Judge bumped from OID fallowing lawsuit

Board member Gary Osmundson, sued along with the Oakdale Irrigation District, had a judge removed from the case after the judge sided against the district in a pretrial ruling.

In other action related to the lawsuit on OID’s stalled fallow-for-money program:

▪ The board majority voted Tuesday to alter legal action against two of its own members, at least one of whom is the target of a leak investigation.

▪ In an unusual move, the board publicly released a confidential memo that answers some nagging questions about the fallowing program.

Osmundson’s attorney used a peremptory challenge to disqualify Stanislaus Superior Court Judge William Mayhew from the fallowing case “on the ground that (Mayhew) is prejudiced against Osmundson and Osmundson believes that he cannot have a fair and impartial trial,” a court paper says. It was filed June 14; Mayhew on May 19 had ruled that OID must address environmental concerns raised by two farmers suing to stop the fallowing program.

Plaintiffs had added Osmundson as a defendant, saying he stood to make $119,000 in personal profit by signing up to fallow some of his land, then casting the deciding vote in a 3-2 March decision to launch the fallowing program. He has said attorneys cleared him to vote because contract terms were the same for all participants.

The Sacramento attorney defending Osmundson in the lawsuit could not be reached to answer questions about removing Mayhew.

Peremptory challenges allow attorneys to change judges near the start of a case. The fallowing lawsuit has been reassigned to Judge Roger Beauchesne, who is scheduled to preside at the next proceeding in July.

OID officials have not explained changes to the fallowing program since the board’s March vote. Many – including several dozen farmers who contracted to receive money in exchange for idling land, freeing up water to shop to outsiders – were surprised when an OID attorney told two judges on separate occasions that no water would be shipped to prospective buyers south of the Sacramento San-Joaquin Delta.

Linda Santos and Gail Altieri, forming the OID board minority, provided declarations to the court indicating they too were confused at the fallowing changes, which had not been approved by the board. Their statements said Santos asked OID General Manager Steve Knell “how these decisions could be made without OID board members, and why I had to learn this information from The Modesto Bee.” When the board did receive information on May 6, it appeared to conflict with what the OID attorney told the judges, according to the women’s statements, both signed May 11.

The day before – May 10 – board members had received the confidential memo cited in Tuesday’s board action. The memo was unsigned but apparently also written by Knell in response to questions raised by Santos. It said water freed up by fallowing would not be sold to outsiders while also stating that participating farmers would still be paid from proceeds of a separate water sale approved by the board April 5.

None of that happened because Mayhew’s May 19 order essentially killed the fallowing program. Soon after, farmers with fallowing contracts were notified, but dozens still showed up at a June 9 meeting to urge that the program go forward, some complaining that they let pastures die but received no money.

OID officials had learned as early as March 22 that state water officials would not approve the water sale tied to fallowing, citing “limitations on transfers and time constraints,” the memo says. Specifics of “the demise of the water transfer component” were discussed in closed session, the memo says.

On Tuesday, the board majority – Steve Webb, Herman Doornenbal and Osmundson – voted to seek “injunctive relief” related to “breach of closed session confidentiality by a (board member),” or asking a judge to order offenders to stop leaking information. Santos and Altieri voted “no.”

An official notice of Tuesday’s vote says it modified the one taken two weeks earlier, when Webb, Doornenbal and Osmundson asked the district’s lawyer to seek a temporary restraining order and preliminary injunction against Santos and Altieri, which would “preclude them from participating in further closed session discussions” on the fallowing lawsuit. It’s not clear whether the board majority wants a more permanent order from a judge, or no longer seeks to bar Santos and Altieri from such legal huddles; a call to Webb, the board chairman, went unanswered Thursday.

Santos and Altieri, who as board members have received legal advice from the attorneys about to sue them, have not hired other lawyers, Santos said.

“Gail and I have not done anything wrong,” Santos said.

Other elected officials, citing transparency ideals, have claimed First Amendment free-speech rights as well as whistleblower legal protections when disclosing information normally reserved to private discussions.

However, the Brown Act – California’s open meetings law – specifically prohibits closed-session leaks “unless the legislative body authorizes disclosure of that confidential information,” the act says.

“This is a gray area,” said Derek Cole, an attorney representing Angels Camp, Sutter Creek and other agencies. “It’s not unreasonable for a (board) majority to want to exclude the minority if it feels legal advice will ultimately be passed on to the other side” of a lawsuit, he said.

This story was originally published June 23, 2016 at 7:27 PM with the headline "Judge bumped from OID fallowing lawsuit."