Tulare County Board of Supervisors (TCBOS) is facing possible litigation due to a vote taken on a non-agendized item at its May 19 meeting.
“It was a pretty basic violation of the Brown Act,” said Sarah Shena, a resident of Three Rivers and practicing lawyer.
Because of the potential litigation the TCBOS put an addendum on its June 2 agenda. The closed session item stated,
“Significant Exposure to Litigation (Government Code Section 54956.9(d)(2))
Number of Potential Cases: 3
The County has received letters from Sarah Shena, and from Blanca Escobedo and others, and an email from W. Andrew Harrell, alleging the Board of Supervisors violated the Brown Act with its action of May 19, 2020 concerning COVID-19 and the County’s plan for re-opening the local economy and community, and demanding the Board cure and correct the alleged violations.”
Brown Act Violation?
After a lengthy discussion on the state’s re-opening during the May 19 meeting, Supervisor Dennis Townsend moved to allow businesses to open through Stage 3 and rescind the Public Health Officer’s local order concerning COVID-19. His motion included halting all local enforcement related to stay-at- home orders.
He also included in his motion to “Direct HHSA to shift efforts away from meeting State metrics to assisting with problem areas and populations in the County, including the elderly and health compromised individuals, skilled nursing facilities, hospitals, and businesses or agencies with reported outbreaks.”
County Counsel Deanne Peterson asked Townsend, “OK, so you are not intending to override the (public health) order with this motion?”
Townsend replied, “I would like to state that we are overriding the order – yes.”
Peterson informed the supervisors that they were being asked to vote on a motion that was not on the agenda. “I don’t think you have the authority to do that based on how the way this matter was agendized.”
The item on the agenda stated,
“Request from the Health and Human Services Agency to receive a presentation on the proposed readiness plan and local variance attestation form for accelerated reopening of businesses in Stage 2 of the State’s COVID-19 Resilience Roadmap.”
Peterson then asked the supervisors if they wanted to go into closed session to which Townsend said, “not really. This needs to be talked about in public.”
Supervisor Eddie Valero suggested that the supervisors call for a special meeting to clarify Townsend’s motion. Supervisor Amy Shuklian stated that she would prefer to go into closed session to get a better understanding of what exactly the supervisors were being asked to vote on.
Townsend objected, telling Supervisor Chair Pete Vander Poel that there is a motion on the table and a second by Supervisor Crocker and that the Chair was obligated to take a vote.
The final vote was 3-2 in support of accelerating into Stage 3 and overriding the state’s public health order with Supervisors Valero and Shuklian voting no.
Public and Cities React
Visalia, Tulare, Porterville and Farmersville quickly responded with anger over being excluded from the decision making process. Because of the lack of notification they were pre-empted from voicing their objections to overriding the state’s public health order.
The cities not only feared that federal relief funds might be withheld but that reopening too soon might cause a more serious surge of infections than what the county was already experiencing.
Shena reiterated the city’s concern saying in a letter to Supervisor Chair Pete Vander Poel and County Counsel.
“The Tulare County Board of Supervisors took action on an item that was not on the agenda to re-open all activities in the county, in contravention to the Governor’s Executive Orders and the State Public Health Officer’s directives, greatly endangering the health and safety of Tulare County residents (in addition to nearly ensuring the County and many o its non-government organizations could be deprived of desperately needed funding).”
Mixed Reaction from Supervisors
Several residents of Supervisor Kyler Crocker’s District 1 sent him letters and emails concerning the May 19 meeting to which he did not respond. An email from a constituent who did not want his name in the paper stated,
“Some while ago I forwarded, with comment, an LA Times article negatively highlighting Tulare County pandemic management challenges. Supervisor VanderPoel had the courtesy to reply. Given I was your appointee for District 1……. and we’ve had Three Rivers Town Halls together, your lack of response was disappointing.”
Shena also sent an email to which Crocker did not respond.
“Fortunately, where I live (Three Rivers) most of the potentially impacted businesses are relying on their own common sense (and science, and leadership from the health care community) regarding when and how to safely reopen. I am grateful to Supervisors Valero and Shuklian for voting No. At least there was some sanity in that chamber.”
She copied Shuklian and Valero and received a response from Valero.
“Thank you for your emails, Sarah and Carole. Leadership is difficult, but I am thankful every day I get to serve this great County. Thank you for reaching out and sharing your concern. We work best when our residents and community hold us accountable. Your email is much appreciated.”
Only after Crocker received an email signed by 48 constituents from his district did he respond.
Concerning the Brown Act violation he said, “Without getting into too many details, as this is now a legal matter, the addendum was posted over 90 hours in advance of the meeting.”
In Shena’s letter to Vander Poel she demanded that the supervisors correct their “illegally taken action” and give the community the opportunity to comment on rescinding the public health order through a properly noticed meeting.
“As provided by Section 54960.1 you have 30 days from the receipt of this demand to either cure or correct he challenged action or inform me of your decision not to do so.”
Vander Poel replied,
“Thank you for your letter. Have a nice day.”