Don Wagner and the Brown Act, again

Has Orange County’s Secretive Approach to Covid Contracting Gone Too Far, Broken the Law? 

Nick Gerda; Voice of OC

[To see a video of Tuesday's meeting of the board, go here. About 600 angry citizens came to speak. They were each given 30 seconds.]

     The secretive approach to coronavirus contracts by Orange County supervisors continues to fuel confusion and concern – and is now triggering questions about whether county supervisors violated transparency laws.      

     The latest controversy blew up on Tuesday when hundreds of people showed up at a supervisors’ meeting and railed against digital proof of vaccination – after county officials suddenly added it to their vaccination app a few weeks ago without explanation. 

     County officials called it a “vaccine passport” in the app – using a term proposed by their vendor, CuraPatient – which was becoming a highly controversial term across the nation just as it was introduced to OC’s vaccine app, Othena. 

     In trying to put out that fire, supervisors and county staff quickly worked behind the scenes to change the app contract – but ended up doing it in a back-room way that sparked even more concerns.

     When supervisors publicly questioned whether they broke transparency laws, neither the county CEO nor the supervisors’ chief lawyer said a word at the meeting about whether their approach was legal. 

     Under California’s open meetings laws, it’s illegal for three of the five supervisors to craft contract changes – or even communicate about any policy issues under their jurisdiction – outside of a public meeting. 

     Yet that’s what happened, according to two of the supervisors. 

     As a wave of hundreds of public commenters hammered supervisors Tuesday over “vaccine passports,” Supervisor Don Wagner revealed a closed-door process involving most supervisors that inserted language he had written against vaccine passports: 

     “I wrote it. The contract ad hoc committee [of two other supervisors] agreed to it. This is the sole discussion of [vaccine] passports in our contract,” Wagner said, referring to a $3.8 million contract increase for the Othena app. 

     The contract increase was signed on April 29 by county officials without ever being voted on publicly by county supervisors. 

     That’s sparking legal questions, including among the supervisors themselves. 

Democrat Foley

     Supervisor Andrew Do said Supervisor Katrina Foley was suggesting a Brown Act violation by the rest of the board, after Foley said a majority of the board participated in changing the contract while shutting the public – and Foley – out of the process. 

     “That comment [by Foley] assumes that the rest of the board were in on this discussion or this item, which is in violation of the Brown Act,” Do said. 

     “Just the three of you. Which you’ve admitted up here,” Foley shot back. 

     Do was stunned. 

     “Okay. I don’t know what reality I’m living now,” he replied. 

     “I’m with ya,” Foley said. Do then dropped the subject. 

     State law prohibits what’s called “serial meetings,” in which a majority of county supervisors end up discussing a policy issue outside a public meeting, through a series of communications that each involve less than a majority. 

     “Serial meetings are any…discussion, deliberation or taking of any action on a subject that’s within the body’s jurisdiction,” said David Snyder, an attorney and executive director of the First Amendment Coalition. 

     “Do edits to a document like a contract that are shared among a quorum of the body amount to a communication? I think so,” he added. 

     “They’re exchanging ideas on an important topic that in fact relates to expenditures by the county. And if it was three of them involved, then that’s a quorum, and that discussion would therefore be subject to the Brown Act, meaning it should have happened in public.” 

     Asked by Voice of OC about the closed-door process, Wagner said there was “no Brown Act violation whatsoever.” 

. . .  [See Voice of OC]

Republican Do

     Voice of OC revealed earlier this year that the county spent hundreds of millions of taxpayer dollars on secretly-approved contracts during the pandemic that never appeared on public agendas. 

     Do defended the secret contracting process, complaining publicly that reporters were asking too many questions and seeking too many public records. 

     That ended up prompting a public backlash at Do and the county, as residents and taxpayer advocates demanded that elected representatives be more transparent. 

     After Voice of OC posted the spending records, readers questioned spending like $1.1 million to the Angels baseball team company, owned by billionaire Arte Moreno, for suicide prevention ads. 

     Following a torrent of public criticism sparked by Voice of OC’s revelations, Orange County’s top officials backed up two weeks ago and said they’re ending that practice when it comes to new projects. 

     The secretive authority, however, will continue for existing projects. 

     At the urging of Do, existing multi-million-dollar projects can still be secretly extended and expanded by county CEO Frank Kim, without their text ever appearing on the supervisors’ public agendas.

[Note: there are now two Democrats on the Board of Supes: Foley and Doug Chaffee]

From the New York Times:

What is a vaccine passport or pass?

A vaccination pass or passport is documentation proving that you have been vaccinated against Covid-19. Some versions will also allow people to show that they have tested negative for the virus, and therefore can more easily travel. The versions being worked on now by airlines, industry groups, nonprofits and technology companies will be something you can pull up on your mobile phone as an app or part of your digital wallet.