Commentary : A Look Beneath ‘Yet Another’ Lawsuit Reveals Good Government at Work

In November, the cities of Escondido, Carlsbad and Encinitas sued the County of San Diego, challenging the secretive manner in which it was conducting contract negotiations for the proposed San Marcos trash-to-energy plant. To those weary of litigation against the plant, the lawsuit was just another example of people using the court process to stop something they simply did not like.

On top of that, it seemed as if tax dollars were being used for three public agencies to bring a lawsuit, and tax dollars were being used for another public agency to defend it. At first glance, it appeared that the real loser here wasn’t so much the trash-to-energy plant but the taxpayers.

However, first glances can be deceptive, and there is a more important lesson to be learned from a closer reading of the cities’ lawsuit against the county.

The three cities are next to San Marcos and are concerned about the effect of the plant on their communities. But more than that, the cities are challenging the way the county has been doing business concerning the largest proposed public-works project in San Diego’s history. Escondido, Carlsbad and Encinitas are alleging that the county has violated public records and competitive bidding laws in pursuing secret negotiations with the proponents of the trash-to-energy plant.

Christward Ministry, a private entity, also filed a lawsuit challenging the county’s way of conducting business, though from a different angle. Christward Ministry alleged that the county failed to give citizens notice and an opportunity to be heard (as required by California’s open meeting law) and that the Board of Supervisors spent public money for the plant negotiations without the necessary number of votes.

Taken together, the cases have an important lesson for the residents of San Diego County.

Public agencies in California are subject to some of the most rigorous procedural rules imposed on local governments in the nation. There is the Brown Act, which requires that meetings be open to the public, that agendas with all items for action be posted in advance of meetings and that citizens be given an opportunity to comment on proposed actions.

There is the Public Records Act, requiring that public records be made available to citizens. There are also laws requiring competitive bidding for public projects and other procedural rules, such as that section of the government code cited by Christward Ministry requiring four votes before the Board of Supervisors can spend certain revenues.

All of these laws have been enacted because citizens require that their governing bodies act in an open manner so that they can be held accountable.

Nobody knows these laws better than the public agencies that operate under them. Most public officials in California can quote the basics of the Brown Act from memory. The public-records law is highly familiar to public officials who work with it on a daily basis. Competitive bidding is a basic prerequisite to most public projects. Public lawyers work with these laws all of the time and must be prepared to advise city councils, boards of supervisors and the public of what the laws mean and what they require.

Consequently, when one public agency says another public agency is not going by the rules that govern all of them, it is worth a second look.

We expect citizens to police their governments. The Christward Ministries lawsuit is an example of this watchdog activity by a private entity.

We should also expect our public agencies to police each other. That is part of the system of checks and balances that has kept this country and its many local governments on an even keel for more than two centuries. This was aptly stated by the California Supreme Court: “If we say with Mr. Justice Holmes, ‘Men must turn square corners when they deal with the government’, it is hard to see why the government should not be held to a like standard of rectangular rectitude when dealing with its citizens.”

In this case, that system is working well.

Escondido, Carlsbad and Encinitas should not be taken lightly when they speak out concerning how another local government is conducting its affairs.

Regardless of how the cities and their constituents feel about a proposed trash-to-energy plant, they know the rules because they operate under them every day. And the cities should be the first to recognize when those rules are being violated.

What’s more, if a judge requires absolute adherence to these important procedural laws, the cities bringing the lawsuit will be obliged to follow those same procedures. The burden may fall on the county as an immediate result, but precedent will be established binding the cities as well. This provides ample incentive for the cities to have carefully considered the merits of their position before commencing the litigation.

Even the county should be inclined to admit at least the spirit, if not the details, of these lawsuits. If the county really believes that a trash-to-energy plant would be in the best interest of its constituents, that interest is better served through a process in which everybody knows what is going on and has a chance to comment.

Even for opponents of the plant, there must exist at least the satisfaction of knowing how the decision was made and knowing that the process was in compliance with each and every applicable law.

The public perception issue cannot be ignored either. A recent editorial in this paper correctly noted the frustration shared with opponents about the lack of public information on the project and encouraged the county to open the contract proposal to public scrutiny.

In sum, a first glance may indicate just one more vexatious lawsuit by some disgruntled public agencies. But a second, more careful look, will reveal some genuine concerns for all residents in this county. These lawsuits say more about good government than they do about trash to energy.