Town of Mammoth Lakes Proposed Materials Recovery Facility (mrf)

Between 2009 and July 2013, there was only one discussion of the proposed MRF in an open session of Town Council, although Town staff were actively working on a proposed project during portions of that time. Aside from this single discussion, Council as a whole held other discussions relating to the MRF and other solid waste issues in closed sessions, purportedly under the Brown Act exception for real property negotiations. Such discussions should have been limited to the price and terms of payment to be negotiated for purchase of the Expansion Parcel or the Solid Waste Transfer Station, in accordance with the notice given in the agenda. Discussions that went beyond this limited scope, including whether and where to build a MRF, broader solid waste issues (e.g., Mono County parcel fees), and long-term solutions, violated the Brown Act because they were, at best, only tangentially-related to the proposed transactions. They were and are the public’s business. They could have and should have been discussed in open Council meetings where the public could participate. Recommendations: 1. Closed sessions of Town Council should be recorded. Recordings should be kept for a period of at least three years. The recordings would not, of course, be released except as authorized by law. Recording closed sessions will heighten Council’s awareness of the Brown Act’s limitations. It will also allow for subsequent follow-up to ensure that Council adheres to the law. 2. All Town Council members and managerial staff should be required to attend regular periodic training on the Brown Act, the Public Records Act, and the public’s right to information about what their government is doing — the people’s business. In light of our findings, particular attention should be given to the Brown Act requirements for closed Council sessions, including the scope of permissible discussions under the various exceptions and their narrow construction by California courts. Such training should be documented. In addition, the Town Attorney should consider taking a more active role in advising Council on the proper scope of closed session discussions as the discussions occur, perhaps by reviewing agenda bills in advance and by actively advising Council members if and when a discussion may be heading beyond legal limits. 3. While the proposed purchase of real property, including the Expansion Parcel, its financing through a rate increase, and the planned use of the Solid Waste Transfer Station/Expansion Parcel to expand the Town’s solid waste operations, was minimally disclosed in public notices and hearings in 2009, we found only one explicit mention of the proposed MRF thereafter during a public Town Council meeting (i.e., the June 2012 letter to CalRecycle seeking an extension of time to comply and setting out a timeline for construction of a MRF). There was little evidence presented demonstrating that information about any MRF proposal was ever actively disseminated to the public. The consequences of this lack of public discussion became evident by July 2013, as rumor and speculation had been circulating about the project and its anticipated cost. At 24 about that time, and based on information that may or may have not been accurate, concerned citizens made their opinions known. Thereafter, following the closed session on July 24, 2013, Council announced that any further MRF plans would proceed publicly. At the present time, it appears Council has been and will continue to adhere to this commitment. As Council knows, it is engaged in the people’s business. Effective government depends on public trust. Such trust is undermined when governmental officials (elected or otherwise) withhold, or appear to withhold, information about the people’s business. Thus, we recommend that Council adhere not only to the letter of the Brown Act, but to its spirit as well, and actively foster the principle of open government. Questions will no doubt arise in the future about the propriety of particular issues for closed session discussion. When they do, we recommend that Council choose always to err on the side of public disclosure, participation, and discussion. 4. In the future, citizens who are concerned about possible Brown Act violations by Town Council may immediately contact the Mono County District Attorney for assistance. The DA’s office has assured the Grand Jury that it is prepared to investigate and resolve such matters expeditiously. Making a citizen’s complaint to the Grand Jury remains an alternative, of course, but we believe a more prompt investigation and resolution through the DA’s office could better serve the public interest in open government.

Despite the fact that a street address for the Expansion Parcel was readily available, it was never described in the closed session portion of Town Council agendas by reference to such an address. Instead, it was at times described as the Mammoth Firewood lot, or by reference to the names of its owners, or by Assessor’s Parcel Number. Recommendation: Real property should always be identified in closed session notices in such a way that it may be readily identified by the public. Doing otherwise could be construed as an attempt to avoid public interest and discussion. (See Recommendation 3, Finding No. 1.) Using the Assessor’s Parcel Number, for example, when a street address is available, should be avoided.

Council repeatedly held closed sessions prior to regular meetings, sometimes as early as 4:00 p.m. In many cases, there was no oral announcement of the matter in an open meeting before Council went into closed session, which the Brown Act requires. Recommendation: While Finding No. 3 may be viewed as a technicality, we think that, in the interest of building and maintaining public trust, Council should be scrupulous in following the requirements of applicable law. In addition, the minutes of any such Council meeting should always accurately reflect that a public meeting was properly opened and the required announcement made before Council went into closed session, even if members of the public were not then present. Following the law fosters public trust. Doing otherwise can serve only to discourage public attendance, awareness, and discussion. We also recommend that Council seek to schedule meetings at times that maximize the opportunity for public participation.

In pursuing this investigation, we were unable to obtain much information of substance from most Town Council members. We did not conclude that these witnesses deliberately withheld information, but rather that they had failed to retain, understand, and 25 recollect information that would allow us to be confident of informed decisions on solid waste issues or, in fact, other issues, in the future. Recommendation: It is understood that service on Town Council is part-time, poorly compensated from a financial standpoint, and that most Council members engage in other full-time employment during their terms in office. The Grand Jury offers no remedy for this situation. We are concerned, however, because lack of time and preparation by these officials does not bode well for the prospect of informed policy and decision-making. Staff members, on the other hand, generally seemed to be more well-informed. But given the recent reductions and turnover in staff, “institutional memory” has been damaged. Under these circumstances, it is all the more important for Council to foster full public participation in local policy and decision-making. We recommend that, moving forward, Town Council and staff rededicate themselves to working openly and in partnership with the people they serve. Council should also take full advantage of current staff’s knowledge by directing the Town Manager to ensure that Council is fully informed of all reasonable solutions, alternatives, and consequences to issues under their consideration.

Town Council agendas for closed sessions typically lump multiple matters into a single paragraph. This makes them difficult to read and understand. Recommendation: Agendas for closed sessions of Town Council should list each item separately. We note that this is the Mono County Board of Supervisors’ practice. The Mono County Grand Jury closed the investigation of this matter on June 10, 2014. 26