ANNOUNCEMENT OF LATE COMMUNICATIONS There were no late communications. CONSENT CALENDAR REPORTS MINUTE APPROVAL Revised Minutes of Regular Board The Revised Minutes of the Regular November Meeting — November 30 2011 30 2011 Board Meeting were approved as distributed. Minutes of Sewer System Committee The Minutes of the Sewer System Committee Meeting — January 17 2012 Meeting of January 17 2012 were approved as distributed Minutes of Recycling Committee The Minutes of the Recycling Committee Meeting — January 23 2012 Meeting of January 23 2012 were approved as distributed Minutes of Regular Board This item was pulled from the Consent Meeting — January 26, 2011 Calendar for a separate vote. Director Scheafer motioned to approve the Minutes of the Regular January 26 2012 Board Meeting as distributed Vice President Ferryman seconded the motion. Motion carried 4-0 FINANCIAL REPORTS Refund Request for Board Approval. There were no refund requests for the month of January 2012. Occupancy Report and Payment of The Trash Occupancy Count documented an $197,207 32 to Costa Mesa Disposal — increase of three units for the occupancy January 2012 report for solid waste collection as of February 1 2012. Therefore, the total for February is 21 540 and the payment of $197,207.32 was ratified COSTA MESA SANITARY DISTRICT PAGE 3 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 Contract Payment of $162,082.01 to CR The contract payment of $162,082.01 to CR Transfer— January 2012 Transfer for recycling services and disposal for the month of January 2012 was ratified as submitted. Contract Payment of $8 469 57 The contract payment of $8 469 57 to CR to CR Transfer— Santa Ana Transfer for recycling services and disposal for Heights/Newport Beach — January 2012 Santa Ana Heights/Newport Beach for the month of January 2012 was ratified as submitted. Warrant Register for the month of Warrant Resolution #CMSD 2012-8 was January 2011 in the amount of approved authorizing the President and $957,395.20 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 $957 395.20 Directors Compensation & Director Compensation and Expense Reimbursement of Expenses for the Reimbursements for the month of December month of December 2011 2011 were approved and ratified as follows: President Ooten: $1,326 00 + $684.99 Vice President Ferryman. $1326 00 + $771.92 Director Scheafer. $1,326 00 + $879.30 Director Perry. $1 326 00 + $167 48 Director Fitzpatrick: $1,326 00 + $55 50 Investment Report for the month of The Investment Report for the month of January 2011 January 2011 was approved as submitted. Budget Transfer for Gladwell Services in The Budget Transfer for Gladwell Services was the amount of $5000 00 approved as submitted. Budget Transfer for EOC Equipment and The Budget Transfer for EOC Equipment and Supplies in the amount of $13 000 00 Supplies was approved as submitted. END OF CONSENT CALENDAR Director Ferryman moved for approval of the Consent Calendar pulling Item VII A. 4 for a separate vote. Director Scheafer seconded the motion. Motion carried 5-0 COSTA MESA SANITARY DISTRICT PAGE 4 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 Director Scheafer moved for approval of Item VI.A.4 Regular Board of Directors Meeting Minutes January 26 2012. Director Ferryman seconded the motion. Director Ferryman seconded the motion. Motion carried 4-0-1 (Director Perry abstaining.) WRITTEN COMMUNICATIONS There were no written communications. PUBLIC COMMENTS President Ooten invited public comments. Mr Dean Ruffridge presented an artist's rendering of the new graphics for the CNG collection trucks. CR&R enlarged the area to accommodate changeable copy from CMSD Director Fitzpatrick did not approve of the sketch. He indicated CR&R's name was too large and requested a billboard size space be provided to advertise CMSD programs. GENERAL MANAGER'S REPORTS PERMANENT EMERGENCY EQUIPMENT AT PUMP STATIONS Mr Carroll reported the results from the feasibility study conducted by Pacific Data Electric (PDE) to install permanent bypass pumps or generators at critical pump stations located at Eldon, 23rd Street, Mendoza, Victoria, Irvine, and Canyon. Discussion was held on the options available to fund the project, minimize downtime, avoid SSO's and protect the District in the event of a power outage or emergency Director Perry moved to allocate $60 000 for the design phase. Director Ferryman seconded the motion. Motion carried 5-0 FRONT LOBBY EXPANSION PROJECT Mr Carroll presented the contract awarded to Slater Builders for the expansion of the front lobby The design will improve security and safety for staff members and provide more room for members of the public to conduct business with the District. Director Fitzpatrick moved to award the contract for the front lobby expansion with Slater Builders. Director Perry seconded the motion. Motion carried 5-0 RESIDENTIAL FOG COLLECTION PROGRAM Ms. Cully reported the residential FOG collection program at Orange Coast College was a tremendous success and recommended the program be extended year round COSTA MESA SANITARY DISTRICT PAGE 5 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 Director Ferryman moved to extend the residential FOG collection program at Orange Coast College year round. Director Scheafer seconded the motion. Motion carried 5-0 ON-LINE BOARD MEETINGS Mr Carroll presented updated information requested at the January 26, 2012 Board meeting regarding the fourth option for videotaping CMSD Board meetings. This option requires the purchase of minimal camera equipment and piggy backs on the City of Costa Mesa s Granicus account to upload the meeting onto our website. The estimated cost for this service is $10,000 and is the least expensive option to pursue. The Board requested staff verify any monthly costs associated with this service. Director Ferryman moved to approve videotaping of Board meetings contingent upon staff verification of costs with a maximum of $300 per month. Director Fitzpatrick seconded the motion. Motion carried 4-1 (Director Perry voting no ) ANNUAL HEALTH BENEFIT BROKER FEES AND COMMISSIONS DISCLOSURE Ms. Sanchez reported Section 1367.08 of the California Health and Safety Code and Section 10604.5 of the California Insurance Code require disclosure of any group health insurance premiums, fees, and commissions paid to all agents, providers, and brokers. Director Scheafer moved to receive and file the report. Director Perry seconded the motion. Motion carried 5-0 RECYCLING COMMITTEE The Recycling Committee meeting met on February 21 2012. Director Fitzpatrick, Chairman of the Committee, gave a report on the meeting. ENGINEER'S REPORTS PROJECT STATUS REPORT Mr Hamers presented the Project Status Report, providing an update on all CMSD projects. Director Scheafer moved to receive and file the report. Director Ferryman seconded the motion. Motion carried 5-0 #185 SYSTEM WIDE SEWER RECONSTRUCTION PHASE I ACCEPTANCE OF IMPROVEMENTS Mr Hamers reported construction improvements for this project were completed on COSTA MESA SANITARY DISTRICT PAGE 6 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 February 10 2012. Director Perry moved to accept improvements, file Notice of Completion and exonerate labor and material bond. Director Scheafer seconded the motion. Motion carried 5-0 SEWER SYSTEM COMMITTEE The Sewer System Committee met on February 14 2012. President Ooten, Chairman of the Committee, gave a report on the meeting. TREASURER'S REPORTS There were no reports from the Treasurer ATTORNEY'S REPORTS SEWER ABATEMENT AND COST COLLECTION ORDINANCE Mr Burns outlined a proposed ordinance to provide staff with a procedure to abate and collect costs for sewer system overflows and a variety of other damaging situations that are caused by violations of our Operations Code Director Perry moved for approval. Director Ferrymen seconded the motion. Motion carried 5-0 GENERAL MANAGER'S EMPLOYMENT AGREEMENT-SECOND AMENDMENT Mr Burns presented the General Manager's annual performance review as a stipulation of his employment agreement. Director Ferryman moved to approve the second amendment of the General Manager's Employment Agreement. Director Scheafer seconded the motion. Motion carried 5-0 CLERK OF THE DISTRICT REPORTS CMSD RESOLUTION No. 2012-809, ORDERING THAT PUBLICATION OF ORDINANCE No. 88 AMENDING THE DISTRICT'S OPERATIONS CODE To DELETE THE REQUIREMENT OF OVERSIGHT COMMITTEE REVIEW OF THE DISTRICT'S INVESTMENT POLICY HAS BEEN PUBLISHED. Mr Carroll presented CMSD Resolution No 2012-809 Director Perry moved to adopt CMSD Resolution No 2012-809 Director Ferryman seconded the motion. Motion carried 5-0 COSTA MESA SANITARY DISTRICT PAGE 7 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 LOCAL MEETINGS ORANGE COUNTY SANITATION DISTRICT(OCSDI Director Ferryman attended an OCSD Committee meeting and reported most of the meeting was discussion of the dissolution of the redevelopment agencies. OCSD is in the process of selecting 14 representatives to serve on an Oversight Committee regarding this matter SANTA ANA RIVER FLOOD PROTECTION AGENCY (SARFPA) Director Perry stated the meeting would be held next month. INDEPENDENT SPECIAL DISTRICTS OF ORANGE COUNTY (ISDO President Ooten reported LAFCO was present at the meeting and will begin assisting cities who wish to dis-incorporate ISDOC is currently working on social media policies. An update was provided on Cal Forward and the Shared Services Program Workshop Governor Brown is considering reducing the number of Board members on the State Water Resources Board. OLD BUSINESS INCOMPATIBILITY OF OFFICE President Ooten: We received a client confidential report from Meyers Nave Director Perry. It was a confidential report and I would like to make it public record. I would like to make a motion to that effect. Director Ferryman: I second it just for discussion. Director Fitzpatrick: Mr President, how can we do that? If the intention clearly is for the Directors to discuss this memo We received it privileged and confidential. It wasn't part of the staff report, yet the first thing we do is try to make it something that we can discuss. I'm concerned that, based on that, we willfully and knowingly withheld it from the public with the intention of discussing here at the meeting. Is that possible? Alan Burns. Mr President, to have an action item on the agenda tonight, you should agendize it properly or say there is a need to take action that arose after the agenda was prepared Alternatively any Board member could make it public and waive the confidentiality of it. However doing so might not make his fellow Board members happy if they received it in confidence and believe it should be held in confidence. Those are your choices. It is a client's confidence to waive. You may choose to put it on for another agenda item or any Board member could choose to disclose it. It is my understanding it was not prepared for a closed session, which would make it unlawful to give out. Given that fact, if anybody were to disclose it, you simply risk the wrath of your fellow Board members for giving out something that was COSTA MESA SANITARY DISTRICT PAGE 8 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 confidential. I do not think it is appropriate to have a vote on tonight. If you are going to vote on it, you should put it on another agenda. President Ooten. Vote on what? Alan Burns: To make it public. There was a motion and a second. If you are going to vote on it, you should probably put that on a future agenda. President Ooten: That could be the motion. Alan Burns. Yes. You can have all kinds of follow up action based on this. It says discussion right now I don't know where the discussion is going to lead As a result, there may be all sorts of things that are put on a future agenda. Director Scheafer Asked to direct a question to Counsel. The last time we discussed this, we asked to go forward to Meyers-Nave and ask for their opinion. That was the direction we had given staff We have now gotten that report back. Why is it not acceptable to discuss that report? Alan Burns. I think you can discuss the opinion you were given. But, you are agendizing an item for a vote to disclose something and I don't think that would be appropriate. It is okay to discuss. You asked for advice the advice was given and you want to have a discussion about it. I think that is appropriate. Director Scheafer So the fact that Director Perry said he wanted to make it public, we can still discuss the memo without making it public? Alan Burns. Correct. Alternatively you can walk over to a member of the public, give the memo out and say I chose on my own to make this public. Everyone else can be mad at me, but I chose to do it. Director Perry. So we can discuss this with everyone present? Alan Burns. Yes. I just do not think you should take action on something that was not agendized. Director Perry. Would we take that in closed session if we did agendize it? Alan Burns: No I am not sure where the discussion is going but right now but it is not appropriate for a closed session. Depending on where the Board's discussion went, there might be a need for a closed session depending on what they wanted to discuss, but it is not ready for closed session tonight. Director Perry. Could we read parts of this memo that we received from Meyer's Nave tonight? Alan Burns: You could summarize it, certainly Director Perry. Ok, I would like to try one part of this summary Director Scheafer Are you withdrawing your motion? Director Perry. Yes, I will withdraw that motion. Director Ferryman I will withdraw the second. Director Perry. Can I continue? Stop me if I am doing something incorrect Alan. Alan Burns. I will, certainly It is up to the President from now on. Director Perry. On page 2, the short answer from Meyers-Nave said that the Board member automatically forfeits his position with the District upon his appointment to the City Planning Commission. I think that is important to us. Incompatible for office, their short answer is yes. So, I think that is a very important thing for us to consider I don't know if Mr Fitzpatrick has looked at this. I'm sure he has. Would you be willing to resign tonight from your position? Or have you considered that? COSTA MESA SANITARY DISTRICT PAGE 9 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 No response from Director Fitzpatrick. Director Perry- Hearing no answer I am assuming that he is not. There are other parts of this that are really important. It says on Page 3 are the two offices incompatible? It says the Common Law Doctrine of Incompatibility of Offices prohibits the simultaneously holding of two offices when there is a significant clash of duties or loyalties between the officers. If the duel office holding will be improper for reasons of public policy does not require an actual occurrence of divided loyalties but looks to whether the circumstances may recently be said to present a substantial latent tension between the two offices. On page 4 the Doctrine of Incompatibility of Office does not require an actual conflict, only a single potential significant clash of duties or loyalties is necessary for two positions be deemed incompatible. Those are really important items. I would like to make a suggestion. We have a meeting on Tuesday for Strategic Planning and I would like to put two other items on the agenda if I could, a Closed Session to discuss Conflict of Interest. Is that possible Alan? Alan Burns. The only times you can go into Closed Session would be to discuss personnel, which would not apply because this is an elected official or it would have to be litigation. Director Perry- Would a Quo Warranto action be a possible litigation item? Alan Burns Yes. Director Perry- I would like to put that on the agenda for Tuesday's meeting if I could because we have 72 hours to present that agenda. Closed Session on Conflict of Interest. Director Scheafer I'm sorry Director Conflict of Interest or Incompatibility of Office? Director Perry- Both, Conflict of Interest and Incompatibility of Office. The second item, which I would like to discuss with the Board is the discussion of the Committee membership before we get into the Strategic Planning. Alan Burns. May I ask what time that Closed Session would be because you have to be meeting with an Attorney to meet in Closed Session for litigation. Director Perry It is 9:00 a.m. on Tuesday Alan Burns. Normally I have a conflict but this is a pretty important item so I will make arrangements for somebody else to cover my meeting. Director Perry That is my motion to add those two things for the agenda. Do I need a second for that or just direct the Manager to have that on there Alan? Alan Burns Either way Director Fitzpatrick: Mr President, as I expressed prior to the Meyer's-Nave, I think that Director Perry got his yes. Obviously that is what has been sought for a while. One of the things that I now want to read in, when we were discussing compatibility of office, our Attorney Alan Burns, when asked about the logic that I presented about the legislative carve out specifically allowing Gary Monahan to serve here and on City Council. Our other relevant, Midway City allows two Council Members to serve on their Board. It is specific to the Sanitary District. The memo that Director Perry read from, the privileged and confidential memo that Director Perry read from verbatim, one of the things that we had been seeking was compatibility and the direction that the General Manager sent over it was to seek compatibility or incompatibility and it COSTA MESA SANITARY DISTRICT PAGE 10 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 was to only look at the Sanitary District. I thought that was a very irresponsible memo and I'd like to consider not paying it because it didn't address our original questions and went way beyond the scope of what it is that we asked for So it didn't address compatibility The case supports were School Board and Water District, which we agreed we didn't want to look at, we only wanted to look at this particular precedent. In the meeting when I presented my logic that the Health and Safety Code 6480 in urgency action by the Legislature, which is unheard of made a specific carve out to allow a City's Legislative body to serve, because they wanted the benefit. Not that there was a conflict, but they wanted somebody with the knowledge that Mayor Monahan and somebody like myself I believe, have We've demonstrated the value here to the District by serving those two roles. When I asked Alan Burns, how does that logic work? He validated both at that meeting that it was possible that it could be compatible. In a follow up memo dated December 22, 2011 at the end, it says it was possible that the two offices could be found to be compatible. I'm concerned that Director Perry is summarily ignoring facts and evidence that suggests that there is the opportunity for compatibility I did read the Daily Pilot today Mr President and several times, you talked about patience, patience, patience I think this might be the time and place to share with Director Perry some of your wisdom around patience. This rush to judgment where clearly he wants me off this Board and has expressed a willingness to spare no cost and I am very concerned at that. I just wanted to share I know that Director Scheafer said that his vote in the last one was predicated off of that he wasn't an attorney and he valued the opinion of an attorney I just wanted to make the point that we have both the verbal and written opinion of our attorney that it says that it is possible that the two offices could be found compatible. President Ooten: Let me ask you (Fitzpatrick) a couple of questions. The memo does address half of what you've talked about. On page 4 item Director Fitzpatrick: Mr President, I don't have the memo It was a privileged and confidential memo I didn't know that the Board was going to deprive me of having an opportunity to discuss this with the 11,000 people that voted me into this office and any legal counsel, so I don't have a reference to that document here. I didn't know that the Board was going to ambush both the residents in our community and me as a Board member President Ooten: I have a copy here. Alan, Director Fitzpatrick has asked for support of legal opinion on compatibility of offices. Was that done in the Meyer's- Nave memo? Scott, did the contract ask for that to be done? Mr Carroll: Yes, it did. President Ooten I don't remember reading it but in the Meyers-Nave memo they do address the Legislative carve out. It says a Planning Commissioner is not a member of a City's Legislative body so that would not apply to him or her Director Fitzpatrick: Not necessarily Mr President. I don't agree with that. President Ooten. I am just reading what they wrote Director Fitzpatrick: But, I don't agree with your assessment that it addressed compatibility The case law that it citied was both Water District and School Board. It had nothing to do with Council or Planning Commission. COSTA MESA SANITARY DISTRICT PAGE 11 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 Director Perry. Mr President, there are a couple of statements that Mr Fitzpatrick made. When I referred to the costs, I meant, to learn whatever we have to know legally as Board members. We represent other constituents too and we have to know what the law is. I am not after you (Fitzpatrick) personally If Mike Scheafer was a Planning Commissioner and he was elected to this Board, I would do the same thing. We have to find out legally That is what I meant by costs. It is not a personal attack on you. We need to make sure that we know what the law is. Director Fitzpatrick: Mr President, again, I think your patience commentary is warranted here. We have a Director who wants to move so fast to have a Special Meeting next Tuesday Nowhere in any one of these documents or anywhere else have the demonstration of harm been articulated. There is no harm to the District. I don't understand what the rush to judgment is, to take it to a closed meeting at this point. Last time you and I voted yes, the other three Directors voted no, to allocate a small amount of resources to go out and specifically test the logic. Everyone I've tested it with says, absolutely you report to these Council Members, you serve at their leisure you re an Advisory Board to them. All my decisions are over-turnable to the guy who can sit over here And, everyone I talk too finds that argument to be reasonable. President Ooten: Do you have any written information that would confirm that? Just for discussion. Director Fitzpatrick: Mr President, maybe we should make a motion for the Board to support going and getting I'm concerned that whatever information I bring back, the Board won't accept. I haven't seen any recognition that the Board even recognizes that our Attorney that historically they've put so much credence in says, it is possible that they two offices could be found compatible. The Director who is making this motion is summarily ignoring our own advice of Counsel that there is a possibility President Ooten: Counsel, do you agree with that statement? District Counsel: My opinion has been that the Attorney General would likely find the offices incompatible That is what I have to go by because the Attorney General would issue the Quo Warranto permission to file the lawsuit. That has been my opinion. Director Fitzpatrick: Mr President, that differs than the December memo where the Attorney General would possibly That's a much stronger statement and I'd ask our Attorney is that a new finding from you? Alan Burns. No I am being consistent. You asked if it was possible that you could be compatible and of course, it is possible. It is not 100% that you are incompatible Nobody could say that right now My opinion was, it is likely the Attorney General would find the two offices incompatible based on my review of the opinions to date. Director Fitzpatrick: Mr President, when I talked to Mr Burns yesterday I believe he was surprised that Meyers-Nave went so far To make the statement that he just made I am concerned that the statement is being made. I have it in the minutes where he says that the logic that I presented could possibly be deemed compatible. I have it in writing that says the two offices could be found compatible. Alan Burns. Am I not being clear about this? I said the Attorney General would likely find the two offices to be incompatible That allows the Quo Warranto to be COSTA MESA SANITARY DISTRICT PAGE 12 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 issued. Then a Superior Court Judge make a determination whether in fact, the two offices are incompatible That is as far as I went. Director Fitzpatrick: Mr President, because I remember you said it is possible to be found Then when I asked, is it also possible that it could be compatible, and you said yes. Alan Burns. I stand by all of those statements. I do not think they are inconsistent. Director Fitzpatrick: But now you are using the word likely Alan Burns. My original version is my statement as to what the Attorney General would find Because this is the opinion I tried to track when I gave my opinion to the Board Director Fitzpatrick: Did you find any opinion specifically on Planning Commission? Alan Burns. Yes. Director Fitzpatrick: You did? Alan Burns. Not on Planning Commission and Sanitary District, on Planning Commission, yes. Director Fitzpatrick: Did you find any on Planning Commission and Sanitary District? The reason I ask is so important is the Sanitary District governs what we do Alan Burns There is not an opinion directly on point with the two offices. Director Fitzpatrick: Perfect. Is it incompatible for a Mayor to sit on Water? Yes. Or a Council Member? That is incompatible. Alan Burns. I am not sure. Director Fitzpatrick: Katrina Foley could not sit on Council and School Board she had to resign so that was based off of precedent. My point is that there is a specific legislative carve out for the Sanitary District that nobody seems to want to acknowledge here. There is a debate over what is a legislative body but it has never been tested. I'd like to go before we have this rush to judgment. Based off this memo which I think is really weak, I have been asked to resign. I think that's wildly inappropriate because the other half of the information hasn't been presented Again, Mr President, I ask you to give your patience communication here. Remember what I said? They are going to get a yes. I talked to a lawyer they re going to go down this path. We tried to structure the ask so that it wouldn't wind up in a memo written as such, but it did. And, now it's oops, I got my yes. I lawyer shopped and got my yes. Let's go will you resign? No Let's go straight into Special Session. That clearly is personal to me. President Ooten: Alan, does the District have any obligation to Director Fitzpatrick to follow through on either defending Director Fitzpatrick in court action? Alan Burns. Defending a Quo Warranto action or getting another? President Ooten: Is the District obligated to defend Director Fitzpatrick if a Quo Warranto is pursued. Alan Burns. No President Ooten: Is the District obligated to provide or fund legal counsel to answer the question of compatibility? Alan Burns. No Mike Scheafer• Mr President, first of all, the characterization of this as an ambush is, as far as I'm concerned way out of line. Director Fitzpatrick's use of semantics to try to confuse the issue to consider this an ambush and a rush to judgment is not COSTA MESA SANITARY DISTRICT PAGE 13 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 compatible with what I am thinking. We started this discussion back in November (The other Directors corrected Mike stating this started back in June.) We have taken every step that we need to take. If you ask for an opinion as to whether something is incompatible or compatible which is the way we phrased it and they came back with the opinion it is incompatible citing significant terms. Why would they then switch their findings to say he is now compatible? The Doctrine of Incompatible Offices does not require an actual conflict. The memo specifically states in bold type 'Only a single potential significant clash of duties or loyalties is necessary for two positions to be deemed incompatible. I have been saying that from the very beginning. I think the people who voted for me would like me to remove any gray area when it comes to whether myself or any other Director is acting according to the ethical standards that we put forward as elected officials. At the bottom of that same page, (interjected Director Fitzpatrick s comments that Mayor Monahan can sit here and hold both offices so that should be no different than a Planning Commissioner), based on the Health and Safety Code, the memo states, 'Thus a Mayor or City Council Member of a city with the same boundaries of a Sanitary District could sit on the Sanitary District's Board A City Planning Commissioner is not a member of a City's legislative body so the Health and Safety Code would not apply to him or her It is pretty clear in this memo that they addressed compatibility because they determined he is incompatible. So that argument does not hold water with me All through this memo it talks about the potential clash of loyalties, it talks about acceptance of his reappointment to the Planning Commission, the Board member vacated his District Board position. The remaining members of the Board may determine that a vacancy exists and then fill the vacancy by appointing someone to fill the unexpired portion of the Board members term. My question to Counsel is, that sentence that I just read about the fact that this Board can now appoint someone to replace the Director is that before or after the Quo Warranto is done? Alan Burns: My experience has been in certain cases where the person that is the object of incompatibility goes along with it, either quits showing up or has a mental defect, is incompetent, an alcoholic or an imbecile or something, that the Board can then declare the office vacant and appoint. But, if this Board were to declare the office vacant, I have a strong suspicion that Director Fitzpatrick might not agree with you. It is just going to be a question of who files the lawsuit. Mike Scheafer If this Board chooses to go forward with a Quo Warranto action, at that point, if a majority of this Board votes to move forward with a Quo Warranto action, does that then present a conflict between Director Fitzpatrick and the rest of the Board? Alan Burns. Yes, it does. Mike Scheafer If this Board decides whether to go forward with the Quo Warranto is that in open session. Alan Burns: You could decide that in Closed Session. Mike Scheafer When we go into that Closed Session, is Director Fitzpatrick part of that discussion? Alan Burns. He should not be. He would have a conflict of interest at that point. COSTA MESA SANITARY DISTRICT PAGE 14 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 Mike Scheafer Even though we have not decided to go forward with the Quo Warranto Alan Burns. If the purpose of going into Closed Session is to decide if you are going to initiate litigation against Director Fitzpatrick, then he has a conflict of interest. Mike Scheafer Can we decide tonight to go into Closed Session on Tuesday to discuss the Quo Warranto action? Alan Burns You can make a decision tonight to agendize it. We will have to sort a lot of things out between now and then. Mike Scheafer To agendize it in Closed Session? Again, the newspaper was quick to point out that this appears to be a personal attack. I want to go on record that this is not a personal attack. I was voted into office just as Director Fitzpatrick was and I think my constituents, and I know the people that I've talked to over the last several months, have said to me you need to do what's right, you need to make sure that the District is doing what's right. According to the two legal opinions that I have been given, we need to do the right thing. The action we are taking is not a rush to judgment, it is not an ambush against any Director The fact that he chose not to bring this memo with him this evening was his choice. Just as it was his choice to accept the office of Planning Commissioner after he was counseled that there was a possibility of a conflict. As far as I'm concerned there is no rush to judgment, there is no ambush, we are doing the business that we were elected to do. Jim Fitzpatrick: Director Scheafer can you identify the harm that would be caused? What are your constituents telling you that the harm is, like what is this compelling action? Because as I understand it, no decision is overturnable, no decisions have to be re-heard There are no fines to the District. I am just trying to understand Mike Scheafer I am not going to answer that because I think those are issues that need to be discussed in a Closed Session. Bob Ooten: The issue of harm had me confused for a long time When we discussed harm, we discussed it in the context of the District. There is no harm to any of the decisions we make. In that context, there is no harm. So any of the decisions that the five of us make there will be no consequences in the future. Alan had told us that. The harm comes from the approval authority of the Planning Commission over the Sanitary District and/or the approval authority of the Sanitary District over the Planning Commission or the City Reading these two legal opinions and other things, the bar is pretty low It said in the report, the potential harm of the approval authority of either the Planning Commission over the Sanitary District matters that have to go before the Planning Commission of which there are probably three. If we did a master plan, we would have to submit it for Planning Commission approval and review in concert with the General Plan. We submit annually our CIP program to the Planning Commission and they review and approve that for conformance with the General Plan. Any other public works projects like our building, was submitted to the Planning Commission for their review and approval in conformance with the General Plan. The Planning Commission is responsible for the General Plan and its Amendments. If the District chooses to purchase property or dispose of property that would be another thing that the Planning Commission would review If there were a different Planning Commissioner in there doing that review then I don't necessarily think Director Fitzpatrick would but he could take umbrage to COSTA MESA SANITARY DISTRICT PAGE 15 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 any of those things, and not give Planning Commission approval. And he is correct, that would then be or could be passed up to the Council. But, in fact, the Planning Commission could say this is not compatible with the General Plan and the Commission and the City most times would concur with it. I think that was my confusion on the harm. The harm is the approval authority Say the City wants to build a building and they come to us and say do you have sewer capacity and we could choose to say no Then they could not build the building or they could not expand the building. That has been my confusion up to this date on what is harm. There is no harm to this District based on the decisions we make but there is potential harm. The bar is pretty low It says potential harm. I have reviewed this and the two legal opinions and actually my daughter is in an entirely different context with the Water Conservation Board and the Planning Commission. It comes up in every one of these legal opinion contexts. I am dismayed that the City Attorney didn't weigh in on this and give Director Fitzpatrick sound legal advice. That may be where the additional inference could potentially be, there could be compatibility Just as Director Fitzpatrick read into Counsel Burns memo that there is a possibility There is a possibility but in my opinion, it is getting pretty minute. I am sorry to say I respect you as a Director but I think you are going down the wrong path. Jim Fitzpatrick: Mr President, how do you explain the fact that a Council Member can sit here Bob Ooten. That is a specific legislative carve out Jim Fitzpatrick: What it doesn't say is and it's unique, can we agree that it's unique? Bob Ooten No. Jim Fitzpatrick: It's not unique? Bob Ooten: I don't know if it's unique Jim Fitzpatrick: Is there a legislative carve out for water? No Is there a legislative carve out for School Board? Bob Ooten. That is not an issue here Jim Fitzpatrick: I think when you bring up examples such as, it keeps coming up my daughter's thing which is Water you make it an issue. Bob Ooten Yes, that's true. Jim Fitzpatrick: I keep trying to tell you not to do that because it's inappropriate, just as the references to School Board and Water in both memos that we have, I believe are inappropriate. What the specific legislative carve out said is, we want, we value the input of both sides and we want to carve it out, to make sure that a legislative body can serve It didn't say we want a Council member and we don't want a Planning Commissioner Bob Ooten: It did say that Mike Scheafer It did say that. Jim Fitzpatrick: It did not say that. Bob Ooten At least in the legal opinion we have says that. Jim Fitzpatrick: It does not. In the Legislative opinion, it says a Legislative body it does in no way shape, or form, mention a Planning Commissioner Bob Ooten. In the Meyers Nave report, 64 AB says, thus, a Mayor or City Council on a City with the same boundaries as the Sanitary District could sit on the COSTA MESA SANITARY DISTRICT PAGE 16 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 Sanitary District Board. A City Planning Commissioner is not a member of the City's Legislative body so it does not apply to him or her I mean, I heard you say Jim Fitzpatrick: It does not apply In the examples you say oh a decision of a Planning Commissioner those are reviewable or over turnable by the individual who can sit here. So one of the other alternatives is that we could go to our Assembly member and ask for an opinion from our Legislative Committee to actually consider this. Rather than hypothesize that therefore because they didn't specifically say it, the Legislature didn't intend for that to be there. Right? Now this guy is interpreting Legislative intent, I believe. Which, he doesn't have the facts and evidence to support that. There are so many other options and alternatives, that we don't have to go into Closed Session. I'm a little concerned that, it feels a little orchestrated to me here all of a sudden. In talking with Alan Burns, he was concerned about this going to Closed Session. Mr President, have you had any discussions with any of the other Directors regarding compatibility of office? Bob Ooten: Yes. Jim Fitzpatrick: I'm concerned about that because I've decided to speak with yourself about this and Bob Ooten: And you're one of them. Jim Fitzpatrick: (Chuckling) And I'm one of them. Mr Burns, could you just communicate that that is a Brown Act Violation? Alan Burns. I am not going to do that but I would remind everyone about the Brown Act and about the fact that. Jim Fitzpatrick: Mr President, one of the concerns here is that, what I'm hearing is that, those guys are all in the Lion s Club together they're all talking behind your back Jim. And one of the concerns that I just heard that the people who voted for me is just validated I believe we just did have a Brown Act violation because I've been exclusively talking with President Ooten. Director Ferryman: President Ooten, may I say something? Director Fitzpatrick: Mr Burns, if a Director speaks with more than one Director on a very important item, isn't that a violation of the Brown Act? Alan Burns. I think everyone knows that if consensus is achieved by discussing matters amongst themselves, a violation of the Brown Act can occur if it regards public business whether it is serious or not. I think everyone knows the rules. Director Fitzpatrick: Does that mean what do I have to do to get a ruling on a Brown Act violation? Do I have to file a Alan Burns. A ruling? Director Fitzpatrick: Yes. Alan Burns. Who are you asking for a ruling from? Director Fitzpatrick: I'm asking you. I thought its pretty clear that if you talk to more than one person it's a violation of the Brown Act. Is that not true? Alan Burns: About the same matter yes. Director Fitzpatrick: Ok, so what we just heard was President Ooten said that he spoke with me and at least one other Director Isn't that a violation of the Brown Act? Alan Burns. If it was to achieve a consensus, it would be. Director Fitzpatrick: I don't understand to achieve a consensus. I just thought it was that you couldn't speak to another I mean this is a very important issue. COSTA MESA SANITARY DISTRICT PAGE 17 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 Alan Burns. I am giving you a straight answer on this and I also want to remind the Board that we have a rule about being cross-examined. There is no cross- examination in the Board meeting, one question after another Director Fitzpatrick: Mr President, I'll make this the one final one because if I wasn't getting the answer out of the Engineer that I was looking for I would try to triangulate it and we've done that several times. This will be my last question so there won't be a series of them. I just heard President Ooten, my concern, the people that I have talked to is that there s been discussion, inappropriate discussion, relative to the Brown Act. By President Ooten stating that he has spoken with me and at least one other Director on this item, isn't that a violation of the Brown Act? Alan Burns. I'm not going to rule on a hypothetical like that. If the Board talked amongst themselves and a majority reached a concurrence on an item by discussing it outside of a Board meeting, that would be a violation of the Brown Act. There was also a discussion about this in an open and public meeting, so I don't know when they discussed it. It was a very robust discussion about this last time, in public, with an agendized matter Director Scheafer Mr President, first of all, Director Perry is not a member of the Lion s Club I will go on record saying at our Lion s Club meetings we have far more to discuss than the Sanitary District. There was no discussion, there has never been any discussion to achieve a consensus on this matter at a Lion s Club meeting or any other place These little personal jabs about the Lion s Club are a personal attack. You (Fitzpatrick) go in the newspaper and say these people are attacking me personally then you sit here as a Director and attack us for being members of the Lions Club That is pretty low I guarantee you, and I will go on record as saying, there was no discussion of this matter at any Lions Club meeting. Director Ferryman I will second exactly what you (Scheafer) are saying and remind the Director (Fitzpatrick) that we have two opinions from legal firms. Where is your opinion? If this is so dear to you, go get your opinion. I bet the City Attorney gave you an opinion and you didn't want to hear it. Director Fitzpatrick: Mr President, I would like to make a motion. That the Board, based on Director Ferryman s strong suggestion that I go get an opinion and bring it back here I would like to be provided the same opportunity as Director Perry was when he met a person who told him that yes, compatibility would be achieved that the Board fund up to $5000 for an opinion to pursue the logic of AB 6480 and for once and for all, before we spend additional money that we get a legal opinion on that finding. It seems very important to Director Ferryman. Director Ferryman Wouldn't it be for you on any other subject? Director Fitzpatrick: Mr President, there s a motion on the floor Alan Burns. It is the same rule Mr President. That is a non-agenda item. If you want to discuss that on Tuesday that would be the time after it is agendized, but not at this meeting. We did not hear the other matters because they were not agendized and there is not a need to take action that won't wait for the 72 hours. Director Fitzpatrick: Mr President, in our last one, it wasn't agendized as such and there was a vote and a recommendation to go seek the Meyers-Nave I don't know what is so different about this meeting. We actually made a motion at that time and I'd like to make that motion again because I think that's important and relevant. You COSTA MESA SANITARY DISTRICT PAGE 18 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 just saw a Director very strongly suggest that I go and get an opinion and present it to the Board I am just looking for the option and the opportunity Why would Director Perry be afforded that opportunity and not myself? Present Ooten. I believe that we heard this in November We moved some of it to December Is that what Director Fitzpatrick is talking about? Alan Burns. I don't know Maybe you (President Ooten) should see if you can get a second Director Fitzpatrick: I make a motion that the Board fund equally the opportunity to seek the legal opinion that can define this for us here of compatibility based off the legislative carve out looking at AB 6480 up to the same amount as it was presented in the last up to $5000 Alan Burns. My advice on that will be the same but I will wait for a second to see if it is moved. President Ooten: I think the matter dies for lack of a second. Director Ferryman: Is there a motion about what to put on this agenda next Tuesday? Alan Burns. Where we left it was that it would either be a motion or the General Manager would come up with the agenda language. In the past that hasn't necessarily worked so well. Maybe the Board wants to let the Manager off the hook and try to formulate what you want on the agenda, so he is not in the cross hairs. Director Scheafer Can we ask what the General Manager has? Scott Carroll: Consider filing a Quo Warranto for conflict of interest and incompatibility of office during Closed Session. Alan Burns: I heard another discussion about committee assignments too Director Fitzpatrick: Mr President, what about committee assignments, I don't understand that. Director Ferryman: We will talk about it Tuesday Alan Burns. How would we put that on the agenda though? What is the discussion about that item? Director Perry. I think that at any time we can look at committees. There are changes made periodically I would like to just look at all of the committees from President on down to review and discuss. Alan Burns. So it should be, review and possibly reconsider committee assignments so we have a clear Brown Act notice of what is going to happen. That would be in Open Session. Director Scheafer Closed session is only the Quo Warranto discussion. Again, I will reiterate since there is a conflict here Director Fitzpatrick will not be in that Closed Session. Alan Burns. Not in the Closed Session, he is welcome to the other session. If it is anything other than that, any kind of a censure or anything that goes with the reconsideration of the committee assignments, then Director Fitzpatrick would have a right to some kind of due process. If you are simply removing somebody or reassigning somebody then there is no due process. Director Fitzpatrick: Mr President, in the newspaper article, you said that you really want to understand compatibility So now you are going to exclude me from discussions? How is this not specifically addressing me? This isn't the broader issue COSTA MESA SANITARY DISTRICT PAGE 19 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 of compatibility We re not talking about Director Perry and his last run for Mesa, which is clearly a violation of compatibility We're not addressing that. We're specifically addressing me and me only I don't understand your comment in the newspaper This doesn't sound like you want to understand compatibility Director Ferryman: May I say something? President Ooten. What I would like to understand is the ethics election process deals with incompatibility The two legal opinions we have try to interpret the ethics election process and that is what I am interested in understanding. Director Scheafer Mr President, Director Perry did not win that seat on the Water Board so there was never a conflict. There was never an incompatibility question. Director Ferryman: Director Perry withdrew Director Scheafer He withdrew but it was too late for him to withdraw his name from the ballot. He publicly stated and he publically campaigned for people not to vote for him. The difference here is, Director Fitzpatrick was elected to this office and then, contrary to an opinion from the District's Attorney he accepted the Planning Commission. So he attained both offices. Director Perry never attained both offices. Any discussion of Director Perry is moot as far as I'm concerned. Had he won the election to the Water District, accepted it, and tried to stay on the Sanitary District, I would be going after that as well because it is wrong. Director Ferryman: The fact is, he (Perry) stepped down because of that conflict of interest. Director Scheafer (Perry stepped down) at the advice of Counsel. Having gone through that same scenario when I ran for City Council previously because AB 6840 hadn't come into effect yet. He did not attain the Water District seat so to keep bringing that up is wrong. Director Perry I spent not one cent. As soon as Alan told me that I would be incompatible, I told all my friends not to vote for me. I tried to get off the ballot, but it was too late. Director Scheafer Art, you don't need to explain yourself Director Perry I know I am an ethical person. President Ooten: I don't think it is germane to this discussion. Director Fitzpatrick: Mr President, I'd like to respond to that then. Director Perry is accusing me of getting a memo and moving forward against that memo. Prior to Director Perry filing for candidacy he had possession of that same memo that he accuses me of not moving forward on. What is not in dispute is that the Water and Sanitary Districts are incompatible I don't dispute that, I don't know if we've come to that conclusion here yet. So what he (Perry) did was, he went forward based off of that information anyway President Ooten If you are you talking about December 10th memo, he had a different one Director Perry. I registered for that position. Alan found out about it at a Board meeting and he told me I was incompatible. That is when I stopped it (pursuing the Mesa Water office). I had no memo it was a verbal conversation. Your timing is way off I received no memo Director Fitzpatrick: Mr President, I have heard from Alan Burns on several occasions that he issues that memo regularly To a Board member that has been on COSTA MESA SANITARY DISTRICT PAGE 20 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 the Board for decades, to say that he didn't get the December 10th memo I believe he was in possession of that exact same information that we've heard before You know there are over a 1 000 people that voted for Director Perry in that election. I think he placed the District in significant peril by going forward with that action. The 1 000 people that did vote for Director Perry I would think that they would be pretty disappointed that all of a sudden he did this about face On October 29th, in the Daily Pilot, when asked why he didn't do a ballot statement, he said he didn't think he needed one and he would let the election show the results. Remember what happened in that race? Fisler and Worthington, that was the closest race I've ever seen. It went on for three weeks. A sitting Director here (Perry), I think put our District at peril for a known incompatibility of office issue and materially affected the outcome of an election. It was like 66 votes, 11/2 % of the votes that went back and forth. Director Perry got almost 25% of the vote, 1 out of 4 I think that is an egregious error that we are just skipping over President Ooten: He was not elected If he had been elected he would have had to make a choice to drop off the Sanitary District. He didn't get to the point where he had to make that choice. Director Fitzpatrick: He lost, I know but he put the District at peril is my position on that. Now all of a sudden, he s got this newfound interest on ethics? I believe, because as I've escalated questions around putting our solid waste contract out to bid in an evergreen contract. Remember I've been around for over a year here. This issue was not addressed Director Ferryman. I call for an adjournment of the meeting. President Ooten. What? Director Ferryman. I would like to call for adjournment. I'm sick of listening to this gibberish. Director Scheafer We have a motion. Actually it wasn't a motion, it was a direction, I'm sorry Director Fitzpatrick: Mr President, I still have the floor I'm concerned that that hasn't been discussed Where does this newfound energy come from? It corresponds directly to my escalating the questions. We have an evergreen contract and every time I bring it up I get the same energy coming from, what part of this don't you understand no President Ooten That is not where I come from. Director Fitzpatrick: The other Director (Ferryman) clearly has said that. So as I escalate my calls for review of that contract, I just find it interesting that it corresponds with the escalation of compatibility of office. Having served for about a year there wasn't this, my constituency wants me to understand this. That was never present. Only when I started saying, I'm concerned about our fiduciary calls on some of our sewer and our CIP projects. I don't think we did the best job there. My concerns about rates, as I start to escalate that dialog, all of a sudden this starts coming forward Director Scheafer Mr President, Director Fitzpatrick is trying to as far as I am concerned manufacture issues here. It was pretty specific in the paper that because he is a new Director and because he brings things up the other three Lion s Club guys don't like it. Believe me, I respect Director Fitzpatrick immensely his energy COSTA MESA SANITARY DISTRICT PAGE 21 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 and all the things he s brought forward They are all excellent topics. They are all things that as a Board of Directors we need to discuss. We are getting away from the real issue here. Director Fitzpatrick consciously made a decision to accept what was potentially an incompatible office and still retain his old office. That is the question here. Not whether he brings up issues regarding the evergreen clause or anything else. Those have never been in my thought process and I haven't discussed this with anybody else. My sole direction here is to make sure that this Board of Directors is acting completely legal. According to the two opinions expressed we have an incompatibility which is a violation of the law I want that resolved I have no personal issue here. For this characterization of personal attacks that keep coming up and his little jabs about what we are talking about at a Lion s Club meeting is not part of this discussion. Director Fitzpatrick: Mr President, to clarify I never said that it occurred at a Lions Club ever I said what the community is telling me is that the Lions Club guys talk all the time Director Scheafer I don't know what community you're talking too Director Fitzpatrick: It's obvious to me that the Board wants to act outside and ignore our own legal opinion that says it is possible that the two offices could be found to be compatible. I had my discussion one on one with you, you said what do you need, and I said just to fund this, and you said okay let's do that. I don't know what happened between now and then, but I am disappointed that you didn't support and seek that information. I think you are making decisions myopically only on the information you want to hear and you re not giving weight and the opportunity What is $2000 to go get that opinion Mr President, instead of a Quo Warranto of $40 000? We heard Director Perry earlier concerned about spending $2000 on the video as affecting rates, yet there is a willingness to move forward and spend $40,000 here. find it interesting. I've talked to four of the Council Members and there are two sides to this ship I find it interesting that none of those four Council Members have any of the issues that this Board has. None whatsoever They support it wholeheartedly They agree with the Legislature that it's appropriate to have a City person over here for all the reasons that we talked about, facilitating the relationship and getting better outcomes for the District. I just want that part of the record that the four Council Members that I talked to Alan Burns. I would caution you about making statements like that on the record about talking to four Council Members. Director Scheafer Thank you Alan. Director Ferryman. I call for the question. Director Scheafer There is no vote. I have a question for the President. Did you authorize expenditures for Director Fitzpatrick's legal action? He just said that you authorized expenditures to defend his side. President Ooten. He said that as we were discussing it, I apparently said I would support that. Director Scheafer No he said that you said let's go forward and get this taken care of Not in those words, but he just intimated that you said that we could go ahead and spend the money Is that true or not true? I am sorry Mr President, I am just asking the question. COSTA MESA SANITARY DISTRICT PAGE 22 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 President Ooten: I couldn't authorize it. Director Scheafer Well, he (Fitzpatrick)just said you did. President Ooten. I could have said I was supportive of understanding whether there was compatibility Director Scheafer Ok, so we have a difference opinion there it sounds like. Director Fitzpatrick: Mr President, allow me to clarify I didn't say that you authorized I said that we had a discussion and you said, what do you need for this Jim and I said I just want the funds to be authorized and you said that's something I can support. Director Scheafer That is not what you said earlier Director Fitzpatrick: Absolutely President Ooten: Well that is potentially what I said Director Fitzpatrick: That is exactly what. Director Scheafer Okay we are not getting anywhere with this. There is no reason to push this. Director Ferryman: Can we move along? Director Perry. Just one last thing. Almost everything that Director Fitzpatrick said about me and the timetable is completely fabricated and it was not true. Period. Director Fitzpatrick: Mr President, I'd be happy to share the Daily Pilot comments. I'll go back and review the memos of Mr Burns telling us that he routinely issues this same directive time and time again. I can do that but I'm not going to allow a Director again, I mean, I've been called a liar here. Alan Burns Mr President, may I clarify one small point? I do give routine memos on selected laws. They are generic and not to any fact pattern. I try to cover a broad range of laws that you (the Board) need to be aware of and I do issue that every year I don't know if that's what we are talking about or not. Every year I do that, but it is a generic memo. Director Fitzpatrick: Mr President, have you (Alan Burns) ever issued a memo on incompatibility of office before October 2010? Alan Burns. I don't know I've done at least two memos on it. I don't know what the dates are. President Ooten You may have when Director Monahan, City Councilman. Alan Burns. I know I have done at least two memos on it but I don't know if he (Fitzpatrick) is referring to the generic one I do every year Director Fitzpatrick: I'm not referring to the generic memo I am referring to when it was presented about incompatibility It was presented to me as this is a routine discussion that occurs around every election. President Ooten: That may have been what you heard but I don't think we can answer that question tonight. Director Fitzpatrick: If it's important to the Board, I can back up my facts because I have the facts to support my assertions. President Ooten In future discussions, staff can leave if they would like or stay NEW BUSINESS There was no new business to discuss. COSTA MESA SANITARY DISTRICT PAGE 23 MINUTES OF THE BOARD OF DIRECTORS REGULAR MEETING HELD FEBRUARY 23, 2012 ORAL COMMUNICATIONS AND DIRECTOR COMMENTS Director Scheafer requested follow up regarding volume collected during the Westside large item pickups on April 21 and June 2. Director Scheafer moved to allow Director Perry to substitute at the City-District Liaison Committee February 24 2012, in the event he cannot attend Director Ferryman seconded the motion. Motion carried 5-0 Director Scheafer requested information from the City of Huntington Beach regarding their power outage Director Scheafer requested Alan Burns provide a summation of the Brown Act policy regarding the use of cell phones during public meetings. ADJOURNMENT President Ooten adjourned the meeting at 8.30 p m. Secreta r President