By Arturo Castañares
A secret committee of local fire and police chiefs postponed its December meeting just minutes before it was to start after La Prensa San Diego filed a lawsuit claiming the group’s meetings violate state open meeting laws.
The group, called the Urban Area Working Group (UAWG), is the “Approving Authority” recognized by the federal Department of Homeland Security (DHS) to distribute funding to local law enforcement and fire agencies to prepare for and respond to terrorist threats.
UAWG is a permanent subcommittee of the Unified San Diego County Emergency Services Organization (USDCESO), a local Joint Powers Authority (JPA) agency comprised of the County Office of Emergency Services (OES) and representatives from each of the 18 cities in the region, including local fire and police chiefs.
La Prensa San Diego first reported on December 16, 2020, that UAWG has allocated over $200 million in federal funds to local police and fire agencies since 2004 without holding public meetings to detail their purchases of controversial military-style equipment and surveillance technologies.
The UAWG has held its meetings without providing public notices, without allowing the public to participate, and without publicizing its actions. According to state law, any such committee or subcommittee that is under a JPA must comply with the California Brown Act, a set of laws that mandate open meetings and public disclosures.
A review of UAWG documents received from cities that previously received funding show items purchased through the hidden process included riot gear, armored vehicles, drones, and other tactical and surveillance equipment. None of those purchases were reviewed or discussed in public meetings during the approval process.
La Prensa San Diego first became aware of the UAWG and its funding powers in April 2020 when the El Cajon City Council entered into an agreement with the City of San Diego to receive federal funds to purchase an armored police vehicle called a Lenco Bearcat. The nearly $400,000 grant for the Bearcat was approved by UAWG in 2019.
On December 8, 2020, the San Diego City Council approved a resolution “authorizing the Mayor, or his designee, to apply for and accept $16,900,000, and any additional grant funding, from the California Governor’s Office of Emergency Services to implement the FY 2020 Homeland Security Grant Program, and to enter into all agreements necessary for the purpose of implementing the FY 2020 Homeland Security Grant Program“.
The item was on the Council’s consent calendar where 32 items were approved without any public discussion. No staff presentation was made at the meeting. A three-page staff report attached to the item outlined the funding program but did not detail any items to be purchased with the annual allotment of federal funds.
In reviewing council agendas in various cities to find details of the funding process, La Prensa San Diego requested documents from the City of El Cajon. The El Cajon City Attorney’s office directed LPSD to contact the UAWG Program Manager within the SDPD’s Office of Homeland Security for details of the funding. LPSD requested information from Program Manager Katherine Jackson, including a specific request for the date and location for any future UAWG meetings. Jackson did not respond to La Prensa San Diego’s request.
LAWSUIT FILED TO CHALLENGE MEETINGS
The following week, rumors of a planned UAWG meeting surfaced but no public notices were posted and no officials connected with UAWG would respond to requests for information about the upcoming meeting.
Late on December 15th, La Prensa San Diego filed a lawsuit as allowed under state law to challenge a public agency’s continuing violations of the Brown Act. The lawsuit was filed against USDCESO as the parent organization of UAWG.
Members of UAWG were informed of the lawsuit early on December 16th by Attorney Cory Briggs who is representing La Prensa San Diego in the lawsuit.
Brigg’s email advised UAWG members of the lawsuit filed “to challenge meetings of the UAWG subcommittee … being conducted in violation of the state’s open meetings laws” and alerted members planning to attend the meeting to “be sure to review the Ralph M. Brown Act’s misdemeanor statute applicable to members of government decision-bodies who take action at illegal meetings.”
Specifically, California Government Code Section 54959 states that “Each member of a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of [the Brown Act], and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under [the Brown Act], is guilty of a misdemeanor” punishable by up to six months in jail and/or up to $1,000 in fines for each violation.
It was later discovered that a meeting had been scheduled for 1:00 pm on December 16th, but was cancelled just minutes before it started.
Documents released through a California Public Records Act request show that Megan Beall, Program Coordinator for SDPD’s Office of Homeland Security, sent out an email at 8:35 am on December 16th to all UAWG members saying that “You may have received a threating [SIC] email regarding the UAWG meeting this afternoon in relation to Brown Act concerns. While our City Attorneys are reviewing the compliant, we still plan on conducting the Zoom meeting at 1pm. I will contact you immediately if we need to reschedule.”
Just before the meeting was to start, however, Beall sent out a subsequent email to UAWG members notifying them that “Unfortunately the UAWG meeting will need to be postponed, we will advise you when the meeting is rescheduled.”
Although the lawsuit did not legally stop the meeting from taking place, the lawsuit put the UAWG members on notice that their meetings may be in violation of the Brown Act.
COUNTY JPA RESPONDS
A special public meeting of the USDCESO board was called for January 14, 2021, with the sole agenda item being a closed session meeting to discuss the La Prensa San Diego lawsuit. The meeting was held telephonically due to COVID-19 restrictions, and, aftering taking roll call of members and offering the public an opportunity to comment on the sole item, the group members retreated to a private phone call for approximately 20 minutes.
When the board members returned to the public session, the group only reported that it had unanimously authorized County Counsel to represent it in the lawsuit.
County Counsel is the legal staff for the County of San Diego that represents all county departments.
The following day, County Counsel contacted Briggs seeking a two-week extension to the timeframe to respond to the lawsuit, which was due January 18th, because the lawyers had just been assigned to the case. Briggs granted the extension to February 1st to allow the County time to file a response.
On February 1, the USDCESO answered the lawsuit with a mix of admissions, denials, and claims.
In the response, the County admits that the “SDCUDC created a sub-committee known as the Urban Area Working Group (“UAWG”), which is also a “legislative body” within the meaning of Government Code Section 54952” which means it is subject to the Brown Act that requires that “All meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency“.
Although the County’s response does not dispute that such a group is covered by the Brown Act, the filing points to the fact that the December 16, 2020 meeting did not take place to claim that the lawsuit “is not ripe for adjudication“. The meeting, however, was “postponed” and not held as scheduled only after its staff and members were notified of the lawsuit.
The County did not seek a demurrer, a legal filing that would ask to court to dismiss the lawsuit for specific grounds, including for failure to state facts sufficient to constitute a cause of action, expiration of statutes of limitation, being ambiguous and unintelligible, or other deficiencies. The County also did not file a motion to strike, a legal objection allowed under state law to remove any irrelevant, false, or improper matter inserted in a pleading.
The lawsuit will now move forward with subpoenas for discovery, depositions of key individuals, and, possibly, a civil trial to determine whether the UAWG meetings fall under the open meeting requirements of the Brown Act.
UAWG SELF-CLAIMS DISCLOSURE EXEMPTIONS
The UAWG group approved a charter for the committee in 2008 and amended it in 2012, and defines its purpose as being “to guide the regional coordination and collaboration in the development and implementation of all UASI program initiatives, including the SDUA Security Strategy, funding allocations, and methodologies.”
The charter then goes on to claim that all UAWG documents are protected from disclosure and assert an exemption from the California Public Records Act, the state version of the federal Freedom of Information Act which allows public access to nearly all government documents, with few exceptions.
“Documentation provided for or prepared as a result of the UAWG meetings is intended for the official use only of the UAWG membership and selected stakeholders and is not intended for distribution to individuals in the general public or for purposes residing outside UAWG mission areas. It is deemed to be exempt from public records act disclosure under California Government Code 6254 (aa) and (ab),” the UAWG charter claims.
Section 6254 (aa) does allows that certain documents “prepared by or for a state or local agency that assesses its vulnerability to terrorist attack or other criminal acts intended to disrupt the public agency’s operations and that is for distribution or consideration in a closed session” may be withheld from the public if the document is to be used in a closed session of the agency. A closed session is a private meeting of members to discuss legal or confidential matters, but a closed session can only take place within a properly noticed public meeting. UAWG has not held any properly noticed public meetings.
Section 6254 (ab) only allows documents to be kept from the public that include “Critical infrastructure information” submitted to the Office of Emergency Services for use by that office involving actual, potential, or threatened interference with, attack on, compromise of, or incapacitation of critical infrastructure or protected systems.
UAWG staff have also used a disclaimer on documents they produce which claims the materials are “For Office Use Only” and “This document pertains to homeland security preparedness capabilities and is exempt from public disclosure by Section 6254(aa) of the California Government Code.
Other times, UAWG staff has claimed protection of its documents and meetings under Section 5264 (f), which protects “Records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.” The list of equipment purchased by local police and fire agencies would not be covered by this exemption.
But none of these exemptions claimed by UAWG pertain to avoiding the requirement to hold public meetings under the Brown Act, which is an entirely separate area of state law. The Brown Act is clear that a public “legislative body” such as UAWG is covered by the open meetings laws. One similar legal case clarified the rules on public disclosure for local agencies.
The 2005 appellate case of McKee v. Los Angeles Interagency Metropolitan Police Apprehension Crime Task Force (LA IMPACT) held that a local Joint Powers Authority comprised of local police agencies to fight drug trafficking and money laundering was a “legislative body” and had to comply with the Brown Act after 14 years of avoiding public meetings. The Court held that the group “can meet in executive session to discuss ongoing investigations, as the Brown Act provides, but is not entitled to blanket secrecy.” The California Supreme Court later unanimously decided to let that ruling stand as settled law.
SOME LOCAL ELECTED OFFICIALS REMAIN SILENT
Only a handful of local elected officials were willing to discuss the UAWG funding on the record, but several others whose cities have received funding from the UAWG have declined to comment or did not respond to requests for comment.
San Diego City Councilwoman Monica Montgomery Steppe agreed to a telephone interview to discuss the issue after La Prensa San Diego’s initial article was published. Montgomery Steepe is the Chairwoman of the San Diego City Council’s Public Safety and Livable Neighborhoods Committee that oversees city police funding.
Montgomery Steppe voted to approve the resolution on December 8th without being informed of the specific items to be funded and she is now looking for more clarity on the spending.
“I share the community’s concerns about how our region is curating certain types of equipment, and the lack of transparency around this process,” Montgomery Steppe told La Prensa San Diego. “In our efforts to build trust between law enforcement and San Diegans, we must be honest and forthcoming about how this funding will be spent. I look forward to a more detailed analysis to be agendized at a future Public Safety and Livable Neighborhoods Committee meeting.”
National City Councilman and former Mayor Ron Morrison said he was not aware of the UAWG committee’s secret meetings and shared his belief that such a committee should meet in public. Other local council members shared their concerns with the process and indicated they would like to see their city detail all past purchases to ensure transparency and accountability.
Other local elected officials did return calls for comments and requested more information so that they can research what involvement their respective cities may have had with UAWG funding.
But several local elected officials and police leaders did not respond to requests for comment.
San Diego Mayor Todd Gloria’s office has not responded to several requests for comment. As a councilman from 2008 to 2016, Gloria voted on approving the federal funds, and, as Interim Mayor in 2013, processed that year’s funding approval. This year, Gloria’s office will process the $16.9 million request on behalf of the City.
San Diego Police Department’s Public Information Officer told La Prensa San Diego that the Department was advised by legal counsel not to respond after the lawsuit was filed even though the SDPD and the City are not parties to the complaint. SDPD Chief of Police David Nisleit is the department head over the Office of Homeland Security that manages the UAWG program. A request to interview Chief Nisleit was not answered.
Chula Vista Mayor Mary Casillas-Salas did not offer any comment after her Chief of Staff, Francisco Estrada, fielded calls for comment. Chula Vista has previously applied for and received funding for 55 sets of riot gear, police radios, and in 2020, requested a $225,000 drone. Chula Vista Councilman John McCann did not respond to requests for comment, and Councilman Steve Padilla did not want to comment on the record.