THE CITY’S SECRET ORGANIC COMMITTEE THAT NEVER PUBLISHED AN AGENDA OR OFFICIALLY MET DRAWS FIRE FROM THE ORANGE COUNTY REGISTER
Editorial: Start over with Newport ‘dock tax’
The Newport Beach City Council voted in December to raise yearly tidelands dock fees from a flat $100 to 52.5 cents per square foot. Some affected residents continue to resist. A lawsuit was filed Feb. 12 in Orange County Superior Court by the group Stop the Dock Tax, alleging violations of the state’s Ralph M. Brown Act open-meetings law.
The Brown Act mandates that all meetings of a quorum of a public body must be held in public view after adequate notice is given. For the seven-member council, a quorum is four members. Permanent committees also must abide by the quorum rule.
A Register news story on the lawsuit says it alleges the “the subcommittee looking at harbor user fees met without public notice and posted no public agendas – in violation of the Brown Act.” In response, the city insists that the committee was not permanent, but ad hoc.
The lawsuit further alleges: “Although [the committee] was initially only to meet for a limited period of time and for a limited issue, the committee has extended past its initial mandate. The committee, in effect, became a standing committee of the City Council. As such, it was required to comply with the requirements of the Brown Act. Here, this committee failed to do so.”
“The group was less than a quorum of the City Council, so the Brown Act doesn’t apply,” City Attorney Aaron Harp said after the Feb. 12 council meeting, as quoted in the Register. “We went back and took another look at it, given the allegations being made, and we don’t see any violations.”
The meeting of three of seven group members “in and of itself probably is not a Brown Act violation as defined in the law,” James W. Ewert told us; he’s the legal counsel for the California Newspaper Publishers Association. He said one thing that could be a violation is if another person, even someone not on the council, was added to the group meeting. That appears not to be the case here. “If it no longer is an ad hoc committee, then it’s a standing committee,” he said, requiring full Brown Act compliance.
“Irrespective of that,” he said, “the court will determine if the subcommittee became, in essence, a standing committee because of the length of the subcommittee’s life.”
He added something important: “Notwithstanding that, it still would be a good idea to comply with the Brown Act, especially when dealing with tax issues,” even if a quorum is not present. “This is so for a very practical reason. Tax levies require a greater public buy-in to pass. If the public doesn’t buy in and raises a challenge, it ends up costing the city even more money. In the long run, being transparent can be more cost-effective.”
We recommended in a Dec. 18 editorial that the dock tax/fee be repealed. Given the lawsuit, we believe that’s still the best course. The council then could hold new hearings – this time scrupulously following the Brown Act – and put the fee/tax on the ballot in 2014. Let the people be the final arbiters.
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