The South Coast Air Quality Management District's top executive criticized the agency's hearing board last week, saying it gave the "appearance of impropriety" in a sensitive case involving the Port of Los Angeles.
Four members and an alternate of the five-member AQMD hearing board were treated by port officials to a private lunch at a San Pedro restaurant nine days before the board was to decide whether to shut down Kaiser International, which exports coke and coal from a $23-million leased facility owned by the port.
The port gets $2 million a year in tariff payments from Kaiser International and strongly opposes the shutdown, which has been recommended by the AQMD staff.
The luncheon on June 8 included a slide presentation by port officials about future plans for the Kaiser International facility and was preceded by a tour of the facility itself. The luncheon was not open to the public, nor did the board post notice of the session as required by state law.
The AQMD staff has recommended that the facility be shut down because of complaints from pleasure boat owners that it is the source of black dust that pollutes the air and damages their craft. Kaiser International has appealed to the hearing board to overrule the district.
AQMD policy is set by a state-appointed governing board and executed by the staff. Disputes can be appealed to the hearing board, whose members are appointed by the governing body.
On Thursday, AQMD Executive Officer James M. Lents sent a letter to the hearing board members admonishing them for attending the luncheon. Later that day, the hearing board announced that it will hold a special meeting to determine if any of its members should be disqualified from the case.
"I am writing to object to the hearing board's action in allowing the port to pay for lunch and to make a formal presentation without adequate public review," Lents wrote.
"I believe that the port's presentation to the board violated the spirit of statutes providing for public access to board hearings. In addition, the board's action in allowing its meal to be paid for by an entity closely tied to a party before the board appears inappropriate."
Coralie Kupfer, chairwoman of the board who also acts as its legal counsel, declined several requests to be interviewed, a board secretary said. In a letter to the port written after the luncheon, Kupfer thanked the port for the meal and for the tour of the Kaiser International facility.
In the letter, Kupfer described the sessions as informative, and said the meal at Nizetich's restaurant was "lovely." She did not offer to pay for the meal, which port officials said cost $17.22 a person.
But in a brief notice issued Thursday afternoon, the board announced that it would hold a meeting July 7 to "discuss the constituency of the hearing board" in the Kaiser International case which it is scheduled to hear July 15.
The board wants "to know if there are any objections to any of the board members hearing the case," said Jackie Dix, the board's clerk. Dix said Kupfer and the other board members would not talk to the media about the July 7 meeting because they believed it would be "inappropriate."
AQMD spokesman Ron Ketcham said he believes it is the first time the board has considered disqualifying itself because of allegations of impropriety.
Several boat owners and San Pedro residents who have waged a three-year battle to close the Kaiser International facility, welcomed the chance to voice their complaints about the luncheon.
'Going to Throw Up'
"They are going to throw up their lunches" at the July 7 hearing, Beatrice Atwood Hunt, president of the Coastal and Harbor Hazards Council, a small environmental group that wants the AQMD to close the facility, said in an interview.
AQMD hearing board member Robert D. Shaver, who attended the tour and the luncheon, said in an interview that the luncheon was "uncompromising" because both Patti Woods Goldberg, the AQMD staff attorney who is handling the case against Kaiser International, and a lawyer representing the company were present. The Kaiser International lawyer could not be reached for comment.
Shaver said the board members attended the luncheon to hear about the port's plans for the harbor and, specifically, about long-term plans to move the Kaiser International facility away from the complaining boaters. Shaver said Kupfer specifically instructed board members not to ask questions so it would not appear that they were taking sides in the case.
"The information given to us is the same information that was given time and again to members of the public," Shaver said. "There were representatives from both sides present."
But at a hearing Wednesday, Kupfer, Shaver and board member B. C. Escobar rejected a request by staff attorney Goldberg for a subpoena to summon an unnamed port official who had spoken to the board during the luncheon. Goldberg said she wanted the official to provide the same information during the July 15 public hearing on the Kaiser International case. In rejecting the request, Kupfer called the information irrelevant.
In an interview, Goldberg said she found out only three days before the luncheon that the port intended to make a presentation during the meal. Goldberg said she objected to port officials the day of the meal about port plans to pay for it. In a letter sent to the port after the meal, Goldberg requested a bill for her portion of the lunch.
"I would have preferred that there be a public transcript," Goldberg said. "The meeting should have been taped."
Jonathan P. Nave, deputy city attorney who handles the Kaiser International case for the port, defended the luncheon, saying the port has given the same presentation to various community groups. He denied that the port was attempting to influence the board members.
"It is the height of bad taste to invite someone down and then send them the bill for lunch," said Nave, adding that it would have been impractical to open the luncheon to the public because of space restrictions at the restaurant. "The public can hear the presentation any time they want."
Robert Rados, a member of the Board of Harbor Commissioners that sets policy for the port, attended the luncheon and said the port "did nothing special" for the hearing board. Rados said the port often treats customers and other public officials to lunch.
"It was just an ordinary luncheon," Rados said. "I assume if you are going to get them down here, you have to feed them. I don't see any problem with it at all."
Shaver said that it was the first time in his six years on the AQMD board that he was treated to a meal. "It was a nice place with linen napkins," he said.
Curtis Coleman, the AQMD district counsel, said that at best the board's attendance at the luncheon was "an exercise in poor judgment." He said the board did not violate state conflict-of-interest laws, which require officials who get $250 or more in gifts to disqualify themselves from decisions affecting the donor. But he said it may have violated open-meeting laws because notices about the tour and the luncheon were not posted.
AQMD staff officials said that when the hearing board ended its regular meeting at AQMD headquarters June 4, it technically "adjourned" to the tour at the port, making it a continuation of an official meeting.
Terry Francke, legal counsel to the California Newspaper Publishers Assn. and an expert on open-meeting laws, said the board's failure to properly give notice about the tour, and its failure to mention the luncheon when it adjourned on June 4, violated state law.
Francke said, however, that officials can be prosecuted under the act only if they "deliberately participated in an illegal action," meaning they knew they were violating the law and they actually took action on a measure.