December 21, 2009

Supervisor Lou Calcagno
Chair, Monterey County Board of Supervisors
168 W. Alisal Street, 1st Floor
Salinas, CA 93901

Re: Item 2, Oct. 27, 2009, Agenda

Dear Supervisor Calcagno and Members of the Board of Supervisors:

As stated in the BOS agenda of Oct. 27, the following three items were to be discussed under a closed session:

Pursuant to Government Code section 54956.8, the Board will confer with real property negotiators.

1. Property: County franchise for solid waste and recycling services
   Negotiating parties: To be determined
   Under negotiation: Price and terms
   County negotiator: Allen Stroh
2. Property: County owned property at the corner of Laurel Drive and Constitution Boulevard (APNs 003-851-021, -024, and -027)
   County Negotiator: Wayne Tanda, RMA Director
   Negotiating Parties: County of Monterey and the Salinas Regional Sports Authority
   Under negotiation: Price and Terms
3. Property: Portion of Toro Park near Highway 68 (Portion of APN 161-011-071-000).
   Negotiating parties: County of Monterey and Mark Kelton, Bollenbacher, & Kelton.
   Under negotiation: Applicant's request to acquire access to proposed subdivision through portion of Toro Park adjacent to Highway 68.
   County negotiator: To be determined.

Unlike the first two items that deal with the negotiation of price and terms of a specific piece of property, the third item is dealing with an applicant’s request to acquire access to a portion of a public park. The League of Women Voters has grave concerns over the transparency of the discussion relating to this third item.

At its core, the Brown Act seeks to make governmental decisions transparent to the public. Government’s role is to serve the public and any closed session (outside of personnel decisions) should occur only when the public’s interest might be harmed if the session were to be held in public.

As part of the Brown Act, California Gov. Code Section 54956.8 states:

"Notwithstanding any other provision of this chapter, a legislative body of a local agency may hold a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease. However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its negotiators, the real property or real properties which the negotiations may concern, and the person or persons with whom its negotiators may negotiate. ..."

Further, in 1990, the California Attorney General stated (73 Ops.Cal.Atty.Gen. 1, 3-5 (1990)), with respect to the Brown Act, “As expressed in its declaration of public policy, the legislative purpose was to foster the right of the people to remain informed so that they may retain control over the instruments they have created. … It is, of course, well established that the Brown Act should be interpreted liberally in favor of its open meeting requirements, while the exceptions to its general provisions must be strictly, or narrowly, construed.”

While the LWV recognizes that it is sometimes necessary to discuss real estate details in private, the discussion of granting a right of way through a public park should have been held in an open and publically noticed meeting. Such a public discussion would have included why the private party wants access and how it benefits the public. Once a public decision has been made to give a private party access, the Board has every right to discuss the details (price and terms) of such transaction in private.

In this case, it is of particular concern because the property is a park. Any argument, relying on the 2005 Notice of Preparation (NOP) for the EIR for the underlying project (Ferrini Ranch), stating that the public had been noticed and had time to comment is not sufficient. The NOP does not explicitly call out this right of way and the public should not be expected to implicitly understand that this access is being considered from the very limited information provided in the NOP.

The League has historically supported transparency in government and relies on laws like the Brown Act to help keep the public’s business public. We ask the Board to explain to the public why it was decided to have private discussions on this property at this point in time. Further, we ask that the Board halt all private discussions on the access through Toro Park until the Board has properly had a public discussion on the right of way through a public park.

Thank you for your consideration

Sincerely,

Dennis Mar, President                              MaryEllen Dick, President
LWV of the Monterey Peninsula                 LWV of the Salinas Valley