Grossmont Healthcare Board Denies Seat to Stieringer, Will Fill His Vacancy by Appointment
La Mesa Patch (2010-11-15) Kenneth Stone
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Media Link: http://lamesa.patch.com/articles/grossmont-healthcare-board-to-stieringer-you-cant-have-seat-back
Jim Stieringer's old seat on the Grossmont Healthcare District board will go to someone else, the board decided Monday morning after meeting in closed session at its Wakarusa Street conference center in La Mesa.
The closed session itself was subject of debate—with Ray Lutz of the Citizens' Oversight Committee calling it a violation of the state's open-meetings law, also known as the Brown Act, and Terry Francke
, a recognized expert on the act, saying the deliberations should have been held in public.
District legal counsel Jeff Scott, reading from a yellow legal pad, said Stieringer had clearly expressed his intent to quit the board when he gave notice of his retirement Nov. 5. His resignation also was a requisite for seeking a job as projects liaison monitor with the district.
When Stieringer didn't get the $60,000-a-year job—in fact, the job was withdrawn completely—he sought Nov. 10 to get his seat back.
"The board finds that the office is vacant," Scott said, noting that a meeting Friday will formally take action to advertise the board opening. The board has 60 days from Nov. 5 to fill the vacancy—a two-year term.
Stieringer wasn't at Monday morning's meeting— attended by a half-dozen people, including a La Mesa police officer.
Before the board met for 10 minutes in private session, former congressional candidate Lutz asked directors to hold discussions in the open. He also slammed district CEO Barry Jantz for what Lutz called sloppy handling of Stieringer's move to seek the district job and sought a board reprimand.
The closed session was noted on the agenda as "regarding significant exposure to litigation," but First Amendment expert Francke, general counsel of Californians Aware
, said the mere potential for litigation didn't justify a closed session.
In response to an inquiry from La Mesa Patch, Francke wrote that a closed session was permitted "only if evidenced by a specific threat by a specific person, the record of which must be made available under the California Public Records Act."
Board President Gloria Chadwick, after the meeting, said she couldn't say what took place in the closed session but that "we were properly advised" on the Brown Act implications of the private meeting.
No lawsuit has been filed against the district, Jantz said.
In response to questions, district lawyer Scott said by e-mail:
Government Code section 54956.9 of the Brown Act expressly authorizes a closed session for the District Board to confer with or receive advice from, its legal counsel regarding pending litigation when the discussion in open session concerning those matters could prejudice the position of the local agency. Pending litigation under the Brown Act does not necessarily mean that a claim has been made or the District is a party to litigation.
In this situation, in my legal opinion and in the opinion of other attorneys in this office who represent public agencies, a point had been reached where, based on the existing facts and circumstances, (I have served as General Counsel to public agencies for over 30 years) there was a significant exposure to litigation against the District. It was essential to privately share my confidential legal opinion with the Board concerning the facts and circumstances that might result in litigation against the District. To share my opinion and advice to the Board in public would have been prejudicial to the District's legal position and unethical for me to do as a lawyer. Government Code section 54956.9(b)(1) allows precisely for this type of closed session.
Later, after being informed that Francke judged the meeting as a violation of the Brown Act, Scott wrote:
To be very real clear—I have the utmost respect and admiration for Mr. Francke and the work that he and the First Amendment Coalition have done. I also have absolutely no doubt that if Mr. Francke understood the facts and circumstances better, then he would agree with me and others that a closed session was entirely appropriate in this situation.
Francke responded by saying "interesting but less than what the Brown Act requires." He then quoted part of Government Code Section 54956.9, which says:
For purposes of this section, litigation shall be considered pending when any of the following circumstances exist:
(b) (1) A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency.
(3) For purposes of paragraphs (1) and (2), "existing facts and circumstances" shall consist only of one of the following:
(A) Facts and circumstances that might result in litigation against the local agency but which the local agency believes are not yet known to a potential plaintiff or plaintiffs, which facts and circumstances need not be disclosed.
(B) Facts and circumstances, including, but not limited to, an accident, disaster, incident, or transactional occurrence that might result in litigation against the agency and that are known to a potential plaintiff or plaintiffs, which facts or circumstances shall be publicly stated on the agenda or announced.
(C) The receipt of a claim pursuant to the Tort Claims Act or some other written communication from a potential plaintiff threatening litigation, which claim or communication shall be available for public inspection pursuant to Section 54957.5.
(D) A statement made by a person in an open and public meeting threatening litigation on a specific matter within the responsibility of the legislative body.
(E) A statement threatening litigation made by a person outside an open and public meeting on a specific matter within the responsibility of the legislative body so long as the official or employee of the local agency receiving knowledge of the threat makes a contemporaneous or other record of the statement prior to the meeting, which record shall be available for public inspection.
Accordingly," Francke asked, "which classification of facts and circumstances applied here?"
Jantz also responded to Lutz's allegation that he tried to get Stieringer the district job.
"It defies logic that the district would somehow believe a job could be arranged for an exiting director without anyone taking note and without serious negative repercussions as a result," Jantz said via e-mail.
"Specifically, it would be impossible for a former director to be hired by me without the board being aware; equally, it would be impossible for the board to be involved in any such hiring without the community taking note."
Jantz said the district wasn't blind to the public's perception of government in the wake of scandals such as in the city of Bell.
"We do care greatly that the district is not perceived in the manner of some other government agencies," he said. "The board took appropriate action last week to end those perceptions that resulted from one job application."
Here is how counsel Scott reported results of the closed session:
After consultation with legal counsel, a unanimous Board finds as follows:
On November 5, 2010 Board member Jim Stieringer submitted a Memorandum indicating that he was retiring as a member of the Grossmont Healthcare District Board.
The Memorandum meets the legal requirements of a resignation from office in accordance with Government Code section 1750. It is in writing, addressed to the Board, dated, and demonstrates a clear and express intent to immediately vacate his position on the Board and apply for the District position of Project Liaison Monitor.
Resignation from the Board was a condition precedent to apply for or be considered for the position of Project Liaison Monitor. On November 8, 2010 Mr. Stieringer submitted an application for the position.
Consequently, the Board finds that the office is vacant.
The District CEO is directed to place a Notice of Vacancy on the agenda for consideration by the Board at the November 19, 2010 Board meeting.
The Board on behalf of the citizens of the District wishes to thank Director Jim Stieringer for his unparalleled service and distinguished career as a member of the Board of Directors of Grossmont Healthcare District.