A recent Civil Grand Jury investigation of five Burlingame planning commissioners for alleged violations of California's open meeting law is over and no action will be taken. But questions still linger about what motivated the jury to launch a scathing attack in the first place and who orchestrated it.
The jury found that a well-publicized October 1999 letter from the five commissioners to The Independent newspaper violated the Brown Act, which prohibits a quorum of appointed or elected officials from discussing public business outside of posted meetings. The letter backed fellow commissioner Jerry Deal for city council and expressed no confidence in Mike Coffey, who was also a commissioner at the time.
When the Grand Jury held a press conference last October to announce the alleged violations, The Voice asked Foreman Herman Christensen, Jr. whether the jury had considered both the 'serial meeting' and the 'jurisdiction' aspects of the open meeting law. At that time he replied that they had not considered the 'jurisdiction' requirements of the Brown Act. But as the deadline for action approached, both Christensen and committee chairman Walter C. 'Bud' Kohn argued that parts of the controversial letter were within the commission's jurisdiction and therefore constituted a violation.
San Mateo County District Attorney Jim Fox saw things much differently. In a December 18 report to Superior Court Judge Quentin Kopp, who oversees the Grand Jury, Fox said that the letter sent to the newspaper 'was not a motion, proposal, resolution, order, or ordinance. It was not a collective commitment or promise by a majority of members to make a positive or negative decision in regards to items under the Commission's jurisdiction.' Further, he added, 'legislative body members do not lose their First Amendment rights' to endorse candidates for office, 'irrespective of the Brown Act.' His office, he said, 'finds that no violation of the Brown Act has occurred.'
City Council Reacts
While the original ruling appeared to have consequences only for the five planning commissioners, the ruling's vagueness caused concern among members of the Burlingame City Council. On December 1, 2000 Mayor Joe Galligan was confused enough to draft a letter to Kopp asking for clarification.
Galligan wanted to know what impact might be felt on any other endorsements for the council. 'If a candidate for any elective office sought and received the endorsement of three or more council members of a 5-person council outside a council meeting, the Grand Jury report would seem to find that this would a be a Brown Act violation,' wrote Galligan. Since three council members recently announced their endorsement of Planning Commissioner Ralph Osterling for next November's council election, this also could have been construed as a violation of the Brown Act .
Focus turns to Grand Jury Bias
The total disagreement between the district attorney and some grand jurors raises questions about whether a bias exists in the jury. Unlike many other counties in California, San Mateo County grand jurors are not required to file a Statement of Economic Interest that would detail their investments and business dealings. But an advice letter from the state's Fair Political Practices Commission says that 'grand jurors are subject to certain minimum disclosure requirements and must file a statement of economic interests.'
County Counsel Tom Casey told TheVoice that such filings have not been required in the county since at least the mid-1980s. But without these filings it can be difficult to assess potential bias among jurors. In an interview with The Voice, Foreman Christensen said he had recused himself from the investigation due to his large commercial real estate holdings in Burlingame and his $300 contribution to Mike Coffey's 1999 campaign.
But the participation of the other jurors remains unknown. Among its 19 members, the Grand Jury includes an ex-Burlingame planning commissioner, the spouse of a San Mateo city councilman, and commercial real estate owners.
While the District Attorney found no Brown Act violation and the City Council eventually voted to ignore the Grand Jury ruling, the whole affair highlights the different treatment complaints can get from different authorities in the county. The normal procedure for reporting an alleged open meeting violation is to contact the district attorney or to take direct legal action (California Codes 54959 and 54960).
But the highly unusual process of using the Grand Jury to anonymously submit a complaint, as was done in this case, allows anyone with a grudge to put others through investigative scrutiny and cause undue negative publicity. Indeed, the Grand Jury's attack on the five commissioners - accompanied by both written and verbal scoldings - was prominently reported by all newspapers that circulate on the Peninsula.
But when the much ballyhooed 'investigation' came full circle to the DA's office, where it should have properly begun, it quickly ended. Was this tempest-in-a-teapot a waste of public resources? A political witch hunt? Who watches the grand jurors for conflict of interest? And who is the anonymous accuser? Those are the questions that are left in the minds of many people who have followed this imbroglio. And so far there are no answers.
But this much has been resolved Planning commissioners David Luzuriaga, Joe Bojues, Martin Dreiling, Ann Keighran, and Stan Vistica are not law-breakers. They can hold their heads high and be assured that their First Amendment rights remain intact
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