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Incredible: DCA advising CSAC on getting a loan
By Zach Arnold | July 6, 2012
For an audio summary of the entire chaos involving the Department of Consumer Affairs & the California State Athletic Commission, listen to Sherdog’s Press Row audio show with Jordan Breen & Zach Arnold.
Last 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 Consumer Affairs on less than 16 hours notice to be an illegal hearing that would not hold up if challenged in a future lawsuit. In accordance with The Bagley-Keene Meeting Act, DCA must give 10 days advance notice for an upcoming Athletic Commission hearing. They also must allow for accommodations for those with disabilities to attend the public hearings.
When DCA bizarrely posted a notice on Friday, June 29th at 5:22 PM PST for a Saturday, June 30th at 9 AM hearing, they posted an agenda online citing standard 10-day advance meeting law codes. In the public comment section of the agenda, they cited [Government Code Sections 11125, 11125.7(a)] which is the 10-day notice.
By classifying the 9 AM hearing on June 30th a standard public meeting, they violated the following laws:
- 10 day advance notification.
- The Disabilities Act to provide proper accommodations for public hearings.
The first spin cycle – why, it’s a ‘special’ meeting
The initial spin out of DCA legal was that the June 30th hearing was not going to be classified as a standard meeting but rather a ‘special’ meeting. Despite the fact that DCA is required to cite state codes in the agenda documentation and state that it would be a ‘special’ meeting, DCA did not follow those protocols.
According to the Bagley-Keene Meeting Act, the following protocols for declaring a special meeting are as follows:
The only purposes for which a special meeting may be held are set forth in section 11125.4, and are drawn from the purposes for which an emergency meeting could be held under the prior law. In essence, the Legislature recharacterized those purposes as constituting “special” circumstances rather than “emergency” circumstances.
Now, the notification requirements:
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.
Specific Requirements During Special Meetings
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))
As discussed above, a special meeting may only be held for the purposes set forth in section 11125.4(b). Other than the limitation on the purposes of the meeting, there are no statutory prohibitions in the Open Meeting Act on a board, committee, subcommittee or task force conducting a special meeting.
DCA did not give 48 hours notice on the Internet for a special meeting. They did not give any reason as to why such a meeting classification was needed and why having to give 10 days advance notice would have been a hardship. At no point did DCA cite 11125.4 whatsoever in agenda documentation to declare a special meeting.
- Under the guidelines of a standard meeting, DCA violated the 10-day advance notice and violated the Disabilities Act. The state codes cited in the agenda documentation were those for a regular meeting, not a special or emergency meeting.
- Even if DCA was able to convince a judge that their meeting was a special meeting, they did not cite any specific state code calling for a special meeting nor did they declare the June 30th 9 AM meeting to be a special meeting in their agenda documentation. Even by the classification of a special meeting, DCA violated the 48-hour notification rule and in turn violated the rights of the state’s citizens, particularly those with disabilities. Furthermore, DCA has not yet produced any statement on their web site declaring why a non-regular meeting needed to take place (the hardship claim).
The second spin cycle – why, it’s an ’emergency’ meeting
One of our readers contacted DCA and got the following response:
“It was an emergency meeting, and the notice was posted Friday Afternoon.”
Under the Bagley-Keene Act, only one hour of notice is required for an emergency meeting. In order to declare an emergency meeting, the agenda notification must cite state code 11125.5 for an emergency declaration due to a work stoppage or disaster that would impact public health & safety. Not only was this state code not cited in the agenda documentation, the word ’emergency’ was never used at all.
As a legal requirement for declaring an ’emergency’ meeting:
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))
It has been over six days since the notification of the June 30th meeting, which was not classified as a special or emergency meeting, and the Department of Consumer Affairs has followed none of these orders in terms of information disclosure online. DCA hasn’t made minutes available for a CSAC hearing since last March.
There are no minutes from the June 30th 9 AM meeting. No list of people who were contacted about the hearing that featured a ‘public comment’ session where the public didn’t know the meeting was going to happen. There has been no documentation about what action was taken at that June 30th hearing. There’s no roll call, either.
Which makes what DCA did tonight even more… curious.
At 5:54 PM PST on Thursday, July 5th, DCA posted an agenda notification for a new hearing on Monday, July 16th at 9 AM PST. All the agenda says is the following:
1. Call to Order/Roll Call
2. Ratification of Action taken at June 30, 2012 meeting
3. Budget Update
4. 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)]
5. Adjournment
Compare the June 30th and July 16th PDF documents. The same codes are cited for both, meaning a 10-day advance notice. The same language used.
DCA wants a ‘ratification’ on July 16th of what happened at their illegal meeting on June 30th? You read that right.
DCA cannot hide behind the fact that they posted an agenda document for a June 16th meeting before they were supposed to follow the guidelines of the Bagley-Keene Meeting Act and disclose all the reasons they needed for an ’emergency’ meeting on June 30th at 9 AM that was revealed to the public less than 16 hours before it took place… despite the fact that the meeting was never properly legally classified as an ’emergency’ meeting. Even a child can figure this out.
Not only is DCA violating the law in regards to their behavior with the California State Athletic Commission, their complete lack of transparency is a slap to the face to every taxpayer & combat sports fan in the state. Their actions are so sloppy and appalling that a judge would chew them out in a courtroom if they were sued.
Conclusion
DCA’s hearing for the CSAC on June 30th at 9 AM was an illegal hearing. They classified it as a regular meeting and violated the 10-day advance notice provision & the Disabilities Act. DCA’s first spin was that it was a special meeting. Even by those standards laid out in the Bagley-Keene Act, they violated the 48-hour Internet notification rule & the Disabilities Act. Plus, they didn’t classify the meeting properly as a special meeting, so that would not stand on its own. Then, they claimed it was an emergency meeting. Even by emergency meeting standards, they have not disclosed anything publicly as far as what happened at that June 30th meeting. They violated all four steps required for justification of an emergency meeting. On top of that, they have not stated why it would have been such a hardship for them to give 10 days advance notice.
So now that we’ve obliterated any legal claims they have made regarding their June 30th hearing, it gets worse. They have not published any written or multimedia documentation from the June 26th El Monte hearing in which they tried to terminate George Dodd and failed to do so. They recorded the hearing on video tape and have not released the tape. For the June 30th hearing, which was not classified as a closed session, they have not released any multimedia (audio or video) from that hearing, either.
The Department of Consumer Affairs can keep violating the law but eventually it will catch up with them in a courtroom. When that happens, they will have zero legal ground to plausibly stand on for their actions. They not only are violating the state laws & codes, they are also violating the spirit of the rules put in place — rules that DCA legal signed off on last January.
Screen capture from July 4th at 10 PM PST
Screen capture from July 5th at 7 PM PST
Screen capture from July 6th at 6 PM PST
Playing fast & loose with the rules
On Friday afternoon (7/6), DCA posted a minutes for a hearing for the first time since last March. The minutes were for the June 30th hearing. Not the audio or video for the June 26th El Monte hearing. Not the audio or video for the June 30th 9 AM meeting. No, just the minutes for the 9 AM meeting — which can leave room for interpretation of what happened versus what didn’t happen.
Some fascinating inside baseball items about the minutes. First, only four board members of the CSAC were present. DCA legal made sure to claim that this established a quorum with four present. Second, some curious names were present for this hearing that nobody in the public had fair advance notice for. Doreathea Johnson of DCA legal was there. Guess who was also there? Anita Scuri, who had announced her departure at the June 4th San Diego hearing. She’s listed as being part of the DCA Legal Office. Huh. Also there was the controversial Sid Segovia (more on him at another date). Reichel Everhart of DCA Board and Bureaus Relations was there as well.
Laughably, the minutes claim that Anita Scuri declared the 6/30 9 AM meeting to be an emergency meeting and cited code 11125.5. Yes, they cited the emergency code in the minutes of the hearing a week after it took place but not in the actual agenda notification put on the Internet 16 hours before the meeting took place. DCA may think this is legal but the scrutiny would not hold up in a lawsuit.
The minutes claims that Chairman John Frierson and VC Eugene Hernandez have been delegated budget authority “including but not limited to seeking any loans if necessary.” Loans? For an athletic commission that was bringing in $1.2M in revenue? DCA has repeatedly highlighted why the money was spent the way it was and now they are dangling the idea of a loan. Of course.
After there was a discussion concerning the original motion, Mr. Hernandez amended his original motion and was seconded by Commissioner Munoz: To ask the director of the Department of Consumer Affairs to work with the commission’s two officers and staff to seek a loan and to delegate authority to the chair and vice-chairperson to act on behalf of the commission with respect to budget issues involving the commission’s fund, including but not limited to seeking loans if necessary, and directing commission staff to assess whether employee layoffs should be a part of any plan of action.
We highlighted on June 16th in our budget analysis how the money has been spent at the athletic commission. It’s been spent on full-time state employees who are getting paid time-and-a-half plus benefits (air fare, car rentals with Cadillac Escalades, meals). Not only was the money spent in this manner over the past four years since Armando Garcia’s been gone, DCA approved these figures. And now the Athletic Commission has to take out a loan and for DCA to give advice to Frierson and Hernandez on how to fix a commission that’s broke because of DCA’s behavior in the first place?
Earlier, I told you what a joke it was for DCA to claim public comment for an ’emergency’ hearing that they never labeled as such to the public before it took place.
Public comment was called for. Sid Segovia, a commission lead inspector, asked the members to consider inspectors’ duties in the field and the health and safety effects of reducing the number of inspectors at events.
That’s right, they had an inspector who works on the inside for Sacramento/Los Angeles magically show up and give public comment. Not only did the public realistically not know a hearing was taking place, the media had no clue either.
Mr. Dodd indicated to the commissioners that according to Government Code 11125.5 that the minutes for the meeting will be posted for the next ten days. He also stated that the agenda was posted on the Athletic Commissions website the night prior to the meeting and that there were no request from the media of notice of meetings.
11125.5 states that the commission must post their findings as soon as possible. They posted them a week after the so-called ’emergency’ meeting took place and, yet, they posted an agenda with 10 day advance notice for a July 16th hearing before they posted the minutes for the 9 AM 6/30 hearing.
Of course there were no media requests. Nobody knew such a stunt was going to be pulled!
Topics: CSAC, Media, Zach Arnold | 9 Comments » | Permalink | Trackback |
Ratify the actions of a prior meeting that was not properly noticed, without disclosing what took place at the defective meeting.
Since they haven’t published any minutes at all since March, it doesn’t appear they will be in any rush to publish any minutes for the July 16th hearing either.
If the minutes are published, what will they say? “Ratified actions from June 30th hearing.”
It will need to be public information at some point–what is the purpose of the delay?
Well sounds like this is a really ugly situation with no ending or resolution near.
To add another wrinkle to the TRT debate, Dana White has come out AGAINST (perhaps surprisingly).
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