On Tuesday, June 14, the Irvine City Council, with the absence of council member Mike Carroll, voted unanimously to pursue an audit of the Orange County Power Authority. With the audit, council members say they hope to find answers to what members cite as mounting public concern that the agency is not being fully transparent with its finances.
The aspect of transparency within OCPA is not just public-facing, according to a May 31 memo. A whistleblower complaint alleges transparency issues are also occurring internally and could be in violation of the Brown Act.
The memo, included in the June 14 council agenda, states that OCPA CEO Brian Probolsky has acquired private counsel to represent him in a lawsuit in which he claims he is being unfairly ousted from his position by members of OCPA’s Board of Directors.
Specifically, in a whistleblower complaint, Probolsky states that OCPA directors Mike Posey and Dan Kalmick, who also serve on the Huntington Beach City Council, “have allegedly conspired together to exert inappropriate influence over the Orange County Power Authority, to enrich themselves at the expense of the taxpayers.”
A letter from Probolsky’s counsel Leneck, Pourfallah & Associates details the specific Brown Act violations that the memo alleges occurred during the OCPA Board of Directors meeting on May 17.
During the May 17 meeting, Posey resigned his seat with the OCPA and appointed fellow Huntington Beach council member Kalmick. However, the complaint alleges that the move of replacing council members without properly notifying the public of such a change is in violation of the Brown Act.
“By characterizing the agenda item as a re-appointment, rather than a new appointment, the City not only misled the public but also lacked the legal authority under the Brown Act to deviate from this action when roles were swapped by Posey and Kalmick, as no re-appointment of a former board member occurred. Ultimately, the public was deprived of ample time to anticipate Posey and Kalmick’s plot to swap roles, which at a minimum, is a violation of the state’s open meeting law,” the letter states.
The complaint also alleges that OCPA directors conspired together through a means of “daisy chain” phone calls allegedly to “evade the public.” Additionally, the complaint states that Kalmick “attempted to coordinate official government action outside of a properly noticed meeting,” by attempting to gather support for the removal of Probolsky from his position within OCPA.
The June 14 special item, brought forth by Irvine Councilmember Larry Agran and seconded by Irvine Mayor Farrah Khan, included several different points of inquiry including naming the “other account types OCPA is serving (e.9. residential customers) and the number of those customers OCPA is serving.” Agran also requested information on the number of commercial customers that opted out of OCPA services.
Agran admitted he has been adamant about finding answers to the questions he has presented in the June 14 memo. In fact, Agran also points out in the memo that his public information requests from March 24 have still not been answered.
Prior to the discussion among council members, Khan, who also serves on the OCPA Board of Directors, gave some insight into several different aspects of questioning, also pointing out that OCPA has not provided power to residential customers at this time.
“As the only city that has loaned the start-up cost for the OCPA, I think it’s very important that there be transparency, and agree with the financial audit of the organization,” she said. “OCPA is not currently serving any residential customers, so there is no data. Information is not available.”
Khan added that answers to these questions can be found on the OCPA website, and that OCPA reported that 4% of commercial customers opted out of OCPA’s initial launch and that 70% of those commercial accounts opted into the 100% renewable energy tier.
“Again, details of this are available in the slides and presentation of OCPA’s last meeting,” she said. “Everyone is welcome to look that up.”
In his opening statements, Agran explained that he was desperate for the answers surrounding several aspects of OCPA operations, including naming staff, board of directors, and identifying how many customers opted out or opted down in service “and OCPA’s accompanying revenue losses.”
Agran presented a motion that would direct the city manager to facilitate the commencement of an independent comprehensive forensic audit of the Orange County Power Authority, and directed the city to retain special legal counsel and other appropriate specialists in order to “advise and assist the city in determining the near term viability of the OCPA as a power purchasing entity.”
Irvine City Councilmember Anthony Kuo said he has heard from both the public and the press regarding concerns that information requests about the OCPA are not being responded to.
“I have heard both anecdotally, and through public testimony, that people’s public request acts are not being responded to. I hear from others that are involved that they are being responded to,” he said. “They’re either being responded to in a legal way or they’re not – I would like for us, with association for this review, to look at how these requests are being responded to.”
Alternatively, Kuo said he received answers to various questions regarding OCPA in his email, 30 minutes after the special meeting started.
“I would say as a matter of criticism, when this council or members asks questions and get the answer 30 minutes after our meeting starts, it makes it a little bit challenging to receive those answers and process them in a thoughtful way.”
Kim, who seconded Agran’s motion, also shared Kuo’s criticism of receiving information after the meeting began.
“I do support doing whatever we can to reduce our impact on the climate, to help build a more sustainable future for not only ourselves, but our children and our grandchildren,” she said. “I’m hearing one group that wants to blow this all up, on the other hand, there are people striving for climate resiliency.”