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Watchdog group says City Council, Kern supervisors violated Brown Act before PACE votes

Scott Peterson, center, leads the Virginia-based Checks and Balances Project, which filed legal complaints Thursday, Aug. 10, 2017, against the city of Bakersfield and the county of Kern in relation to the end of the PACE program. (KBAK/KBFX photo)

An out-of-state watchdog organization on Thursday filed legal complaints against the city of Bakersfield and the county of Kern, alleging both the City Council and the Kern County Board of Supervisors violated public meeting laws in advance of votes that ultimately killed a popular but controversial loan program.

The Checks and Balances Project, directed by Scott Peterson, says elected leaders met illegally with real estate industry lobbyists and decided together in advance how to vote on a measure to disallow the Property Assessed Clean Energy program from operating in Kern County.

Both the City Council and the supervisors decided to end the program as it is currently designed.

Promoted by contractors and disliked by realtors, PACE loans allowed homeowners to borrow money for energy efficient upgrades, like solar panels, in the form of a tax lien on their property.

Contractors said the program lowered the area's carbon footprint and fueled strong job creation in their industry. Realtors said that the terms of the loans were confusing and saddled poor residents with debt they couldn't manage. Because there was no income requirement on PACE loans, the real estate industry associated PACE with the bad lending practices widely believed to have fueled the housing crash of 2008.

The Checks and Balances Project cites an internal realtors' association memo leaked by a former employee that mentions "preliminary meetings with local elected officials" who would be willing to vote against PACE, but who requested "political cover."

"We're confident that this [legal complaint] is needed to enforce the public's right to know how decisions are made and who really made them," Peterson said.

Kern County Counsel Mark Nations said Thursday that constituents have every right to meet with elected officials.

"A member of the public who happens to be a realtor approached a supervisor and discussed the PACE matter," he said. "That is not a violation of the Brown Act, that is part of democracy."

Eyewitness News spoke by phone on Thursday with the author of the real estate association memo, Kim Schaefer. She said the words in question were part of a grant application submitted to her national organization requesting funds for a public campaign to end PACE. She said she met one at a time with each member of both boards to articulate the realtors' position. She says PACE backers did the same.

The Brown Act specifically forbids meetings where a majority of the elected body is present together outside of their usual scheduled public meetings. The goal of the law is to ensure that public business is always debated in a public setting.

But the Checks and Balances Project's lawyers says a series of individual meetings may have amounted to what's referred to as a "serial meeting," wherein a series of communications ultimately involves a majority of the elected body's members.

"We want to make sure that there are no secret, backroom deals going on between powerful lobbyists and their friends in government," Peterson said.

Virginia Gennaro, who represents Bakersfield, said Thursday by phone that she is not concerned by anything in the legal complaint, adding that it amounts to a political group "grasping at straws" to reverse a political decision they don't like.

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