Did the Escondido City Council Violate the Brown Act on November 16, 2005

According to the Brown Act, "No action or discussion shall be undertaken on any item not appearing on the posted agenda. . ." The exceptions are very few and very specific. Cal. Gov. Code: 54954.2. (a)(2)

The Brown Act allows: "Notwithstanding any other provision of this chapter, a legislative body of a local agency may hold a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease. . . ." Cal. Gov. Code §54956.8

The full text of the Brown Act is available at the following link:
http://www.leginfo.ca.gov/cgi-bin/displaycode?
section=gov&group=54001-55000&
file=54950-54963

On November 16, 2005, the Escondido City Council met in closed session (late into the evening) to discuss the following item:
20. CONFERENCE WITH REAL PROPERTY NEGOTIATOR (Government Code §54956.8)
b. Property: Valley Boulevard between Grand Avenue and Valley Parkway and certain portions of Pennsylvania Avenue between Valley Parkway and Elm
Agency Negotiator: Clay Phillips and Jeffrey Epp
Negotiating parties: City of Escondido and the Palomar Health District
Under negotiation: Price and terms of payment
http://www.ci.escondido.ca.us/government/
docs/ca20051116.pdf

This same item was discussed at the City Council Meeting of September 14, 2005 (Closed Session Item I.c.). See links to meeting agenda and minutes:
http://www.ci.escondido.ca.us/government/
docs/ca20050914.pdf
http://www.ci.escondido.ca.us/government/
docs/cm20050914.pdf

A similar item was on the agenda of a closed session PPH Board special meeting on September 12, 2005. See links to the PPH special meeting agenda and minutes:
http://civics.robroy.cc/PPHBdAgenda091205s.pdf
http://civics.robroy.cc/PPHBdMinutes091205s.pdf
http://civics.robroy.cc/PPHBdMinutes091205.pdf

So much closed session discussion on the price and terms of payment for two small streets segments around Palomar Medical Center and no discussion on the following items:
1. long-term infrastructure improvements by PPH for the ERTC (including Citracado Parkway);
2. development agreement between PPH and Escondido for the downtown site;
3. JRM (private developer) agreement with PPH to build medical office buildings (not part of the hospital) on PPH land in the ERTC?

My concern on the scope of permissible discussions was presented to the City Council before the closed session (click on video library item 3: Oral Communications [at 3 minutes]):
http://escondido.12milesout.com/Escondido/
EventList.aspx?id=73

When developing PETCO park, San Diego tried to argue that complicated negotiations related to the park's development required that "the discussions taking place in a closed session should be able to include matters 'reasonably related' to those specified in the posted agenda items." An appellate court disagreed stating "[t]he scope of the permissible discussion in the closed sessions should be defined by the notice given in the agenda and the public announcements, together with the rule against discussing items not identified in the agenda." The court further stated "we believe that in this case, the City Council is attempting to use the Brown Act as a shield against public disclosure of its consideration of important public policy issues, of the type that are inevitably raised whenever such a large public redevelopment real estate based transaction is contemplated. The important policy considerations of the Brown Act, however, must be enforced, even where particular transactions do not fit neatly within its statutory categories." Shapiro v. San Diego City Council (2002).
http://caselaw.lp.findlaw.com/data2/
californiastatecases/d037323.pdf

Price and terms of payment for the identified properties. That is all that can be discussed with the real property negotiators in the closed session.

Late in the evening of November 16, 2005, while the Escondido City Council was in closed session, I happened upon the Escondido City Attorney and City Manager (the listed negotiators) in the parking lot east of City Hall. Based on their responses to my questions, and the fact that they were not in the meeting, I believe that the Escondido City Council was discussing items beyond the price and terms of payment for property identified as Valley Boulevard between Grand Avenue and Valley Parkway and certain portions of Pennsylvania Avenue between Valley Parkway and Elm. At a minimum, the Escondido City Council was not holding "a closed session with its negotiator" as required by Gov. Code §54956.8 because, during the closed meeting, the listed negotiators were in the parking lot with me discussing the permissible scope of closed session meetings under the Brown Act.

Further investigation and vigilance is warranted.

It should be understood that the Ad-Hoc Subcommittee of the City of Escondido and the corresponding site selection committee at PPH ARE NOT legislative bodies covered by the Brown Act, and they can meet with staff and each other in private discussions. But once a quorum of the legislative bodies are involved in the discussion by any manner, then Brown Act restrictions are in full force.

Government Corruption in Escondido

Ex-Congressman Randy "Duke" Cunningham (R-Escondido) admitted his guilt yesterday for taking bribes and related corrupt acts over a period of over 5 years! "The truth is I broke the law, concealed my conduct and disgraced my high office."

Trust Destroyed? - Is The ERTC Dead As The New Hospital Site?!

PPH and JRM have tried, for over 8 MONTHS, to reach an agreement that would favor JRM with a shadowy no-bid contract to construct 300,000 square feet of medical office buildings next to the new hospital in the ERTC. As reported in the North County Times, "Failure to reach a development deal could allow JRMC to back out of the purchase agreement." See the full report in the NC Times at:
http://www.nctimes.com/articles/2005/10/14/
news/inland/poway/22_32_2810_13_05.txt

The parties, PPH and JRM, must have a certain level of trust to successfully negotiate an agreement. For this reason, I believe that the effort to site the new hospital at the ERTC is dead! I further, it appears that PPH and JRM are in a dance to shift the blame their failure to agree onto the City of Escondido.

Last September, the City of Escondido and its citizens were blindsided when it was disclosed that PPH had favored JRM-ERTC with a no-bid contract (of unknown terms) to construct 300,000 square feet of medical office buildings next to the new 800,000 square foot hospital in the ERTC. Agreement on the terms of the no-bid contract was initially due April 17, 2005. Prudent government would require that the Escondido City Council have a complete understanding of what they are a approving before allowing a private developer, JRM, to build medical office buildings (which are not part of the hospital) in the ERTC. Thus, the Escondido City Council must wait for PPH and JRM to reach an agreement BEFORE approving a zoning change that would allow JRM, as a private developer, to build the previously undisclosed medical office buildings.

Regarding the dance of blame, after the JRM contract provision was uncovered, PPH made up a new "deadline" of October 14, 2005, then November 18, 2005, and now, December 16? I believe these deadline extensions are merely part of the dance by PPH and JRM to shift the blame for their failure because these announced deadlines are not really deadlines for PPH and JRM. Instead, the deadlines are being used as a political tool for blame shifting.

In the next few months, I will be watching the actions of PPH now that the ERTC deal with JRM appears to be dead. I believe that PPH is desperate to shift the blame for its failure, and will to attempt to bait the Escondido City Council by calling for it to approve a "blank check" for JRM without seeing the agreement. Of course, the Escondido City Council will refuse to provide the blank check. Thus, the opportunity for PPH to shift the blame to Escondido if the Escondido City Council falls for the bait, i.e., it gets caught up in the dance of PPH/JRM of created and extended "deadlines" and takes up the blank check request under the pressure of an approaching deadline. Recent events show that PPH and JRM readily extend deadlines so that announced deadlines are not really deadlines.

Will the dance of PPH/JRM be successful in transferring the blame for their failures to Escondido?

$3,748,127 - McLeod Tower Seismic Retrofit Cost Estimate - The Rest Of The Story

Copies of the oversized and color photograph pages of the SB1953 Seismic Evaluation of Palomar Medical Center (Phase Report 1A), dated October 25, 1999, were made available by PPH on Thursday afternoon, November 3, 2005. This constitutes the rest of the report and is 104 pages long. The file is large (10 MB) and is available at the following link:
http://civics.robroy.cc/PMC-SeismicEval10-25-99cont.pdf

The report was prepared by structural engineers and details the improvements needed to the McLeod tower to allow its structural rating to be increased to an SPC-2 rating. An SPC-2 rating allows use of the McLeod tower as an acute care facility through 2030. The principal structural upgrade is the construction of 12" thick concrete shear walls and supporting foundations at the north end of the building. From a recent visit to the McLeod tower, it appears that the foundation would be located outside of the existing shell of the building's first floor. The cost estimate for this structural upgrade to the McLeod tower was $2.6 million. This is covered in the first part of the Seismic Evaluation report (2 MB) available at the following link:
http://civics.robroy.cc/PMC-SeismicEval10-25-99partial.pdf

The report also outlines improvements needed to increase the tower's nonstructural rating to NPC-3 on certain floors. The cost estimates for these improvements were amazingly low.

Note that PPH is now making major changes to the imaging department on the third floor of the McLeod tower to accommodate more modern MRI equipment. With proper management, increasing that floor's nonstructural rating to SPC-3 should be part of that upgrade.

The light fixtures and the partitions in the McLeod tower need additional support and braces to comply with an Article 10 requirement. The estimated cost for this work to the McLeod tower was about $1 million.

Did PPH exaggerate the seismic retrofit problem at Palomar Medical Center during the campaign for Proposition BB? You decide:
http://www.pph.org/mpeg/spokesperson.wmv.
More dire messages can be found at: http://www.pph.org/body.cfm?id=237

(Note: PPH has no "hospitals built over 50 years ago".)

$3,748,127 - The Cost Estimate For Seismic Retrofit Of The McLeod Tower at PMC

In 1999, structural engineers provided Palomar Pomerado Health (PPH) with a cost estimate of $3,748,127 for the structural and nonstructural seismic retrofit of the McLeod Tower at the Palomar Medical Center (PMC) in downtown Escondido.

A partial copy of a SB1953 Seismic Evaluation of Palomar Medical Center (Phase Report 1A), dated October 25, 1999, was produced by PPH in response to an application to inspect and copy Public Records made September 28, 2005. The partial copy of the Seismic Evaluation is available at the following link:
http://civics.robroy.cc/PMC-SeismicEval10-25-99partial.pdf

The construction cost estimate for the structural seismic retrofit of the McLeod Tower was $2,600,000, as shown in Table 4. The cost estimate for the nonstructural seismic retrofit of the McLeod Tower was $1,148,127, as shown in Table 5. The total cost estimate for the structural and nonstructural seismic retrofit of the McLeod Tower was $3,748,127.

$3,748,127! This cost estimate for the seismic retrofit of the McLeod Tower is astonishingly low when compared with the impressions of retrofit costs heralded by PPH.

Proposition BB stated:
"Palomar Medical Center is 50 years old. Over 70% of the hospital beds at Palomar Medical Center are located in buildings that do not meet state earthquake safety standards. Based on an evaluation of reports prepared by outside experts, the Board of Directors (the "Board") of the District has determined that it would be significantly more expensive to retrofit and upgrade the existing Palomar Medical Center than it would be to build a new medical center."

The actual text of Proposition BB can be found at:
http://gcr.ucsd.edu/vote2004/PropBB.pdf

The same text is found in the PPH Board Resolution No. 08.04.04 (01), which can be found at:
http://www.pph.org/documents/
Board%20and%20Administration/
bod%20resolution%20080404.pdf

PPH appears to have propagated a much higher retrofit cost figure in 2003. "Palomar Pomerado board members decided in 2001 to spend more to completely redesign their hospitals instead of spending $56 million to simply install braces and supports to meet the 2008 standards. The $329 million project is essentially two jobs: In November, board members approved spending a maximum of $266 million to build a new patient-treatment tower ---- to replace the current tower that will be demolished ---- at the 319-bed Palomar Medical Center; and up to an additional $63 million to build a new patient tower, medical office building and increase the number of beds at the 119-bed Pomerado Hospital." See report in the North County Times at: http://www.nctimes.com/articles/
2003/03/20/export6141.txt

Before making further comment, I await a full copy of the SB1953 Seismic Evaluation of Palomar Medical Center (Phase Report 1A), requested in an application to inspect and copy Public Records made September 28, 2005. The public records application included a request to inspect and copy "reports, documents, spreadsheets, calculations, analysis, and/or information used to determine estimated cost of upgrading the McLeod Tower at PMC to a level above an SPC-1." A copy of the public records application is available at:
http://civics.robroy.cc/PPH-Request09-28-05.pdf

Covert Operations at PPH Delay Public Disclosure

The Palomar Pomerado Health district has delayed making complete copies of certain public documents. Based on a brief inspection of the documents, I am certain that PPH does not want these document made public in a prompt manner.

Let me explain. A few months ago, I was curious as to why the McLeod Tower at the Palomar Medical Center (PMC) was given a Structural Performance Category rating of SPC-1. An SPC-1 rating means a building poses a significant risk of collapse and danger to the public in the event of an earthquake. The McLeod Tower was completed in 1969, the same year that Americans landed and walked on the moon. Surely, by that date, engineers in California could design buildings that would not collapse in the event of an earthquake.

After studying the dynamics of building structures and earthquake engineering, I was ready to look more closely at the structure of the McLeod Tower. The next step was to obtain public documents from PPH that would help me on this task. I am still stuck on this step.

On September 28, an application was made to PPH to inspect and copy the following:
1. Compliance plan submitted to OSHPD for the Palomar Medical Center (PMC).
2. Request for Extension to Seismic Safety Deadlines submitted to OSHPD for PMC.
3. Seismic evaluation of the McLeod Tower at PMC.
4. Reports, documents, spreadsheets, calculations, analysis, and/or information used to determine a Structural Performance Category (SPC), for the McLeod Tower at PMC.
5. Reports, documents, spreadsheets, calculations, analysis, and/or information used to determine estimated cost of upgrading the McLeod Tower at PMC to a level above an SPC-1.
A copy of my application is available at the following link:
http://civics.robroy.cc/PPH-Request09-28-05.pdf

On October 7, 2005, PPH mailed a letter acknowledging the Public Records Act Request and noticing an extension through October 21, 2005, for responding to the request. A copy of the letter is available at the following link:
http://civics.robroy.cc/PPH-Response100705.pdf

On October 21, 2005, PPH mailed a letter stating that the requested documents were publicly disclosable and available for inspection at the PPH offices. This letter was received on October 24, 2005. A copy of the letter is available at the following link:
http://civics.robroy.cc/PPH-Response102105.pdf

On the morning of October 26, 2005, three documents were produced and inspected at the PPH offices. After a brief review, I confirmed that I wanted copies of the three documents. A logistical problem arose. Large portions of the documents were on sheets of 11" x 17" paper. Some pages contained color photographs and charts. I requested normal copies of the black and white 8.5" x 11" pages, and of the black and white 11" x 17" pages, and the opportunity to return in the afternoon to take photographs of the color pages using my digital camera. I was informed that PPH did not have the capability to make copies of the 11" x 17" pages, and that inquiry would need to be made before I could take photographs of the color pages. Normal copies were made of the black and white 8.5" x 11" pages as indicated by the invoice available at the following link:
http://civics.robroy.cc/PPH-Invoice102605.pdf

That evening I received a faxed letter stating "It is doubtful if a digital camera may be used by you to take color copies from these reports as according to our policy reproduction may only be undertaken by the District, or an estimate obtained outside the District. However, a deposit of the amount of the estimate is required to be made with the District prior to copying." A copy of the fax letter is available at the following link:
http://civics.robroy.cc/PPH-ResponseFax102605.pdf

Early in the afternoon of October 27, 2005, a check for the deposit amount was hand delivered to the PPH offices.

A telephone call to PPH on October 28, 2005, confirmed receipt of the deposit check. PPH would not commit to a delivery date, stating that the copying would take a few days.

Today, Tuesday, November 1, 2005, a telephone status inquiry was made to PPH. The copying WILL BE sent to an outside vendor because PPH does not have the capability to make the large sized and color copies. The copies should be available by Friday, maybe Thursday.

Delay. Delay. Delay! Less than one hour with my digital camera would have allowed prompt and timely disclosure of these documents.

The Covert Operations at PPH are a disservice to the public and are not aligned with the interests of good government. Having inspected the documents, I believe that the public will be very interested in the information contained in the documents. Further, I have a hard time believing that PPH does not have the capability, in house, to make copies of black and white 11" x 17" sheets of paper. I am surprised that PPH says that it cannot make color copies.

I would not be surprised if the documents were "lost" in transit to the copying vendor. If not lost, then intercepted and otherwise further delayed by the Covert Operations at PPH.