Water board moves on public comments are legal, new lawyer says

The new district counsel for the San Lorenzo Valley Water District, Gina Nicholls, this week advised the district’s Board of Directors that “it is well within the board’s discretion to establish and enforce” its new procedures for controlling public comment at board meetings.
In a report to the board, Nicholls, who began July 1, wrote, “The procedures established by Board Agenda are content neutral and equally apply to all members of the public.”
“They do not deprive any individual of the opportunity to comment on any matter within the board’s jurisdiction,” she said, adding that the board’s new policy, instituted last month over objections of some speakers, “appropriately advises the public of legal limitations on the board’s ability to deliberate or take action on non-agenda matters.”
“Procedures similar to these (e.g., limiting comments to three minutes per speaker, utilizing speaker cards, and setting aside a specific part of the meeting agenda for general public comments) have been upheld by the courts,” she wrote.
Nicholls is a member of the Water Practice Group of Nossaman LLP, a national law firm based in Los Angeles that was selected as board’s new law firm. Nicholls has litigation, regulatory, and transactional experience, according to the Nossaman website, which said her practice focuses on water rights, California public agencies, and “limitations imposed by the state Constitution on water-related rates and fees.”
Nicolls was named a Super Lawyers “Southern California Rising Star” in 2016 by Los Angeles magazine, and is an engineering graduate of MIT and the UCLA School of Law. She is a U.S. Navy veteran.
According to its contract, the Nossaman firm is to be paid $370 per hour for up to 30 hours of work each month, and $390 per hour for any hours over 30 hours per month. Special work, such as litigation or real estate, may be billed at different rates. Billable hours include travel time from Los Angeles, and the district is responsible for Nicholls’ travel costs, according to the contract.
The contract also includes a provision that prevents the new district counsel from representing individual directors or employees.
“Our representation of the district does not include a representation of the individuals or entities that are officers, directors, joint ventures, employees or members of such entities,” Nicholls wrote in the contract.
“There is no attorney-client relationship between the firm and any such related person or entity,” she wrote. “The attorney-client privilege is solely between the district and the firm.”
“Any proposed expansion of the representation to include any such related persons or entities shall be subject to and contingent upon execution of an engagement letter directly with those persons or entities.”
Nicholls’ predecessor, Marc Hynes, had, at the water board’s direction, represented former director Terry Vierra in a civil lawsuit that resulted in a conflict-of-interest ruling and judgment against Vierra. Hynes also was representing the water district at the time.