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October 25, 2005 > Editorial: The Ohlone land deal and the public's right to know

Editorial: The Ohlone land deal and the public's right to know

Ever wonder what goes on at "closed sessions" of public agencies? Laws, primarily the Ralph M. Brown Act, are designed to regulate the actions of elected and appointed officials when they are obscured from public view. The preamble of the act states:

"In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created." (54950) [Emphasis added]

When dealing with real property negotiations, the Brown Act specifies that only very particular discussions may take place behind closed doors and the public has the right to know the exact property discussed, parties involved in any transactions and the results of any actions taken. When elected officials and their administrative employees play loosely with these regulations, bad things can happen. In closed session, the only points to be discussed dealing with real property transactions are price and terms of payment. Precipitous action that allows little time for review by the legislative body and/or the public is suspect. Denial of adequate time for review creates the impression, if not the fact, that an ulterior motive or method to restrict opposition and debate is at work.

The Attorney General has concluded that the apparent purpose of the prior identification requirement was to provide the members of the public an opportunity to comment or to take pertinent action in favor of or opposition to a particular acquisition [or sale?]... In order for any such comment or action to be relevant and appropriately directed, however, the property to be considered at a particular closed session of the board, as well as "the person or persons with whom its negotiator may negotiate," must be specifically identified. (73 Ops. Cal. Atty. Gen. 1 (1990)).

Government Code 54956.8 states:

Notwithstanding any other provision of this chapter, a legislative body of a local agency may hold a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange or lease. However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies the real property or real properties which the negotiations may concern and the person or persons with whom its negotiator may negotiate.

Substantial compliance to Government Code 54956.8 when convening closed sessions is satisfied by including the information provided below, irrespective of its format:

Conference with Real Property Negotiator
Property: (Specify street address, or if no street address, the parcel number or other unique reference, of the real property under negotiation)
Negotiating parties: (Specify name of party (not agent))
Under negotiation: (Specify whether instruction to negotiator will concern price, terms of payment, or both)

The latest agenda for the Board of Trustees for the Ohlone Community College District meeting of October 26, 2005 includes information regarding a proposed closed session dealing with real property. It reads:

Conference with Real Property Negotiators: (Government Code 54956.8): This item includes conference with Jim Eller regarding campus property located at 43600 Mission Boulevard, Fremont California

Besides the land description, there is little to tell us, the public, what is being discussed and the developer or developers involved. This simply states that something will be discussed with Mr. Eller, Ohlone's attorney, about a named property. It appears that shortcuts are being taken and, if that is the case, are there other issues hidden behind closed doors? It will be interesting to hear the results of this meeting as they are reported to the public and any subsequent board action on item number 23: Resolution No. 12/05-06 Authorization to Enter into Negotiations for Nonbinding Letter of Intent for the Sale or Lease of District Surplus Real Property.

To date, TCV has requested specific information about the sale and/or lease of Ohlone College lands. Vague and incomplete information has been received about developer proposals and plans for significant portions of Ohlone College land (see TCV Editorial October 18, 2005). These developments not only affect the college, but will have a significant impact on the surrounding community as well. A full debate of the merits of these plans and disclosure of lease or purchase details fall within the public domain. It is vital that the public be given full disclosure and adequate time to review the effects and college plans for proceeds. The board should take no immediate action on Discussion/Action Item 23 at the meeting on October 26th.

Note: The next Ohlone Community College District Board Meeting will be held at 7 p.m. at the Child Development Center on the Fremont Campus near the intersection of Pine St. and Mission Boulevard. Ohlone televises its meetings on cable channel 28 (Fremont and Newark) on the following Thursday evening at 7 p.m. If you are unable to attend the board meeting, it may be worthwhile to tune in on the evening of the 27th.

Sources: California First Amendment Coalition website; The California Journalist's Legal Notebook published by California First Amendment Coalition.

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