Eye On Modesto

Thoughts and observations about Modesto and Stanislaus County

Archive for the day “June 1, 2012”

An Interesting Email Exchange Between Garrad Marsh and Dave Thomas

This exchange was Modesto Mayor Garrad Marsh and Dave Thomas President of the Stanislaus Taxpayers Association.

Garrad, et al. it is clear that inquiring minds want to know what is really going on with our water policy.  The message below was sent by an inquisitive person.  Please amend my PRA of this morning to include the questions below.
It should be obvious that any document which is used in negotiating with MID regarding an issue that involves a 218 expense is clearly in the public domain.  Again, I trust that you will send me the “Term Sheet” relating to your negotiations with MID immediately.
This proposed scheme by City to take over Surface Water Treatment Plants MUST be fully disclosed to the Public, and soon.

As you can see from item 19, copied below, on the just-released agenda for Tuesday’s meeting, the mayor has already discussed the Prop. 218 process to fix the water plant with the City Council. When did that discussion occur? 

When was the decision made to order staff to start the 218 process? Was this decision reported to the Public?  If this was discussed under potential litigation, a Prop. 218 vote has nothing to do with litigation. 

It’s clear to me they’re in the habit of discussing the public’s business in closed session, and that is a violation of the Brown Act.  Would you check on that?

Consider approving Amendments related to updating the Water Rates and Capacity Charge Study regarding the proposed repairs to correct the design and construction deficiencies of the Modesto Regional Water Treatment Plant Expansion:  (i) Financial Consulting Solutions Group, Inc. in an amount not to exceed $64,148, plus $6,147 for additional services (if needed), for a maximum amount of $313,508; (ii)  Horizon Water and Environmental to perform environmental review work in an amount not to exceed $14,951, plus $1,495 for additional services (if needed), for a maximum amount of $16,446; (iii) Harris & Associates related to the Proposition 218 Process for water rates, in an amount not to exceed $13,495, plus $4,580 for additional services (if needed), for a maximum amount of $64,065; and amending the Fiscal Year 2011-12 Operating Budget in the amount of $100,191 in order to fully fund these Amendments and Agreements necessary to update the Water Rates and Capacity Charges. (Funding Source: Water Fund)


Thank you very much, Dave
P S      I think it is shameful for the Council to hide a $394,019 dollar water expense in the 19th of 22 agenda items, which will be discussed after most people will be in bed.
  Moreover, we know that that $394,019 will be diverted out of the Water Enterprise fund.  It just never ends, does it?



Public Information Request by Dave Thomas

Mayor, et al, as president of, and on behalf of the Stanislaus Taxpayers Association, we request under the tenets
of the California Public Records Act, Government Code sections 6253.1 through 6276 the document described to us by the Mayor as a “Term Sheet” which is being used as a tool to negotiate with MID on issues relating to Phase 2 Surface Water Treatment Plant.  
Frankly, we made our first request on May 24, in person.  That constitutes a request under the Act, and we beleive the 10 day requriement starts on the 24th.  Thus, we expect a response no later than close of business on June 4th.  ( I must mention an e-mail request and a telephonic request after the 24th.  As of this moment, I have not received a response, even though the Mayor promised to send us the Term Sheet twice during the meeting of the 24th.)
I have enclosed a discription and summary of these Code sections for the benefit of Council persons who may not have taken the time to read it.  I have included, below, part of these sections, starting with III. WHAT ARE PUBLIC RECORDS?
As you can see, the Act was created “…to cover every conceivable kind of record that is involved in the governmental process…”
The fact that the Mayor discussed this Term Sheet, including specific terms included in it, as well as the fact that the document is published in a BEE story, certainly makes this document a public document.  Finally, it simply cannot be denied that this document is used in conducting the Public’s business, as it involves a dramatic change in the City’s water policy, a huge potential fiscal and legal liability and will have a dramatic impact on every Citizen in Modesto and eight other cities and neighborhood.  The Public deserves to know what City officers are doing, especially considering the Mayor’s public policy of total transparency.
Mayor, unless you can site a specific exemption under the law, you must release this document as soon as humanly possible.
We respectfully request release of this document to us as soon as possible, by electronic means, at no cost to us.
Thank you very much, Dave Thomas, STA


  1. Writing.
    1. Includes handwritings, photographs, films, sound recordings, maps, magnetic tape, computer disks-virtually any means of recording any form of communication.7
    2. Computer data is clearly within the definition of a public record.8
  2. Containing information relating to the conduct of the public’s business.
    1. The requirement that a record relate to the conduct of the public’s business is broadly construed, and rarely contested.9
    2. According to the legislative history of the PRA:

      This definition is intended to cover every conceivable kind of record that is involved in the governmental process. . . . Only purely personal information unrelated to “the conduct of the public’s business” could be considered exempt from this definition, i.e., the shopping list phoned from home, the letter to a public officer from a friend which is totally void of reference to governmental activities.10

    3. Includes the names of public employees,11 although it may not include home addresses and phone numbers of state employees.12 Note, however, that access to names of public officials and employees is increasingly disputed. Seeking access to names of pubic employees who are the subjects of investigations or controversies may be justified.13 However, as a practical matter, you will probably get more information sooner if you agree that names of such employees can be withheld.
    4. Note that the names and contract information for private citizens may also be exempt from disclosure, particularly those who submit information or


complaints to the government with an expectation of confidentiality. Agreeing to allow public agencies to withhold such information may also expedite a request.

C. Prepared, owned, used or retained by state or local agency.

The records do not necessarily have to be in the actual custody of the public agency, if they are prepared, owned, or used by the agency.

D. Regardless of physical form or characteristics.

Information retained in an electronic format must be made available in any electronic form in which the agency holds the information.14″ 

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