For a few months now I’ve been running a project aimed at getting the BIDs of Los Angeles to comply with the Brown Act. This certainly ought to be the job of the City of Los Angeles, but they have completely abdicated all responsibility, so it seems to be more or less just up to me. The system relies on §54960.2 of the Brown Act, which allows any interested party, such as me, to allege that a BID1 violated the Brown Act and demand that they cease and desist from violating it in the future.
The BID then has the choice of issuing an unconditional commitment not to repeat the alleged violations2 within 30 days of the letter or else face a lawsuit. I’ve done four of these since August, the first three resulting in complete and utter capitulation by the BIDs involved, and the fourth I just sent out yesterday morning to the South Park BID. Here’s a list of the old ones:
- Pacific Palisades BID — Demand and capitulation.
- Studio City BID — Demand and capitulation.
- Byzantine-Latino Quarter BID — Demand and capitulation.
Now, the South Park BID has had its problems in the past complying with the Brown Act, but on the other hand, Ellen Salome Riotto has been relatively willing to learn from her mistakes. Usually I just drop her a line and she fixes the problem.3 However, I recently learned of two new violations which are far, far too serious to be left to the kind of informal mole whackery in which I’ve so far been willing to engage. These are the subject of this demand letter which I sent yesterday morning to the BID.
The letter alleges violations of three sections of the Brown Act. The first is that they required me to sign in to a meeting in April. I’ve written about this incident before and they seem to have stopped doing it, but it’s worth including here to get them to formally commit not to doing it any more. The second violation is that in November the BID Board actually voted on an item via email at the instigation of Ellen Salome Riotto. This is so freaking illegal, so freaking contrary to the very essence of the Brown Act, that I’m utterly astonished that it happened. And yet it does seem to be a genuine error rather than malfeasance.
The sad irony is that Ellen Salome Riotto explicitly arranged this illegal vote in order to avoid violating the Brown Act’s mandates about teleconferencing. And that she seemed to think that it would be OK because it was justified by the BID’s bylaws, as if state law could be nullified by some two-bit corporation unilaterally announcing that they weren’t subject to it. The whole situation would be tragic if these careless, ignorant people weren’t granted so much public trust.
And the final violation is just stunning in its scope and its audacity. The Brown Act clearly states that committees must also follow open meeting requirements.4 The South Park BID, however, has an executive committee which doesn’t post agendas, meets in secret, and discusses, deliberates, and takes action via email, by phone, and at their secret meetings. It’d be easier to list the parts of the Brown Act that this doesn’t violate!
Secret actions by a public agency like the BID are untenable. This is how democracy dies, so I can’t allow it to continue. And in this case Ellen Salome Riotto has ignored my questions about the violations. Hence the necessity of the demand letter. Turn the page for transcriptions, links to the evidence and code sections, and maybe even some more of my moralistic ranting!
Voting by email
This part of the story begins with an October 12, 2018 email from Ellen Salome Riotto to Daniel Taban, SPBID Board member and certified zillionaire partner in JADE Enterprises, a real estate investment firm so secretive that it does not even have a website5 and Robin Bieker, stalwart yet ignorant president of the SPBID board. Here is what ESR had to say for herself:
From: Ellen Riotto <email@example.com>
To: Daniel Taban <firstname.lastname@example.org>
Cc: Robin Bieker <email@example.com>
Subject: Action by written consent.
Date: Fri, 12 Oct 2018 21:22:48 +0000
I’ve been thinking through the next steps we discussed regarding a board vote on a spending limit for TIs, and due to Brown Act criteria, a Special Meeting by conference call is going to be challenging – every board member will need to post a notice at the location where they plan to call-in 24 hours in advance of the conference call, and allow any member of the public to join them if they wish. Instead, I propose we take “action by written consent” which is spelled out in Article VIII Section 12 of by-laws:
Section 12: Action by Written Consent without Meeting. Any action required or permitted to be taken by the Board may be taken without a meeting, if all members of the Board shall individually or collectively consent in writing to such action.
Such written consent or consents shall be submitted by fax, mail or e-mail, and shall be filed with the minutes of the proceedings of the Board. Such action by written consent shall have the same force and effect as the unanimous vote of such Directors.
For purposes of this Section only, “all members of the Board” does not include any “interested Directors” as defined in Section 5233 of the Code.
Let’s see how far we get with Howard CDM after our call on Monday, then try to finalize a Not To Exceed number by EOD Monday. Then I propose Executive Committee and I make phone calls to individual Board members, get their buy-in, then ask them to submit an email (which I will draft).
And Daniel Taban, who may be an absolute whiz at real estate related zillionairity, is no kind of lawyer. He’s not even smart. But he is agreeable,6 and so right away he wrote back:
Sounds good to me.
So let’s look at the Brown Act, shall we? The law states really, really clearly, right at §54952.2(b)(1), that:
A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.
Voting by email is forbidden by state law. It can’t actually be possible that the bylaws of the South Park BID7 override a state law. It’s not possible to have a government under such circumstances. Imagine. State of California: “Murder is illegal.” Private corporation: “Our bylaws allow murder.”
Not only is it never going to happen, but who freaking thinks that it could happen? A bunch of people who are used to assuming that the laws are written for their benefit is who. Sheesh. Oh, and how about the fact that ESR thought she was preventing a violation of the teleconferencing rules by holding email votes? It’s so freaking kooky!
Now, the record doesn’t show what happened with the issue that Ellen Salome Riotto proposed to vote on by email in that message, but just a few weeks later ESR must have thought that it worked so well before why not do it again? Thus on November 2, 2018 did she write to her board of directors, stating:
Hi Board members,
Unfortunately we did not make quorum at yesterday’s meeting, so we were unable to vote on our agenda items. Due to the stringency of the Brown Act, conducting this business by phone will be challenging from a logistical standpoint (call-in locations are required to be identified and open to the public 72 hours in advance of the meeting). So, we will have to find a time between now and the end of the year to reconvene and vote.
In the meantime, there is one agenda item that requires an immediate decision. As you all know, we went out to bid on our clean and safe services for next year and 2020. We received 7 proposals and conducted 5 interviews, and after a rigorous application and interview process, the Selection Committee recommends contracting with Block By Block for both services. Both their application and interview were the most South Park-specific of all proposals we received. Every reference I checked (none of which were included in their proposal) raved about the quality of their work, their customer service experience, and their ability and willingness to try innovative approaches to providing services (we’re excited to see a “power washer bicycle” which will allow ambassadors to service those hard-to-reach areas in the district).
I was hoping to be able to provide more context as to how the Selection Committee arrived at this decision in person, but I’m happy to do so individually if you’d like to learn more. If not, please REPLY TO THIS EMAIL using the template below:
This email documents my vote FOR/AGAINST moving forward with contract negotiations with Block By Block for both clean and safe services for 2019 and 2020.
Thank you and please feel free to reach me on my cell – 401-439-8147 – with any questions or comments.
And then the Board of Directors actually just did all respond to her with their votes. By email. Which is illegal. And not a damn one of them had the sense to ask a question. You can read their email votes here. Again, this is really hard to understand. These people are the directors of a public agency that’s subject to the Brown Act, that they know is subject to the Brown Act, and that’s the very Brown Act that I’ve been hassling them about for the better part of a year, and yet not one of them has taken the time to understand it, or even to get wary enough to ask Ellen Salome Riotto if she’s checked this out with their lawyer. Not. One. Of. Them.
The executive committee
The South Park BID bylaws establish an executive committee (see Article X section 1), which has most of the powers of the board itself. But again, the Brown Act at §54952(b), enumerates the bodies that it applies to:
A commission, committee, board, or other body of a local agency, whether permanent or temporary, decisionmaking or advisory, created by charter, ordinance, resolution, or formal action of a legislative body. However, advisory committees, composed solely of the members of the legislative body that are less than a quorum of the legislative body are not legislative bodies, except that standing committees of a legislative body, irrespective of their composition, which have a continuing subject matter jurisdiction, or a meeting schedule fixed by charter, ordinance, resolution, or formal action of a legislative body are legislative bodies for purposes of this chapter.
So the executive committee is not advisory since it can take action. Thus the one exception listed there doesn’t apply. That means that the executive committee is subject to the Brown Act. In particular, per §54953(a) its meetings must be open to the public, per §54952.2(b)(1) the EC can’t discuss or take action by email or phone, and per §54954.2(a) the EC must post agendas in advance of its meetings.
Now, it’s not enough under the law8 that the BID proposes to violate it, claims to be authorized to violate it, or whatever. In America, and even in Los Angeles, it’s necessary that they actually do violate it before they’re eligible for bustedness. However, that’s not an impediment in this case. There’s plenty of evidence in the demand letter that they actually do violate these sections. It’s all laid out in there if you’re interested, but this post is getting so long I’m going to skip the details here.
This particular violation, though, is anything but trivial. In all other Brown Act violation cases I’ve dealt with the BID could just promise not to violate the sections any more and then go on about their business as usual. In this case, though, the SPBID’s executive committee seems to be an integral part of how they operate. They’re going to have to set regular meeting times, publish agendas, plan their actions, and so on. It seems to me that it will be a major undertaking. Well, they’re going to have to do that stuff or else defend their decision not to in a court of law. We’ll certainly see which they choose!
Selected transcriptions from the demand letter
I already described the three violations I’m alleging above, so I won’t repeat them here. But I think my descriptions of the harm done by the BID’s flouting of this essential law is important, as well as the demand for relief:
3 The harm done
30. These violations are not just incidental, technical, nor harmless. Rather, they implicate fundamental constitutional rights that the people of California have reserved to themselves. The Brown Act at §54950 states:
In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the 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.
31. By holding meetings in a facility entry to which is conditioned on signing in the SPSG deprives citizens of the fundamental constitutional right to participate anonymously in public meetings and to make anonymous public comments on the proceedings.
32. By discussing, deliberating on, and taking action on the people’s business in secret via email the SPSG Board of Directors has deprived the public of the opportunity to be present when public business is discussed, to observe the actions of its decision makers, and to attempt to influence those actions via public comment or other forms of political action.
33. By creating a committee, the EC, which meets in secret, whose meetings the public is not allowed to attend, which does not publicly post agendas describing the business it conducts, and which discusses, deliberates over, and acts on matters of great public import, the SPSG has deprived the public of their absolute right to be present during discussions of public business, to witness and understand the means by which these decisions are made, and to discuss and influence these decisions via political action in all its varied and glorious kinds.
4 Demand for relief
34. The SPSG’s multiple failures to comply with the requirements of the Brown Act constitute a grave betrayal of both fundamental and consequential principles of our government. It is therefore in the best interest of all concerned that the BID not only cease and desist from such violations in the future but that they make a public commitment to ceasing and desisting.
35. If the SPSG responds to this demand within 30 days of today’s date with a letter expressing an unconditional commitment to cease and desist from all future violations of this type in substantially the form given by the Brown Act at §54960.2(c) I will consider this matter at an end. Please send this letter to me by email at ■■■■■■■@■■■■■■■.org and by postal mail at:
Los Angeles, CA 900■■
For the sake of efficiency please either confirm my receipt of this letter or send it in such a way that its arrival is trackable.
36. If the SPSG refuses to so respond or so responds after 30 days have passed I will instruct my attorneys to proceed to “file an action to determine the applicability of this chapter to [the above-described] past actions of the” SPSG under §54960.2 of the Brown Act. If I prevail in that action the Brown Act at §54960.5 allows for the court to award costs and reasonable attorneys’ fees to me.
Thank you for your prompt attention to this important matter,
Image of Ellen Salome Riotto is ©2018 MichaelKohlhaas.Org. Made up of snips and snails and puppy dog tails and this other image here.
- Or any body subject to the Brown Act, of course.
- Without admitting guilt, cause that’s how laws regulating white collar crime are just gonna be written.
- Here are some examples of the BID’s past transgressions along with their outcomes:
- Failure to distribute materials used at a meeting — The Brown Act at §54957.5(a) requires all materials shown to the Board during a meeting to be made available to the public. ESR initially refused to do so but then changed her mind.
- Requiring sign-in to attend meeting — This is explicitly forbidden by the Brown At at §54953.3. ESR didn’t commit not to do this again, but on the other hand it hasn’t happened since. This incident is part of the demand letter described in this post.
- Teleconferencing violation — The Brown Act at §54953.3(b) has really strict rules on teleconferencing in to meetings, and the South Park BID had been violating pretty much all of them. Again, to her credit, ESR saw the problem immediately and changed BID policy to prevent it. The BID no longer enables teleconferencing for its meetings.
- Deficient descriptions of closed session subjects — The Brown Act at §54954.2(a)(1) requires the agenda to include descriptions of all matters to be discussed, including closed session items. The BID put out an agenda lacking some descriptions but then changed it when I pointed out the problem.
- With one technical exception that I’m not going into here. It doesn’t apply in this case. This exception is much abused by BIDs, and it’s probably possible, but fairly complicated, to stop them. Too much to talk about in this post, though.
- Although there’s one review of them on Glassdoor.com, and the poster is mostly upset that they didn’t validate parking for job interviewees. Must be nice to have such problems, eh?
- Which is probably a really important skill in real estate related zillionairity — the ability to be agreeable unless it’s gone cost you lots of money, where “lots” is a highly relative term.
- It’s really the bylaws of the South Park Stakeholders Group, which is the property owners’ association for the BID, which is a distinction without a difference that matters in this context, although as always it matters a lot in some other contexts or why would anyone ever have made it?
- This or any other law.