Friends,
My thanks to ALL of you who have already written to the Orange County Board of Supervisors (using the message I have crafted for you below, which was the subject of my most recent SUBSTACK article) as we close in to what just might be THE MOST IMPORTANT QUESTION EVER FACING OUR REPUBLIC!
And that simple question is:
"Does the Executive branch of government have the authority to tell the legislative branch what to do?"
An equally related question is:
"Does the law that was written for EMERGENCIES have to be followed DURING AN EMERGENCY?"
I know, I know: you might think that is a trick question, because even an 8 year old knows the answer, which is "YES it does."
But the Orange County government in California thinks that it does not have to follow the law -- and that just one spoken statement from the Board Chairman can obliterate our Constitutional form of government.
Not on my watch!
If you have not yet sent an email to the board in support of my legal action, here below I have it for you. You can simply copy and paste, putting in your name.
I THANK YOU for taking this important action!
TO: The Orange County Board of Supervisors; Don Wagner, Doug Chaffee, Katrina Foley, Andrew Do, Vicente Sarmiento, Leon Page, Frank Kim
Andrew.Do@ocgov.com
Donald.Wagner@ocgov.com
Fourth.District@ocgov.com
Katrina.Foley@ocgov.com
Vicente.Sarmiento@ocgov.com
Leon.Page@coco.ocgov.com
frank.kim@ocgov.com
lilly.simmering@ocgov.com
General - response@ocgov.com [MUST include this one so it goes on the official meeting record]
FROM: [Your Name]
DATE: February 13, 2023
RE: Notice of Brown Act Violation – Cease and Desist, Cure and Correct
This is a formal notice of claim informing you that the Orange County Board of Supervisors, comprised of Don Wagner, Doug Chaffee, Vincente Sarmiento, and Katrina Foley, is in violation of CA Gov Code 54950 et seq, known as the BROWN ACT.
THE LAW
Gov. Code § 54950 states as follows:
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.
This “sunshine” law guarantees the public’s right to attend and participate in the meetings of local legislative bodies. Public business must be conducted in the public eye, not behind closed doors. It is such an important statute that it is enshrined in the California Constitution, Article 1, Section 3. Its purpose is to ensure public, open meetings “to facilitate public participation in all phases of local government decision-making and to curb misuse of the democratic process by secret legislation by public bodies.” (G.C. §54950; Olson v. Hornbrook Cmmty. Svcs.
Dist. (2019) 245 Cal.Rptr.3d 236).
To that end, all meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, unless an exception applies. (Gov. Code, § 54953). Under the Brown Act, a “meeting” is any gathering of a majority of the members of a legislative body at the same time and location to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body. (Gov. Code, § 54952.2). This includes meetings by phone or other electronic means, and applies to actions short of official action, in that “deliberation” connotes not only collective discussion, but also collective acquisition and exchange of facts preliminary to ultimate decision. (Gov. Code, §§ 54952.2, 54953; Stockton Newspapers, Inc. v. Members of Redevelopment Agency of City of Stockton (1985) 171 Cal.App.3d 95).
THE BOARD’S VIOLATIONS OF LAW
The Orange County Board of Supervisors have violated the Brown Act in the following ways:
On June 22, 2021, the Board voted not to place on a meeting agenda any further “Covid emergency” updates from the county health officer, or to vote to terminate the local health and local emergencies as they related to COVID-19 (hereinafter collectively “Emergencies”).It further violated the spirit and principles of our political system of three separate branches of government by abdicating their legislative duties to the executive branch, stating, “We’ll wait for the governor to tell us what to do.” This in effect establishes a one-person totalitarian rule, which is the antithesis of our Constitutional Republic[NP1] .
- In August 2021, Peggy Hall filed suit against the Board to compel it to carry out its statutory duties under Health and Safety Code, section 101080 et seq., and Government Code, section 8630 et seq., by placing the health officer updates of the “Covid emergency” back on the agenda for discussion and vote at its public meetings. (Hall, et al v. County of Orange, et. al (Case No. 20-2021-01220678-CU-WM-CJC). According to statements made at the September 22, 2022 hearing in this suit, attorneys representing the County and Board argued that the Board (1) did not have to follow the statutory laws defining actions that must be taken during an emergency – because there was an “emergency,” but, despite this, (2) was “indeed reviewing local COVI-19 conditions this whole time in compliance with the law,” just not during public meetings.[NP2]
- On November 14, 2022, the County and Board submitted legal filings, including declarations signed under oath, admitting that the Board had been collecting and exchanging facts preliminary to the ultimate decisions of whether or not to (a) place COVID-19 back on the Agenda, and (2) end the Emergencies. (Gov. Code, §§ 54952.2, 54953; Stockton Newspapers, Inc. v. Members of Redevelopment Agency of City of Stockton (1985) 171 Cal.App.3d 95; see “Respondents’ Opposition to Petition for Writ of Mandate and Response to Order to Show Cause; Declarations of Lily Simmering, Dr. Clayton Chau, and Dr. Regina Chinsiokwong” [sic]).
- Since September 22, 2022 and ongoing to this day, with no future Board meetings set to discuss COVID-19 currently scheduled, despite the Court’s ruling ordering the County and Board to (a) start conducting the statutorily-required public meetings to review local COVID-19 conditions and vote to terminate the Emergencies if said conditions warranted, and to submit a 5-page status report listing these meetings, dates, and results, or (b) produce evidence showing how the Board had, in fact, been doing so despite its June 2021 vote, Respondents continue to dispute their statutorily – and Court – mandated duties to do so, have not held one public meeting re: COVID-19 conditions or the Emergencies, have not ended either of the Emergencies, and has, apparently, no plans to do so.
CEASE AND DESIST, CURE AND CORRECT
Based upon the foregoing past, current, and ongoing, future violations of the Brown Act, this is formal written demand for the Board to cure and correct these violations within thirty (30) days of this notice. (See Gov. Code, §54960.2).
The cure and correction is to hold a public meeting to receive and review relevant information regarding local Orange County COVID-19 conditions, to determine the need for continuing the Emergencies, and to vote to terminate the Emergencies “at the earliest date that the conditions warrant.” Note: that does not mean when the covid money runs out or when the governor “tells you.” The law is clear.
IF this Board has been receiving public updates, as required by law, from the County Health Officer and voting on whether to extend or terminate the emergency, I request the DATE of the most recent meeting when this action was taken.
Thank you for your anticipated cooperation to the foregoing. I request a response within 5 business days.
[Your name]
