Calhouns Can(n)ons

And Now, For Something Sort of Different . . .


Ah, yes, amidst all the Blakeslee Breakthrough Proposal hoopla, perhaps we have forgotten The Los Osos 45? If so, you need to pick up a copy of this month’s The Rock and read their stories. If you want to see the real human toll that the various Dreamers wished to inflict on their neighbors when they emailed Roger Briggs at the RWQCB before the recall was even certified demanding he rain fire and brimstone down upon this community, well, The Rock’s interviews will give you an up-close and personal look.

What the hapless 45 have been required to do is submit their “briefs” explaining whether they want their “trials” to continue as is (with “legally tainted” prosecutors and staff and board, or whether a new prosecutor would be O.K. or . .. . .

Below is the CSD’s “brief.” They requested and got CDO “designated status” along with the Los Osos 45. The County was asked to stand with its citizens as in “Interested Party” or request “Designated Status” and they stood silent and did nothing. (I know, it does come as a surprise that everyone who lives in Los Osos is still a taxpaying citizen of the COUNTY, can you believe it? And, need I add, that those folks who are thrilled with the possibility that the CSD will be dissolved and The County will take over, I would suggest they read the issues raised in this brief and remember that County Counsel Cash Wyatt could have written this brief as a Designated Party on behalf of a handful of beleaguered COUNTY citizens, but . . . didn’t.)

Then, following the brief, since we’re still into Things Legalish, a list of the various lawsuits the CSD is involved in. The cases in bold are ones the CSD filed. The rest, are cases brought against the CSD, ones they are defending. My favorite is the Pre-Recall Los Osos Taxpayers Association case which, among other things, complains about the money being spent by the CSD on lawyers and does so by suing the CSD so they have to spend money on . . . lawyers.


Doncha love it!


June 26, 2006
Via facsimile (805) 543-0397 and electronic mail
Michael Thomas, Assistant Executive Director
Central Coast Water Board
895 Aerovista Place Suite 101
San Luis Obispo, CA 93401
Re: Proposed CDO's/Los Osos and Baywood Park Residents
Dear Mr. Thomas:
The undersigned represents the Los Osos Community Services District (“District”), a Designated Party in the above-referenced matter. This letter is submitted pursuant to Michael Thomas’ May 18, 2006 letter memorializing the briefing schedule on due process issues ordered by Chairman Young during the status conference on May 11, 2006.
Mr. Thomas’ letter requests responses to five (5) questions, all of which will be answered in detail below. However, for clarity, the “short answers” are:
1. Yes, the Prosecution’s case must be stricken entirely.
2. Yes, if the Prosecution starts over, so does the production of evidence.
3. Yes, if the Prosecution presents a “supplemental case,” the Designated Parties should have the opportunity to supplement their cases as well.
4. Yes, common sense dictates that if the Prosecution begins anew then the defense begins anew as well.
5. The District has no personal issues that require accommodation at this time.
In addition, and as will also be further explained below, the District contends that all of the CDO prosecutions must be dismissed and, if necessary, commenced again and that those matters can neither be prosecuted by a team that includes senior RWQCB staff nor adjudicated by RWQCB members Young, Shallcross, Press, or Hayashi.

STATEMENT OF RELEVANT FACTS
In late 2005 and into 2006, the RWQCB brought an Administrative Civil Liability (“ACL”) action against the District for alleged violations of a Time Schedule Order and basin plan prohibitions. Such ACL action was adjudicated by RWQCB members Young, Jeffries, Shallcross, Press, and Hayashi who, on January 5, 2006 found against the District and imposed fines in excess of $6.5 million. However, in so ruling, the Board explicitly stated that the ACL action “did not go far enough” and directed RWQCB Executive Officer Roger Briggs to pursue enforcement actions against the 4500+ individual homeowners who relied on septic systems to manage their waste.
CHAIRPERSON YOUNG: In now, because some Board Members have expressed some concern about whether this [ACL] penalty is enough.
BOARD MEMBER PRESS: I’m interested in water quality, and that is why we are instructing staff and urging staff to come back with individual enforcement actions.
BOARD MEMBER SHALLCROSS: I concur with Dr. Press. ...We don’t seem to be getting anywhere, and so hopefully going after the individual dischargers may create the political will for something to happen in a reasonable amount of time.
BOARD MEMBER HAYASHI: Yeah, I’d like to echo the same feelings from my fellow Board Members.
CHAIRPERSON YOUNG: I agree that the individual enforcement actions I think are critical. I think they have to start as soon as staff can start to process things and get them moving. It’s quite clear to me that the folks of Los Osos, in my opinion, are really not capable of addressing these issues with their wastewater disposal in a rational way.
(Transcripts of January 5, 2006 RWQCB meeting on ACL action, attached hereto)
Mr. Briggs began such prosecutions immediately, announcing on January 18, 2006 that Cease and Desist Orders (“CDO’s”) were being prepared against individual homeowners and that a Prosecution Team had been formed to pursue these actions. The Prosecution Team consisted of the following RWQCB staff: Roger Briggs, Executive Officer; Harvey Packard, Supervisor of Enforcement; Sorrell Marks, Senior Staff; Matt Thompson, Enforcement Engineer; and Lori Okun, the RWQCB’s legal counsel. According to the attached organizational chart, this means that 4 out of the 6 most senior staff members---the ones who most regularly advise the RWQCB members the most--- were named to the Prosecution Team.
Shortly thereafter, the proposed CDO’s were issued against 50 (later reduced to 45) individual septic system owners who were chosen ‘at random” by the Prosecution Team. Procedural comments were received by Chairman Young which lead to a February 28, 2006 Hearing Notice whereby briefs and evidence by all parties (including the Prosecution) were to be submitted by April 4, 2006, rebuttal briefs and evidence by all parties (including the Prosecution) submitted by April 19, 2006 and hearing before the RWQCB to be held on April 28, 2006.
At the hearing, the District moved to dismiss on due process grounds, alleging that (1) the RWQCB members who asked that the prosecutions be brought should not be the same ones adjudicating the cases, and (2) that RWQCB staff members who routinely advise the RWQCB should not serve on the Prosecution Team prosecuting cases before that same RWQCB. The District’s motion was denied.
Public comments were then received, and the Prosecution put on its case-in-chief in its entirety. Next, the District put on about half of its case before the hearing was continued to May 11 due to the late hour.
On May 4, 2006, Ms. Okun withdrew as the Prosecution Team’s counsel and the Prosecution Team requested that the May 11 hearing be continued so that they could procure new legal counsel. The stated reason is that the Office of Chief Counsel of the State Water Boards believes it best not to litigate “dual role” due process issues here as well as in pending court cases. Such letter also mentions the State Boards newly created Office of Enforcement, which is designed to remedy the due process shortcomings inherent in the Water Boards long standing enforcement protocol.
Chairman Young granted the request for continuance, but reserved May 11 for a status conference. On that day the RWQCB heard argument as to how to proceed given the change in the make up of the Prosecution Team. Mr. Thomas’ May 18, 2006 letter setting a briefing schedule on due process issues followed.
ARGUMENT
Due Process Is Guaranteed By The Constitution And Its Provisions Should Be Interpreted Broadly, Not Narrowly
In her April 27, 2006 letter to District President Schicker, Tam Doduc, Chair of the State Water Resources Control Board writes:
“Thank you for your email. The State Water Resources Control Board takes due process concerns very seriously. While I cannot actively intervene in the on-going process before the Central Coast Water Board, I have relayed your concerns to the Regional Water Board staff. I have also requested that they carefully consider all procedural requests (such as your request for continuance) and ensure that their hearing procedures protect the due process rights of all individuals.”
Chair Doduc’s view is certainly consistent with the 5th Amendment to the U.S. Constitution (applied to states via the 14th Amendment) which states that, in relevant part, “[n]o person shall be …deprived of life, liberty, or property without due process of law.” From a procedural perspective, this constitutional right simply means that that the government must ensure a fair decision-making process when it seeks to deprive an individual of life, liberty or property. Due process always requires a relatively level playing field, the “constitutional floor” of a “fair trial in a fair tribunal.” In other words, a fair hearing before a neutral or unbiased decision-maker. Nightlife Partners v. City of Beverly Hills (2003) 108 Cal.App.4th 81, 90 (citing numerous U.S. Supreme Court due process decisions).
Such constitutional protections have been interpreted broadly in favor of jealously guarding due process rights. As applied to administrative hearings, due process:
“…also demands an appearance of fairness and the absence of even a probability of outside influence on the adjudication. In fact, the broad applicability of administrative hearings to the various rights and responsibilities of citizens and businesses, and the undeniable public interest in fair hearings in the administrative adjudication arena, militate in favor of assuring that such hearings are fair.” Nightlife Partners, supra (emphasis added)
Accordingly, the legal standard in the instant CDO proceedings is for this RWQCB to assure not only actual fairness but also the appearance of fairness and favor the protection of rights over concerns for expediency and making political statements.
The Instant CDO Actions Must Be Dismissed And Any Others Started Anew
Here is a snapshot of where we are in the current process: the Prosecution Team has presented its case and the responding parties have begun to put on their defense; therefore, the relevant inquiries to be made are (1) whether this RWQCB can assure that the process has, to date, appeared and actually was fair, and (2) whether this RWQCB can assure that the process going forward will appear and actually be fair. Each of these is addressed, in turn, below.
The Process To Date Has Been Inherently Unfair
As noted above, the decision to initiate prosecution of the individual septic system owners was made by this RWQCB on January 5 when it directed Mr. Briggs to begin such process. That is tantamount to a superior court judge telling a District Attorney which citizens to make defendants and which defendants to take to trial before that very same judge. It appears unfair and is actually unfair because the adjudicative arm of the government must be kept separate from the prosecution arm in order for fairness of process to occur. Withrow v. Larkin (1975) 421 U.S. 35, 47 In this case, four RWQCB members crossed the line by straying from their role as adjudicators and openly directing which individuals were to be prosecuted before them.
In addition, the secret “random” method by which the first “lucky 50” were selected to be prosecuted may appear “fair” in the sense that all 4500+ septic owners had equal opportunities to be “spared” from the first round of prosecutions, but in practice the process is actually unfair from the perspective that the Prosecution Team has stated that all 4500+ prosecutions will be “the same” and all brought between now and 2010 (end of the “cure period”). That means that the “cure period” given to the first CDO recipients will be longer than that given to the last ones and that the interim requirements imposed on the first round of CDO recipients will last for 3-4 years, while those same interim requirements will be imposed on the last wave of CDO recipients for a few weeks.[1] (Footnote 1: There are other problems with the "random" selection, phased prosecution, and interim requirements aspects of these proceedings that go beyond due process and into the realm of civil rights violations and illegal assessments; however, such issues are beyond the scope of the Chair's requested briefing here and are only mentioned to ensure that they are not considered waived)
Compounding this problem is the makeup of the Prosecution Team. In the case of Quintero v. City of Santa Ana (2003) 114 Cal.App.4th 810, the appellate court held that it is violative of due process when the city attorney that routinely advises the city’s personnel board also prosecutes before that board…the reason being is that such situation creates an appearance of bias and unfairness. The holding in Quintero was recently applied to the SWRCB and its attorneys in a Sacramento Superior Court Case entitled Morongo Band v. SWRCB. In Morongo, the trial court held that a SWRCB attorney cannot act as an enforcement attorney before the SWRCB while concurrently acting as legal advisor for the SWRCB---even if the two matters are unrelated.
The rationale behind the holdings in both Quintero and Morongo is that
“For the Board to allow its legal advisor to also act as an advocate before it creates substantial risk that the Board’s judgment in the case before it will e skewed in favor of the prosecution. The chance that the Board will show a preference toward [the deputy city attorney], even ‘perhaps unconsciously’ is present and unacceptable.” Quintero, supra, at 817.
Thus, at a minimum in the case at bar, because Ms. Okun regularly advises this RWQCB and was a member of the Prosecution Team that prepared briefs submitted to this RWQCB and presented the Prosecution Team’s case to this RWQCB, the appearance if not the actuality of unfairness is implied as a matter of law. Simply put, this RWQCB has now been unfairly influenced in these proceedings by having its counsel serve as prosecutor.
However, in order to be consistent with the legal mandates stated above, this RWQCB must go one step further than that taken by the courts in Quintero and Morongo; namely, to require that when and if new prosecutions are initiated that senior RWQCB staff (e.g. Mr. Briggs, Mr. Packard, and Mr. Thompson) be precluded from participating in the prosecution. The rationale for such conclusion is the same as that applied in Quintero and Morongo; namely that ANYONE, an attorney or otherwise, who regularly advises the RWQCB should not be allowed to prosecute before that same RWQCB. “It would only be natural for Board members, who have looked to [the deputy city attorney] for advice and guidance, to give more credence to his arguments when deciding plaintiff’s case. Whether or not they actually did is irrelevant; the appearance of unfairness is sufficient to invalidate the hearing.” Quintero, supra, at 816. See also Howitt v. Superior Court of Imperial County (1992) 3 Cal.App.4th 1575, 1585; Civil Service Commission v. Superior Court (1984) 163 Cal.App3d 70, 78, fn.1
Executive Officer Roger Briggs advises the RWQCB more often than any other person. Senior staff members Harvey Packard, and Matt Thompson advise the RWQCB often. Presumably, the RWQCB members trust these three senior staff members, otherwise they would not be senior staff. Thus, according to Quintero, it would be natural for this RWQCB, which has looked to senior staff for advice and guidance, to give more credence to their arguments when deciding the CDO matters. Whether or not the RWQCB members actually do or not is irrelevant; the appearance of unfairness is sufficient to invalidate the hearing. Coupled with the fact that three of the top six advisors to the RWQCB (four if one counts Ms. Okun) are on the Prosecution Team in this instance, the appearance of manifest unfairness is not just present---it is grossly apparent.
In sum, Quintero and Morongo prompted the SWRCB to create a new Office of Enforcement and prompted Ms. Okun to withdraw from the Prosecution Team here. Quintero and Morongo strongly support the legal conclusion that the CDO process at bar has, thus far, violated the due process rights of the accused. Similarly, this RWQCB should follow Chair Doduc’s guidance and Supreme Court case law and interpret Quintero and Morongo liberally so as to apply its rational to those who are in a position of trust and regularly advise the RWQCB regardless of whether they are attorneys.
The RWQCB Cannot Unring The Bell
As to whether the CDO enforcement actions can move forward and not be violative of due process, the answer is simple: no, because the RWQCB cannot unring the bell. The Prosecution Team has completed its case-in-chief, so the influence precluded by Quintero and Morongo has already taken place…and no matter how this RWQCB proceeds (short of dismissal) that influence cannot be negated.[2] (Footnote 2: For this reason, allowing the Prosecution Team to supplement its case is pointless, but if that is the Chair's ruling, then common sense fairness dictates that the designated parties should be allowed to respond to such attitional materials) Thus, if these enforcement actions proceed to decision, they will be legally identical to the ones presented in Quintero and Morongo and ultimately suffer the same fate.
In addition, a realistic side effect of moving forward is, in the words of Lori Okun in her May 4, 2006 letter:
“A rehearing would come only after days of wasted ‘first round’ hearings before the Central Coast Water Board, countless hours of wasted staff time, and several years of litigation.”
Thus, it certainly appears that a tremendous amount of public and private resources could be saved by dismissing the instant actions now.
Current RWQCB Members Cannot Adjudicate Future CDO (Septic System) Enforcement Actions
Not only do the above facts and applicable law compel dismissal of the instant CDO actions, it also precludes current RWQCB members from adjudicating future ones. By directing Mr. Briggs to prosecute and having been influenced by trusted staff members wearing their prosecutorial hats, RWQCB members Young, Shallcross, Press, and Hayashi have been irreversibly tainted in favor of the prosecution and, therefore must recuse themselves from this and future enforcement actions against the Los Osos septic system owners.
To honor the right to due process, a decision-maker MUST---not “may” or “should”--- be disqualified when his role as a non-partisan player has been compromised. Nightlife Partners, supra, at 98. Here, RWQCB members who initiated prosecution and have been, as a matter of law, unduly influenced by the Prosecution Team are, without question, compromised as neutral decision-makers.
From a statutory perspective, there are no laws directly addressing the disqualification of biased administrative decision-makers; however, there are rules governing disqualification of judges that are applicable here by analogy because RWQCB enforcement proceedings are quasi-adjudicative in nature and, therefore, the RWQCB’s are obligated to assure the same constitutionally-based due process protections as the courts.
28 U.S.C. Section 455 requires that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” California Code of Civil Procedure Section 170 states that no judge shall preside in a case in which he is not wholly free, disinterested, impartial, and independent. If a reasonable person, aware of all the facts, would fairly entertain doubt concerning a judge’s impartiality, disqualification is mandated, and the existence of actual bias is not required. CCP Section 170.1(a)(6)(C) In this case, given the statements of the RWQCB members quoted above coupled with the undue influence of the Prosecution Team, it is certainly reasonable to question whether these four RWQCB members are giving each of the 45 CDO respondents fair and unbiased consideration. Nor can it be said that the four RWQCB members are independent arbiters because they, themselves, initiated the prosecutions. Combined, these circumstances certainly create enough doubt as to impartiality and, as such, disqualification is mandated.
In Schmidt v. United States 115 F.2d 394, 398 (1940) the court concluded that the trial court judge should have recused himself when an affidavit alleged that the judge was informed in advance of the facts by the prosecutor and expressed a prejudicial opinion regarding the facts of the case an alleged guilt of the defendant. Under these circumstances, the court reasoned that “even a judge may not put aside the propensities of human nature as easily as he does his robe.” In order to eliminate the possibility of any unfairness, the court remanded the case for further proceedings before another judge. Here, the prejudicial comments by RWQCB members at the conclusion of the ACL action in January, 2006 clearly were slanted toward liability of the individual septic system owners; accordingly, evidence of bias exists and due process is violated absent recusal of the RWQCB members.
Accordingly, because the adjudicators of the CDO actions either appear to be or actually are biased, they must recuse themselves from hearing enforcement actions relating to Los Osos septic systems.
CONCLUSION
For all of the foregoing reasons, the instant CDO actions should be dismissed, senior staff should be barred from prosecuting future enforcement actions before this RWQCB, and the RWQCB members who have participated thus far in the instant proceedings should permanently recuse themselves from current and future adjudication of enforcement actions involving septic systems in Los Osos.
Very truly yours,
BURKE, WILLIAMS & SORENSEN, LLP
STEPHEN R. ONSTOT






Final Posting:


Los Osos CSD Litigation (Government Code, §54956.9(b).) as of June 19, 2006

Pre Recall
Los Osos Taxpayers Association v. LOCSD in SLO Superior Court – (public waste) Prop 218

Corenbaum v. LOCSD, Bruce Buel, Bruce Pickens (personnel) in SLO Superior Court

LOCSD v. Golden State et. al. (basin adjudication) in SLO Superior Court

LOCSD v. Corr, eminent domain action (sewer line easement) in SLO Superior Court

Post Recall
Taxpayers Watch, Joyce Albright, Robert C. Crizer, Christopher Isler v. LOCSD
Appeal (CV051012) – Measure B

RWQCB v. LOCSD in SLO Superior Court (CV051074) – Injunctive Relief Measure B

Taxpayers Watch, Joyce Albright, Robert C. Crizer, Christopher Isler v. LOCSD, Steve Senet, John Fouche, Chuck Cesena, Lisa Schicker, Julie Tacker in SLO Superior Court (CV050862) – public waste

Barnard/Monterey Mechanical v. LOCSD - contractor action against LOCSD in SLO Superior Court

RWQCB v. LOCSD - ACL/TSO appeals to SWRCB

Montgomery Watson Harza v. LOCSD in SLO Superior Court (false claim)

Merrill v. LOCSD in SLO Small Claims Court (SC060095) (prepaid assessment challenge)

Sturtevant v. LOCSD in SLO Small Claims Court (SC060026) (water meter dispute)

Parker and Hawley v. LOCSD (public records act writ of mandamus)

LOCSD v. SWRCB (SRF) in Sacramento Superior Court (05AS05422) – breach of contract

LOCSD v. RWQCB, as designated party to individual CDO’s