John Rieping/The Madera Tribune
From left, Madera County Supervisor Tom Wheeler discusses the county's zoning policy today as supervisors Max Rodriguez and David Rogers listen. The county's supervisors are being sued for violating the state's Brown Act.
(This article updated July 19.)
The American Civil Liberties Union of Northern California launched a lawsuit this week against the Madera County Board of Supervisors for violating the state’s public meetings law, the Ralph M. Brown Act.
Supervisors allegedly changed the jail’s relationship with U.S. Immigration and Customs Enforcement in a private meeting session they claimed was a personnel evaluation of the county’s chief of corrections, Manuel Perez.
The county denies the allegation.
A March 30th press release from the office of Madera County District Attorney David Linn claimed the March 7th session involved Perez being told by supervisors to henceforth “fully comply with all ICE requests” before releasing felons lacking legal permission to live in the U.S. It also said they directed the county counsel’s office to “expedite their actions.”
On April 7, the county revised its ICE hold notification policy accordingly.
Under the Brown Act, a public governmental body can only exclude the public from its meetings under a narrow set of circumstances, such as employee evaluations. When meeting in closed session, it can only consider matters described at an open meeting in its statement of the items to be discussed in the closed session.
No such item regarding the jail's relationship with ICE was on the agenda March 7.
“A public agency such as the Madera County Board of Supervisors simply cannot change a major policy behind closed doors—it’s a clear violation of the Brown Act,” said Julia Harumi Mass, senior staff attorney with ACLU-NC. “The federal deportation machine is tearing families and communities apart, and Madera County residents should have an opportunity to weigh in on such an important policy decision.”
Public records show the board of supervisors has frequently scheduled closed “performance evaluations” in recent years with its County Administrative Officer Eric Fleming. Yet he was granted a more than $31,000 salary increase in 2015 to prevent him from leaving for Fresno County, which he threatened to do. Fleming has been the county’s CAO since 2010.
According to its human resources department, the county has annual performance evaluations for civil employees, but no limit on number of evaluations for department heads, who are at-will employees. An analysis of agendas reveals a closed performance evaluation of Fleming at 21 out of 23 regular board meetings in 2016, but only two thus far this year. Other department heads had three or fewer evaluations each in 2016 and again this year.
Some, such as area resident and open government advocate Dale Drozen, have long suspected the board held such “performance evaluations” to discuss projects and policies outside of the public eye.
“The board, a couple years back, stopped having the chief clerk of the board sit in and take notes of closed session actions,” said Drozen. “Everybody I have talked to about it believed it was so there would be less witnesses to their shenanigans … The reason the meeting about ICE could not be in open session is simply the board did not want to take the (political) heat.”
However, the lack of notes for closed session meeting should not be surprising, according to Regina Garza, county counsel of Madera County.
“I don’t know of any jurisdictions who take notes of closed session meetings because they can be discoverable… That’s really the concern,” she explained. “They would be subject to being disclosed under certain circumstances and that would defeat the purpose of having a closed session… Every jurisdiction has to make a decision about how they want to conduct their closed sessions.”
On June 2, ACLU-NC sent a letter to the board of supervisors asking to “cure or correct” its allegedly unlawful action during the March 7 closed session. On June 30, the board declined to do so, according to the ACLU-NC.
But Supervisor Tom Wheeler, District 5, said the board did try to cooperate with the ACLU-NC, which the board had come by to discuss the matter when it first arose.
“We’re disappointed that the ACLU filed this case. We talked to them twice about this case and gave them all the information, but they wouldn’t take no for an answer,” he said. “We’re not trying to avoid anything. We’re just trying to get the truth out there, like we’ve always done.”
Filed Monday in Madera County Superior Court, the legal action asks a judge to declare that the county board violated the Brown Act, to nullify the decision made in secret session, and to order supervisors to comply with the open meeting and notice requirements of the Brown Act.
“The case filed by the American Civil Liberties Union has no merit, and appears to be designed to further its political and social agenda and attract headlines,” said Garza, who affirmed “the March 7 closed session meeting was appropriate.”