Sequel to Dissolution Dialogue on Healthcare Districts

I support a LAFCo municipal service review of Peninsula Healthcare District to facilitate the Grand Jury's findings. If an outside consultant needs to be facilitated to perform the level of detail the Grand Jury recommends, then I support making those actions happen. Separate reviews for PHCD and SHCD should be be performed.

PHCD needs to seek more opportunities for informing the public about its existence, presenting formation that is transparent to the public, and provides full disclosure. I find the current website in need of more work to accomplish that mission.

Furthermore, the annual financial audits of the district have been oslely conducted only by Vavrinek, Trine, Day & Co., LLP since 2006. I support opening a request for proposals (RFP) and conducting an audit rotation to another firm. 7 years of the same eyes on the books is enough. GFOA (Government Finance Officers Association) recommends a rotation be conducted every FIVE years.

I support Jack Hickey's pursuit of a ballot measure. Allow the voters to decide the issue and future of Healthcare Districts.

Here are the questions:

1) Is the Healthcare District providing services outside of its boundaries?
2) Should the Healthcare District continue to exist and/or continue to receive public funds or could another entity provide ECHD's services more efficiently.

The Sequoia Healthcare District has a HeartSafe program which distributes Automated Electronic Defibrillators in schools and other public places, and provides training in their use. State law mandates AED's in some public places, such as health clubs, but not in public schools. The state also mandates each county to maintain a database of publically deployed AED's. San Mateo County Emergency Medical Services is the logical agency to manage such a program.AED's. In some states in the Midwest funding for such deployment is subsidized by insurance companies.

The simple answer in my opinion:

1) No.
2) No.

There has been no voter consent since the formation of the district on the activities they participate in. If the board feels they are in the right, let the people the district alleges to represent confirm that on a ballot.

Actually, Doug, the Healthcare Districts are providing services outside of their boundaries. The 2012/2013 Grand Jury expressed concern about that.
Sequoia, in particular serves many in East Palo Alto, East Menlo and North Fair Oaks, none of which are in the district. And, fewer than half of graduate nurses from the districts 4!,000,000 Nursing Program serve residents of the District.

Mark Hudak, counsel for the Sequoia Healthcare District, is discouraging Director participation in this forum. What say you?

I am awaiting an opinion from Terry Francke of CalAware.


From: Mark Hudak
Sent: Tuesday, August 26, 2014 2:18 PM
To: mailto:JackHick@comcast.net ; Jerry Shefren ; 'Kathleen Kane' ; Kim Griffin ; Art Faro
Cc: Lee Michelson
Subject: RE: Dissolution Dialogue on Healthcare Districts [IWOV-iManage.FID643164]

To all Directors: I stand by my original caution to you. It is a violation of the Brown Act for a majority of the Board to engage in a substantive discussion among themselves outside of a public meeting with a published agenda. There is no exception for debates in chat rooms or Internet forums or emails. If you are asked about participating in this Internet forum, you should say that you have been advised by legal counsel that it would be a violation of law.

From: JackHick@comcast.net [mailto:JackHick@comcast.net]
Sent: Saturday, August 23, 2014 10:30 PM
To: Dennis Zell; Daniel Ullyot; Jerry Shefren; Jerry Hill; 'Kathleen Kane'; Kim Griffin; Larry Cappel; Rick Navarro; Art Faro; Doug Radtke; Helen Galligan; Alicia Aguirre; Barbara Pierce; Diane Howard; Ian Bain; Jeffrey Gee; John Seybert; Rosanne Foust; bgrassilli@cityofsancarlos.org; cjohnson@cityofsancarlos.org; councilmatt@aol.com; Mark Olbert; rcollins@cityofsancarlos.org; Adrienne Tissier; Carole Groom; Dave Pine; Don Horsley; Warren Slocum
Cc: Cheryl Fama; Lee Michelson; Mark Hudak
Subject: Dissolution Dialogue on Healthcare Districts

Fellow Directors, I urge you to join in the Dissolution Dialogue on Healthcare Districts at: Web Link

Jack Hickey

Check with legal counsel. I don’t believe this violates the Brown Act

I have this from Terry Francke of CalAware: “There is absolutely no authority for Mr. Hudak's position as applied to statements made in any public forum—not just public board meetings. If his position were the law then no member could make a speech to any community group.”

That was in response to a Hudak admonition, which stated: I must caution all Board members about email communications that may violate the Brown Act. Please bear in mind that all communications about a substantive issue must take place in an open meeting, except that any Board member may communicate, in person or by email, with one other Board member about the issue. Email communications among all Board members is not permitted, except for minor, nonsubstantive matters such as scheduling.

Violation of the Brown Act? One what planet?

The Brown Act does not prohibit individual members of a legislative body from separately providing their own comments and opinions about a matter. A commissioner may write a newspaper editorial about an item the commission approved, and a city council member may give a speech or tweet about local projects under way in the city. Nor does the Brown Act prohibit “one-way” communications where, for example, a city manager transmits a communication to the entire council by e-mail. The “passive receipt” of a document by public officials is different from a commission's or city council’s collective action or discussion.

I frankly call this cowardice.

In a Daily Post story on the subject "Online forum triggers legal debate
",(August 28, 2014) Terry Francke of CalAware told the Post that it’s not uncommon for attorneys to tell elected officials that they may not express their views in a public forum.
“This position, typically used to silence dissenters or at least to control
public opinion, is wrong for several reasons,” he said.

Dennis Zell, lawyer and Member of the PHD Board, said: "...perhaps an argument could be made that the Brown Act (especially as-applied to what you were trying to do) violates the 1st Amendment to the U.S. Constitution or Art. 1, sec. 2 of the California Constitution.
Zell further stated "However, I have no personal desire to be (at worst) criminally prosecuted, or (at best) fined by the California Fair Political Practices Commission for participating in a Brown Act violation. I will therefore stay clear of further substantive discussions with you."

Terry Franke responded with this:

"The Fair Political Practices Commission has no jurisdiction over Brown Act issues, and a district attorney thinking of prosecution for the misdemeanor violation would have to prove that participants in an online forum did so with the intent:


1. to achieve collective concurrence or consensus on a particular matter, and


2. to keep the public ignorant of matters that they were entitled to know."

Wagstaffe has NEVER even prosecuted a Brown Act violation.

Part of this discussion relates to the Sequoia Healthcare District's claim to continued collection of property taxes originally assessed to build, operate and maintain Sequoia Hospital which it no longer owns. My research into the matter led to discovery of documents related to the issue, which contradict the Grand Jury. I have posted a topic on the subject entitled "Rationale for Sequoia Healthcare District's continuation of property tax-collection". Web Link

Kathleen Kane serves as a Director of the Sequoia Healthcare District(SHD), as do I.
Katie, as she is known by her fellow board members, has recently posted to two other related topics on this forum. I have copied them below, since they are relevant to this topic.

Welcome Katie!

The 2012/2013 Civil Grand Jury is interested in these two questions regarding the healthcare districts:

1) Is the Healthcare District providing services outside of its boundaries?

2) Should the Healthcare District continue to exist and/or continue to receive public funds or could another entity provide services more efficiently.

Would you care to respond? Perhaps Jerry Shefren, Art Faro or Kim Griffin would like to have a go at it. This is constitutional free speech at its best! And, we Directors are sworn to bear true faith and allegiance to the Constitution of the United States and the Constitution of the State of California. Avoiding discussion of the serious issues raised by the Grand Jury and LAFCo by hiding behind legal advice that flies in the face of those Constitutions is a disservice to the public.




Posted by Kathleen Kane
a resident of another community
on Sep 8, 2014 at 4:35 pm

The Healthcare Districts provide valuable health and medical services to thousands of our residents, services that will go unmet without the Districts.

They provided thousands of dollars to support the Children Health Initiative, which provides school nurses and well as physical and nutritional education in every school within our Districts. Those nurse will not be there to serve our children. Out Heartsafe Program has place over 340 defibrillators in out District which have save lives from sudden cardiac arrest.

Mr. Hickey continually quotes the 2002 Grand Jury Report and fails to mention all the favorable subsequent Grand Jury Reports.

I ask that your readership become knowledgeable about the work of the Districts so they can make informed decisions.

Posted by Kathleen Kane
a resident of another community
21 hours ago

Mr. Hickey continues to say the District should be dissolved because it does not serve the purpose it was designed to do in 1947. This is 2014 and healthcare began changing the way healthcare was delivered since the early nineties. Subsequently, in 1994 the designation of District Hospital was change by the legislature to Healthcare Districts. Currently there are 78 Districts in California 31 no longer operate hospitals. I invite you to visit the Association of California Healthcare Districts (ACHD) website to gain an understanding of how the 21st century health care delivery system works.

For those who think the taxes devoted to healthcare by the District would be better spent on roads and other non health related agencies. Consider the number of school nurses who would not be in your schools, this effects our District's children and parents. The 9 million of tax dollars have gone to our schools however we assure that the money is spent on health care issues for the children.

Consider our Heartsafe Program which provides AED's that have saved several lives, on may have been one of your neighbors. Also the Chronic Disease Management Program which have improved the lives of our District residents.

I do not disagree with some of the Libertarian points of view, however on this issue they are wrong.

I urge you to gain an understanding of how modern day health care is delivered.


I ask the public to become knowledgeable about health care delivery today not in 1947.

Mr. Hickey didn't like the way this discussion was going a few days ago, so he opened another article. Same old, same old, same old....

Not interested in his "private wars" or Libertarian agenda.

Jack, some weeks ago you sent me an email about either merging or terminating the Sequoia Health Care District (for which you are a Director) and the Peninsula Health Care District (for which I am a Director). The email prompted a private dialogue which you posted on-line.

Thereafter, you have repeatedly encouraged me, my colleagues at the Peninsula Health Care District, and your colleagues at the Sequoia Health Care District to participate in a group discussion about the subject in an on-line “town square” forum on almanacnews.com.

Once you posted our dialogue and encouraged my colleagues to join in the discussion, I ended the dialogue and informed you that your decision to expand the discussion to include our colleagues meant that I could no longer continue the dialogue because you had turned a one-on-one conversation between two members of different public districts into a group discussion of all members of the two districts, without formal notice being given to the public under the Brown Act (i.e. the Open Meetings Law).

During our last communication, you confirmed that Mark Hudak (your District’s attorney) had expressly warned you that the group discussion you proposed would violate the Open Meetings Law. According to one of your posts, Mr. Hudak has given you at least two warnings:

“I must caution all Board members about email communications that may violate the Brown Act. Please bear in mind that all communications about a substantive issue must take place in an open meeting, except that any Board member may communicate, in person or by email, with one other Board member about the issue. Email communications among all Board members is not permitted, except for minor, nonsubstantive matters such as scheduling.”

“To all Directors: I stand by my original caution to you. It is a violation of the Brown Act for a majority of the Board to engage in a substantive discussion among themselves outside of a public meeting with a published agenda. There is no exception for debates in chat rooms or Internet forums or emails. If you are asked about participating in this Internet forum, you should say that you have been advised by legal counsel that it would be a violation of law.”

Nevertheless, I continue to receive emails (with links) from you stating, “Appended is my latest post to the on-line forum. Please join in. The public would like to hear what you have to say.”

Jack, why do you send these invitations when you know we have all been advised by legal counsel that it would be a violation of law for us to engage in a group discussion of the substantive issue of health care district merger/termination outside of a regularly noticed meeting? Your posts, and those of your supporters, imply that I have intentionally avoided a public debate, when in fact it was YOUR action (inviting our colleagues to join the debate) that ended the dialogue.

In a combination non-sequitur / personal attack, one of your minions, a candidate for the Peninsula Health Care District, has opined that “the ‘passive receipt’ of a document by public officials is different from a commission’s or city council’s collective action or discussion” and that obeying the law under the advice of counsel is for yellow-bellies (“I frankly call this cowardice”).

The statement is a non-sequitur because participating in an on-line forum hardly constitutes “passive receipt” (participants must go to the on-line forum). Moreover, that forum (unlike a speech or letter to the editor) is built to facilitate free debate. In contrast, if someone were to attempt to debate someone giving a speech, the person would be branded a heckler and quickly escorted from the hall; so too, letters to the editor are printed (or not) at the whim of the editor.

A forum participant from Menlo Park (who apparently believes it is okay to break the law if you can get away with it) observed that San Mateo County District Attorney Steve “Wagstaffe has NEVER even prosecuted a Brown Act violation.” That participant was so proud of their comment that they chose to post it anonymously.

I write today, not to participate in an illegal group discussion about our health care districts, but to address the statements that you have attributed to Mr. Terry Franke, general counsel for Californians Aware, a group with a stated mission, “To foster the improvement of, compliance with and public understanding and use of, public forum law. . . .”

The first statement was: “There is absolutely no authority for Mr. Hudak’s position as applied to statements made in any public forum—not just public board meetings. If his position were the law then no member could make a speech to any community group.”

The second statement was that “a district attorney thinking of prosecution for the misdemeanor violation would have to prove that participants in an online forum did so with the intent: (1) to achieve collective concurrence or consensus on a particular matter, and (2) to keep the public ignorant of matters that they were entitled to know.”

With all due respect, here is the statutory and case law that chills my participation in a group discussion:

“A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.” (Cal. Gov. Code § 54952.2, subd. (b)(1).)

“For all legislative bodies of more than three members, a prohibited nonpublic meeting now requires at least three persons. In fact, two-person ‘meetings’ are given statutory protection by section 54952.2, subdivision (c), which states, ‘Nothing in this section shall impose the requirements of this chapter upon any of the following: [¶] (1) Individual contacts or conversations between a member of a legislative body and any other person.’” (Wolfe v. City of Fremont (2006) 144 Cal. App. 4th 533, 544.)

The purpose of the rule is stated in the statute itself, “In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. [¶] The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.” (Cal. Gov. Code § 54950.)

“Section 54950 is a deliberate and palpable expression of the act’s intended impact. It declares the law’s intent that deliberation as well as action occur openly and publicly. Recognition of deliberation and action as dual components of the collective decision-making process brings awareness that the meeting concept cannot be split off and confined to one component only, but rather comprehends both and either. To ‘deliberate’ is to examine, weigh and reflect upon the reasons for or against the choice. (See Webster’s New International Dictionary (3d ed.)) Public choices are shaped by reasons of fact, reasons of policy or both. Any of the agency’s functions may include or depend upon the ascertainment of facts. Deliberation thus connotes not only collective discussion, but the collective acquisition and exchange of facts preliminary to the ultimate decision. (Sacramento Newspaper Guild, etc. v. Sacramento County Board of Supervisors (1968) 263 Cal. App. 2d 41, 47-48.)

“The current language of the Brown Act contains no reference to, and does not expressly prohibit, serial meetings. Nonetheless, the substance of Stockton Newspapers [a case applying a prior version of the law] is preserved in subdivision (b) of section 54952.2, which prohibits the members of a legislative body, acting outside a public meeting, from using ‘direct communication, personal intermediaries, or technological devices’ as a means for ‘a majority of the members of the legislative body to develop a collective concurrence as to action to be taken on an item by the members of the legislative body.’ In other words, section 54952.2, subdivision (b) now prohibits a legislative body from using virtually any means—whether ‘direct communication, personal intermediaries, or technological devices’—to reach a ‘collective concurrence’ outside the public forum.” (Wolfe (supra) 144 Cal. App. 4th 533, 544-545.)

The California Attorney General has opined, “A majority of the board members of a local public agency may not e-mail each other to develop a collective concurrence as to action to be taken by the board without violating the Ralph M. Brown Act even if the e-mails are also sent to the secretary and chairperson of the agency, the e-mails are posted on the agency’s Internet website, and a printed version of each e-mail is reported at the next public meeting of the board.” (84 Ops. Cal. Atty. Gen. 30.)

“[T]he Brown Act is not violated by serial meetings between council members and a nonmember unless the nonmember acts as a ‘personal intermediary’ among the council members. Because the act does not define ‘intermediary,’ we look first to the dictionary for its ‘usual and ordinary’ meaning, where we find that an intermediary is a ‘go-between.’ (Merriam Webster's Collegiate Dict. (10th ed. 2000) p. 610, col. 1.) In other words, [a personal intermediary must] . . . at a minimum, [] make the council members aware of each other's views. (Wolfe (supra) 144 Cal.App.4th 533, 546-547 (internal citations omitted).)

“[T]he term ‘collective’ was used to refer to ‘interaction or communication between or among individual Board members, either directly or through the agency of … staff.’ ‘Concurrence,’ according to the dictionary, is an ‘agreement or union in action.’ (Merriam Webster's Collegiate Dict., supra, at p. 239, col. 2.) Combining the two, ‘collective concurrence’ would require not only that a majority of the council members share the same view, or ‘concur,’ but also that the members have reached that shared view after interaction between or among themselves, whether directly or through an intermediary. By requiring collective action in addition to a concurrence, the definition promotes the policy behind the act, which is to ensure that the deliberations—that is, the discussion of matters leading to a decision—of public bodies are done in public.” (Wolfe (supra) 144 Cal. App. 4th 533, 547 (internal citations to cases omitted) citing§ 54950.)

In direct opposition to what Mr. Franke purportedly told you, “Section 54952.2, subdivision (b), in proscribing the use of ‘direct communication’ to reach a collective concurrence, does not include a requirement that the use have been intentional. If a collective concurrence results from direct communication among members of the legislative body, it does not matter whether the participants intended that result. The absence of an intent requirement is consistent with the purpose of the act, which is not merely to prevent conscious backroom deals but to ensure that collective deliberations, whatever their outcome, are conducted in public.” (Wolfe (supra) 144 Cal. App. 4th 533, 550.) It is unclear whether intent must be proven when the contact is indirect by way of a personal intermediary. (Wolfe (supra) 144 Cal. App. 4th 533, 550, fn. 11.)

“The focus of the statute on the conduct of legislators is emphasized by section 54959, which imposes a criminal penalty in connection with a violation of the act. Section 54959 imposes such a penalty only upon members of the legislative body involved in the violation.” (Wolfe (supra) 144 Cal. App. 4th 533, 552.) “Section 54959 states, ‘Each member of a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of this chapter, and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under this chapter, is guilty of a misdemeanor.’” (Wolfe (2006) 144 Cal. App. 4th 533, 552, fn. 14.)

Applying the above rules of law to the matter at hand, you (Jack Hickey) you attempted to transform our private conversation into a public meeting by acting as a personal intermediary and (outside of a regularly noticed meeting) informing all of our colleagues of the contents and encouraging them to weigh in.

Indeed, you have encouraged members of the Sequoia Health Care District and Peninsula Health Care District to directly engage in a discussion of your merger / termination ideas on an obscure internet forum not formally associated with either District. You want to provide us information such as old grand jury reports and opinions of people you respect, and then debate your idea with the hope that your information and arguments will convince us to merge the districts, or take action to terminate them.

Jack, it is abundantly clear that you are urging all of us to commit a crime. Whether or not the Brown Act is a good law or wise law is debatable. But it is the law.

If Mr. Franke is so cock-sure that it is legal for us to engage in the group debate that you suggest, why don’t you and he obtain a declaratory judgment that the debate would be legal under the Brown Act or the free speech clauses of the California or U.S. Constitution as a content-based (subject-matter) restriction on specific speakers (office-holders). Who knows, I might even be willing to join such a petition. But I will not unnecessarily risk prosecution and a year in jail when a judicial remedy is available.

Is Mr. Franke and his organization willing to go to bat for you, or is it just a bunch of hot air for election season?

Simple solution, have a public open forum involving the two healthcare districts and the candidates. Televise it through MCTV of Millbrae and MidPen Media Center. I'm sure they are happy to have additional content to broadcast. Why don't you take steps Dennis, to get this on the PHCD agenda? One of the goals of the district is public discourse and informing the general public. This sounds like a great idea to me.

The whole point of my prior post was to explain why I cannot comment about Peninsula Health Care District issues on this site in light of Mr. Hickey's prior invitation to my colleagues on the Board to participate in the discussions herein. Unbelievably, the very next comment asks me to do just that. Please be advised that I believe it would be a violation of the open meetings law for me to respond about that issue in this forum. Members of the public interested in sharing their views with the Peninsula Health Care District should attend our open public meetings and speak during the public comment period.

These constant "challenges" (personal vendetta??) re: the Sequoia Health District from Mr. Hickey et al are getting rather bizarre.

This is not the place for him to constantly bring up this issue (non-issue), under the guise of multiple slightly-altered headlines ---- just modified slightly each time to keep the topic alive.

It is his personal crusade and it is persuading NO ONE.

Actually neighbor, it pertains to everyone living in the district. Instead of vilifying Mr. Jack Hickey you should be applauding him that anyone is even asking the questions "should this district exist?", "does it serve a purpose?", and are we seeing evidence of good governance and fiduciary responsibility with the funds used. I believe most reasonable people if they were "in the know" would say no.

I interviewed for the Peninsula Healthcare District opening and was not chosen, which I thought was a little disappointing given I put my name in the last race and I thought I did very well for a first shot.

One of my feelings is that there is not good governance over PHCD, and Sequoia shares a lot of the same virtues.

A clear example is the large amount of assisted living facilities and senior housing being built with public funds. A disproportionate amount of property tax money comes from the working class and those who have acquired their property recently.

The senior constituency by far is very affluent homeowners overwhelmingly in PHCD for example, yet they insist on what amounts to little more than a generational wealth transfer - reverse robin hood.

In terms of the grants given, in a perfect world those would end along with the district - but in the interim I think a lot better fiduciary responsibility could be exercised.

Petaluma Healthcare District is an example of a "better" healthcare district that does not fund their programs through tax revenue. Check the FAQ.

Web Link

Their program revenue and portfolio of investments is self sustaining.

Isn't that something Sequoia and Peninsula should be aiming for, if dissolution is not an option?

Jack is doing nothing wrong and has opened my eyes. I will continue to carry the torch here in the Peninsula District.

"Consider our Heartsafe Program which provides AED's that have saved several lives, on may have been one of your neighbors. Also the Chronic Disease Management Program which have improved the lives of our District residents."

Great stuff, SHCD!!!

I am proud that we have such valuable contributors in our community.

...

Time to get rid of the politician who is making a career out of sitting on this board and obstructing, obfuscating and whining, after all those years of losing other elections (has Jack Hickey ever won any of the other races he has run? How about his run for governor?)

The Peter Principle - he has risen beyond his usefulness and effectiveness. If you can't do what you promise for over a decade, it's time to get out of the cushy little chair.

Resign, Jack. Turn it over to someone who hasn't made a career out of just talk. If you are actually correct (and most folks think you are not) then get someone who is capable of explaining it and selling it.

12 years, zero results, other than a bunch of emails and posts here.

AED's should be everywhere.

Many thanks to the district for doing so. Has Mr. Hickey donated any to the local schools?

I urge readers to review this Topic and check out a new Topic Web Link which deals with the "myth" being perpetuated by those who stand in the way of a voter approved solution to this conundrum. The "myth" is the contention that Hospital District morphrodites(a.k.a. Healthcare Districts) are required to provide: "...legally mandated services to the residents of the District."

Jacks version of Limited Government:

"I ignore the laws I do not like."

See the Brown Act note above.

Time to go Jack. A real Libertarian would not make this job a lifelong gig.

Actually, some of we libertarians extend our efforts beyond a lifetime. Milton Friedman is an example. Web Link