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Explaining why DCA’s Saturday CSAC hearing was illegal

By Zach Arnold | June 30, 2012

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On Friday, we posted an item stating that the DCA’s last-minute ambush hearing for the California State Athletic Commission on Saturday morning at 9 AM was illegal. This immediately drew fire in a lot of quarters. However, we were very confident in our reasoning as to why the meeting should not have happened and that whatever the results of the meeting would be declared null & void if challenged in court.

In our item, we noted that there must be a 10-day advance notice for all public hearings. This is spelled out in the Bagley-Keene Meeting Act. As you will notice when you read the document, it is signed off by Doreathea Johnson of DCA legal in January of 2012. So, DCA legal cannot claim that they don’t know about this law. The 10-day notice is a hard and fast rule, given that they must give anyone with a disability at least 5 days to make any special arrangements to attend a public meeting.

The only exceptions to the 10-day advance notice rule are for ‘special’ or ’emergency’ meetings, generally involving closed sessions. We noted yesterday that the meeting notice on the CSAC web site does not declare the rushed Saturday morning meeting to be an emergency meeting nor does it say anything about a closed session. According to spin coming out of DCA legal, they decided that Saturday’s meeting would be categorized as a ‘special’ meeting.

Except there’s a couple of problems with DCA being able to claim that this is a ‘special’ meeting. First, DCA via CSAC must specifically state in their published agenda notice to the public that it is a special or emergency meeting. Look at the screen capture of the CSAC web site. They did not, at any time, list the word special or emergency to classify the hearing. It was listed as a standard hearing. Second, in the agenda notice posted, they did not state that the meeting was a special meeting or emergency meeting. They stated that it was a public meeting, as if it was standard fare. This immediately nullifies their claim to justify why they proceeded the way they did in setting up this meeting.

If you want to see a real life example of how you spell out a public notice for a special or emergency meeting, take a look at this agenda notice from the Building Standards Commission in July of 2010.

Notice is hereby given that the Chair of the Building Standards Commission has called a special meeting of the Commission pursuant to Government Code section 11125.4(a)(1). The Commission will hear, discuss, deliberate and/or take action on the following items listed in this notice. The public is invited to attend and provide their input or comments.

In order to declare a special or emergency meeting, the Bagley-Keene Act spells out the following for the proper & legal notification process:

A special meeting can be called at any time by the presiding officer or a majority of the members of the state body, provided the 10-day notice requirements of section 11125 “would impose a substantial hardship on the state body or where immediate action is required to protect the public interest.” (§11125.4(a)) The only purposes for which the meeting can be held are those set forth above.

The normal 10-day advance notice is not required for special meetings. However, notice of the special meeting is required to be provided to each member of the state agency and to persons who have requested notice of the agency?s meetings as soon as practicable after the decision to hold the meeting is made. Notice to members, newspapers of general circulation, and radio or television stations must be received at least 48 hours in advance of the meeting. Notice to newspapers, radio and television stations is satisfied by providing notice to all national press wire services. Notices to the general public may be given via appropriate electronic bulletin boards or other appropriate mechanisms. (§11125.4(b)) The notice must also be posted on the Internet at least 48 hours in advance of the meeting.

The notice must specify the time and place of the special meeting and the business to be transacted. In essence, an agenda would be prepared. No business other than that noticed may be transacted. Notice is required even if no action is subsequently taken at the meeting. (§11125.4(b)) The notice must contain the Website address where the notice may be accessed on the Internet.

[CAVEAT: If the special meeting will have a closed session agenda item or items, or be held by teleconference, please refer to the discussion of additional requirements under those headings, below.]

We’ve already established that DCA via CSAC did not classify their Saturday hearing, to the public, as a special or emergency meeting. That’s a violation of the 10-day advance notice rule. For the sake of argument, let’s put that aside here and let’s say they actually classified this hearing correctly. The notification process rule states that DCA must give the public at least 48 hours advance notice on the Internet and through the media.

That’s not what DCA legal did with this CSAC Saturday morning hearing.

Josh Gross noted that DCA had contacted him to tell him that they were about to do an audit of the CSAC on Saturday morning. When I asked Josh about where I could find this as a public statement/release, he said that DCA had contacted him. What DCA did not do is post a statement on the Internet (on the CSAC web site) at least 48 hours before the meeting. As the screen capture demonstrates, the Department of Consumer Affairs put up their meeting notice at 5:22 PM PST. That is less than 16 hours notice before the Saturday 9 AM CSAC meeting.

So, we have a meeting notice by the DCA via CSAC that is declared to be an open session and not a closed session. The meeting notice does not establish that it is a special or emergency meeting. This violated the 10-day advance notice rule. Even by the guidelines of holding a special or emergency meeting, they violated the 48-hour notice rule to justify why it would be such a hardship to give 10 days notice. In fact, they didn’t give 24 hours notice to the public. As a result of this violation of public notification, they violated the Disabilities Act to allow those with special needs to attend such a public hearing.

In order for a ‘special’ meeting to be deemed valid, you not only have to give proper notification & classification of the meeting but you also have to justify why the rushed meeting is happening.

At the commencement of a special meeting, the agency must make a finding in open session that providing a 10-day notice of the meeting would pose a substantial hardship on the agency, or that immediate action is required to protect the public interest. The specific facts constituting the hardship or need for immediate action must be articulated. This finding must be adopted by a two-thirds (2/3) vote of the agency members present, or if less than two thirds of the members are present, by a unanimous vote of the members present. Failure to adopt the finding terminates the meeting. The agency?s finding must be made available on the Internet. (§11125.4(c))

In addition to all the violations already established, the DCA via CSAC did not announce a closed session in regards to auditing. All the agenda states is that there will be consideration of delegation authority to CSAC Chairman John Frierson and CSAC Vice Chairman Eugene Hernandez to act on budget issues. So, either the audit claim they told Josh Gross is false, Josh is misinformed about what DCA told him, or the audit claim is true and wasn’t announced on the agenda document by DCA. Take a look at code 11126.2 which spells this out:

(a)Nothing in this article shall be construed to prohibit a state body that has received a confidential final draft audit report from the Bureau of State Audits from holding closed sessions to discuss its response to that report.

(b)After the public release of an audit report by the Bureau of State Audits, if a state body meets to discuss the audit report, it shall do so in an open session unless exempted from that requirement by some other provision of law.

Now, take a look at the agenda notice posted Friday night and what codes they cite.

Public Comment: Note: The Commission may not discuss or take action on any matter raised during this public comment section, except to decide whether to place the matter on the agenda of a future meeting. [Government Code Sections 11125, 11125.7(a)]

So, we looked at the codes cited (11125 & 11125.7(a).

First, 11125:

(a) The state body shall provide notice of its meeting to any person who requests that notice in writing. Notice shall be given and also made available on the Internet at least 10 days in advance of the meeting, and shall include the name, address, and telephone number of any person who can provide further information prior to the meeting, but need not include a list of witnesses expected to appear at the meeting. The written notice shall additionally include the address of the Internet site where notices required by this article are made available.

(b) The notice of a meeting of a body that is a state body shall include a specific agenda for the meeting, containing a brief description of the items of business to be transacted or discussed in either open or closed session. A brief general description of an item generally need not exceed 20 words. A description of an item to
be transacted or discussed in closed session shall include a citation of the specific statutory authority under which a closed session is being held. No item shall be added to the agenda subsequent to the provision of this notice, unless otherwise permitted by this article.

(c) Notice of a meeting of a state body that complies with this section shall also constitute notice of a meeting of an advisory body of that state body, provided that the business to be discussed by the advisory body is covered by the notice of the meeting of the state body, provided that the specific time and place of the advisory body’s meeting is announced during the open and public state body’s meeting, and provided that the advisory body’s meeting is conducted within a reasonable time of, and nearby, the meeting of the state body.

(d) A person may request, and shall be provided, notice pursuant to subdivision (a) for all meetings of a state body or for a specific meeting or meetings. In addition, at the state body’s discretion, a person may request, and may be provided, notice of only those meetings of a state body at which a particular subject or subjects specified in the request will be discussed.

(e) A request for notice of more than one meeting of a state body shall be subject to the provisions of Section 14911.

(f) The notice shall be made available in appropriate alternative formats, as required by Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132), and the federal rules and regulations adopted in implementation thereof, upon request by any person with a disability. The notice shall include information regarding how, to whom, and by when a request for any disability-related modification or accommodation, including auxiliary aids or services may be made by a person with a disability who requires these aids or services in order to participate in the public meeting.

Because they failed to publicly classify this as a ‘special’ or ’emergency’ meeting, they violated 11125(a) in regards to the 10-day advance rule. Furthermore, 11125(f) states that they have to give proper notice to those with disabilities. They always put the standard boilerplate 5 days notice item as a footer to all their agenda documents and they did the same with the Friday rush job. However, just because you put that notification in a document does not mean that you aren’t violating the notification rules & disabilities law. It’s like these people don’t even read the codes they cite in their own documentation.

As standard practice for an open meeting with 10 days advance notice, they clearly violated the rights of the state’s citizens, especially those with disabilities. On top of that, even if you accept their (inaccurate) premise that they did everything possible to follow the provisions for a special or emergency meeting, they didn’t follow the proper notification rules to inform the state’s citizens, especially those with disabilities.

Now, look at rule 11125.7:

(a) Except as otherwise provided in this section, the state body shall provide an opportunity for members of the public to directly address the state body on each agenda item before or during the state body’s discussion or consideration of the item. This section is not applicable if the agenda item has already been considered by a committee composed exclusively of members of the state body at a public meeting where interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the state body. Every notice for a special meeting at which action is proposed to be taken on an item shall provide an opportunity for members of the public to directly address the state body concerning that item prior to action on the item. In addition, the notice requirement of Section 11125 shall not preclude the acceptance of testimony at meetings, other than emergency meetings, from members of the public if no action is taken by the state body at the same meeting on matters brought before the body by members of the public.

How can they sit here with a straight face and say that they gave the public valid notification in order to participate for public comment when they published an agenda notice at 5 PM PST on Friday night for a Saturday 9 AM morning hearing? I don’t need to cite any laws here in order to convince everyone that DCA via CSAC failed to give adequate time for the public to participate. This is exactly the kind of heavy-handed tactics I’ve warned about regarding DCA’s behavior in CSAC affairs. They had a horrible experience with public comment at Tuesday’s El Monte, California hearing where they failed to terminate George Dodd as Executive Director. Now they’re pulling stunts like this.

The bottom line is that DCA legal created an illegal hearing where the results of the Saturday hearing could be challenged in a lawsuit on the grounds that whatever decisions made during the meeting should be null & void. What DCA has always counted on is for the public to not pay attention to the tactics they use and how they violate state law to get their way with the California State Athletic Commission. They don’t expect anyone to read & cite state law codes that they put in their own agendas. Apparently, they don’t read the laws they cite in their own material, either.

Topics: Boxing, CSAC, Media, MMA, Zach Arnold | 13 Comments » | Permalink | Trackback |

13 Responses to “Explaining why DCA’s Saturday CSAC hearing was illegal”

  1. Jason Harris says:

    I’ve still yet to see a compelling reason that Dodd should be staying in office. Lots of powerful wording against DCA…”illegal” and “ambush hearing” are terms that definitely evoke emotion.

    But why, again, is the CSAC being insolvent and incredibly mismanaged a good thing? You yourself were posting the numbers and breaking down how awful things were there, and now you’re breaking down how awful it is that “political insiders” are trying to fire the guy in charge of the horrible inefficiencies.

    What, exactly, is CSAC doing correctly, that us as MMA fans want them to keep up business as usual?

    Ed. — I am not defending anyone’s job performance. It’s a civil war involving three camps – DCA (over-arching), Dodd, and the CSAC board members. There’s dysfunction everywhere, but if you are grading who is the worst culprit of all it’s DCA right now. The promoters on the ground want no part of DCA taking regulation into secret. That’s all.

    If you can’t figure out why Saturday’s meeting was an ambush & illegal after my layout of the various laws that it violated, then there’s not much left for me to say that will demonstrate to you what is happening with the situation.

    • Jason Harris says:

      You are posting legal wordings of technicalities to “gotcha!” into an illegal meeting, but the context of why we should be against this meeting (to me it sounds like we should be for it) is not there.

      Can you point at at the parts of your article where the CSAC is getting disbanded? You keep mentioning combat sports are getting removed from the state, and then turning around and mentioning that they aren’t but there will be less transparency….which is it? And based on what?

      These articles strongly, strongly feel like agenda pieces that aren’t meant for the public and are meant to push someone’s agenda through pressuring a public office. So why should I, as a non-member of any of these organizations, get interested or involved in any of this?

      Why is DCA taking over bad for me? Not vague “Promoters don’t want it” because that’s vague on purpose. Who doesn’t want it? Why don’t they want it? Are they just friends of Dodd, who you painted as a political insider? Or are they looking out for the sport? How do we know?

      There’s a ton of research being done in the articles, but none of it seems to be on behalf of the fan watching the sport.

      • Zach Arnold says:

        The whole issue, involving three parties in this civil war, is hugely detrimental to the long-term health of promoting combat sports in California. The revenues are declining because less regulated shows are happening in the State. The business & political climate of California has driven away activity, despite the fact that there is still a robust population base in the state to work with and the fact that there are a lot of gyms in the state producing fighting talent.

        That is why, on a macro level, fans should care about what is going on. Promoters, fighters, referees, and officials who already have skin in the game are very aware in California what is going on with the politics.

        Now, as to your point about a pox on all their houses… you and I don’t disagree there. The CSAC board members, outside of the one time they actually bothered to take a stand on Tuesday in El Monte, have made some very poor choices. Frierson suggesting that 3 inspectors per show as a policy would be a good idea is something I strongly disagree with — and a policy that I think will significantly increase liability issues for the state at future shows.

        George Dodd, as Executive Director for about three years, has made plenty of mistakes. Nobody is denying that he hasn’t made errors.

        Dodd was a hand-picked man by the Department of Consumer Affairs. DCA had a chance to clean house when they had a panel of candidates after Armando Garcia left who could have cleaned house and made the CSAC situation better. Instead, that is not what DCA wanted nor what they did. They chose Bill Douglas, a department veteran, and Dave Thorton, another favored at the department. They eventually moved Douglas out of CSAC to the Pest Control Board as a lateral move. They ended up picking Dodd, an outsider from Seattle, to fill the job. DCA is the not-so-invisible hand here that is exacerbating the problems that already exist — and in a big way. The reason they are trying to micro-manage and control CSAC the way they are is because CSAC is simply an institution for them to move people from another departments around to in order to keep people on the payroll. This is why you see appointments to CSAC who have little or no experience in combat sports.

        I strongly believe, in my opinion, that the illegal hearing they called for Saturday morning at 9 AM was in retaliation of Frierson and company not giving in and terminating Dodd. DCA sent a dozen people to El Monte to get the job done on Tuesday and they didn’t produce. So, here comes the ambush notice (16 hours) to the notice about a non-emergency ‘special’ meeting for Saturday with zero transparency for the citizens of the state who might have a public comment or two on the matter. They violated multiple laws and did so in such a sloppy manner that any future lawsuit, whether it be for Dodd or from a citizen of the state of California, would immediately result in the outcome of Saturday’s secret ‘public’ hearing to be overturned. It’s illegal on its face.

        People confused my admission that Frierson proved me and everyone wrong as some sort of endorsement of his tenure and how he managed to stay on the commission in the first place. That is not what my statement was about. My statement about him proving me wrong was the fact that he actually, this time, stood up to DCA when they are trying to bully him around. DCA cannot sit here and claim with a straight face that CSAC should replace Dodd with another one of their hand-picked people because they know what’s best… given that their track record says they are the worst. Plus, these are the people who have been advising Dodd on budget & employee matters. It’s the blind leading the blind. I’m not defending Dodd’s job performance, but DCA cannot make the argument with a straight face that their behavior & actions give them any sort of credibility in advising who should replace Dodd. They already have made a mess out of the Executive Director position through their actions.

        [Can you point at at the parts of your article where the CSAC is getting disbanded? You keep mentioning combat sports are getting removed from the state, and then turning around and mentioning that they aren’t but there will be less transparency….which is it? And based on what?]

        Before the San Diego hearing on June 4th, CSAC was preparing for a sunset hearing that would soon be coming in a few months in front of the Senate Business & Professions committee, which is headed by Curren Price Jr. He’s Frierson’s political friend, along with Governor Jerry Brown. There’s no doubt that SBP will not sunset the commission given the connections.

        However, what has arisen is that since the commission is now broke, there’s a real chance that DCA themselves might disband CSAC and take everything private. This would mean they would control all decision making for combat sports in the state 100% behind closed doors. Promoters on the ground in California absolutely do not want to see this happen because they want to know who the hell to communicate with, how to do business, and what happens to matchmaking, licensing, and drug testing. DCA taking full control in secret would be a kiss of death for small and mid-sized fight shows in California. Only the big promoters would still be able to run California. There wouldn’t be a regular fight scene in the state any longer.

        The fact that Golden Boy, All Star Boxing, Roy E, Goossen Tutor, and other promoters stood up for Dodd in El Monte was as much about pushing back against any DCA attempt to disband CSAC & take things private as it was because of supporting Dodd’s track record. The people with skin in the game are deciding which is the lesser of two evils and what they envision as the worst case scenario. The majority of people involved in the California scene w/ money think that whoever DCA would choose to replace Dodd would end up being even worse than what exists now, as in 100 times worse. This is simply a “pick your poison” situation. Your basic question of “why shouldn’t Dodd be fired?” is fine to ask on its face. I’m just telling you why people have been standing up for him. The hope that things can be turned around. The hope that a proxy war can keep DCA off everyone’s back. That kind of reasoning.

        The whole thing is a complicated disaster. Right now, DCA is the worst of the rotten apples and their actions with this illegal hearing on Saturday prove how much they are panicking right now. DCA only cares about CSAC because the commission was a cash cow during Armando’s tenure and it was a place for them to move their buddies if they got cut from budgets from places like the Board of Pharmacy.

        As for why I am writing the pieces that I am, it is because I am trying to relay to everyone publicly what the real insider story is and how it’s moving around from party to party. I’m not a cheerleader for anyone that I’ve reported on. All I care about is good governance and a little bit of common sense mixed in with some transparency. I don’t want the promoters & fighters to suffer for the mistakes of individuals who do not have the best interests of those who make a living in combat sports.

        So, I do emphasize with you for think that I am writing simply for an inside crowd. I don’t need to push further there because the people at DCA and in certain levels of the state are following what is being written. They know what’s up. I can only do so much in terms of writing and being truthful with what I write. You can disagree with where I’m coming from, but just take to heart that what I’m writing is in the right direction. The behind-the-scenes reaction from various parties (which I can’t disclose) is of assurance to me that I’m not off the rails, no matter if other writers or readers think I am.

        • Jason Harris says:

          Zach, thank you very much for your detailed reply. It definitely clarified some of the confusion I’ve had on the issues.

          It’s definitely an interesting situation to watch, and as a CA resident, it’s chafed me that the CSAC has seemed to be incompetent pretty much since MMA became legal in the state. There have been a lot of fiascos with fighters and they never seem to handle it well. The shift from Garcia to Dodd just seemed to go from really bad to kind of bad.

          Call me a chronic optimist but I hope this shakeup can push some real progress in the CSAC….this state has a huge and active MMA community, and there’s no reason we shouldn’t have as many MMA events as Las Vegas.

  2. Weezy02 says:

    Just corresponded wtih Melissa Figueroa (Deputy Secretary, Communications State and Consumer Services Agency). She said, and I quote: “It was an emergency meeting, and the notice was posted Friday Afternoon.” I can forward her email if you’d like. Now, one can argue that their department is wrong and that it was not an emergency meeting (which by my understanding of the Act means there was a need for immediacy due to a concern for the public well being), but they insist it was. This would nullify the time requirement for notification online. Furthermore, there is no language in the Bagley-Keene Act which mandates that the term “Emergency Meeting” appear as a proper name or wording in a notice or agenda. Rather, it’s listed as an adjective for the type of meeting being conducted. What will be interesting is to review the minutes of the meeting (assuming it was open). That might answer some questions. Until then I see no evidence that any law was violated and I suspect neither would a judge (though I look forward to the opportunity to review the meeting minutes to make sure all protocol was followed).

    • Zach Arnold says:

      Thank you for posting their spin. I would advise you to save the e-mail or even forward it to me for various reasons. 🙂

      1) The spin coming out of them on Friday was that it was a ‘special’ meeting and not an ’emergency’ meeting, which are two different things. So, the story isn’t being kept straight.

      2) They must declare it as an emergency meeting for their online notice. They did not. It was classified, the agenda, as a standard hearing. In fact, THEIR OWN CODES they cite for the public comment section in the agenda contradict the spin.

      3) Even if you believe their classification of this being an emergency meeting, which they failed to properly do, they must give at least 48 hours notice online and with the news wires. They did not. The woman admits it was posted on Friday afternoon. That exact goes along with the evidence I produced. They not only failed to give 48 hours notice, they failed to give 24 HOURS NOTICE. So, even in their best-case sneaky scenario, they failed their own spin.

      4) They absolutely violated notification rules for the state’s citizens, which in court would immediate challenge the validity of the hearing and anything that was determined during said hearing. It’s also a clear violation of the Disabilities Act.

      • Weezy says:

        They must give to news outlets “that have requested it”. I’ll forward you the email tonight. We’ll see if this is challenged in court and if that challenge prevails.

        • Zach Arnold says:

          Here’s the item on emergency meetings from the Bagley-Keene Act:

          3. Notice Requirements for an Emergency Meeting

          An emergency meeting may be held without complying with the 10-day notice requirement in Section 11125 or the 48-hour notice requirement in Section 11125.4. However, newspapers of general circulation, television and radio stations that have requested notice of meetings shall be notified of the emergency by telephone at least one hour before the meeting. If telephone services are not functioning, notice is deemed waived. The notice must be posted on the Internet as soon as practicable after the decision to call an emergency meeting has been made. However, newspapers, television and radio must be notified as soon as possible after the meeting of the fact of the meeting, its purpose, and any action taken. (§11125.5(c))

          Their classification of it as an emergency meeting is BS. They never cited the code for it in their agenda document nor did they cite the word at all to anyone in the press that it would be as such.

          It all stinks. It’s like agreeing to have a wedding on less than 24-hour notices, not telling anyone in e-mail, and putting up a note on a web site and proclaiming that you gave advance notice for people to show up. What are these people thinking?

          You know and I know this whole process reeks. They listed it would be open to the public but they put it in such a manner that no one in the public knew about it, therefore it’s somehow the public’s fault. Right. OK.

          The following are required to be posted in a public place and on the Internet for a minimum of 10 days, as soon as possible after the emergency meeting:

          * Minutes of the meeting
          * A list of persons notified, or attempted to be notified, of the meeting
          * Any action taken at the meeting
          * The rollcall vote on action taken (§11125.5(d))

          They haven’t even posted minutes for a CSAC meeting since March 5th. Not only that, they also have a track record of posting minutes documentation that doesn’t always reflect what happens at the actual meetings.

          They haven’t put up any video online of the 6/26 El Monte hearing that they taped. There’s no audio or video of the supposed ‘public’ 6/30 9 AM meeting. Nothing. Nobody can defend the actions of these people with a straight face and a judge would laugh them out of court.

        • Weezy says:

          Unfortunately such is life with government entities. And that particular state takes the cake. The waste of taxpayer money and failure to hold itself to the rigorous standards it imposes on others is, most likely, is intrinsic to all levels of state government. The CSAC would need to get in the back of a very long line to receive censure.

          Ed. — You deserve credit and I will give it to you in the next post.

  3. […] Thanks to a great reader, here is the new spin from the Department of Consumer Affairs on Monday: Just corresponded wtih Melissa Figueroa (Deputy Secretary, Communications State and Consumer Services Agency). She said, and I quote: “It was an emergency meeting, and the notice was posted Friday Afternoon.” […]

  4. […] week, we broke down California law for you in regards to why we characterized the 9 AM Saturday, June 30th CSAC hearing by the Department of […]

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