MALT sues county over public records request

09/09/2020

The Marin Agricultural Land Trust sued the county last month for releasing documents it argues are private and privileged, seeking not only to reclaim them but to block the county’s impending release of more information. A Ross resident who sought unsuccessfully to collaborate with MALT to purchase a ranch several years ago requested the materials, which he is now using to fuel a series of allegations against the organization.

MALT’s lawsuit, which was filed in Marin Superior Court on Aug. 24, involves both the county and Burke, Williams, & Sorensen, LLC, the law firm that filed the public records requests on behalf of Kenneth Slayen. The suit claims the records in question relate to the internal operations of the private nonprofit and are not subject to disclosure under the Public Records Act.

The county has heeded MALT’s request not to release further documents while the litigation is pending, yet Mr. Slayen acted last week to make use of the information he already obtained. In a series of complaint letters, he compelled several entities to pursue his allegations, including county counsel, the Marin County District Attorney and the California Fair Political Practices Commission.

“Although my private business dealings with MALT prompted me to inquire into MALT’s practices, I have made no private claims against MALT for its interactions with me,” Mr. Slayen wrote to the Light this week. “My allegations pertain exclusively to violations of public interest laws, which it has become MALT’s pattern and practice to commit.”

In 2015, Mr. Slayen, a retiree, filed an application with MALT, proposing to use between $750,000 and $900,000 in cash toward the purchase of a 326-acre Hicks Valley property where he hoped to live and have someone else farm the land. His primary allegations pertain to how MALT made decisions regarding the property, now protected under a conservation easement as the Dolcini-Beltrametti Ranch.

The nonprofit released a statement last week regarding Mr. Slayen. “This person continues to threaten MALT with baseless legal claims, taking up a tremendous amount of the organization’s time and energy. Despite our best efforts, we have been unable to appease this aggrieved applicant,” MALT wrote. It continued, “The lawsuit is not a sign of animus between MALT and the county but rather a legal mechanism to prevent the release of this sensitive information.”

MALT took legal action one day before the county indicated it would complete a second records request made in September 2019 by Mr. Slayen, following his first request, in 2018. County counsel had said it could not take a firm stance on whether some of the documents requested were public but would release them anyway “out of an abundance of caution.”

Both of Mr. Slayen’s record requests got around the fact that MALT is a private organization by requesting its correspondence with Marin County employees, including Supervisor Dennis Rodoni, who sits on MALT’s board. 

Since the organization’s inception, two of MALT’s board members have been appointed by the Board of Supervisors. Until 1996, when the county changed its policy, one of those appointments had to be the District Four supervisor. Currently, the county’s appointees are Ralph Grossi and Tamara Hicks; Supervisor Rodoni was appointed by the MALT board.

“There is substantial question as to whether a number of the records that you seek are ‘public records’ under the Public Records Act in light of the fact that Dennis Rodoni is not appointed by the Board of Supervisors to the MALT board. The MALT board appointed Rodoni to its board,” deputy county counsel Sarah Anker wrote to Mr. Slayen in an Aug. 4 letter. “Without conceding whether the requested correspondence constitute public records for purposes of the Public Records Act, out of an abundance of caution, the county will plan to make these documents available to you.”

Yet Ms. Anker said the county would not release the documents until Aug. 25, and that she would give notice to MALT, allowing the group “an opportunity to take any actions required to prevent the disclosure.”

MALT’s lawsuit seeks to clarify the question raised by county counsel, asking the court to make a judgement declaring that MALT is not a public agency. “MALT appoints Dennis Rodoni to serve on MALT’s board in his private capacity. Therefore, MALT’s documents do not relate to the public business, and MALT is not a public agency,” the suit argues.

In addition to arguing that the organization’s documents are generally not public records, MALT says the documents released and those pending release are further protected by confidentiality laws.

“These documents do not relate to the business of Marin County,” the suit states. “They relate to MALT’s internal deliberations regarding strategic planning, fundraising, and negotiations with landowners. The disclosure of these documents would impair the interests of both MALT and individuals who are negotiating the terms of agricultural conservation easements; it would lead to the disclosure of the identities of MALT funders, whose interests are protected by the First Amendment; and it would disclose MALT’s strategy with respect to the protection of agricultural land in Marin County.”

Mr. Slayen’s complaints make use of the information already released to him, and follow a letter he sent to MALT in August of last year, which detailed similar concerns. 

In his letter to the Marin County District Attorney, he makes two primary accusations pertaining to the Dolcini-Beltrametti Ranch. 

After Mr. Slayen’s application was rejected, in 2016, members of the Dolcini family purchased the land, and now operate the Dolcini Jersey Dairy there. The ranch is part of a 22,867-acre swath of MALT-protected land stretching from the San Geronimo Valley to West Petaluma.

Mr. Slayen’s first claim is that MALT inflated the value of the conservation easement. He points to the California False Claims Act, which permits the Attorney General to bring a civil law enforcement action against any person who knowingly makes or uses a false statement or document to either obtain money or property from the state or a local government.

Mr. Slayen said MALT used the overvalued easement for the Dolcini-Beltrametti Ranch as a comparison to subsequently determine the value of easements on at least three other ranches, resulting in those also being overvalued.

Ray Fort, the acting executive director of MALT, pushed back on the notion that the easement was overvalued. MALT conducted two appraisals of the ranch, commissioned to separate, third-party companies. The first, from 2016, valued the conservation easement at 35 percent of estimated total property value. The second appraisal, completed later that year, valued the easement at around 50 percent of the total property value.

Mr. Fort said MALT chose the second appraisal, arguing that on average in West Marin, easement values range from 40 to 60 percent of property values.

Mr. Fort said Mr. Slayen misunderstood the appraisal process, and that the value of the Dolcini-Beltrametti easement had not influenced other easement values.

Nevertheless, after investigating the matter at Mr. Slayen’s prompting, MALT did find a problem, which it made public back in May. Then-executive director Jamison Watts said that MALT had failed to include the lower appraisal in its application for Measure A monies to help fund the purchase of the easement.

“While MALT followed the letter of the county’s requirements for Measure A applications in this transaction, the recent follow-up with the county was to ensure that all parties agreed MALT also adhered to the spirit of those requirements,” Mr. Watts said in a statement at the time. “While many staff and the board of directors are involved in every transaction, as MALT’s executive director, I take full responsibility for this Measure A application.”

The organization also justified the need for the two appraisals and the choice to include just one in the application: “Because the initial draft valuation for the easement was well below comparable values for MALT projects, MALT obtained a second appraisal and ultimately used the higher appraisal to value the easement.” 

In a May 8 letter to the director of Marin County Parks, which administers Measure A funds, Mr. Watts alerted the county of the missing appraisal and gave three options: MALT could refund the entirety of the county’s contribution to the purchase; refund $265,750, the difference in the amount MALT would have requested had it used the first appraisal; or not refund any monies.

Parks director Max Korten asked that MALT remedy the issue by returning all of the funds. “I appreciate MALT’s cooperation and commitment to transparency,” Mr. Korten told the Light in May. “We also plan to update our farmland program guidelines to make sure that we require all appraisals within a two-year window prior to the application date to be included in the application.”

Mr. Watts announced his resignation in June, leaving Mr. Fort, who has worked as the organization’s director of operations for three years, at the helm until a permanent replacement is hired. “While I love my work, it has become clear to me that I want to live my life with more intention, be more present with my family and recalibrate my work-life balance. It is in that spirit that I have tendered my resignation,” Mr. Watts wrote in a statement.

Mr. Fort told the Light in August that Mr. Watts’s resignation was unrelated to the return of funds. “There’s absolutely no connection whatsoever,” he said. “Jamison was clear that he was resigning for personal reasons. I think the pandemic has made us all think about what was important to us.”

There has been additional turnover at the organization recently. In February, Jeff Stump, the conservation director who worked for MALT for 13 years, resigned. Mr. Fort said his departure was also unrelated to anything involving the Dolcini-Beltrametti Ranch. 

Mr. Slayen’s second primary allegation regarding MALT’s handling of easements on the ranch—and numerous others—is that board members failed to disqualify themselves from making, participating in and influencing decisions that impacted their financial interests. Among others, he names Sam Dolcini, whose parents purchased the ranch with a partner and who is a longtime board member. 

Mr. Fort said that MALT follows a strict conflict of interest policy, and board members with conflicts always recuse themselves when necessary. MALT’s policy defines a conflict as arising when board members, staff, substantial contributors or anyone who may have the ability to influence organizational decisions “are in a position, or perceived to be in a position, to benefit financially, or create a benefit to a family member or other organization with which they are associated, by virtue of their position within MALT.”

The two laws that Mr. Slayen invokes in his concern about conflicts of interest, the Political Reform Act and government code section 1090, govern public agencies. But he broadly argues that MALT essentially operates as a public agency, including because of the role that the Board of Supervisors takes and the large amount of public monies it uses through Measure A. The organization should therefore be held accountable to the same transparency and oversight standards, he emphasizes.

For his part, Mr. Fort said that MALT has been a nonprofit since its founding 40 years ago, and “plans to continue to uphold its commitment of transparency with funders and privacy with easement holders and applicants, understanding that MALT is not subject to the same requirements as a public agency.”