Fencing with NCTD: Brown Act Violations
- Don Mosier | Rimini Road and Bud Emerson | Klish Way
If Del Mar expects something better for our community than a 6-foot chain link fence blocking the bluffs, it needs to get its act together. The NCTD Board met May 20, 2021 to consider awarding a contract for $380,000+ for a study to gather more information about potential alternatives to NCTD’s proposed 6-foot chain link fence along both sides of the rail right of way along the Del Mar bluffs. Although the NCTD staff report indicated that the proposed study was in response to a request from Del Mar and the Coastal Commission for more information, Del Mar Mayor Terry Gaasterland (who serves as Del Mar’s alternate to the NCTD Board), abstained on the final vote, which approved the study on a 6-2-1 vote.
Del Mar’s primary NCTD representative, Council member Dan Quirk, did not attend the NCTD Board meeting, but did attend a pre-meeting protest staged by activists outside in the NCTD parking lot.
And in a highly unusual action, NCTD’s General Counsel, Lori Winfree, informed the Board that it “appears likely that there was a violation of the Brown Act by way of serial communication.” She made this statement after NCTD board members made the legally-required disclosures related to this agenda item, which puts on the record communications they have received or engaged in. During the disclosures, some members of the NCTD Board disclosed receiving communications from Dan Quirk, some members disclosed communications from Terry Gaasterland, and Gaasterland herself disclosed speaking to two board members and attempting to contact others.
The General Counsel noted that penalties for a Brown Act violation could include “civil and criminal penalties” and “can also result in a ban from holding public office.” She concluded, “[D]ue to the disclosures that have been made by the Board members today from the dais, I believe the board can elect to proceed with action on this item today, but the Board should be aware that there is still potential for a challenge based on that Brown Act violation that appears to have occurred. So I just want to make that clear first before the Board takes action.”
Key background on this matter: NCTD filed a Surface Transportation Board (STB) application last year asking the STB for preemptive authority to install its 6-foot chain link fence. The Coastal Commission, Del Mar, and residents objected and were able to get the matter into settlement discussions to try to negotiate a better solution. The confidential settlement period extends through the end of the year. Del Mar’s designated negotiator is the City Manager. Any proposed settlement will be reviewed by the City Council, with public input, and Del Mar would have the right to accept or reject the settlement. If the matter is not settled, it returns to the STB for decision.
It was in the context of those settlement discussions that the Coastal Commission and Del Mar asked for more information, and NCTD proposed the study to produce that information. The study would include collecting data, locating the right-of-way boundary lines, conducting view studies, and analyzing design options, including post-and-cable and rail alternatives to a 6-foot chain link fence. One consultant applied to NCTD to do the work, CivicPros, a division of RailPros, a well-known consulting firm specializing in rail related projects.
Why a parking lot protest to oppose a study to gather additional data and identify possible alternatives to a 6-foot chain link fence on both sides of the tracks? Apparently, there was rampant misunderstanding that NCTD would be voting on approving a fence, rather than on a study to collect information requested by Del Mar and the Coastal Commission, both of whom are challenging NCTD’s petition before the STB. This misunderstanding was generated in large measure by communications from Councilmembers Quirk, Gaasterland, and others that were broadly circulated in the community leaving commenters thinking fence approval was on the agenda.
We need to allow Del Mar’s negotiator to make her best efforts to achieve the results Council has directed her to work for, without undermining that with scatter-shot, contradictory public statements and votes (or abstentions). We need our representatives to comply with the Brown Act. We need to support, not oppose, gathering information and studying alternatives to the chain-link fence. We need to see the result of the negotiations before crying wolf and rallying forces in the NCTD parking lot.