Letter # Name Organization
1 Jessica Tovar East Bay Clean Power Alliance
2 Inder Khalsa EBCE General Counsel
3 Barbara Stebbins Local Clean Energy Alliance
12/14/22 EBCE Board of Directors Public Comment
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Public Comment Local Clean Power Alliance Letter #1
Inder Khalsa
T 415.421.8484
F 415.421.8486
E [email protected]
1 Sansome Street, Suite 2850
San Francisco, CA 94104-4811
rwglaw.com
MEMORANDUM
TO: EBCE Board of Directors
CC: Community Advisory Committee (CAC)
FROM: Inder Khalsa, EBCE General Counsel
DATE: December 14, 2022
SUBJECT: Response to Letter from Jessica Tovar dated December 12, 2022 Chair Lopez asked that I provide a brief response to some of the legal statements or allegations made by Jessica Tovar of East Bay Clean Power Alliance in her letter dated December 12, 2022. I will also make a public statement at tonight’s Board meeting.
In the third paragraph of the letter, Ms. Tovar states that “In a public agency, information is presented by staff in a neutral fashion to its Board, its subcommittees, the CAC, and the public.” I completely agree that public agency staff should operate with transparency and provide information to the Board, subcommittees, stakeholders, and the public. I do not agree, however, that staff has an obligation to be “neutral.” On the contrary, an important role of professional government staff, including the CEO, is to present staff recommendations to the Board of Directors and to explain the reasoning behind staff recommendations. Sometimes, staff may advocate on behalf of their recommendations, and this is perfectly fine. The Board, of course, should take into consideration not only the staff recommendation, but input from committees, stakeholders, and members of the public. The Board is not bound to follow staff recommendation, but there is no obligation on the part of staff to present information in a “neutral” manner, and there is nothing legally problematic about staff advocating passionately on behalf of their views. Democracy functions best when the Board receives many varying points of view, including the views and opinions of staff.
Ms. Tovar goes on to allege that emails from CEO Chaset to the Board regarding the proposed $15 million gift to UCSF Benioff were somehow inappropriate, echoing allegations that were previously made by Tom Kelly that these communications violated the Brown Act.
But unilateral communications from staff members (including the CEO) to the Board of Directors, as well as communications between less than a quorum of the Board or a Letter #2
EBCE Board of Directors
December 14, 2022 Page | 2
subcommittee, are allowed under the Brown Act. In Roberts v. City of Palmdale, (1993) 5 Cal.4th 363, the California Supreme Court determined that emails or communications from staff members to the full Board are not a “meeting” as defined by the Brown Act. Likewise, staff can call and speak to individual Directors as long as they don’t convey views from one Director to another in a manner that would create a serial meeting in violation of the Brown Act.
Directors can also speak to each other as long as they avoid deliberating or developing a consensus amongst a quorum of a legislative body. In fact, the Brown Act specifically authorizes the formation of “ad hoc subcommittees” of the legislative body, where less than a quorum of the body deliberate regarding a specific issue in confidence and then later report back to the full board.
I have reviewed the records produced by the EBCE and referenced by Ms. Tovar in her letter, and I did not see any evidence that CEO Chaset engaged in any legally inappropriate behavior under the Brown Act or any other law. His emails to the full Board explaining and advocating for staff’s position were exactly the type of unilateral communication allowed under the Brown Act. Further, he did not engage in back and forth communication with more than a quorum of the Board at any time in a manner that would violate the Brown Act. In order to facilitate transparency, the law provides that non-privileged unilateral staff communications to the Board are public records under the PRA. Gov. Code Section 54957.5(a). Therefore, EBCE properly disclosed these emails in response to Mr. Kelly’s request.
Of course, the Board of Directors sets the policy for the agency, and in doing so should take into consideration all information and points of view, including that presented by staff, but also the views and testimony of members of the public, stakeholders, advocates, and experts. 12978-0001\2756583v1.doc
Letter #2
Public Comment
Submitted by Barbara Stebbins on December 14, 2022 for
EBCE Board of Directors Meeting – Item 12 (NEM Discussion – Informational Item) ------------------------
Local Clean Energy Alliance is disappointed that item #12 does not call for a Board vote to oppose the CPUC’s proposed NEM 3.0 decision, due to be voted on tomorrow. Rooftop solar is the backbone of locally generated energy, which provides multiple benefits for our communities, including jobs, local business investments, and energy resilience in this critical time of accelerating climate catastrophes. If passed by the CPUC, rooftop solar will be financially out of reach for low income customers and community institutions.
LCEA has two comments on the staff presentation for this item. In staff’s summary of the “Key Issues,” they did not include the potential $120 billion transmission cost savings over the next 30 years attributable to rooftop solar, which saves money for all customers, including those without rooftop solar. Also, there will be a new $15 grid usage charge for new rooftop solar customers after NEM 3.0 is implemented.
Local Clean Energy Alliance Letter #3