The courts were active with Oakdale Irrigation District legal actions this past week which saw lawyers for both sides busy with briefs for an upcoming hearing, a judge’s decision, and one plaintiff filing a complaint with the district attorney alleging malfeasance by certain board members and its general manager.
OID Responds To Santos and Altieri Declarations
On Sept. 19, OID Directors Gail Altieri and Linda Santos filed court declarations in regard to a restraining order hearing originally scheduled for Sept 22 (see Sept. 21 Leader article).
In response, attorneys for OID filed their reply stating that the two directors themselves created a conflict of interest when they “switched sides to help the opposition in the pending litigation” against the district.
The 11-page document asserts that Altieri took it upon herself to approach the plaintiffs’ lawyer, Osha Meserve, during the Louis Brichetto-Robert Frobose litigation. Altieri later recruited Santos to file her own declaration.
The district asserts that Altieri and Santos’ actions in signing declarations for the plaintiffs proves that they cannot be trusted with confidential attorney-client advice, strategy and information that may be shared in closed sessions with respect to that litigation.
“Such conduct was a clear violation of their fiduciary duties as directors of the District,” wrote OID Attorney Fred Silva.
OID also faults Altieri and Santos for not bringing any concerns first to OID’s council, Timothy O’Laughlin, in the matter prior to both women going to Meserve.
“Their effort to help the opposing side in Brichetto/Frobose Litigation was driven more by their misplaced allegiances than any effort to protect the interests of OID and its constituents,” the reply reads.
The reply states that Knell offered to meet with Altieri and Santos several times during the preceding year to explain to them the inter-workings of the district, but each time, the women declined his offers.
“Even after 10 months of service in elected office the Defendants have had but one face-to-face meeting with the General Manager over that entire time; they have not made one phone call to him regarding or attempting to learn any aspect of the OID business; and have sent a mere 20 emails during that same period,” the reply states.
OID also claims that Santos’ undisclosed financial relationship with one of the plaintiffs in that action, Frobose, is sufficient grounds to warrant her removal from closed sessions when the litigation is discussed.
One of the accusations made is that the information disclosed by Santos and Altieri was from April and June meeting closed session discussions and having done so “amounts to a clear violation of the Brown Act.”
OID points to a Facebook page, “OID Watchdogs,” which they claim is managed by Frobose, that had verbiage used from closed session posted on its site.
A surprising part of the OID response is a declaration of Knell where he accuses Santos of surreptitiously recording closed session meetings.
Per the Brown Act, directors may record open session meetings, but recording of closed session agenda items is strictly prohibited.
“I have witnessed Santos audiotaping closed sessions of board meetings in the presence of staff and other board members,” Knell stated, adding that board member Gary Osmundson pointed out that the red light of the recorder on unaware to others in a June meeting.
According to Knell, the discovery led to attorney James Olivera demanding that Santos stop and delete any recordings made.
When Santos said she did not know how to delete the recordings, Olivera confiscated the recorder from her and deleted closed session discussions that were on the device.
Santos Files Supplementary Declaration
On Sept. 19, after receiving the reply by the district, Santos filed a “Supplemental Declaration” stating she felt compelled to respond because “OID is again attempting to mislead the court with inaccurate and misleading information.”
In her declaration, Santos goes over the various water sales and transfers that were discussed, stating nothing was said about any changes, and believing that Knell was hiding 10,000 acre feet of water in the On-Farm Water Transfer.
Santos states she has never recorded a closed session meeting of the OID board, but states she believes the closed session discussions should be recorded because of so many inaccuracies in the minutes.
“I have been told that I was not allowed to record the closed session meetings but I have never been provided any justification or legal precedent,” Santos writes. “There was an occasion on June 21 after the Open Board Meeting that we were in the process of beginning a Closed Session. Before the Closed Session started it was pointed out that the red light on my recorder was still on so I stopped it. James Oliveira took possession of the recording device and gave it back to me 2 days later.”
Frobose Asserts Brown Act Violation On Part Of Knell
On Sept. 20, Robert Frobose, one of the plaintiffs in the lawsuit, provided The Leader with a letter he sent to Knell and Stanislaus County District Attorney Birgit Fladager alleging Brown Act violations by the OID board and Knell.
Frobose claims that during the April 5 OID meeting an agenda item authorizing Knell to sell and release water was not posted correctly due to discrepancies in the staff report and actual contract.
Frobose also points to his own lawsuit when Santos and Altieri stepped forward to point this out in their declaration in his case and questions the subsequent declarations that were filed the previous day.
Frobose asserts another violation occurred on June 21 stating in closed session items that were not on the agenda, referring to a water sale and transfer where the Department of Water Resources was involved, and “false information” was provided.
Frobose asserts a third violation occurred when on June 7 he was not allowed to speak on an agenda item he felt was not described properly of the same water sale – which is the subject of his lawsuit – and was told he was off topic.
“In closing, the above Government Code Violations, and potential Penal Code Violations, have resulted in two lawsuits being filed,” Frobose writes. “One lawsuit consisted of three board members suing the remaining two board members using a law firm that is supposed to be representing the Board of Directors and their official decisions.”
Frobose told The Leader he took the violation to the district attorney rather than the Civil Grand Jury, which historically explores Brown Act violations, because he feels the DA is the “chief law enforcement officer of the county” to enforce the violations.
“One of the underlying intents of the Brown Act is to ensure our legislative bodies are transparent,” Frobose said when contacted. “OID’s repeated lack of respect for the Brown Act results in a lack of transparency.”
When asked in the past of his affiliation with the OID Watchdogs Facebook site, Frobose has declined comment.
Court Rules On Osmundson Claim For Fees
In May Brichetto and Frobose, amended their original lawsuit naming Osmundson as a defendant in their original challenge to OID’s On-Farm Conservation Program. The causes of action regarding Osmundson centered on his participation and voting in the program, accusing him of a conflict of interest and other illegalities.
In July, the plaintiffs dropped Osmundson as a defendant triggering Osmundson to petition the court to recover over $42,000 in attorney fees he incurred as a result of the original filing and to consider himself a “prevailing party” under California law.
Despite a Sept. 6 tentative ruling that had granted Osmundson the fees; the Stanislaus County Superior Court ruled on Sept. 19 that the litigation never advanced far enough to determine a prevailing party.
“The causes of action alleged against Mr. Osmundson were not frivolous or unfounded in view of Petitioners’ contention that Mr. Osmundson had a conflict of interest in voting on the measure subject to the underlying litigation and on his potential receipt of income in participating in the program to fallow farmland acreage,” the decision states.
The decision also notes that the Fair Political Practices commission is investigating any conflict of interest on Osmundson’s part but does state it can be argued that the petitioners “jumped the gun” in deciding to include Osmundson in the suit.
When asked for comment about the ruling on Sept. 21, Osmundson declined to make a statement.
“The court’s message was that this is a very serious matter,” said Frobose. “It was not frivolous as OID’s General Manager tried to portray it. As the court stated, the FPPC is investigating the matter.”
The next hearing on the Oakdale Groundwater Alliance lawsuit by Frobose and Brichetto has been rescheduled to Oct.13.