McPhee barred from closed sessions at FPUD

A September 9 special meeting of the Fallbrook Public Utility District board placed sanctions on FPUD board member Archie McPhee for violations of FPUD’s ethics policy and the district’s code of conduct.

McPhee will be prohibited from participating in closed session matters involving the Santa Margarita River Conjunctive Use Project, which was the subject of his violations according to FPUD, and from closed sessions involving personnel matters. McPhee will also not receive per diem meeting fees until he has complied with the district’s Administrative Code requirement that he attend a training session on FPUD director duties and responsibilities. The FPUD board also declared McPhee’s action with regard to the Santa Margarita River Conjunctive Use Project to be outside the scope of McPhee’s duties as a director, which means that FPUD will not provide legal defense or indemnification if a civil suit is filed against McPhee.

Because the forfeiture of meeting fees created a personal financial interest of more than $250 for McPhee, he had to abstain from the vote due to a conflict of interest. FPUD directors Milt Davies, Al Gebhart, Bert Hayden, and Don McDougal all voted in favor of the sanctions.

“The issue was over three letters he sent to the commanding general at Camp Pendleton over the Santa Margarita River Conjunctive Use Project,” said FPUD general manager Brian Brady. “Individual board members are not permitted to make contact and contradict the will of the full board.”

FPUD and Camp Pendleton have been working towards finalizing the Santa Margarita River Conjunctive Use Project which would use natural and enhanced flows in the Santa Margarita River to enhance the recharge of groundwater basins and would provide up to 18,000 acre-feet per year for Camp Pendleton and FPUD. The project, which has a total estimated cost of $140 million, would also include a seawater intrusion barrier which would use recycled water and a distribution system to deliver water both to FPUD and to the San Diego County Water Authority. The management of the groundwater basins would provide FPUD with 4,000 to 6,500 acre-feet of new supply each year from the Santa Margarita River, which equates to approximately 25 to 30 percent of FPUD’s annual need of 16,000 acre-feet. The local supply would protect against cutbacks from the County Water Authority if the CWA’s State Water Project or Colorado River allocation is reduced.

An agreement between the United States Marine Corps and FPUD is undergoing Federal legal review and is expected to be finalized soon. “We have been in long-term negotiations with the Marine Corps over Santa Margarita River water rights,” Brady said.

A letter dated March 15 from McPhee to Camp Pendleton commanding general Vincent Conglianese opposed FPUD’s plans for the Conjunctive Use Project; in the letter McPhee identified himself as an FPUD director. McPhee’s letter to Conglianese dated April 25requested a copy of Conglianese’s communication to Brady and included the line: “Your communication to Mr. Brady jumped the Chain of Command for/of the Fallbrook PUD.”

McPhee’s letter stated that the chain of command was first the FPUD board of directors, second the FPUD general manager, and third FPUD management employees. McPhee’s chain of command paragraph included the line: “The Board of Directors is, by a majority vote of 3 of the 5 Directors, in total charge of the Fallbrook PUD.”

The FPUD board may delegate duties to staff. “I received instructions from the board to carry out these negotiations,” Brady said.

McPhee’s April 25 letter also included the line: “My impression of Mr. Brady is that he has, so far, assumed authority he does not legally possess.”

John Simpson, who is Camp Pendleton’s representative for water issues, attended the May 29 FPUD board meeting and told the FPUD board that McPhee’s two letters were undermining the ongoing settlement discussions. At that meeting FPUD’s Personnel Committee recommended to the full board that McPhee be found in violation of FPUD’s ethics policy and that appropriate sanctions be considered. FPUD’s board also authorized a letter from Hayden, who is the board president, to Camp Pendleton disavowing McPhee’s statements.

McPhee’s letter to Conglianese dated May 31 included the title “Archie D. McPhee Director #4, Fallbrook PUD” and made a Freedom of Information Act request for the name, address, and current telephone number of the U.S. Secretary of the Navy and a request for copies of the necessary permits for a new dam across the Santa Margarita River being planned by Camp Pendleton.

“The biggest concern is that by writing these letters they seemed to undermine years of negotiations with the Marine Corps,” Brady said.

McPhee requested that FPUD fund his legal representation in his challenge against the district’s claim that he has committed an ethics policy violation, asking for a minimum of $30,000 and a maximum of $60,000 for legal fees to be paid to the attorney of his choice. FPUD has Directors and Officers insurance through the Association of California Water Agencies’ Joint Powers Insurance Authority, and after Brady verified with ACWA-JPIA that McPhee’s actions were outside his scope of duties as a director the FPUD board voted 3-1 July 22, with McPhee opposed and Davies absent, to reject McPhee’s request for legal fees.

The September 9 sanctions added the lack of legal representation or indemnification if McPhee is sued for other reasons. “Since he took those unauthorized actions he is considered to be acting outside the scope of duties of a director, and therefore neither the district nor its insurance carrier will provide any defense or indemnification,” Brady said.

Action against McPhee was originally scheduled for FPUD’s August 26 board meeting, but McDougal could not attend and Davies’ presence was questionable (he was at that meeting). The FPUD board continued the action to September 10. “They wanted to all be there,” Brady said.

FPUD’s administrative code requires that board members attend an orientation program which includes explanations of the duties of board members and the district’s policies and procedures. McPhee, who was elected to a four-year term on the FPUD board in November 2010, has not yet attended such a training session. “He refused to do that,” Brady said. “He’s never gone through the initial orientation.”

Brady became FPUD’s general manager in July 2011 after Keith Lewinger retired.

FPUD board members are currently paid $115.76 (FPUD’s per diem policy has an annual escalation factor) for each board meeting or board-authorized meeting they attend. “He forfeits all meeting fees until he complies with the Administrative Code,” Brady said. “He has refused over the last three years to go through what every director is supposed to go through.”

A board may go into closed session for one of four reasons: personnel issues including disciplinary action or termination, pending litigation, real estate purchase negotiations, or discussion of facility vulnerabilities. McPhee currently is only prohibited from participating in closed session matters involving the Conjunctive Use Project or personnel issues.

McPhee was also instructed to cease and desist from any additional communication with Camp Pendleton.

26 Responses to "McPhee barred from closed sessions at FPUD"

  1. Pink   September 13, 2013 at 5:15 pm

    Clearly Archie has never read Roberts Rules of Order, never heard of the Brown Act, and certainly never bothered to find out the "do’s and don’ts" of serving on a board. What a mess.

  2. observant   September 13, 2013 at 11:39 pm

    Wow! San Diego has Filner and we have McPhee. Once again, Archie finds himself in a "confined space."

  3. Concerned FPUD customer   September 14, 2013 at 8:58 am

    I feel for Archie. I’m sure his intentions are honorable. It is really shameful that they did this to him.

  4. interested   September 14, 2013 at 11:03 am

    So the board picks a General Manager and then the board has no responsibility?

  5. Water Wise   September 14, 2013 at 1:12 pm

    I’m so glad Archie is saving the rate payers so much money as he mpromised is would, now that he’s in offcie – NOT!! The extra money he’s costing the District and ultimately, we rate payers for his arrogance is deplorable. Thanks for nothing Archie!

  6. Seriously??   September 14, 2013 at 2:12 pm

    @Comment #3: You are kidding, right? The one who behaved shamefully was McPhee. There was nothing honorable about what he did. He is an adult. He brought this on himself by using extremely bad judgement.

  7. Concerned FPUD customer   September 15, 2013 at 8:44 am

    @comment #6: I didn’t mean to imply that Archie didn’t mess up. I definitely don’t condone his actions or even his methods and I agree with everything you said. But he is out numbered and therefore cannot get anything accomplished anyway. It is probably the frustration with his fellow board members that drove him into his letter writing campaign. I just believe that in his own mind he honestly believes he is trying to do the right thing for the community. What if Archie turns out to be right and all this money spent on the Conjunctive Use Project was for nothing, will that change your opinion that he deserved this public beating? Don’t you find it a bit strange how the FPUD Board goes into closed session and makes a big deal out of the secrecy for “personnel discipline issues” but then don’t have a problem publicly flogging Archie? The Board made this a public flogging because he opposed them and they are now getting revenge. This is not a good thing.

  8. Seriously??   September 15, 2013 at 1:28 pm

    @Comment #7: I agree with you that Archie believes he is doing the right thing, however his methods are so far out in left field that they cannot be ignored by the other board members. I believe that they have to go into closed session to discuss his misconduct, however, they also are duty bound to report why Archie is no longer allowed to take place in closed session discussions, otherwise, we the public, would wonder why he is odd man out and that is how rumors get started. I believe that no matter how "well intentioned" Archie thinks his actions might be, the truth is that he he has caused far more problems and expense for both the board and the rate payers.

  9. For the Record   September 15, 2013 at 2:04 pm

    @comment#7: Personnel issues must be discussed in closed session because employees have privacy rights. It’s the law. Archie isn’t an employee. He is an elected public figure. Any action against him by the Board must be in open session, that’s also the law.

  10. Wally   September 15, 2013 at 7:59 pm

    If McPhee had any common sense he would do the honorable thing and resign. The problem is he won’t because his over inflated ego is clouding his judgment. At least Filner had the common sense to resign; McPhee doesn’t.

  11. For the Record   September 16, 2013 at 7:24 am

    Curious minds want to know: How much have his actions cost us since he’s been in office, in terms of 1) Dollars/time spent undoing the damage he has caused, and 2) Examples of times he has damaged good will and FPUD’s relationships with other entities and/or stepped outside of his authority as a director?

  12. Concerned FPUD customer   September 16, 2013 at 11:00 am

    I guess the rest of you have been following this a lot closer than I. I was under the impression that his "crimes" were only the letters to Pendleton and revealing a name that shouldn’t have been revealed. I thought both issues were resolved without any problems. I think compared to Filner, Archie is rather innocuous. Notice the City Council didn’t take on the Filner issue in public. It was all resolved behind closed doors and I’m sure the Council breathed a sigh of relief. It appears to me that the FPUD board are just very mean spirited and enjoying this way too much. I think what they are doing may just make the problem worse. So fill me in. What exactly are his "crimes" that are costing all this money and good will?

  13. DR DR   September 16, 2013 at 12:25 pm

    Very well put @Concerned FPUS customer. It wasn’t ‘crime’. Filner was slimy ‘crime’.

  14. long time resident   September 16, 2013 at 2:54 pm

    Actually, anyone who has ever read the Village News or followed any of the FPUD board minutes and/or actions knows that Archie has always marched to the beat of a different drummer. I would say that even before he ran for office, he was a bit of a thorn in the district’s side. While there is usually a method to most people’s madness, old Arch was usually too far out in left field for anyone to really understand what, if anything, he was trying to accomplish. I think most of the people who voted for him did so because they wanted a change, and were curious to see what he would or could actually do if elected, unfortunately we have all found out what he would do, the hard way. He has gone about the business of being a board member somewhat like a bull in a china shop. No matter what your feelings are about Archie, you have to admit, he hasn’t done a very good job as an elected official. He is no Filner, but he shouldn’t be on any board of directors, in my opinion.

  15. Grower   September 17, 2013 at 7:54 am

    Keep up the good work Archie. You are the only one on the Board with any concern for the ratepayers. Do not let the GM and his lapdogs on the Board get you down.

  16. long time resident   September 17, 2013 at 8:45 am

    Right “Grower”, sure. Please tell me, exactly what Archie has done to help the rate payers? My bill just went up $25!! That is a heck of a jump. I would prefer to see someone on the board who could make some changes for the better to benefit both the district and the ratepayers without making his or herself look questionable in the process.

  17. Concerned FPUD customer   September 17, 2013 at 10:43 am

    Archie was doomed from the get-go. He ran against one of the gang and beat him. That ticked them all off and they never gave him a chance. It takes three votes to change anything. Even if his ideas were brilliant (I don’t think they are) he would have gotten voted down for spite. No one person can make a difference. The only hope for the ratepayers is to breakup the gang that is running the Board now. BTW, my bill went up more than $300 this August over August 2012.

  18. MyView   September 17, 2013 at 5:00 pm

    I’m not saying that I agree with Archie on all of his ideas or his method of carrying them out, but just because Archie hasn’t/doesn’t follow the approved protocol & procedure of FPUD doesn’t mean that the issues that he brings up or points of concern that get him going in the first place are wrong. The flip side of that is although the rest of the FPUD board unanimously agrees on something (that Archie opposes) and follows the approved protocol & procedure designated by FPUD and all the other powers that be, doesn’t necessarily mean that their idea is a good one or the best one for the FPUD ratepayers.
    Isn’t Archie the only new board member? There were problems for the ratepayers before Archie joined the board and there are still problems although the rest of the board members supposedly can & have outvoted Archie in their decision-making about what FPUD has and will be doing to "help" the ratepayers. Is Archie really the problem or is he & his "against the rest of the board" ways just a convenient scapegoat for any & all problems that any of us have with FPUD now or will have in the future?

  19. Check it out   September 17, 2013 at 5:49 pm

    I tend to agree with what Pink (comment #1) said. "Archie may have been doomed from the get go" as comment #7 says, however, if he was doomed, it was by his own hand. As Pink said, he obviously never bothered to find out what his duties as a board member are, how to perform said duties, and worst of all, the consequences of bad behavior. He did no one, certainly not himself, or the ratepayers any good by trying to be the lone ranger. Not only did he allegedly commit an ethics violation, but worst of all, he wants the district to pay his legal fees….what??? Not only no, but heck no. If that is his idea of saving the ratepayers money, I don’t even want to know what his other ideas might be.

  20. ratepayer   September 17, 2013 at 8:32 pm

    Archie creates his own problems because he not only doesn’t understand proper protocol, but he twists things around and uses half-truths. IT’s not that it’s a problem that the rest of the board is on the opposite side, it’s that Archie’s concerns aren’t even grounded in reality. He doesn’t understand that boards have to follow laws and rules and regulations. Then he has the nerve to openly call respected people like Milt Davies names and be demeaning to them, when he is the one who doesn’t know what he is talking about.

  21. RPR   September 18, 2013 at 10:22 am

    Sounds like McPhee and Lee could use some informative schooling on boards and voting skills.

  22. Pink   September 18, 2013 at 1:14 pm

    Ratepayer: comment#20 is absolutely correct. McPhee, by his own admission, refused to attend a district mandated orientation class for new board members. Who does that? He appears to have absolutely no idea what he is doing. I myself, do not know all of the FPUD board members personally, but I do know Milt Davies, our kids grew up together, and I am acquainted with Don MacDougal. They are both upstanding members of our community, and have been for many, many years, they have nothing to gain by "being in the district’s pocket" as someone accused them of, and verbal attacks on them by McPhee are both uncalled for and unproductive. I like your comment as well RPR, you are right, there are certainly similarities between McPhee and Lee.

  23. grunt   September 18, 2013 at 6:54 pm

    (Speaking for Lee) — what, we, the people, do not get to vote on it?? Why not? -):

  24. good ol boys   September 18, 2013 at 8:30 pm

    Archie may not be perfect but those thinking the good ol boys club are closest to the truth in my opinion. no reason for some of those board members to feather their own nest? surely you jest – what are you drinking? the water?

  25. Curious   September 18, 2013 at 9:06 pm

    @Comment #24, exactly how are they feathering their own nests? Please tell us, in detail, what they are getting out of being in this so called "good ol boys club?" If you are accusing them of something specific, I believe, we the ratepayers, have a right to know.

  26. Lee   September 19, 2013 at 11:29 am

    My dear fellow Fallbrookers, what do you call a person who mocks the very concept of WE, THE PEOPLE? What do you call a person who mocks WE, THE PEOPLE voting on things directly? What do you call a person who mocks the very foundation of our democracy, that being the vote of the people? What do you call a person like that?

    A traitor.

    Two, I am not that familiar with this particular matter, so I will simply go by what is written in this article. The following jumps out at me.

    Our military-industrial complex. (Oh, you knew I had to throw that one in there somewhere, didn’t you?) Private sector utility company. Joint project between the two. The PRIVATE SECTOR flips the bill either through fees levied by the utility company OR through good ol’ taxes that go to our military-industrial complex. Either way, the military-industrial’s part in this project, AS ALWAYS, is funded by the hard-working American worker and tax-payer. Along comes a "bad boy" by the name of Mr. Archie McPhee. He sees the pitfalls of this joint project. He stands up against it. He even, my, my communicates to the military-industrial’s brass directly thereby bypassing some, shall we say, most important rules. (I know, I know, in this Age of Communication, heaven forbid . . . that we actually, well, . . . communicate.)

    So, communication trying to get to the bottom of things — bad; military-industrial complex’s hoodwinking of the American tax-payer — good. Gotcha.

    He is sent to the principal’s office like a 10-year old caught chewing gum in class and is reprimanded. He is barred to attend class. He is barred to further communicate with another human being, the military-industrial complex’s brass. AND to complete his demise, he may not receive any financial support for legal purposes (that are ever-so cleverly name-dropped against him!) . . . should legal action be taken against him, thus, ruining him emotionally, spiritually AND financially. (And the poor man is an elderly gentleman!) And all he did was communicate with another human being.

    Welcome, my dear fellow Fallbrookers, to our military-industrial complex! Welcome! Our military-industrial complex DEMANDS COMPLETE subordination, COMPLETE submission, COMPLETE worship, COMPLETE obedience, . . . COMPLETE silence.

    Welcome, folks, to our military dictatorship! Oops, oops, oops, I mean democracy.

    PS. Oh yeah, I almost forgot. Did we and do WE, THE PEOPLE get to vote on this joint project? Did we? Do we? If not, why not?! Where was the vote? Where? When? Who? How?

    I . . . demand to know.


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