By Miriam Raftery
Updated with responses from planning group members Russo and Martinez.
June 30, 2017 (Alpine) – The Alpine Community Planning Group (ACPG) voted at its meeting last week to censure member Lou Russo for violation of the Group’s code of ethics. The vote was unanimous with the exception of Russo.
That code requires members to “conduct themselves in a manner both civil and professional, and to uphold the highest ethical and moral principals” including treating “fellow members with honesty and respect.” Members also acknowledge a duty to provide “honest dissemination of information” and to not “violate the privacy and confidentiality of information entrusted to them.”
Fellow ACPG member George Barnett says Russo has repeatedly sent emails address to him on matters of concern to the planning group, also sending blind copies to media and various other officials ranging from Supervisor Dianne Jacob to the District Attorney to other members of the ACPG. The latter has resulted in “enticing ACPG members into an ill-advised, and likely illegal, email chain of discussion—an activity of the Group potentially discussing public matters outside the realm of openness and transparency—something forbidden by the Brown Act.”
The Brown Act prohibits the majority of members of any public board from discussing public matters with its jurisdiction outside of a public forum. The law covers all forms of communications, including e-mails. ECM’s editor was being copied on some of Russo’s emails which included copies to firstname.lastname@example.org, all members of the planning group.
Hitting "reply all" does not go to recipeints who were blind-copied, as this link forwarded by Russo notes. However if anyone hit reply all to an email that was open copied to other board members, it could prompt a discussion that could trigger Brown Act issues for the sender and any other board members who might subsequently participate in a discussion. The burden is on recipients to scroll down and make sure other board members were not among the recipient list before using a "reply all" function.
Even after the censure, Russo has continued his email blasts. One recent email questioned use of the herbicide glyphosate, which the state just declared a carcinogen, at Wright’s Field which is maintained by the Backcountry Land Trust also chaired by Barnett. “Will AUSD cease all student trips, cross country practices, tec. On Wright’s? Will AEF stop having bands and runners on Wright’s? Will the County look into the use of Roundup on Wright’s and the danger? Will the media report on this?” Russo asked in his email. Another stated, “BCLT is using a chemical known to the state of California to cause cancer then encourages people to be exposed to it.”
That email string drew a response from a member of the ACPG, Jennifer Martinez, who fired back to Russo’s concern stating, “Remember when tomatoes were linked to cancer or hey how about eggs? The more this continues the more we open up our beloved pets and family members to things like Lyme disease, bubonic plague etc.”
Martinez copied email@example.com as well as media outlets in her reply to Russo, a potential Brown Act violation, just as Barnett foresaw, since land use issues involving Wright’s Field could fall under the ACPG jurisdiction.
Martinez has advised ECM that she does not believe herbicides fall under the ACPG jurisdiction and that she does not believe she violated the Brown Act.
There is no current measure before the APCG regarding the herbicide use at Wright's Field, that we're aware of. But chemical use on public lands has, on occasion, been a topic addressed by planning groups. Boulevard Community Planning Group, for instance, has sent comments to the county opposing a wind farm, with concerns that included proposed use of herbicides on public land around wind turbines on federal, state, county and private lands.
Jim Easterling, vice chair of the APCG, asked if Wright's Field or herbicide issues could potentially come before the board, he replied, "Yes, conceivable," such as if the land were ever to change hands, for example.
As for the use of pesticides at Wright's Field that was the topic of those emails, Barnett offered a rebuttal to Russo’s allegations. He told ECM that a generic herbicide containing glyphosate was used by a licensed professional habitat restoration contractor only once over a year ago. It was used on a “spot by spot, plant by plant basis to remove invasive mustard from a trial restoration project for the federally listed endangered San Diego Thornmint,” he says. It was applied in an area remote from trails or other posted areas open to the public.
However, a woman claimed her dog became ill after eating plants on which the herbicide was used. Barnett was no toxicology report was done so it can’t be confirmed what caused the illness. However, “the dog would have had to have been off-leash, off-trail in an area not open to the public,” he said, adding that the same woman had been the subject of a citizens’ complaint with video showing her running her dog off-leash in the area.
An investigation was done by the county into the incident and its application was found in compliance with state law and county ordinance, Barnett says.
However, he has asked the county for guidance in light of the new designation of glyphosate as a carcinogen.
Russo, in an email to ECM, insists that he knows the difference between "censor and censure" and suggested the censure was aimed at curbing his First Amendment free speech rights.
He forwarded this link: http://www.westerncity.com/Western-City/June-2011/The-Brown-Act-and-the-Perils-of-Electronic-Communication/. Russo cited the following passage: "The Brown Act does not prohibit individual members of a legislative body from separately providing their own comments and opinions about a matter. A commissioner may write a newspaper editorial about an item the commission approved, and a city council member may give a speech or tweet about local projects under way in the city. Nor does the Brown Act prohibit “one-way” communications where, for example, a city manager transmits a communication to the entire council by e-mail.2 The “passive receipt” of a document by public officials is different from a commission's or city council’s collective action or discussion."
The problem from a legal standpoint comes in if members of a public board click "reply all" not realizing their reply goes to other members who were copied on an email with a long list of recipients, thus triggering a potential "serial meeting" on public matters that does violate the Brown Act. The same Western City source cited by Russo also warns of this potential, adding, "This type of meeting is particularly likely to occur by e-mail due to the ease of forwarding e-mails."
The ACPG has asked the County to dismiss Russo, who lost his re-election to the APCG, but later regained his seat by being appointed to the board by County Supervisors to fill a vacancy. He also ran for the Alpine Union School Board unsuccessfully. In addition to the APCG, Russo was also recently appointed to serve on the Grossmont Union High School District’s Citizens Bond Oversight Committee.
County Counsel Thomas Montgomery affirmed tin a letter to ACPG Chair Travis Lyon that the ACPG does have the power to censure, or reprimand, a member found in violation of the Code of Ethics or Roberts Rules of Order, however “cannot bar or prevent a member from exercising First Amendment rights, or result in removal.”
Voters, however, could opt to remove a member through a recall election, County Counsel noted. In addition, if a member were to be sued for defamatory, libelous or slanderous statements, the County would review the matter If the conduct were found to be outside the reasonable scope of a member’s duties and in violation of the Code of Ethics, it could be found that the member did not perform duties in good faith and with the prudence that a reasonable person should take, in which case the member would not be eligible for defense or indemnification by the County.
Correction: An early version of this story indicated hitting "repy all" on a blind copy could prompt an illegal discussion under the Brown Act. Reply all messages are received only by those who were open copied on the original message, not blind copied recipients.