Lisa Brown, Deputy Secretary for Law Enforcement and Council California EPA
L A Wood December 5, 2000
Dear Ms. Brown:
Thank you for being so responsive to my phone call since your office has previously considered two of these complaints concerning the BAAQMD Hearing Board's implementation of the Brown Act Open Meeting Act. My initial concerns over the hearing process began in June of 1999 during the proceedings about the abatement order for Pacific Steel Castings Company, located at 1333 - 2nd Street in Berkeley. At that time, I spoke briefly with Leslie Krinsk, Senior Staff Council for ARB, and also shared some materials, including a video, for her review. Unfortunately, ARB' s council dismissed my concerns and our conversation ended.
1. Open Meetings Act Complaint
On January 6, 2000, 1 filed a complaint over the Hearing Board's failure to comply with open meeting act requirements. (See attachment 1.) It was dismissed, I suspect, for lack of clear evidence. Several weeks ago, by a Public Record Act request I was able to secure several more documents exchanged between the two attorneys and the chair of the Hearing Board. These communications further support my initial complaint. You should know these letters were also discussed during the hearing, even though they were not available to the public until now.
I ask that you review this issue again and consider these new materials. (See attachment 5.) My recent Public Records Act request will not be completed until the 20th of December so 1 may send you additional documents to evaluate at that time.
2. Misconduct Complaint
This complaint was filed January 20, 2000 and it speaks for itself. (See attachment 2.) The official ARB response to Chairman Greenberg's misconduct and the above issue are contained in a letter written last May by Leslie Krinsk. I believe the ARB simply didn't want to open a Pandora's box by seriously reviewing any public involvement issues surrounding the district's hearing process. (See attachment 3.) You should be aware that 1 have attended all seven hearings and attempted to fully participate. Consequently, I know firsthand the many problems of participation and the district's implementation of the Open Meeting Act.
3. Board Conflict of Interest
On Thursday November 2, BAAQMD's Hearing board met to decide on Docket No. 832 and whether to terminate the Conditional Order of Abatement. This was the first appearance by Commissioner Christian Colline in any of the deliberations concerning PSC'S nuisance abatement. In my recent Public Records Act request, I received a letter concerning a possible conflict of interest regarding the firm of PSC's attorney and Commissioner Colline. (See attachment 4.) This point was never raised at the hearing or at any other time that I know of.
BAAQMID's clerk indicated that the Hearing Board chair, Dr. Greenberg, had received this correspondence and simply made a verbal determination that no conflict existed. Is the chair the best person to judge this question? The relationship of board member Colline to the firm of Gordon de Fraga, Watrous, and Pezzaglia, should have caused Commissioner Colline to recuse himself from this deliberation. It is troubling to find that the only way this possible conflict of interest could be brought to light was after the hearing had already been concluded, and then, only via a Public Records Act request.
You should be aware that a week ago I received a notice that the BAAQMD Hearing Board was to reconsider its motion of November 2, 2000. This action was being requested by one of the Hearing Board's commissioners. I ask that before the board is allowed to reconvene in reconsideration of Docket No. 832 and PSC's abatement order that your office investigate this claim of conflict of interest of Commissioner Colline and his participation in the Hearing Board deliberations of November 2, 2000.
I respectfully request that your office review these three complaints. Please call if I can be of any assistance. Note that a complete video series of all seven hearings is available to you as well.
Bay Area Air Quality Control Board Re: Improper BAAQMID Hearing Board Activities
L A Wood January 4, 2000
Dear Board Members:
I write this letter to formally lodge a complaint against the hearing process and the current Bay Area Air Quality Management District's (BAAQMD) Hearing Board including the BAAQMD Legal Council and legal representatives of Pacific Steel Castings Company (PSC).
As you may be aware, the BAAQMD Hearing Board has already conducted four public hearings for PSC in consideration of the current Unconditional Order of Abatement. At the last of these hearings the Board deliberated and then rendered a public decision, which I understand has not been officially adopted. Last week, the Hearing Board gave notice of yet another public hearing on January 6, 1999.
The Hearing Board Clerk stated that the Hearing Board had offered a draft order to both BAAQMD and PSC legal councils for review and submission of written comments (i.e. testimony). The clerk indicated that this action, after the close of a public hearing, was proper. It should be noted that my request to review the Board's draft order was denied. The BAAQMD's Clerk suggestion that this is "little unusual" is far from the truth. Please consider the following concerns:
1. One of the first questions raised is whether the Hearing Board has acted properly, and within the legal guidelines in allowing, at this time, additional written, private comments, outside a properly noticed public hearing, by both BAAQMD and PSC on the draft order. Do these comments, as they were offered constitute a legal breach of the BAAQMD Hearing Board public hearing process?
2. Are the legal comments offered regarding BAAQMD Hearing Board's draft order more properly directed to an appeal process arid their (either party) open option to request a rehearing available under the Health and Safety Code(s).
3. If the BAAQMD Hearing Board was only asking for comments on the draft, then why did PSC legal council discuss issues of administrative relief and the extent of actions they might be willing to pursue? This is certainly PSC's option to further pursue relief. However, this is a highly inappropriate comment to direct to the Board especially when these comments have nothing to do with the draft proposal.
It is requested that (I) the upcoming BAAQMD Hearing Board Public Hearing for PSC, Docket # 832, January 6, 2000, be held over and that (2) an investigation of the aforementioned PSC public hearing process be undertaken to formally answer the legal questions above.
Finally, let it be said that this kind of back room decision process invalidates the public deliberation process and defeats the notion of public participation envisioned by our legislators.
cc: Bay Area Air Quality Management District California Air Resource Board, Ombudsman California Environmental Protection Agency US Environmental Protection Agency City of Berkeley, Legal Council
Bay Area Air Quality Management District San Francisco. California
L A Wood, January 20, 2000
Re: BAAQMD's Hearing Board Process
Dear Board Members:
Since June of 1999, there have been a total of five public hearings conducted by the Hearing Board of the Bay Area Air Quality Management District (BAAQMD) regarding Pacific Steel Castings Company (PSC) and its longstanding Unconditional Order of Abatement. As a member of the public. I was the only Berkeley resident able to attend all of the hearings. Early on. the Hearing Board publicly committed itself to holding Board/PSC deliberations in Berkeley at night, and then abruptly moved the last two PSC hearings to a location in San Francisco on weekday mornings. Hearing board members knew that these mid morning deliberations during the work week would create a real hardship for the future participation of the many Berkeley residents who attended the three previous hearings, especially since several citizens had testified that such far and inconvenient places and times had and would continue to curtail their involvement in such processes.
It should be noted that in both past communications and testimony I have expressed concerns about the hearing process. Furthermore, I have presented evidence that in my opinion constitutes prejudice by the Hearing Board Chair, Mr. Greenberg, against any Berkeley resident criticizing BAAQMD, the Hearing Board process, or PSC. This observation was also expressed by a number of community members who testified at the hearings. It should be further noted that I have also been on record criticizing BAAQMD's permit services and its Hearing Board through public testimony and several newspaper articles. (See attachment 1.)
However, these public actions of mine do not entitle Mr. Greenberg to impugn my character within this legal process and legal record. Unfortunately, the events of the fifth BAAQMD hearing raised this concern as well as other inappropriate Hearing Board actions.
At the posting of the fifth PSC public hearing to be held on January 6. 1999, I directed a letter to the Hearing Board over issues of Hearing Board process and the upcoming hearing. (See attachment 2.) This correspondence raised questions which were later reflected in the Board's deliberation at this fifth hearing. In his opening remarks, the Hearing Board Chair, Mr. Greenberg, acknowledged receiving my letter, but then inopportunely CHOSE TO READ INTO THE PUBLIC RECORD a self-serving statement which condemned my correspondence as little more than an attempt to intimidate the hearing board process. (See video, 19 minutes in.)
Mr. Greenberg's sweeping allegations, which contained no mention of the questions I raised in my letter, were extremely unprofessional for this or any public hearing process. It was inappropriate for the Chair to "vent his frustrations" and make such personal statements in that venue, knowing full well that I had no opportunity to respond to his allegations within the public hearing record. As a public participant, I shouldn't be blamed for the many failures of hearing process or for individual board member's actions. BAAQMD needs to question who really benefits from Mr. Greenberg statement. The public? And what did these personal statements have to do with PSC' s Unconditional Order of Abatement that was before the BAAQMD Hearing Board?
Perhaps, these personal comments by Mr. Greenberg were made to impress the many BAAQMD staff attending "the event", or to create a spin to the public criticisms of a flawed hearing process which he chaired. Or perhaps the Board Chair's remarks were an attempt to intimidate the public from engaging in any further involvement, the very same accusation raised by Chair, Greenberg against my correspondence to the Hearing Board.
It is requested that a complete administrative review and legal evaluation of Chairman Greenberg's statements and actions regarding this matter of public record be conducted as soon as possible. and further, that at the conclusion of this investigation, the public record be amended to reflect the inappropriateness of his statements, and that BAAQMD take any other actions it deems appropriate to correct this misuse of authority.
cc: Bay Area Air Quality Control Board California Air Resource Board, Legal Council California Air Resource Board, Ombudsman California Environmental Protection Agency US Environmental Protection Agency Berkeley City Council (without video)
Leslie M. Krinsk Senior Staff Counsel California Air Resources Board
L A Wood Berkeley, May 3, 2000
RE: BAAQMD HEARING BOARD
Dear Mr. Wood:
I have been asked by the California Environmental Protection Agency to respond to the legal issues you have raised regarding the hearing process conducted in the matter of AFCO v. Pacific Steel Casting Company Docket No. 832, before the Hearing Board of the Bay Area Air Quality Management District. As you will recall, we have already spoken at length about these and other issues, and I have reviewed a number of videotapes and transcripts that you have sent to me. As I stated during our telephone communications, it is our opinion that the Hearing did not violate the Open Meetings Act in its conduct of the series of hearings that resulted in lifting the Unconditional Order of Abatement against the facility.
Your legal concerns center around a draft order that was forwarded from the Clerk of the Hearing Board to counsel for the parties, Pacific Steel Castings and the Air Pollution Control Officer, for review and comment after the close of the series of public hearings. You noted that your request to review a copy of the draft order was denied. All of the hearings, as well as the deliberations of the Hearing Board, were conducted in public and testimony was invited, heard, and considered.
It is common practice for quasi-judicial bodies such as the Hearing Board of the BAAQMD to circulate their proposed decisions to the parties of record for comment. Courts also follow this practice. The parties are not to provide additional testimony on the issues during their review of the proposed decision, but rather to consider whether the document fairly reflects the findings of fact and conclusions of law enunciated by the Hearing Board during its public deliberations, and embodies the decision of the Hearing Board. Indeed, it is common practice for the prevailing party to be requested by a quasi-judicial body to draft the proposed decision.
Because you were not a party of record to the proceeding, but rather a member of the public providing testimony, your rights with regard to the proposed decision differ from the rights of the parties. Thus, persons who are not parties are not entitled by law to review (or draft) proposed decisions. Your testimony and that of other members of the public is on the record and is part of the evidence considered by the Hearing Board in reaching its decision, but once the public hearing is closed, no further evidence is submitted and the decision must be based on material in the record. Neither the Open Meetings Act nor the Public Records Act requires that proposed decisions be provided to members of the public for review and comment.
To the extent you believe the decision of the Hearing Board is not based on the evidence in the record, or that the Hearing Board did not proceed in accordance with legal requirements, section 40864 of the Health and Safety Code provide for judicial review of the Hearing Board's decision. The court has wide discretion to consider whatever evidence it deems proper in reviewing the decision, along with the record that was before the Hearing Board (See Health and Safety Code section 40865).
In conclusion, your allegation that the Hearing Board engaged in a "back room decision process" that "invalidates the public deliberation process and defeats the notion of public participation is simply not correct. There was extensive opportunity for public input during the several public hearings on this matter, and the deliberations of the Hearing Board were conducted in public. Circulation of the draft decision to the parties for comment is a legal procedure that does not corrupt the public deliberative process that the Hearing Board engaged in in reaching its decision.
Leslie M. Krinsk Senior Staff Counsel California Air Resources Board
cc: Lisa F. Brown, Deputy Secretary or Law Enforcement and Counsel California Environmental Protection Agency James Morgester, Chief Compliance Division, California Air Resources Board