The Board of Supervisors decided not to spend $25,000 on an outside legal opinion about the federal implications of the cannabis equity grant last week, though some misgivings about supervisors’ legal exposure remain.
And an ordinance charging fees for public records remains controversial, with one supervisor expressing regret for his support, a transparency organization objecting to the policy, and a local publisher complaining that she would have had to pay tens of thousands of dollars for information that equity grant applicants are required to provide to prove they were subject to the war on drugs.
County Counsel Christian Curtis has opined that it would be prudent to seek an outside opinion about the supervisors’ vulnerability to running afoul of federal law for approving equity grants to those in the cannabis industry, though the program is funded with state money distributed to counties by the Governor’s office of business and economic development (GO-Biz). Supervisors briefly considered releasing Curtis’ opinion to the public, and long- time cannabis attorney Hannah Nelson insisted that supervisors are not co-conspirators in a federal crime.
“I am an expert,” she told the Board. “Just because your county counsel isn’t, doesn't mean that you don’t have the benefit of the specific experience, from somebody who litigated these specific issues in federal courts, in Mendocino County court, and all the way up to the California Supreme Court. So I’m just giving you free information.”
Curtis pressed his point, saying, “My understanding is, she represents applicants to the program. So ethically, if she thought that the program in fact violated federal law, she might ethically be prohibited from telling you that. And that’s the reason to be seeking an opinion from an attorney who would have an attorney-client relationship with the Board.”
The Board decided not to spend the $25,000, but Supervisor Dan Gjerde explained why he voted with the majority to request a free opinion from the Attorney General. Gjerde also shot down a suggestion to release Curtis’ opinion to the public. “I’d rather get the AG’s opinion, rather than risk legal exposure for the county by releasing this memo,” he said. “The exposure is due to the comments made by the people who have commented at our Board meetings.”
A free opinion from the Attorney General could take a year to arrive, if he chooses to opine on the issue at all.
Supervisor John Haschak asked his colleagues if they would support an AG opinion on another issue, that of an ordinance charging for staff time to provide public records. He reported that a recent presentation at a conference made him regret supporting the ordinance last summer.
“I understand, we’re trying to save money,” he said. “But at the same time, we need to look at our own practices about how we get those records out. It’s not just the people who are denied. It’s the chilling effect, too. And courts are going to look at that chilling effect and what it does to transparency and government responsiveness to the people.”
Curtis assured him that Mendocino County’s ordinance was crafted to align with an already-existing AG opinion, and Supervisor Ted Williams noted a lack of public interest in the matter.
“When there's a new pothole, somebody calls me and yells at me,” he said. “And I don’t hear anybody yelling about public records requests being denied.”
But Ginny LaRoe, of the First Amendment Coalition, a transparency advocacy organization, wrote a letter to the Board, arguing that, “Rather than adopting policies aimed at curbing public access to information, the county could instead address the asserted “significant burden” of responding to requests for information by proactively making more information available online, and by putting effort into finding other ways to improve efficiencies and support county staff in fulfilling their important role as public servants.”
Kate Maxwell, publisher of the Mendocino Voice, joined David Drell, Scott Ward, and Michael Katz in responding to Williams’ call.
“Every single time this has come up before the Board, the vast majority of comments have been in opposition,” she reminded the Board. “I am one of the people who has received two different fee estimates from the county, out of what I believe County Counsel said was five total since this ordinance has been passed…I get one to two emails or phone calls a week from people who are hoping to submit LEEP applications (grants for the Local Equity Entrepreneur Program, commonly known as the cannabis equity grant program) and are desperate to find out information about when CAMP raids happened.” People applying for this grant are asked to explain how they have suffered from the war on drugs, including raids by CAMP, or the Campaign Against Marijuana Planting. Not all law enforcement activity against cannabis growers was conducted under this program, but CAMP has become the colloquial term for raids. “I have reported on cannabis in this county since 2014, and I know how difficult it is to get any concrete information about CAMP raids, while they are going on, or afterwards,” Maxwell continued. “I filed a request, desperately trying to get information myself for these constituents, and at least have some clear information, now that this has been put in a county ordinance, if people need information about CAMP raids, how are they supposed to get it? In response, I got a $66,000 fee estimate. That’s not something I have lying around.”
Curtis was familiar with Maxwell’s request, which, prior to the ordinance, probably would have simply been denied, without drawing up a bill. He said her request had ten different categories:
“Any and all documents, photos, emails, videos, texts, spreadsheets, Powerpoints, or other work records including the words or phrases, CAMP, or Campaign Against Marijuana Planting, between January 1, 2015, and the present, including records of arrests, search warrants, locations of eradicating operations, reports sent to coordinating agencies, asset forfeiture records, miscellaneous contracts, calls for services, sheriff’s logs, and/or sworn statements, dashcam footage, and any aerial footage, fixed or rotary wing aircraft and/or drones, civil suits, and receipts for mutual aid requests…The public records act really has no mechanism for dealing with extremely burdensome requests, other than just to refuse it,” he concluded. “There’s a public interest exception that applies, essentially when the resources that the county would be using in response to one particular request outweigh the public benefit of that one particular request. That determination has to be made on a case-by-case basis. You don't know you’re right unless you get sued, and the court rules on it.”