Bagley-Keene and the MLPAI – Two Years Later

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CAL. GOV. CODE § 11120 : California Code – Section 11120

“It is the public policy of this state that public agencies exist to aid in the conduct of the people’s business and the proceedings of public agencies be conducted openly so that the public may remain informed.

In enacting this article the Legislature finds and declares that it is the intent of the law that actions of state agencies be taken openly and that their deliberation be conducted openly.

The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.

This article shall be known and may be cited as the Bagley-Keene Open Meeting Act.”

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April 20, 2012  

by David Gurney

The Bagley-Keene Open Meeting Act is a law that was written and enacted to make sure that “state bodies,” public agencies and their advisory boards, commissions, and committees, conduct themselves in an open and transparent manner, allowing for reasonable public input, and that all public business be conducted with the opportunity for the “sunshine” of a free press.

It’ll be two years tomorrow since I was arrested at an MLPAI ‘North Coast Regional Stakeholders Group’ public meeting.  On April 20-21, 2010, the 34 stakeholders, supported and controlled by a group of forty-five (45) MLPA staff-members, held a public meeting where the public was told they could participate only as “observers,” that there would be no opportunity for public comment, and that neither the press, nor the public, would be allowed to make a recording of the proceedings.

After I respectfully objected to these highly unusual and illegal restrictions, I was arrested.  The district attorney threw out charges of “disrupting a public meeting” for obvious reasons of Bagley-Keene and civil rights violations.  He was unable to prosecute a false arrest.

Publicly, the MLPAI facilitators continued to tout their process as “the most open and transparent ever.” But behind the scenes, they were engaged in a frantic effort of spin-control.  With a panicked flurry of emails and meetings, the “most open and transparent process, ever” secretly changed their illegal policy.  For the next round of NCRSG meetings the following month, MLPAI private contractors ‘allowed’ the public to speak at, and record, the state-mandated public meetings.

The MLPAI contractors tried to skirt around Bagley-Keene laws, by calling meetings “workshops” (not an original excuse).  No official records were kept, and the press and public were left blind, deaf, and mute.  The actions of the “Initiative” did not meet the criteria for “open and transparent,” by any stretch of the imagination, and especially not under California’s Bagley-Keene Open Meeting Act.  (The only real question any reporter would have left to ask is – what were they trying to hide?)

After two years, we are still engaged in a lawsuit against the MLPA “Initiative” for their flagrant violations of open meeting laws, and to make sure this kind of scenario never, ever happens again.

The private contractors who violated these laws are once again reverting to their initial flimsy claims, that the MLPAI / NCRSG was not a state-mandated advisory board, commission or committee, that their public meetings were not really public meetings, “per se,” and that their shenanigans were somehow exempt from California Bagley-Keene open meeting law.

But all their excuses fall flat in the face of cold, hard fact.  Bagley-Keene laws are taken extremely seriously.  Both the MLPAI and the NCRSG were “state bodies” (or advisory committees), created as a direct result of state legislative action, to carry out the ‘Marine Life Protection Act (AB 993, 1999) under the legal authority of the California Fish and Game Code.  The public had been openly invited to attend these official MLPA meetings.  And the public had been guaranteed the right to speak at these meetings.  A Feb. 23, 2010 MLPAI memo, titled “Guidelines for Providing Public Comment to the MLPA North Coast Project,” stated the following:

“All meetings of the MLPA Initiative will offer a minimum of one opportunity for public comment.”

The MLPAI defendants also claim that by abolishing the voice, eyes, and ears of the people, they were creating a “safe space” for the stakeholder group.   Without any evidence of a threat, they offered to create this non-requested “safe space” – free of bothersome public questions and scrutiny, or the revealing sunshine of a free press.

The “safe space” that privately funded MLPAI facilitators were creating was for themselves, to safely control and manipulate their specially selected, privileged, and insular “regional stakeholder group.”

As I found out the hard way, the “safe space” idea certainly did not apply to journalists, or to public citizens who wanted to ask a question.

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Despite these and many other incontestable facts, lawyers for the MLPAI have filed a frivolous “MOTION FOR SUMMARY ADJUDICATION OF ISSUES,” on grounds that MLPAI/NCRSG was not subject to Bagley-Keene open meeting laws.

Although there is no moral, legal or logical justification for their arguments, the lieyers of Hamilton & Tarkington are seeking to have their way early, to get our lawsuit thrown out without a trial.

So far in this legal battle, the “Initiative’s” two high-powered legal teams – one from California’s Office of the Attorney General, the other, private attorneys hired by “Kearns and West” corporation – have both argued that the 26 MLPAI private contractors, 18 Department of Fish and Game employees, and one State Parks official, were all just part of an “idea,” or “project,” and were not the self-described “I-Team” of the MLPA “Initiative.”  And that this 45+ member staff was not any sort of group, or legal entity.

Right.

But, they succeeded. 

Unbelievably, a local judge and three Court of Appeals judges all agreed that the MLPAI does not, and never did exist, as a legal “jural entity.”   Wow.

Now, the “Initiative’s” lawyers are arguing that this “non-legal entity,” the MLPAI, a 45+ member staff-driven ‘project,’ with 34 additional ‘stakeholders,’ could hold their state mandated public meetings in gross violation of California’s open meeting laws by barring public recording and comment, all the while touting themselves as “the most open and transparent public process, ever.”  Gee whiz.

Many, who have gotten over their initial nausea, either say: “More Kool-Aid, Please!” or:

“We don’t think so.”

We say, MLPAI contractors cannot openly and transparently break the law, deprive the people of their rights, and commit false arrest – without serious consequences of the sort a court of law must ultimately impose.

We care, with a powerful cry for justice, for the defense of the noble Bagley-Keene Open Meeting Act, against any and all who would violate the practice of open, honest government.

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It now stands before a single judge to decide if our case will be given the opportunity to be heard before a jury.

On Friday, May 11, 2012  at 9:30 a.m., the case Gurney vs. Department of Fish and Game, et al., will go before Judge Hon. Cindee Mayfield, at the Mendocino County Superior Court in Ukiah, California.

Be there if you care, to support the good fight, for truth and justice.

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