One of the great advantages of citizen journalism is the gift of civic-minded readers. The Valley Citizen’s readers aren’t just civic-minded, they’re also well-informed, well-educated, and, in many cases, very well-schooled in law.
Several of those legal scholars have told me that I was wrong when I wrote that Modesto Irrigation Director (MID) Larry Byrd violated the Brown Act when he voted last Tuesday to discontinue an investigation into an issue that directly affected his material interests. Some of those readers have said the actual ruling authority is the Political Reform Act (PRA). Others say it’s a matter for California Fair Political Practices Commission (FPPC).* I’m very thankful for these readers and doubly appreciative of their vigilance and counsel.
None of these readers has defended Director Byrd. The only issue they’ve raised is what ruling authority is relevant here. It is my belief that the ultimate ruling authorities for all of public service are codes of honor, integrity, transparency and the strong sense of public obligation expressed in the words, “service over self.”
The code that governs issues of self-interest when public officials are voting is at least as old as ancient Rome. In Latin, the code reads, “Nemo judex in causa sua.” The meaning is clear: “No one should be the judge in his own case.”
The FPPC rule is also clear:
“…a public official has a disqualifying conflict of interest in a governmental decision if it is foreseeable that the decision will have a financial impact on his or her personal finances or other financial interests. In such cases, there is a risk of biased decision-making that could sacrifice the public’s interest in favor of the official’s private financial interests. To avoid actual bias or the appearance of possible improprieties, the public official is prohibited from participating in the decision.”
Larry Byrd has significant financial interests at stake. He’s a partner in the AB La Grange Ranch, where over 100 acres of almond orchards are out of MID boundaries. The 4Creeks investigation focused on water use on the AB La Grange Ranch.
The usual MID in-district allotment is normally 42 inches, or 3.5 acre-feet per year. That’s 350 acre-feet over 100 acres. Keep in mind Byrd and his partners have over 100 acres out-of-district.
At the MID rate for groundwater replenishment — which is $200 an acre-foot — that’s $70,000 for 100 acres alone for one year. Byrd and his partners planted their almond orchards in 2016. Do the math.
The mathematically granular investigation by 4Creeks engineering determined that Byrd could not have used groundwater to irrigate those out-of-district trees. The only other available water was MID surface water. However, 4Creeks engineers said they could not determine whether Byrd applied MID water across MID boundaries and onto the out-of-district trees. The investigation was therefore incomplete.
Director Janice Keating, already under dark clouds for previous misconduct, said she voted against further investigation because she did not want to “open a can of worms.” Keating is apparently unaware that the can has already been opened and the worms are eating away at MID’s honor, integrity, and credibility.
MID Directors Robert Frobose and Chris Ott appear to be the only authorities at MID with courage enough to fulfill their duties to ensure the district measures, allots, and monitors water use fairly and accurately. Frobose and Ott voted to complete what was clearly an incomplete investigation.
The MID allotment rule says that irrigation allotments are for use within the district. There is nothing ambiguous or misleading about that rule.
The preponderance of evidence from an independent study has concluded that Director Byrd must have violated that rule when granular mathematical studies showed he could not possibly have watered his out-of-district trees with groundwater, as he had previously claimed. There is consequently no other source of water for those trees than MID surface water.
And while the Brown Act may not be directly relevant in this case, the Brown Act does include the following:
Last Tuesday, Larry Byrd, the man who has consistently said, “I have nothing to hide,” ran and hid when faced with the almost certain probability his misappropriation of MID surface water would be revealed by further investigation. MID General Counsel and Management also ran and hid when they permitted Byrd to violate clear and simple FPPC rules, thereby destroying their credibility and integrity while abandoning their fiduciary duty to protect their ratepayers’ most precious resource. In other words, Byrd and MID decided it is not good for the people to know why neither Byrd nor MID can explain how much MID surface water is involved on the AB Ranch and where it went.
There was already an indelible stain on Director Byrd for lying about his use of groundwater. Now, that stain has spread onto MID General Counsel and Management.
*An earlier version of this story read, “Federal Political Practices Commission.” I appreciate the reader who alerted me to the error.
Thanks, Eric – great reporting, and great integrity to correct in detail an error. I wish all media would follow that example.
Thank you Tim. More to come.
The public is demanding integrity and transparency all across the country. Incumbents that fail to recognize this do so at their own peril. Most everybody thinks politicians are crooks, so you have to prove you aren’t. They despise Pelosi insider trading, Hunter Biden “crime family,” the Trump Family shakedown for pardons, FCC licenses, crypto-coin and fusion energy (look it up). I think Larry Byrd missed a golden opportunity to have MID pick up the tab in further investigation if it were to clear his name and reputation. It is a political miscalculation to think this will go away and voters will give him a pass. His next opponent will fairly question his integrity of voting to drop the investigation. An opponent will question why Byrd did not disclose his almond ranching activities outside the district as he battled for least expensive GWRP rates. The lack of transparency will hurt Byrd politically far more than any further investigation that could have exonerated him (or minimized the oversight). Voting so publicly in his self interest to hide from further scrutiny makes him wildly vulnerable in the next election no matter how much Emerson Drake or John Duarte want to say its all political. His vote was effectively like pleading the 5th, which makes every juror skeptical. Voters are done with self dealing politicians with a bag full of finger pointing excuses. Larry should have embraced transparency, unless he really had something to hide.
The FPPC you refer to is not the Federal Political Practices Commission, but the (California) Fair Political Practices Commission. “Federal” concerns US entities and would probably not apply to state government or entities.
Thank you David. Much appreciated.
One again, corruption @ MID gets swept under the rug and no one is holding MID accountable.
Thank you Eric for exposing the corruption.
Why is the report incomplete? The trees were watered, right? Couldn’t be well water according to the report. What other possible source other than MID water? Case closed. Sanctions and fines should be assessed and then let Byrd fight them, with the burden of proof. Bottom line is that those preparing the report did not want to state the obvious conclusion.
Congratulations Eric for being the first I know of to report on this story. What I find ironic is that board member John Boer IV recused himself on voting to continue the investigation, but Larry Byrd did not. There is a lack of integrity when one does not recuse himself when voting on a matter of self interest.
Good reporting of the facts Eric. The citizens of the MID service area needed to know what’s going on with our so called “public utility”. The facts don’t lie.
Great article. In the interest of fairness, MID staff and attorney represent the district not individual board members. Ethics is 100 percent the responsibility of the elected official. All elected officials have to complete ethics training. They can consult a personal attorney or the FPPC. This is on Byrd.
Great reporting. Thank you.
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