View: Kensington Board's Failure to Disclose Information

On October 30, 2012, the Contra Costa Times endorsed Kosel and Hausken for the two open positions on our community services district board. 

In giving its reasons for that endorsement, the Times says: “Currently, public information is withheld and the board has failed to control employee benefit costs” and that the current atmosphere is one of “the systemic secrecy.” The editorial goes on to say of Charles Toombs, the council’s president: ”Amazingly, Toombs insists he's running an open government. But he confuses letting people speak at meetings with providing them public information to which they're entitled. His attitude is part of the problem. He doesn't deserve another term.”

I am writing this open letter to my local government agency, the Kensington Community Services District. I have tried many times, through Public Records Act requests and requests for information, to obtain the information publicly requested here, and have been met with silence. I have been informed that Mr. Toombs, whose legal authority appears to be limited by our agency’s own Policy and Procedures rules to conducting meetings of the agency (see below), has instructed the agency that all legal matters are under his control and the control of the village police chief.

(Lipscomb, Metcalf, Lloyd, Toombs, and Kosel are the 5 elected members of the government agency; Rauch is Board of Supervisors District I Co-ordinator and on Supervisor Gioia's staff; Kurt Franklin is an attorney with Hanson Bridgett, which provides legal services to our government agency.)

To: 'LINDA LIPSCOMB' ; 'Mari Metcalf' ; Kate Rauch ; 'Richard Lloyd' ; charles toombs ; 'Kurt A. Franklin' ; Cathie Kosel

Sent: Tuesday, October 30, 2012 1:41 PM

Subject: Re-iteration of Prior Requests for the Board to Clarify Matters of Community Services District "Authority"

Dear Community Services District Board:

Since the Board has failed to answer my very simple inquiries on the matter of “authority,” I am sending this inquiry also to my local government agency's legal counsel.

Who is it is that has the authority to engage attorneys at community expense? Our agency's employee, Mr. Harman, recently sent out a long document with copies to several attorneys, including 2 at the excellent firm of Hanson Bridgett. Who will pay for them to read Mr. Harman's document? I have many times asked the board for a copy of the engagement letter between the Board and the Hanson Bridgett law firm so that we publicly can learn who it is that has the authority to engage attorneys at community cost – is it the local agency? Is it Mr. Harman? Is it Mr. Toombs as the head of the Board? I have reviewed the Board’s own policies and procedures and find that under section 4040.11 Mr. Toombs, as President of the local agency, “shall serve as chairperson at all Board meetings”…”and shall have the same rights as the other members of the Board…” I have asked the Board in writing to let me know whether there are any other Board policies or procedures which would give the President of the Board any rights superior to the rights of the other Board members, and have received no reply. QUESTION: Does the President of the Board of the Kensington Community Services District have any rights or authority other than as specified in section 4040.11 of the Board’s Policies and Procedures? If so, under the Public Records Act, I respectfully request a copy of the statement of those rights or authority?

Mr. Toombs' public statements suggest that Mr. Toombs is reluctant to have the Board exercise responsibility over its employees for fear that if the Board did so, such employees may bring legal action against our government agency. Nevertheless, the local government agency’s employee, the part-time police chief, seems to have the authority to engage our local government's own legal counsel – at our expense – to read (and prepare?) his communications. QUESTION: What is the basis of the apparent authority for the Kensington part-time chief of police to hire legal counsel at the expense of the community?

As a related matter, I have read in the press that our part-time police chief hired a criminal defense attorney to represent him. I received a communiqué from the part-time police chief which shows that as recently as this month, he is in correspondence with this attorney. QUESTION: Does the community pay for the attorney engaged by our police chief to represent him? If so, what is the authority for the Board to authorize such payment?

I recently met with Kensington friends who are major supporters of Mr. Toombs. We discussed the dysfunctionality of the administration of our village. I suggested that it might be to the advantage of all of us to make sure that legal counsel was present at Board meetings to advise on matters involving legal rights and authority so that issues could be addressed as they came up and before they became conflicts spreading throughout the community. My friends told me that Hanson Bridgett attorneys are present but only sometimes, “as to have them there for all meetings would be too expensive.” QUESTION: Who determines whether and when the Kensington Community Services District will be represented by legal counsel?

The protocol for payment of bills for legal services is generally that monthly billing statements from providers of legal services are presented to the agency for review and approval for payment. The agency reviews them to make sure the services were authorized, and then, if appropriate, approves payment. I understand that in Kensington the local government’s legal bills are received, reviewed, and approved by its police chief, rather than by the Board.

QUESTION: If this understanding is correct, how does the Board know what services have been performed, or who authorized them, or that the agency’s budget for legal services is not exceeded? I have made several Public Records Act requests for a copy of the engagement letter between my local government agency and legal counsel. This would inform who it is that is purporting to have the authority to engage lawyers at our public expense. The local agency has never replied.

QUESTIONS: What is the Board's policy for authorizing legal fees? Who paid the legal fees for the defense of the police chief? Who pays the legal fees of his defense counsel's reading of the police chief's communiqués? Surely it cannot be left to the police chief to authorize the government’s payment of his own defense counsel. What are the rules, policies, and procedures applicable for the local government to authorize the payment of legal fees?

I have also several times requested the agency’s bylaws describing the authority of the board members, including the position Mr. Toombs’ holds. Mr. Toombs seems to have full authority to act on behalf of the local government agency. I do not find in the local government’s policies and procedures a basis for such authority. The only policy and procedure I find regarding the authority of person in the position held by Mr. Toombs is at section 4040.11, discussed above.

QUESTION:  If that is correct, then what is the basis for Mr. Toombs authority to act on behalf of the local government agency?

Respectfully submitted,
A. Jan Behrsin, attorney and Kensington resident