The Board of Directors of the San Lorenzo Valley Water District has scheduled a special meeting for 6 p.m., on Monday, April 3 to decide whether to appeal a Superior Court ruling in the conflict-of-interest case of former director Terry Vierra.
The surprise announcement of the meeting was posted on the district’s website on Wednesday, but word of it came in an email to the Press Banner from water district General Manager Brian Lee Tuesday evening, approximately eight hours after members of the water district Board of Directors were asked in emails from the Press Banner whether a vote to appeal had ever been taken.
“NO action has been taken by the SLVWD board regarding a decision to appeal in the Holloway case,” wrote Lee, referring to the December 2016 court decision against Vierra, ruling that he violated state conflict-of-interest laws in 2010.
Vierra and his wife received real estate commissions for the purchase of the property by the water district.
The judge ruled that Vierra had participated in that decision, to his own benefit.
The lawsuit had been initiated by Bruce Holloway, a retired engineer in Boulder Creek.
“I assume that you are expressing an interest regarding the paperwork filed with the court last week. Lawyers filed that paperwork by the court-imposed deadline in order to ensure the board had an opportunity to discuss the issue of appeal and make a decision,” Lee wrote.
“The Board Chair has called a special meeting for Monday, April 3 at 6 p.m. to discuss exactly that: appeal or not appeal,” wrote Lee.
Only director Bill Smallman had responded to the Press Banner inquiry, about an hour after the questions were sent Tuesday via email. His version differed from Lee’s.
“I think we voted (in January) on asking for the new case, and never specifically voted on the appeal,” Smallman wrote in an email to the Press Banner.
“It was understood that if the new case request was denied we would appeal, but Ratcliffe did not say anything to that effect after that meeting.”
“At some point I think I should say we should discuss and vote on continuing the appeal,” he wrote.
Smallman was the only director who in January voted against seeking a new trial. The district’s bid for a new trial for its former director was rejected on March 17 by Judge John Gallagher in Santa Cruz, and a Notice of Appeal was filed on March 21 by lawyers hired by the water district to represent Vierra. The board met in closed session the next day.
The Press Banner email to each district director asked:
“When did the board of directors take a vote to appeal the Holloway v Vierra case to the Court of Appeal? Which minutes would that be in?”
Continuing with the appeal without a board of directors vote could put the board on another collision course with state law, according to one legal expert.
Terry Francke, a lawyer and recognized expert in open meetings and public records law in California, said Tuesday that a specific vote is required to proceed with an appeal of a court judgment.
The section of the California Government Code called The Brown Act requires that “the legislative body of any local agency shall publicly report any action taken in closed session, and the vote or abstention of every member present thereon, as follows:
“Approval given to its legal counsel to defend, or seek or refrain from seeking appellate review or relief… shall be reported in open session at the public meeting during which the closed session is held.”
Francke is a founder of Californians Aware, a nonprofit, nonpartisan public interest organization advocating openness in government. He is a former executive director and general counsel for the California First Amendment Coalition, and former legal counsel for the California Newspaper Publishers Association.
The well-known appellate law firm of Colantuono, Highsmith and Whatley of Pasadena and Grass Valley began working for the district in December, shortly after Vierra lost the lawsuit. The district board of directors voted last month to pay the Colantuono firm $42,620 for legal work in December and January on the Vierra case.
Michael Colantuono had argued unsuccessfully on March 17 on behalf of Vierra’s motion for a new trial.
Continuing legal bills for Vierra’s defense have become a subject of public criticism at water district board meetings. The district spent nearly $120,000 on the case through January, and total bills in the case could reach $240,000, a figure that does not include pursuit of a lengthy legal battle in the Sixth Court of Appeal.
Ratcliffe promised – and the board voted – at last week’s monthly board meeting to have the district prepare a report of the legal bills representing former director Vierra, which Lee and Ratcliffe blame on Holloway, not on Vierra or on the board’s decision to pick up the tab.
