The Sonora Union High School District “absolutely and unequivocally” violated the Brown Act by allowing the Park Foundation representatives into an Oct. 23 closed session meeting regarding the potential sale of the Wildcat Ranch, an attorney specializing in first amendment rights said on Wednesday.
“Really you have a situation where the board of trustees goes into closed session to meet with its adversary in that negotiation, and the only people left out are the public and the media. The purpose of the act has not been complied with either in the spirit or the letter of the law,” said Jim Ewert, general counsel for the California News Publishers Association.
Sonora Union High School District Superintendent Mark Miller said district negotiators for the Wildcat Ranch property will no longer bring second parties into closed session meetings after the district was accused by members of the public Tuesday night of violating the Brown Act.
Two people affiliated with the Tuolumne County agriculture community, Shaun Crook of the Tuolumne County Farm Bureau and Dick Gaiser, a member of the district advisory committee on what to do with the ranch and the Sonora Dome, issued cease and desist letters to the district Board of Trustees accusing it of hosting “semi-closed session” negotiation during an Oct. 23 special meeting regarding the sale of the 137-acre Wildcat Ranch. Members of the Sonora nonprofit the Park Foundation were allowed into a closed session, but the public was not.
Ultimately, Miller said the possible Brown Act violation would not affect negotiations with The Park Foundation, which has made a confidential bid for the property.
“Since no action was taken during this meeting (as was reported by the board president at the end of that meeting), it should have no effect on the continuing negotiations between the parties through our attorneys regarding the final disposition of the Ranch,” Miller said in an email on Tuesday.
Miller said the district will bring an “unconditional commitment letter” to the board for approval at the next board meeting. The letter serves as a response to the cease and desist letters issued to the district on Tuesday.
Miller said the unconditional letter did not amount to an admission to a Brown Act violation, but rather was a commitment to not do what they did during the Oct. 23 meeting again.
A special meeting was called on Oct. 23 with one item on the agenda, a closed session “Conference with Real Property Negotiators” involving the Wildcat Ranch property. Miller was identified as the negotiator; the negotiating parties were the district and the Park Foundation, and the price and/or terms of sale were under negotiation, the agenda said.
The special meeting was called to accelerate the negotiating process between the parties, Miller said previously. Formal negotiations must occur with a quorum of board members during a regular or special meeting that has been released to the public, but regularly scheduled board meetings occur at two to three week intervals.
The Park Foundation had been determined eligible to make a formal bid on the ranch property following its classification in the second tier of the bidding process for district-owned surplus properties, which is governed by California Education Code.
The district entered into the closed session about 5:15 p.m., when members of the public were asked to leave the district meeting room. Before 6 p.m., representatives of The Park Foundation, including founder and President Ron Jacobs, Chief Financial Officer Jay Canavan, and directors Ron Patel, Gail Witzelsteiner and Albert Barreno, arrived at the district office. The Park Foundation representatives were allowed into the district meeting room on the presumption that they would be involved in a negotiation during the closed session meeting while the public remained outside.
For more than 30 minutes, the entire Board of Trustees and Miller, divided by a long wooden table, sat facing the Park Foundation representatives. The details of the negotiation were previously identified by Miller as confidential.
At 6:35 p.m., Miller and trustees left the room to an adjacent portable building to “caucus,” Miller said.
The meeting concluded about 7:15 p.m. with the announcement that negotiations would be ongoing, and no action was taken during the closed session.
Ewert said the state constitution was broadly interpreted to allow public access to meetings and information, but one notable exception was during discussions for the sale, purchase or exchange of real property.
The Wildcat Ranch was declared surplus property on July 10.
The purpose behind the exemption for discussing property sale was to allow confidentiality to the public agency, he said, so that the district could meet with their negotiator to discuss the price of a parcel and the terms of payment for a deal.
“Nowhere in here does it say the body can meet in closed session with the other side,” he said.
David Snyder, executive director of the First Amendment Coalition in San Rafael, corroborated Ewerts evaluation and said the details allowed to be discussed, and people allowed in closed sessions, were “narrow.”
“If they have invited in any one other than their own negotiator, they have exceeded the bounds of the Brown Act,” he said. “There’s no room for fudging the rules, as it were, and doing things beyond what the Brown Act permits, and it appears that’s what they did here.”
The cease and desist letters specified what occured at the Oct. 23 meeting as a “semi-closed session.”
Ewert said that term had originated in a California Attorney General opinion (as someone who would represent state and local agencies), but the term was not used in the Brown Act.
Ewert said that the consequences facing the board would be relatively small if they chose to respond on the public record to the allegation in an unconditional commitment letter. The board has 30 days to respond to the allegation. If they choose not to approve the unconditional commitment letter, the two members of the public who submitted the cease and desist letter could pursue litigation against the district.
If the letter is approved, the district would be bound to adhere to the commitment. If they broke it, litigation could be pursued immediately without waiting for another letter, Ewert said.
In any case of litigation, a court can establish jurisdiction over a district where they issue an injunction that prohibits the board from doing the same violation again, require that the board tape all closed sessions and retain records, or undo an action taken by the board
“It’s hard to tell what would be undone in this situation because the violation constituted who was in attendance at this particular semi-closed meeting,” Ewert said.
The board was also told by a representative of the Tuolumne Heritage Committee that the sale of public property was subject to a review by California Environmental Quality Act (CEQA).
Sharon Marovich said there could be “significant historical resources” including Native American artifacts and a diversity of wildlife at the site, which meant the district could not pursue an exemption.
Failure to comply with CEQA could expose the district to legal action, she said.
Ewert said he was not an expert on environmental law, but said if the title of ownership was being transferred between the school board to a nonprofit group, he would not expect an environmental review.
Ewert said a government body and an eventual environmental review would be expected after the property was purchased and potentially developed. A sale would be an “independent activity” from the eventual plans for the site by the Park Foundation, he said.
The Wildcat Ranch was appraised by Wright Appraisals in Sonora at $820,000, or $5,987 per acre, during the tenure of former Superintendent Pat Chabot. The property is zoned A-10, or general agricultural with a 10-acre minimum parcel size.
Miller has previously stated that the open bidding process on the ranch will begin on or about Saturday. The district is in Tier 2, which includes nonprofits, Tuolumne County and the City of Sonora, and can accept bids from Tier 1 groups which are mostly public housing agencies.
Contact Giuseppe Ricapito at (209) 588-4526 or firstname.lastname@example.org . Follow him on Twitter @gsepinsonora.