Last week’s dispute among Trinity County supervisors over the board chair’s Aug. 7 signature on an agreement to settle a Trinity Action Association lawsuit involving the county’s commercial cannabis licensing program was a surprise, both to TAA and the county auditor/controller who cut the $95,000 check to TAA based on that agreement.
After Sup. John Fenley declined to participate and left the room questioning the legality of the board’s proceedings, the board split 2-2 over ratifying the chairman’s signature on the settlement agreement eight weeks after the fact. A tie vote means the action failed to ratify the signature of Chair Judy Morris, apparently invalidating the agreement.
Serving as county counsel for the Oct. 1 board meeting, attorney David Prentice had informed board members that the county auditor would have no authority to issue the settlement check without a vote by the board to ratify the chair’s signature.
He claimed the board only provided direction to staff on a proposed agreement during a closed session Aug. 6, and a vote to ratify the chair’s signature was still required to complete the settlement. It was listed among several items on the consent agenda for routine matters to be acted upon with one roll call vote, but pulled for separate discussion by two board members.
Later informed the check had already been issued to TAA, Prentice said the money would have to be returned to the county if the board did not vote to ratify the signature.
A roll call vote from the board’s Aug. 6 closed session on the pending litigation has never been reported out despite repeated inquiries by The Trinity Journal and others citing Brown Act reporting requirements. However, the Journal was informed by County Counsel Margaret Long and County Administrative Officer Richard Kuhns that the closed session action providing direction to staff was approved by a majority vote.
The settlement agreement was signed the next day, Aug. 7, by Chair Judy Morris and attorney Derek Cole for the county; and by TAA Secretary David Laffranchini and attorney James Underwood on behalf of TAA.
County Auditor/Controller Angela Bickle was not present for the Oct. 1 meeting, but later said, “I highly disagree with Mr. Prentice” regarding her authority to sign the settlement check.
She said she was presented with a standard claim form used by all county departments, and attached to it “was a fully executed document containing all signatures required and stating that within 30 days of signing, payment was to be made to TAA.” Bickle issued the check on Aug. 23 and it was cashed by TAA on Aug. 29.
“I was totally within the right as auditor/controller to make payment based on that document. I have no control over the Board of Supervisors’ actions to obtain signatures and whether they did it right or wrong. That has nothing to do with the auditor. I had the authority and the supporting documentation to make payment, and that’s what I did,” Bickle said.
TAA’s attorney for the lawsuit, James Underwood commented after last Tuesday’s board meeting that the discussion came as a surprise to him and other TAA representatives when it was “absolutely clear to TAA that the parties settled the litigation during the week of Aug. 5 with a fully executed agreement signed by all parties on Aug. 7 specifying the detailed terms of the resolution, including the right of each party to enforce that agreement if required.”
He said the timing was consistent with a separate and prior agreement between the parties which had been adopted as an order of the Superior Court stipulating that unless a final settlement was formally achieved by Aug. 9, TAA could proceed with active discovery, including witness depositions, in preparation for a court trial of the case.
Underwood said TAA was informed by the county that the Board of Supervisors had approved the agreement and authorized board chair execution of it on Aug. 6. Signatures by all party representatives were obtained the next day. A few days after that, TAA was also informed that the county had signed off on a jointly prepared statement that a settlement had been achieved. The statement was provided to the Journal that published it on Aug. 14.
Underwood said board ratification of the agreement at this point, “if that was intended to suggest that agreement had not been previously approved by the county and needed to then be approved, makes no legal sense,” especially given that the county has proceeded in a timely manner to comply with other terms of the agreement that it would not have been obligated to do.
He cited the county’s recent publication of a specific protocol by which the county planning department proposes to review cannabis cultivation license applications for California Environmental Quality Act compliance, focusing on how and when CEQA exemptions can be considered for new applications and prior license renewals going forward.
He added TAA is reviewing the adequacy of that protocol at this time.
The county’s attorney for the lawsuit, Derek Cole said he is not able to comment on the subject at this time.
CAO Richard Kuhns said the proposed action last week to ratify the chairman’s signature on the agreement with TAA “did not and could not change the direction given to counsel and staff to execute the contract with TAA.” He added the item was agendized as an “accounting mechanism” because signatures on all contracts above $25,000 require board approval.
He added that Prentice was filling in for Margaret Long last week because she had a conflicting appointment, and he believes the board’s next meeting Oct. 16 will include clarification of the relationship between the signature ratification and the board’s closed session direction.
Sup. Judy Morris said the agenda item was merely to ratify her signature on the agreement “that I would not have signed without board direction to do so or without seeing it. That’s why it didn’t seem like that big of a deal. Although David (Prentice) seemed to be saying something different, nothing is changing in the contract. We move forward with the settlement and hopefully on a lot of levels.”
She added it is the board’s common practice to negotiate in closed session and finalize an action later in open session, “and while it may be confusing to some, that is the process. All signatures were on the agreement before any check could be written.”