Out Loud: IWD GM claims to understand the Brown Act he violates

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Editor’s note: I’m stepping aside again this week to let Jack express an opinion based on his recent investigations. BC

It appears that Idyllwild Water District’s GM Tom Lynch is at it again.

On Monday, April 11, IWD Director Steve Kunkle sent an email to Lynch asking to attend the next agenda meeting that Lynch generally has with IWD Board President Jim Billman a week before each board meeting.

Lynch responded that the Brown Act prohibited Kunkle from attending those meetings. When Kunkle asked him to cite wherein the Brown Act it did so, Lynch cited Government Code section 54952.2 regarding serial communications as his source.

Lynch then copied the email trail between himself and Kunkle to all the other members of the board of directors, which resulted in Director John Cook asking to attend the agenda meetings, also.

The Government Code sections known as the Brown Act prohibit “any congregation of a majority of the members” of the board to discuss, or even just hear, anything within the jurisdiction of the board — in this case, any IWD business. (Gov. Code, § 54952.2, subd. (a).) Any two members of the board may hear or discuss such business without constituting a Brown Act violation, as long as neither of them communicates their discussion — either directly or through an intermediary — to a third member of the board. (Gov. Code, § 54952.2, subd. (b)(1).)

The presence of the general manager has nothing to do with this. So, board member Billman can meet together with both board member Kunkle and GM Lynch without there being any Brown Act violation, as long as they do not thereafter communicate anything from that meeting — even just discussions — to another member of the board, either directly or through an intermediary. (Gov. Code, § 54952.2, subd. (b)(1).)

And section 54952.2, subd. (b)(2), relates that an employee, such as Lynch, may have a separate discussion with any member of the board “to answer questions or provide information” (such as the email discussion Lynch had with Kunkle, referenced above) “if that person [i.e., Lynch] does not communicate to members of the [board] ... the comments or position of any other member” of the board.

So, when Kunkle emailed Lynch seeking answers and information, their exchange of emails was no violation. But when Lynch then copied the other members of the board with their email train, he violated the serial meeting provisions of the Brown Act. (Gov. Code, § 54952.2, subd. (b)(2).)

In short, Lynch cited the serial-meeting provisions of the Brown Act as prohibiting Billman, Lynch and Kunkle from meeting to discuss the agenda — which is not true — then Lynch violated the Brown Act himself by sending the email trail of his discussions with Kunkle, containing Kunkle’s position and comments, to each of the other members of the board.

It’s very clear that IWD directors and their GM need Brown Act training, which can be obtained through various sources, including the postings and publications of California Special Districts Association. (For example, visit www.csda.net/?s=brown+act.)

In the meantime, the board needs to rein in its GM, who thinks he knows the Brown Act, and get its Brown Act legal advice from someone who does.

Jack Clark, General Counsel & Co-Publisher

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  1. The practice may continue unless someone brings a Brown-Act lawsuit to stop such discussions.

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