Open letter to Councilmembers Malgapo, Verder-Aliga, and Dew-Costa Re: Recusal

by | Jul 25, 2017 | 0 comments

July, 24, 2017
Dear Councilmembers Malgapo, Verder-Aliga, and Dew-Costa:
I am writing today to ask that each of you recuse yourselves from any further action concerning the Vallejo Marine Terminal and Orcem’s appeal of the Planning Commission’s denial of their use permit and any other action on this project. To do otherwise will expose the City of Vallejo to serious liability and substantial costs in litigation.

In my open letter to City Attorney Claudia Quintana dated January 5, 2016 (attached here), I expressed my concerns over the implications of this committee. Most of those concerns remain valid today, including the manner in which you violated the Brown Act, demonstrated impermissible pre-approval for this project, and undermined the City’s general plan update.

At the June 1st appeal hearing, Councilmember Sunga asked why the Mare Island Straits Economic Development Committee (MISEDC) was relevant. Hadn’t it been laid to rest by the “Cure and Correct” hearing of January 5, 2016? Your vote that night made MISEDC more relevant than ever.

In my testimony to Council the night before, I warned you of this: that your votes would move the issue of impermissible pre-approval for the project front and center. You invited Orcem to be part of MISEDC because your economic development plans for the Strait included heavy industry like the cement mill. Orcem agreed to be part of MISEDC to seize an illegal opportunity for ex parte communication and to make each of you part of their team. Orcem’s project was a regular part of your MISEDC agenda. They briefed you privately many times. You became their advocates as can be seen by MISEDC agendas and your own statements.

The bias that resulted cannot be cured. Claims of an open mind do not change the objective and conclusive evidence of your bias. You would have the public believe that the absence of four councilmembers at any single MISEDC meeting is determinative. You expect the people of Vallejo to believe that no MISEDC councilmember, the city manager, or other city staff ever updated then Mayor Davis on the progress, opportunities, and challenges faced by MISEDC or briefed him on the status of MISEDC’s work before he was a guest speaker at a MISEDC meeting?

Before MISEDC ever met, the city council created a Mare Island Economic Development Committee. The minor change in name and Council membership does not alter the fact that MISEDC was a standing council subcommittee with a very broad scope of work that would continue indefinitely: not an ad hoc committee. It was a clumsy and failed attempt to avoid the open meeting and public participation rules of the Brown Act.

You have the possibility to change that this Tuesday evening by your recusal. But if you do not, if you allow this project to move forward, you should expect intense and thorough examination into MISEDC and the roles you played in impermissible pre-approval, and how you flouted the Brown Act.

Here is why I believe this is so.

Vallejo’s policies for Public Participation and Collaborative Government:  “Vallejo (is) the gold standard for public participation and collaborative government.”
 While the official City website (quoted above) touts public involvement, you flouted our commitment to community participation and collaboration through a secretive process that led to the adoption and implementation of economic and development goals and all but final and official approval of a private port and waterfront cement mill, without a timely and meaningful opportunity for community comments, criticism, questions, and debate.

Your actions violated Vallejo Municipal Code Chapter 2.02.350, regarding appointments to committees and ad hoc subcommittees, as Mayor Davis stated, the city’s policy of setting a “gold standard” for public participation and collaborative government, as well as the intention and perhaps also the letter of the Brown Act.

You, along with our city manager, concealed from the community and your Council colleagues, the regular meetings of a group that behaved as a Council standing subcommittee that was actively supported by city staff, met at city facilities and that addressed and developed strategies for dredging the Mare Island Strait, economic development connected with Mare Island and support for the Vallejo Marine Terminal and Orcem cement mill. You appear not to have been concerned enough about those activities to have even discussed them with the City Attorney.

These actions violated the fundamental purposes of the Brown Act.

In 1953, the Brown Act declared the Legislature’s intent: “In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people’s business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.” “The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

In November 2004, adopting Proposition 59 amending the California Constitution, the people adopted a public right of access to government information: “The people have the right of access to information concerning the conduct of the people’s business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny.”

By far the most important provision of the Brown Act: “All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.”

Your maneuvers to prevent the public from attending and participating in a Council standing subcommittee’s meetings were plainly prohibited by the Brown Act. The Brown Act establishes the minimal legal standards for transparency and public participation. As a city claiming to be the “gold standard” in collaborative government, Vallejo’s public participation standards are considered to be far higher than the minimum requirements of the Brown Act.

Conflict with the General Plan Update:

Your “backroom” process to create a Mare Island waterfront, build irreversible council support for a cement mill, and develop a Mare Island Strait plan for Vallejo’s future was in direct contradiction to the city of Vallejo’s concurrent commitment to openness, community engagement and collaboration in the process followed in the adoption of Vallejo’s General Plan Update. In the General Plan Update process, Vallejo satisfied its “gold standard” policy for public participation and collaborative government.

A comparison of the two concurrent processes is critical for many reasons. Perhaps the most important is that both processes addressed the future of waterfront and Mare Island Strait development in Vallejo. One was open and achieved maximum community engagement- the General Plan Update process. The other was only open to select insiders, i.e., three councilmembers, our mayor and senior city staff who met secretly to establish and initiate implementation of policies and actions to control future uses along Vallejo’s waterfront, including the development of the Vallejo Marine Terminal and Orcem cement mill.


 Misappropriating a standing committee of the City Council:

 While you went out of your way to say that MISEDC was an unsanctioned ad hoc committee, the City Council actually planned a Mare Island Economic Development Committee, which was to include then-Councilmember Sampayan. Without his knowledge, he was removed from that committee and Councilmembers Dew-Costa and Verder-Aliga were added.

The committee name was changed from the Mare Island Economic Development Committee to the Mare Island Straits Economic Committee (MISEDC). But the change in name and membership did not alter its focus on economic development along the Mare Island Strait. The change in name and membership did not alter the level of city staff support or the use of city facilities for the regularly scheduled meetings.

MISEDC explicitly stated it was not a formal City Commission but rather defined itself as: “an ad hoc Citizens Committee of the City of Vallejo.”  However, it’s actions showed otherwise. Your behavior proved this was not the case. A standing committee is one that meets regularly and indefinitely to take up big issues such as economic development and dredging affecting Mare Island. MISEDC was clearly an official Council standing subcommittee. Had it not been exposed, it would likely have continued to meet.

Violation of the Vallejo Charter’s Prohibition Against Council Interference with or Management of City Staff

Under the Vallejo City Charter section 503, titled Noninterference, members of the Council are specifically forbidden to deal with City employees directly “except for purpose of inquiry into the affairs of the City, and the conduct of any City department, office or agency…” All other contact is to go “solely through the City Manager and neither the Council or its members shall give orders to any officer or employee either publicly or privately…”

Councilmember Jess Malgapo routinely violated this provision of our charter as chair of the MISEDC.  Documents show him repeatedly conscripting and directing staff to work on assignments for this committee.  The Charter states: “Violation of the provisions of this section by a member of the Council shall be a misdemeanor, conviction of which shall immediately result in forfeiture of the office of the convicted member.”

Due Process / Basic Fairness and Impermissible pre-approval for VMT:

You added the Vallejo Marine Terminal and Orcem to MISEDC membership along with representatives of county, state and federal government and private interests seeking taxpayer funded dredging of the Mare Island Straits. You were fully aware that these two companies had an application pending with the City that would likely come before you for approval. Yet you met with them in secret for 19 months. In this respect your ex parte disclosures at the appeal hearings May 31st and June 1st were blatantly dishonest and incomplete, given Councilmember Malgapo’s endorsements of the project, each step of the way and the number of Orcem reports to MISEDC on its progress, as reflected in MISEDC agendas.

The people of Vallejo expect their elected representatives to attain the gold standard of avoiding the appearance of bias or improper ex parte communications. Why did VMT / Orcem want to be on MISEDC? Steve Bryan of Orcem has stated that their location would not require dredging, that there is a natural scouring effect there that makes dredging unnecessary. So it is reasonable to wonder why they would meet with a committee that was supposedly only concerned with dredging. It’s clear that the MISEDC needed VMT and Orcem’s operational numbers to interest the Army Corps of Engineers to reconsider dredging for the Mare Island Strait. Heavy industry at Mare Island has been something you support. Inclusion of VMT and Orcem in MISEDC allowed you to implement this objective. It’s equally clear VMT and Orcem were eager to and did ingratiate themselves to you, the likely decision makers for this project: to privately influence the council majority. Why would Orcem agree to serve on MISEDC, except to avail itself of the unlimited backroom opportunities for ex parte communication. No objective person can fail to see bias resulting from the formation and conduct of MISEDC. At the very least this has the appearance of bias. You became part of the VMT / Orcem team, which is precisely what they sought.

The League of California Cities publication, An Ounce of Prevention: Best Practices for Making Informed Land Use Decisions is a consensus of California’s best city attorneys, undoubtedly valued by our own City Attorney. It avers that a number of factors can undermine a participant’s faith in decisionmakers’ impartiality. These factors can provide a basis to challenge the agency’s decision. There can be serious doubt as to a person’s ability to be fair and impartial based on statements and conduct – ie., secretive meetings to which the applicants were invited and ALL possible dissenters were excluded. Personal animosities or loyalties. Strong feelings toward a party to the proceeding can also be a basis for charges of unlawful decision-maker bias. Decision-makers in quasi-judicial proceedings should avoid statements and actions that suggest that they have pre-judged a matter before receiving full information in the course of a hearing. It is important to keep in mind that the laws relating to decision-maker bias and conflicts of interest create minimum standards. “Decision-Makers Should Avoid Ex Parte Contacts. Decision-makers should avoid outside contacts that could support a claim of bias. If an ex parte contact occurs, the affected decision-maker should disclose the contact and the substance of the communication at the hearing prior to receipt of public testimony.”

We are not looking at an isolated, casual meeting with the appellants as one might infer from your ex parte disclosures. They were ongoing, regular meetings over 19 months.At all times you have worked with VMT and Orcem to advance their goals. You are by all appearances their partners.
At all times the effect of Orcem and VMT’s membership in MISEDC is clearly seen. Councilmember Malgapo prepared the agendas and minutes, coordinated meals and refreshments and meeting places (typically at a city-owned property) for MISEDC. Based on agendas we have seen, VMT and Orcem were invited to give reports on their progress on at least four occasions. That level of engagement with the applicant and the project’s progress led to Councilmember Malgapo’s enthusiastic and uncritical support for the project before there were any hearings and show that he is not able to be objective and fair to all sides.
An April 27, 2015, email from Councilmember Malgapo to then city Economic Development Manager, Kathleen Diohep states: “It is such a perfect project for this particular site. It will be (a) sad day for our city, if we can’t bring this project to fruition. It will certainly hurt MISEDC’’s goals.”
Councilmember Malgapo sent an email to MISEDC members in September that manifests the loyalty of MISEDC to its own members and their private goals, including the Orcem cement mill  project: “You will recall that we have two goals; one is to search for dredging funds, but our second goal is to explore how Mare Island Straits could be transformed into an economic driver for the City of Vallejo and Solano County. In this regard, let us congratulate our committee members, Vallejo Marine Terminal / ORCEM as they reached a key milestone with their project. Their EIR was released very recently on September 3, 2015. This document took many months to complete. The 45 day public comment period is now underway. Here’s the link to the EIR. Let us all wish them all the best and a successful public review.

In your power-point presentation to Congressman Mike Thompson on August 25, 2015 you stated that “The Vallejo Marine Terminal / Orcem America proposal has gained traction … an amazing project for Vallejo.”

The header of one of the MISEDC agendas stated the committee was “fully supported by the Vallejo City Council.” You, as leaders of the MISEDC represented yourselves to the Army Corps of Engineers to be authorized spokesmen of the city of Vallejo. MISEDC and its chair tasked Vallejo city staff with the drafting of a Section 216 letter seeking an Army Corps of Engineer’s dredging study of the Mare Island Straits.

Mayor Osby Davis was invited to speak at one meeting of the MISEDC, which Councilmember Verder-Aliga failed to attend. It seems inconceivable that Mayor Davis appeared before this committee with no knowledge of its goals, activities and purpose and that Councilmember Verder-Aliga just happened to be unavailable so that no quorum of Council was present that day. It is more reasonable to believe that Mayor Davis was well informed of the purposes of the group when he met with them and that Councilmember Verder-Aliga was asked not to attend to specifically side-step the Brown Act.

The unintentional disclosure of MISEDC’s existence and work led to an extensive pubic records request and subsequent discovery of:
1.   Staff concerns about the secret meetings and possible violations of the Brown Act;
2.   Staff concerns about supervision of its work and priorities in violation of the city charter’s prohibition against council interference with staff;
3.   Misrepresentation of MISEDC’s authority to speak for the city of Vallejo without full council concurrence with its positions and goals;
4.   Pre-approval of the Orcem
WHAT  mill project before hearings on the draft EIR and project application;
5.   Futile attempts to correct the concealment of the activities of MISEDC by misleading and incomplete disclosures buried in voluminous staff presentations;
6.   Efforts to obtain after-the-fact approvals of MISEDC activities based on misleading and incomplete action items buried in voluminous staff reports as part of council packets;
7. Violation of Municipal Code and the Vallejo City Charter.
You heard the public’s outrage at the mention of MISEDC on June 1st. Whatever your intentions with MISEDC, they did not meet Vallejo’s gold standard policy and they violated the Brown Act.
The evidence of bias is overwhelming. You now need to take ownership of MISEDC and how your involvement with that committee compromised your ability to adjudicate this appeal fairly.
You can rectify this on Tuesday. You must not continue to put your personal interests ahead of the City’s. Doing so will keep the MISEDC issue front and center for a very long time and risk litigation. You must recuse yourselves. Any action you take otherwise will be overturned later at substantial cost to the City.

Donald E. Osborne