Complaint to dispute city’s alleged procedural oversight

Clean Water Now! founder and chairman Roger Butow is taking steps to file a Brown Act complaint against the Laguna Beach City Council, alleging a council agenda item was not followed in accordance with the law.

The complaint stems from concerns among some environmentalists about how the council handled the issue of sediments being deposited in the ocean three miles off Laguna.

Butow’s complaint arose from a Nov. 6 council meeting in which Nancy and Jack Skinner, Newport Beach residents with a weekend home in Laguna Beach, were asked by Mayor Pro Tem Jane Egly to testify about the Upper Newport Bay dredging project and the sediment from it that is dumped at an ocean disposal site.

Egly placed the bill on the agenda, which said there would be a presentation by city staff and a discussion of the dumping, followed by a vote to form a committee. Egly used the Skinners’ testimony as her “staff report.”

After the Skinners made a 10-minute presentation informing the council that the sediment-dumping would not harm Laguna’s beaches, the public was invited to comment. The council then voted to create a subcommittee consisting of Egly and Councilman Kelly Boyd.

Butow said the Skinners’ testimony did not qualify as a “staff report,” and therefore the council did not adhere to the agenda item “” in violation of the Brown Act.

Egly disagrees. She said hearing the Skinners’ testimony doesn’t break any law. The council voted on whether to create a subcommittee, completing the agenda bill.

“We had somebody else come and tell us what they knew,” Egly said. “The question was asked, ‘Should we look into this?’ and the council said yes.”

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No city report

Butow said he spoke with Will Holoman, the city’s water quality analyst, who said he was working on a staff report. This left Butow believing there would be a written study.

According to Holoman, he was never approached by city officials about a study. Holoman said he researched the dredging project on his own and came to the same conclusions as the Skinners.

Holoman pointed out the dump site has been used for more than two years and Laguna’s waters were recently given a Beach Buddy certification, indicating Laguna’s waters were among the top 10% in the United States.

“I feel we’re re-covering terrain that was already covered,” Holoman said.

The Brown Act is a state law that requires public officials to post the items to be discussed in a meeting in advance, allow public attendance of the meetings and allow public comment. All decisions must also be made in open session.

Butow has sent city officials notification of his intention to file a complaint with the Orange County district attorney. Before accusations of a Brown Act violation can be filed, there is a mandatory 30-day cooling-off period for the parties to develop a solution.

Today marks the end of the 30-day limit, and Butow now has 15 days to file. Butow said he’ll likely wait until close to the end of the two weeks unless he and the council can broker some kind of agreement.

“I’ll just dump it in the district attorney’s lap and say, ‘Merry Christmas,’” Butow said.

“The appointment of Roger E. Butow as the environmental community’s Designated Representative would constitute a satisfying cure,” Butow wrote in his declaration of grievances to the council.

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Complaint lacks ‘merit’

City Manager Ken Frank said Butow’s allegations of Brown Act violations are meritless.

“There is just no possible shred of any rational thinking that this law was violated,” Frank said.

Frank said the council can allow someone to speak for longer than the allotted three minutes that each person is guaranteed during the public comment portion of the meeting.

“The council can let someone talk for three minutes, five minutes or 50 minutes,” Frank said. “That’s totally within the council’s prerogative.”

City Attorney Phil Kohn echoed the same sentiment. He said there were no violations because the public had notice of the meeting, had an opportunity to speak and the decision was made openly.

“It was all in the open,” Kohn said. “[Butow] may have been unhappy with the outcome of the meeting, but the meeting followed proper protocol.”

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Activists ‘burned’

Some environmentalists said they had hoped the council would form a bigger committee including environmental advocates to study the dump site issue.

James Pribram, a professional surfer and Butow ally, said he met with Mayor Toni Iseman Nov. 5 “” the day before the council meeting “” and discussed creating a group made up of city officials as well as non-governmental organizations. Pribram said he was assured he would be a part of the committee.

Pribram said he felt “burned” by the decision to establish a two-person committee instead.

“When [Iseman] tells me something and they renege on it, I feel slighted,” Pribram said.

Iseman said the meeting wasn’t intended to broker any kind of deal. She said she never promised Pribram anything.

“Our conversation was very broad, it wasn’t very specific,” Iseman said.

Butow acknowledges his real gripe is that environmental groups weren’t included in subcommittee to study the dumping issue, an issue which he originally brought to the council.

“We blew the whistle so we should be at the table when these meetings are taking place,” Butow said.

Boyd said the dredging subcommittee will be meeting sometime in the next week to form a plan of action. He said they have not yet discussed whether they will establish a larger committee with community members.

The subcommittee’s meetings will likely be open to public participation, Iseman said.

“I have confidence that Jane and Kelly will get to the bottom of it,” Iseman said.