You Can’t Participate

by Mark Scaramella, September 28, 2011

Last Tuesday, the Mendocino County Board of Supervisors spent more than half an hour aimlessly discussing Mendocino County's “Legislative Platform.” O mi o my o how can we get federal and state agencies to pay attention to little Mendo's “priorities?” Having dumped the County's expensive “lobbyist” last year, who now would defend us from the wolves? The lobbyist position, of course, was a political slot maintained for pals of our permanent cadre of elected officials who, normally, would be expected to “lobby” to their constituents.

The dialog that follows is choppy and disjointed because it’s verbatim; we carefully reviewed the recording of the meeting to make sure we captured the Board discussion accurately, unlikely as it may read in the cold, unforgiving light of print. Everybody who participated in this discussion makes north of $60k a year; they are the Mendo’s best-paid officials.

Supervisor Carre Brown: “It's important that any Supervisor that has legislation that they're aware of or any of the committees they sit on, to bring that forward as well so the committee has that in order to incorporate into its platform.”

Supervisor Dan Hamburg: “Absolutely.”

Supervisor John Pinches: “I have a question about that. What would be the process? Because if you form this [ad hoc] committee, let's say I have a federal issue. Which I do, a major one, that I want to bring forward. Do I have to bring it forward to the committee? That would be a violation of the Brown Act. So how would I do it? Wait for the committee to come forward with their recommendations and then I would add that to it? That seems kind of awkward.”

County Counsel Jeanine Nadel: “Or you could put it on the agenda and direct it to the committee. You know, through the, through the Board process.”

Hamburg: “Couldn't you also just direct it to the CEO's office?”

Nadel: “You can do that.”

Pinches: “But how do I advocate for this?”

Nadel: “You have to put it out there.”

Pinches: “Without violating the Brown Act?”

Nadel: “It would have to go on the agenda or if you are directing the CEO's office to look into something or, or provide information that would be one thing. But if you're going to advocate for it and you want the full board support then you would have to put it on the agenda.”

Pinches: “But I cannot do it through the committee process.”

Nadel: “No.”

Brown: “But if it's a timely item, you would just bring it forward, forth, as your own agenda item, I would assume.”

Deputy CEO Kristi Furman (who was making the presentation on the subject): “I would think that the ad hoc committee would come up a draft compilation of the important issues that the Board submits and then you would all decide on the final adoption what should be included and what may not.”

Nadel: “But this is different.”

Brown: “But I think what Supervisor Pinches is saying is that there's something that is happening now that he has a concern with, that he would like to advocate on behalf of the County of Mendocino.”

Pinches: “Can I air it out there right now, just briefly?”

Board Chair Kendall Smith: “You have to ask County Counsel.”

Nadel: “Let's finish what you're doing here first.”

Pinches: “See, it's hard to even get it out there.”

Smith: “Oh, you can't!”

Pinches: “Outside the committee process.”

Brown: “You have to get with staff and get that agendized for next Tuesday. You have to have it tomorrow morning.”

Pinches: “But the agenda item, say that I'm opposed to this or for it or something. Then it kind of stops there. You have to have a forum before you can go advocate, advocate your position and then the committee process is a violation of the Brown Act providing you show up. That's my point.”

Hamburg: “Well, whatever came forward from our committee would certainly not be the final; it's not final until it comes here.”

Smith: “Well, I certainly can ask Supervisor Hamburg if we got progress, we actually got the work in process.”

Hamburg: “We can do a 45 day report.”

Smith: “Yeah. Yeah. We don't just get the finished product.”

Furman: “No, certainly not. And I think the board members should report back to you.”

Hamburg: “They would be here for a discussion by the board.”

Nadel: “Right.”

Smith: “So there is an avenue to give input. We understand that. I mean, from Supervisors to Department Heads. I'm, I, I'm, I think the general idea is good but I'd like to remind the board that this was a big issue with me, I think it was two years ago, that this process absolutely had to be a public process, that having it be an ad hoc was just not what this body was wanting to do. So that, this is a real turnaround all of a sudden to create an ad hoc process for this. That was a big point that the board, the board majority made at one point that this had to be a public, you, because the public wanted to come and weigh in on it. Is that true, Ms. Angelo?”

CEO Carmel Angelo: “Absolutely, Madam Chair. And when we, when Ms. Furman was working on this and we were talking about it we were really recommending that the, the General Government Committee actually do this as it had done in the past. So…”

Smith: “Quite honestly I think that's a better forum.”

Angelo: “As a public process.”

Smith: “To get it done.”

Pinches: “And you, and if you haven't. If I may Madam Chair?”

Smith: “Yeah. Go ahead.”

Pinches: “To have it in a, a standing committee forum then you, then the third supervisor can actually go to that committee, committee meeting and make a presentation, right?”

Nadel: “No.”

Pinches: “Because those are public.”

Nadel: “No. You can attend the meeting but you can't participate. But you could attend the meeting.”

Pinches: “But those are public meetings, though. Those are open public meetings. And you can advocate.”

Nadel: “Right. You can attend the meeting, but you can't participate. But with an ad hoc it would be problematic for you to even attend.”

Pinches: “But I mean, it is a standing committee, so you can go and make your presentation on your, on your position of some kind.”

Nadel. “No. You could attend the meeting but you cannot participate.”

Brown: “I think the ad hoc will work until we get to our January meeting where we'll once again, first meeting of the year, discuss standing committees, etc. and maybe we'll want to go forward with general government just for this purpose, this once. We do not have the lobbyist, so to speak.”

Smith: “I don't know. It looks like Counsel is kind of frowning when you, we've got to get this wrapped up. So, by…”

Brown: “With the ad hoc committee for the next 45 days, but we will once again, I believe, where we left it last January, that we would revisit standing committees and general government.”

Nadel: “Your ad hoc committee would have to be your general government committee because you couldn't then have a third board member working on the same project, so, um…”

Brown: “But it has gone forth and been approved by the board, if it's all ready to go, by the first of the year, it's not, it's like, not that it could be. But perhaps.”

Smith: “But they need it, Supervisor Brown, by December. The state, before they, they need the finished product by December. So it's not. Next year is next year but they need it, they need it by December. We missed that date last year.”

Brown: “So, but, that, that, that. I'm just trying to show an example to County Counsel.”

Nadel: “No. Your ad hoc committee work is done and completed by the end of the year. And then the board takes action on it. And the ad hoc is disbanded. That's one thing. But if you expect to have the ad hoc continue the work along with the standing committee then you've got a, you've got a problem with the Brown act. You can't.”

Brown: “No.”

Nadel: “You can't.”

Furman: “The board also I believe by your rule structure allows you to determine if this ad hoc committee should be subject to the Brown Act with agendized meetings. So that could certainly be a part of your motion. If you chose to have public involvement.”

Smith: “That's true. Supervisor McCowen.”

McCowen: “Well, and separate from it being subject to the Brown Act, it could also just be, you know, an informal notice put out there in the community, you're welcome to attend. The same way that the marijuana dispensary issue is being dealt with. Uh, could we call for the question? Maybe take Supervisor Pinches' comment. And then let's vote on this.”

Smith: “Supervisor Pinches.”

Pinches: “Well, it's clear to me that the only way if you come to a specific issue which I have in mind, the only way for me to do it is agendize it as a separate issue and bring it forward and then if they wanted it for a committee or something. Otherwise, it's really awkward for me to get it that way. As a third member that's not on the committee, it's really awkward for me to get it out there.”

McCowen: “But County Counsel is saying even if it was assigned to a standing committee, you could not have any input.”

Pinches: “That's what I'm saying.”

McCowen: “Yeah.”

Pinches: “So I have no other option than to agendize it as a separate issue.”

McCowen: “And you've always had that option.”

Pinches: “Yeah.”

Smith: “Well, I wanted to comment on Supervisor Hamburg's question.”

McCowen: “Call for the question. There is actually a motion.”

Smith: “Well, Supervisor, I didn't…”

McCowen (commandingly): “Call for the question. It's a motion.”

Smith: “So what is the actual, what is the actual motion? We’ll have to have the clerk read it.”

McCowen (commandingly): “Vote.”

Clerk: “I would like clarification. The motion that I have here is a motion by Supervisor Hamburg and seconded by Supervisor McCowen that the Board of Supervisors appoints Supervisors Brown and Hamburg to an ad hoc committee to discuss the 2012 County of Mendocino legislative platform and submit recommendations to the full board for action within the next 90 days.”

Smith: “I think that's good. Yeah, that's good. And there were some other anecdotal things that I wanted clarification, but if that's the motion then I think, we don't, I don't need to add those questions. So we? Is that where? Can we?”

Hamburg: “The only thing we might add to that is that we agreed that, we might add to that a, a 45 day, have a 45 day report working.”

Smith: “That's good. Does the second accept that? Who is the second?”

McCowen: “Well, I don't know that I want to put a tight time limit on it. And if you run into a problem.”

Smith: “It's not tight, it's not, you monitor.”

McCowen: “Okay, fine. I accept that.”

Hamburg: “Do we have to vote on this John? Shall we bring this to a vote?”

Smith: “Ok. So, all in favor?”

(Everyone says aye. No one is opposed.)

Smith: “Motion passes unanimously.”

* * *

Also on last week’s agenda was whether the Board should consider a moratorium on pot dispensaries as Supervisor McCowen holds meetings and prepares a draft pot dispensary ordinance.

Supervisor Hamburg began the discussion by saying, “I recuse myself because of the appearance of a conflict of interest.” (Supervisor Hamburg’s daughter Laura has proposed to open a marijuana dispensary in downtown Boonville.) Hamburg then left the room.

About 18 Boonville residents spoke in favor of the moratorium, saying that the process was moving too fast, that they were worried about “the youth,” that no one has a “right” to marijuana — “it’s a privilege,” that the County should have some “governance” over the location of dispensaries, that by licensing and permitting marijuana dispensaries the County was “aiding and abetting” a federal crime, that “everybody and their dog can already get all the marijuana they need.”

Opponents of the moratorium said Mendo residents need their medicine, that the dispensaries will comply with any ordinance as required, that more education is needed, that a moratorium is not necessary because there are no problems with existing dispensaries, that marijuana is being unfairly demonized, that dispensaries can be a source of revenue for the County.

In other words, just another open mike day at the Mendocino County Supervisor Chambers in Ukiah.

Laura Hamburg somewhat dramatically announced that she had decided not to sell marijuana or marijuana-related products at her “alternative healing center” in Boonville.

Then the issue returned to the Board for discussion.

Supervisor McCowen: “If Laura Hamburg is not selling pot, do we need a moratorium now?”

Supervisor Brown said that it was important to “move forward,” and therefore she would make a motion for a moratorium on marijuana dispensaries in the unincorporated areas of the County.

Supervisor Smith seconded “for discussion.”

Supervisor Pinches: “Prop 215 is the law. We have numerous dispensaries now, and there’s no problem. People complain about beer and wine outlets. Now that Laura Hamburg has withdrawn the pot aspect, there’s no need.”

Supervisor Brown said she had received emails about the dispensaries in the town of Mendocino and that she would like to avoid more conflict in other communities. “Other communities will come in,” said Brown.

County Counsel Nadel said she expected that Supervisor McCowen would finish preparing a draft dispensary ordinance in 45 days, adding, “The way I read the statute for four-fifths, that means with Hamburg recusing, all four remaining have to vote for [the moratorium].”

McCowen suggested a partial moratorium in areas that are within a certain distance from such facilities as schools or churches.

Pinches said he was willing to take Ms. Hamburg at her word so the issue should be off the table. “But the ordinance is on a fast track. I won’t vote for urgency because the urgency is no longer there.”

Supervisor Smith: “Let’s just withdraw the motion. We don’t have enough support.”

Pinches: “Prop 215 passed 15 years ago. I hardly think there’s any urgency here.”

McCowen: “That’s a great rhetorical comment.”

Brown: “I still want to move forward with the motion, a moratorium for 45 days. Why not support this?”

McCowen: “A moratorium is common [when regulations are being drafted]. It’s a time out. It’s temporary. I support the motion on the floor.”

Pinches: “I like idea of dispensaries out in the open. I know people don’t like them, or a liquor store or a winery. They have a right to oppose it and express their own feelings.”

Brown: “We need parameters for people in the backwoods, plus communities and residential areas.”

Smith: “45 days won’t help much. It’s a small matter.”

Chair Smith called for the vote. The four Supervisors present voted “by the button.” The lights on vote-board said 3-1 in favor. Only Pinches voted no.

Clerk of the Board: “I’d like clarification from County Counsel. With Supervisor Hamburg recusing himself…”

Smith: “You said a four-fifths vote was required.”

Pinches: “You said it was a four-fifths vote on the issue.”

Nadel: “I said the ordinance requires a four-fifths vote. But certainly direction to staff, you’ve given direction by adopting the resolution and that only requires a majority.”

Pinches: “I’m confused.”

Smith: “I am too. Counsel can take two seconds to…”

Pinches: “I think the vote is four votes out of five. Clearly. It’s not a majority.”

Nadel: “Yeah.”

Pinches: “It’s four-fifths. Four out of five.”

Nadel: “Yeah. What you just voted on was the resolution directing staff to bring back the urgency ordinance. It’s the urgency ordinance itself that will require four votes. So you’re directing me to bring it back and put it on the agenda.”

Pinches: “Why devote staff time to bringing something forward that’s not going to go forward?”

Nadel: “That’s right.”

McCowen: “Well, I personally don’t favor that if it’s a foregone conclusion that it’s not going to pass, so, uh, I will make a motion to reconsider our last action.”

Brown (Laughs): “You need a four-fifths vote.”

Smith: “To re-consider…”

McCowen (to Brown): “And you wouldn’t support reconsideration?”

Brown: “I will not support reconsideration.”

McCowen: “I will return the gavel to Chair Smith.”

Smith (sarcastically): “Thanks.”

Pinches: “Madam Chair? I would refer to the agenda item, it says, the last item says, passage of any urgency ordinance requires a four-fifths vote. That’s any urgency ordinance.”

Brown: “That’s the ordinance. This is the resolution.”

Nadel: “Four-fifths is required for any urgency ordinance. The ordinance is not before you, this is the resolution.”

McCowen: “I’m going to go get Dan.” (Walks out the back door.)

Smith: “So, um, on this point, because no one wants to waste anyone’s time.”

Pinches: “Yeah.”

Smith: “So what we have is the attached ordinance… is the attached resolution. So you’re not going to need to do any more work if it’s going to come forward and then…?”

Nadel: “No. I will have to now prepare the urgency ordinance.”

Smith: (Rolls eyes dramatically).

Nadel: “I wanted direction on whether to do that. It’s a lot of work. You have directed me to do that and that’s fine. It will come back…”

Brown looks on smilingly.

McCowen returns without Hamburg.

Nadel: “And perhaps Supervisor Pinches will change his mind. I don’t know.”

Smith: “Yeah, but you’re…”

Nadel: “I don’t know what will happen next week.”

Pinches: “I can tell you that right now.”

McCowen: “What is the snowball’s chance?”

Smith: “Ok, well, Ok, that’s a procedural matter. That’s just how that goes. So here we are.”

Pinches: “Supervisor Brown, you won’t reconsider? Are you going to reconsider to change, to stop this train wreck?”

McCowen: “It requires a four-fifths vote and, uh, Supervisor Brown has indicated she’s standing firm, just as you are.”

Smith: “So perhaps Counsel can read… Because there are a number of rules and procedures with respect to bringing things back at subsequent dates and times, but maybe Counsel could, um… I think Counsel is… I mean, is there any way to not…?”

Nadel: “Motion to reconsider doesn’t require a four-fifths vote. [Reading] ‘A motion to reconsider if lost shall not be renewed, nor shall any subject be a second time reconsidered within twelve months except by a four-fifths vote.’ So if you want to reconsider now, someone who voted in the majority can ask for that, now that doesn’t require a four-fifths vote.”

McCowen: “That being the case, I…”

Smith: “Ok, Supervisor McCowen.”

McCowen: “I will move reconsideration of the action just taken.”

Pinches: “Second.”

Smith: “So we have a motion to reconsider item 7a. Now, to Counsel, what does the reconsideration say about members present? What percentage to do we need for reconsideration?”

Nadel: “Just the simple majority.”

Smith: “The majority of those present, is that correct?”

Nadel: (Nods.)

McCowen: “And if the motion passes, it would put the previous motion back on the floor.”

Smith: “So we’re just voting to reconsider the previous action. That’s the first vote. So all in favor say Aye.”

(Motion passes, 3-1, Brown dissents.)

Smith: “So that’s 3-1 in support with Supervisor Brown. So the item comes back before the Board. This is item number 7a. So anyone want to speak to this item?

Pinches: “Well, Supervisor McCowen made the motion to reconsider, so I would expect him to make the new motion.”

Smith: “Well! He may. He may not.”

McCowen: “No. No. What has happened is the original motion is back on the floor.”

Smith: “Right.”

McCowen: “And at this point, to spare County Counsel from going through a pointless exercise, I will vote against the motion on the floor.”

Smith: “Well, perhaps, the Chair will go to County Counsel. Maybe we just need to take no action. I don’t know that we need to vote against it to take… We just said… The item before us says, ‘Discussion and possible action.’ We could decide, as I think I have even suggested earlier on, we don’t need to take action.”

Nadel: “The problem is you have a motion on the table, so you need to take action on your motion.”

Smith: “The motion on the table …”

Nadel: “…is to adopt… is to move the resolution and direct County Counsel.”

Smith: “No it isn’t! We just voted.”

McCowen: “Yes it is.”

Nadel: “Yes it is.”

Smith: “We just voted to reconsider and now it’s before us.”

Pinches: “Now we can vote on the motion.”

Nadel: “That motion is before you, it was on the table before.”

McCowen: “That’s what reconsideration does.”

Smith: “Oh, I see what you’re saying.”

Nadel: “Ok.”

McCowen: “And folks, I told you democracy in action can be a little messy at times.”

Smith: “Ok, so then we… we need a …”

McCowen: “We need a vote.”

Smith: “We need a motion.”

McCowen: “A motion is on the floor.”

Smith: “We have a motion by Supervisor McCowen.”

McCowen: “No.”

Nadel: “A motion by Supervisor Brown.”

Smith: “Oh, Ok. So we’re returning to the same…”

Nadel: “Yes.”

Smith: “Same…”

Nadel: “Got it.”

Smith: “Ok. Well, I’m going to withdraw my second.”

McCowen: (Laughs.)

Smith: “I know. I’m withdrawing so you don’t… If we’re trying to unravel this, because of… if we’re trying to be efficient, then I’m withdrawing my second, to the motion. (Shrugs.) So the motion fails for a lack of second. Ok!”

Result: No action taken. No moratorium.

Let’s hear it for efficiency.

3 Responses to You Can’t Participate

  1. Trelanie Hill Reply

    September 29, 2011 at 9:18 am

    Dispensary ordinance used as free media exposure to get McCowen reelected.
    Those of you keeping track at home, this is free exposure number 10.
    McCowen’s challenger won’t be able to afford this type of press coverage. McCowen will keep his name in print in the name of marijuana legalization and his challenger won’t have the same opportunity.
    The advantage of being an incumbent and using cannabis issues to get reelected.
    Priceless.

    What are all those Measure B supporters thinking about now?
    Probably, how McCowen did such a great job convincing them 6 plants was such a great deal and then flip-flopping to support a 99 plant scheme.
    If I was a Measure B supporter, I would be angry for the trick McCowen played.

    As always just my opinion,
    Jim Hill
    Potter Valley

  2. subscriber2@theava.com Reply

    September 29, 2011 at 3:17 pm

    Huh?
    What the heck would happen if they took on something important?
    Oh, that’s right. The budget.
    Here is a project for you, Mark: Try to get a sense if this Lewis Carroll dialogue happens in other counties.

  3. Harvey Reading Reply

    October 2, 2011 at 11:07 am

    Other counties? Hell, it happens throughout the country, right up to the halls of “congress”.

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