Will A Contested Slice of Newport Back Bay Stay in Public Hands?
Local watchdogs say County of Orange officials broke public meetings laws when they got together in closed session earlier this month and backed off reclaiming fenced-off public land in Upper Newport Bay from a wealthy political donor who came close to buying it.
It comes after the County of Orange was recently forced by objecting residents to halt selling a piece of the scenic bay to Newport Beach political donor Buck Johns for just $13,000 — the price of which was determined by an appraisal he paid for and was approved by the county.
Now, after Johns has threatened legal action over his stalled purchase, county officials have backed off on taking down the private fence line that’s been raised around the property which Johns wants to lump into his property overlooking the bay.
That decision was made in a closed session meeting of the OC Board of Supervisors on July 13 — a discussion with a public notice so vague, claims Newport Beach resident Susan Skinner in a July 27 letter to the county, that it broke state public meetings laws.
The exact tally of supervisors’ vote — who voted for or against directing staff to back off — hasn’t been made public.
“This entire episode reeks of special privilege, which is another way of saying political corruption,” said Skinner in her letter, which she shared with Voice of OC on Thursday. She said she wrote the letter with Newport Beach resident and local watchdog Jim Mosher.
Supervisors’ direction earlier this month was also questioned by Supervisor Katrina Foley, who represents the district spanning Upper Newport Bay.
Earlier this year, Foley used what’s called her “district prerogative” to officially pull the sale off the table after residents halted the county’s move to legally “abandon” the land so they could sell it to Johns.
Residents who caught wind of the deal halted the county’s move to legally “abandon” the land through pages of petition signatures in May.
Around the time the sale halted, it was also revealed Johns’ request was facilitated by Foley’s predecessor and then-supervisor Michelle Steel, who has received thousands in campaign donations from Johns for national office. Steel is now a U.S, Representative.
In her letter, Skinner alleges county officials violated the state’s transparency law — the Ralph M. Brown Act — during the July 13 closed door discussion because the public wasn’t sufficiently notified beyond a vague agenda description with no details.
The Brown Act, as it is more casually known, sets the parameters for transparency and public notification of meetings in California.
That includes closed session meetings — meetings that, with enough notice, can happen behind closed doors and out of the public eye, but are permitted under state law very narrowly on subjects like government personnel and employment issues, as well as the price and terms of property negotiations.
On July 13, the topic was listed on a supplemental and revised version of that meeting’s agenda as Item SC6, and only referenced the discussion as a conference with legal counsel over “anticipated litigation.”
Skinner in her letter says because Johns had threatened legal action in a formal letter through his attorney on July 8, days before that meeting, the county should have made clearer what the discussion was about and posted the letter for the public’s viewing.
Her letter reads:
“The Board of Supervisors’ agenda packet for July 13, 2021, failed to provide the public with a copy of the letter threatening litigation that was (to) be discussed in closed session, in violation of the Brown Act […] let alone disclose that a specific letter had even been received.”
It adds: “The failure to provide proper notice in advance of a regularly scheduled meeting is a violation of Govt Code Sec. 54954.2 […] Additionally, the Board is required to report the results of any vote or decision, including who voted for and against the decision. This did not occur …”
She goes on to list government code sections which lay these requirements out, in her letter which can be viewed here.
Skinner’s letter also points to the state Court of Appeals ruling in Fowler v. City of Lafayette, the interpretation of which she argues reinforces the legal requirements that these closed session discussion notices be more specific.
The County’s top attorney, Leon Page, didn’t respond to phone and text messages seeking comment by Voice of OC Thursday.
County spokesperson Molly Nichelson on Friday, asked about Skinner’s letter, responded in a text message: “The County does not comment on closed session items.”
Asked by a reporter whether the County of Orange agrees or disagrees with the assertion officials insufficiently noticed the July 13 closed-session discussion and violated the Brown Act, Nichelson again texted:
“The County does not comment on closed session items.”
Johns’ attorney, Patrick Munoz of Rutan & Tucker, did not respond to phone and text messages seeking comment Friday.
Skinner, in her letter, writes: “Through these failures, the County deprived the public of its California Constitutional right (Article I, Sec. 3) to present views to the Board that may differ from those of the County Counsel with whom the Board was about to meet in private.”
When Foley halted the sale, she intended for staff to take down the fence that had been raised around the parcel.
That didn’t go over well with Johns, who plans to lump the Back Bay parcel in question with his nearby property overlooking the scenic bay.
Johns’ home sits right above the piece of land he wants, which rests on a slope and isn’t really used by hikers on the adjacent trail.
“We are writing to request that the County agree to cease any efforts to remove the fence in order to allow settlement discussions to occur,” Munoz wrote in his July 8 letter to the county.
“If the County does not agree to do so, our client has instructed us to move forward with litigation,” the letter adds.
Then, on July 13, the Board of Supervisors went into closed session.
After that meeting, County staff in a July 14 response letter told Johns they would not take the fence down.
“The county will not be taking any action related to the Subject Property or the fence that currently encloses the property,” wrote the county’s Chief Real Estate Officer Thomas Miller.
That decision, according to Miller’s letter, came at the direction of county supervisors behind closed doors during their Tuesday meeting last week:
“County staff has had the opportunity to discuss the Subject Property with the Board of Supervisors and has received direction with regard to this matter.”
County spokesperson Molly Nichelson, asked at the time how this closed-session discussion was noticed to the public, pointed to item SCS6 on Tuesday’s supervisors meeting agenda.
Johns’ attorney, Munoz, said in his July 8 letter, “both the Johns and the County believed the Subject Property belonged to the Johns.”
If Johns is “forced to litigate,” Munoz wrote, the circumstances and title history of the property would entitle them, “at minimum,” to an equitable easement over the parcel.
Munoz wrote, “It is our sincere desire to avoid litigation over the above issues and ask that the Board agree to cease any efforts to remove the fence while we complete our investigation into the facts, and engage in settlement discussions with you.”