Sept. 30, 2008 — The battle lines were drawn and open wordfare broke out among the Lassen Municipal Utility District directors regarding the board president’s right to appoint ad hoc committee members. After last month’s LMUD board meeting, Bud Bowden, president of the board, removed Director Jay Dow from an ad hoc committee working with Invenergy, the developer of a proposed wind turbine project near Eagle Lake, and replaced him with Director Matt Lavacot.

Bowden reportedly asked for and received legal advice on the issue from Jaimee Jones, LMUD’s legal counsel, and Robert Burns, Lassen County’s District Attorney.

Jones advised Bowden that all board actions must be taken in open sessions, but Burns reportedly advised Bowden he could change the appointment at his pleasure.

When the item came up for discussion and possible action, Bowden recommended the board wait until after a planned Brown Act training session on California’s Open Meeting law before deciding the issue, but other board members wanted to discuss the issue.

Bowden called the Brown Act, “the crux of the problem.”

In the end the board approved a motion allowing Bowden to make short-term ad hoc committee appointments in public session. The board will ratify the president’s appointment of directors to standing committees by approving a motion to that effect.

The motion passed 4-1, with Dow casting the lone dissenting vote.

Director Fred Nagel provided some history and said committee assignments used to rotate among the members.

“That’s what I’d like to see done,” Nagel said.

The board members then discussed the difference between the district’s ad hoc committees and its standing committees. Ad hoc committees meet for a short time to deal with specific issues and standing committees meet for longer periods of time to deal with more long-term issues.

Dow suggested the board could make its standing committee appointments at its annual organizational meeting.

Bowden said as president of the board, he had the authority to appoint ad hoc committee members under Roberts Rules of Order.

Jones acknowledged the board has used Roberts Rules of Order in the past, but she said the Municipal Utility Act requires the board to approve all its actions in public meetings.

“Any policy we set forth regarding the appointment or unappointment of ad hoc and standing committees must be compliant with the Brown Act,” Dow said. “I’m not suggesting we won’t be compliant with the Brown Act. What I’m saying is we know that. We don’t need training to set this policy. We do need to address this policy in light of recent events. I think there is some uncertainty right now in the make up of our Invenergy ad hoc committee. I am not certain whether I’m on that committee or I’m not on that committee. I have been told two separate things, and we need to address this so it’s clear.”

“So you want to address it now?” Bowden asked.

“Please,” Dow replied.

“Your attorney said we should address this in public session,” Bowden said. “So I will tell you in public session, you are off of that committee, and I put Mr. Lavacot on it.”

Dow said he still wanted the board to address the appointment issue.

“It is not acceptable to me to have a board president at will and at great personal bias and his own whim to change committee assignments,” Dow said. “It’s not beneficial to the district. It’s not beneficial to the functioning of the committee or beneficial to how this board functions. We need clear guidelines. That is my feeling.”

“I agree with that 100 percent,” Bowden said, “but again we should wait until after the Brown Act training so we understand what all the ramifications are.”

“I don’t need Brown Act training to interject the thought that if we’re going to do it that way, and there’s not going to be input from the rest of the board asked on these issues,” said Director Wayne Langston. “That’s why you have a board, so you can try to bring all the points of view together. If the board’s not going to be asked their thoughts or feelings behind this, then do we even show up? I’ve got other things to do. This is a five-member board, and I think it needs to be conducted like that.”

“Yes, it does,” Bowden said, “but nobody had any problem with me calling people and appointing them individually to these committees to start with, if you recall … All of you, including the board attorney, had no problem with suggesting that I consider who I wanted on different committees and call them individually and appoint them. If I have that responsibility to appoint them, then I also have the authority” to unappoint them.

Dow noted that Bowden made the appointments in open session while attending a board meeting by telephone from Florida.

“That’s significantly different than how you changed this last committee,” Dow said. “I have nothing else to say.”

“If we’re going to get down to brass tacks about how this is done,” Jones said, “the MUDA requires all board actions be expressed by motion, resolution or ordinance. That makes it really easy. If you want to form committees or appoint committees it should be done by motion, resolution or ordinance, and that takes all the game playing out it.”

“It doesn’t take an action to adopt that policy then, since that’s law,” Nagel said.

Dow asked Jones if that made all the president’s past board appointments invalid.

“Technically, they should be done by motion,” Jones said. “All actions should be expressed by motion.”

When Dow pressed Jones about the legality of the past appointments, the attorney said those appointments should stand since they followed the district’s established practices.

“If it’s going to become an issue, from now on we’re going to have to adopt one (a policy on appointments),” Jones said.

Bowden again returned to citing Roberts Rules of Order to establish his authority to appoint committee members.

But Jones told the president, “We’re not subject to Roberts Rules of Order.”

“Oh, we’re not?” Bowden responded. “That’s news to me.”

“The law trumps Roberts Rules of Order,” Nagel said.

“I did check to see if you’ve ever adopted Roberts for meetings, and you haven’t,” Jones said.

“My wish is to get past this issue for the benefit of this district and the board,” Dow said.

Bowden said he believed his past appointments were valid.

Dow said he only knew about this because of stories on the local radio station, but he asked Bowden why he asked the district attorney for legal advice on behalf of LMUD on this issue.

“That kind of concerns me a little bit,” Dow said, “and I’d like to know what your thought process was.”

“Well, it was pretty obvious the board attorney was representing you and not the board,” Bowden said, “and I took it upon myself to consult with someone who is in a position to give advice … ”
Langston gave Bowden a piece of his mind.

“I want to make a comment,” Langston said. “It goes back to the previous discussion. I’m going to leave this very generic. I think there’s some big concern to your adjustment of that committee. Since you did not ask for input, I’m not going to give it you now. But if it does come back as far as new conflicts of interest because of your new appointment, you stepped in it, and you can deal with it.”
Dow continued his argument for adopting a clear policy for the board to follow.

“If we have board action every time we appoint a committee,” Dow said, “we do take any personal issues out. It’s a board action, and once it’s done, it’s done. There’s no individual who can, for whatever reason, retaliation, whatever, because they don’t like a board member, can remove him for no reason at all … That’s my preference.”

Jones said Luhring could call any two board members at any time he needed them to help with any need that arises.

But she said when the board forms a committee, it is taking an action and that is more formal. She said the board should vote and pass a motion. She also said the president is the president of the board to run the meetings and has no more authority than any other board member.