Planning commissioner could be investigated

The city attorney has asked county prosecutors to look into

allegations that a Huntington Beach planning commissioner violated

the state’s open meetings law.

Bob Dingwall allegedly e-mailed research on an upcoming Target

store project to six other commissioners on the planning body before

going through the legal communication channels, City Attorney

Jennifer McGrath said.

The Brown Act makes it illegal for a majority of a government body

-- often referred to as a quorum -- to meet privately to discuss

current issues. All debate and decision-making of a majority of the

group, whether it is the City Council or the planning commission,

must be done in public. The law also restricts the sharing of

information between council members and commissioners in private.

McGrath alleges that Dingwall might have violated the Brown Act

when he forwarded research to other commissioners regarding the

delivery hours of a Target retail shopping center being built at the

corner of Brookhurst Street and Adams Avenue.

Dingwall argues that he broke no law because the same information

was later made public and sent to the commissioners through the

normal channels. He said that McGrath has a “personal vendetta”

against him.

Dingwall declined further comment on the record for this story.

The incident goes back to early September, when Dingwall appealed

the proposed weekend delivery hours for the retail giant and forced a

public hearing on the matter. About 10 days before the hearing,

Dingwall sent out an e-mail to his other commissioners with research

he compiled about advancements in inventory controls techniques that

stores like Target could adopt in the future.

“Before anyone gets upset, I am not trying to persuade your

decision on the Target Appeal with this communique,” he wrote in the

e-mail, obtained by the Huntington Beach Independent. “You will,

however, need the attached background information for my presentation

to make any sense.”

Even with the disclaimer, McGrath said Dingwall’s e-mail was

problematic.

“Communicating relevant to decisions before the body would be a

violation of the Brown Act,” McGrath said. Later, she added, “I don’t

consider this inadvertent.”

This isn’t the first time commissioners have gotten into trouble

for Brown Act violations. In September 2003, John Scandura admitted

to privately contacting a majority of commissioners on an issue

scheduled before the agency.

Dingwall has also been previously warned about possible Brown Act

violations pertaining to e-mail. In January he came under fire from

the city attorney’s office for posting information on two e-mail

message boards relating to topics before the planning commission. The

attorney’s office ruled that Dingwall was on the brink of breaking

the law because two other planning commissioners saw the dispatch. If

one more would have read it -- constituting a majority of the

seven-person commission -- he would have been in violation.

Recent opinions on the Brown Act issued by the state attorney

general’s office restrict the use of e-mail by public officials,

expert Peter Scheer of the California First Amendment Coalition said.

But the rules regarding these communications aren’t entirely clear.

Even if there isn’t explicit debate or opinions, the sharing of

substantive information could be a violation of the Brown Act, he

said.

“But it’s controversial because some people would say, ‘Gosh, do

we really want to have a law that forbids these public decision

makers from learning something about the issue before the meeting and

sharing that information?’” he said. “Do we really want them to not

make use of an enormously powerful technology for efficiency like

e-mail, which didn’t exist widely when the Brown Act was last

amended?”

Council member Dave Sullivan said he believed Dingwall’s actions

seemed benign.

“I’ve read over it and I don’t think there was anything there,” he

said. “If that’s basically all she has, it doesn’t look like much to

me.”

Sullivan, who appointed Dingwall to the planning commission, said

he found it strange that the city attorney’s office had issued a

memorandum just five days after Dingwall sent out the e-mail -- he

said it often takes weeks to get an opinion from the city attorney’s

office. Sullivan also said he found it unusual that the city

attorney’s inquiry came as a result of an inquiry by another

commissioner, Tom Livengood. He said it was rare for the city

attorney to respond to requests of individual council members, let

alone planning commissioners.

“It does not have a good smell to it,” he said.

The Orange County District Attorney’s Office did not return

requests for comment, but Scheer said it was unlikely that Dingwall

would face any criminal penalties.

“Unless there were special circumstances, this could not be a

criminal violation,” he said. “This is not a situation where it’s

intuitively obvious by any means. The D.A. could investigate and say,

‘You’re on notice, don’t do it again.’”

QUESTION

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