One of the challenges of being a resident blogger is that you’re always on the outside looking in. That means that, if you’re going to add value, you might need to get on a limb and do some speculation based on publicly available information.

And when you speculate — even on the basis of decent evidence — you’re going to be wrong sometimes.

And recently I got something very important wrong. The TeWinkle lakes project, passionately discussed in my prior piece here, was not subject to the Community Workforce Agreement (CWA) when it went out for its second bid. I assumed that the CWA applied to that second bid. However, I’ve since learned that, between the first and second bids, city staff removed the TeWinkle lakes project from the scope of the CWA.

So I got it wrong.

Now, why I got it wrong might be an interesting story to you — if the minutia of California public records law and the Brown Act is your jam. Otherwise feel free to tap out now. But for the approximately two or so of you who remain, let’s dive in.

My assumption about the TeWinkle lakes project rested on two grounds: first, responses I had received from the city to a public records request suggested the CWA still applied to this project as of March 2025, and second, the publicly available agreements and agenda reports which did not disclose what the Staff had done regarding the CWA’s applicability to the project.

Due diligence gone awry: the limitations of PRRs

The City completed its first CWA project, the pavement rehabilitation and restriping of Adams Avenue between Harbor Boulevard and the Santa Ana River, back in March 2025. Since I had been following the implementation of the CWA, this completion prompted me to send in the following public records request under the California Public Records Act (CPRA):

A few weeks later, I got this response. The “attachments” referenced included only one email relating to the TeWinkle lakes project, which was an email from the city informing the only bidding firm that the city intended to reject its bid.

Based on this response, I inferred that either (1) any changes to the CWA relating to the TeWinkle lakes project was still in negotiation (in which case the citations to the CPRA’s “preliminary draft” and “deliberative process” exemptions would make sense) or (2) there was no responsive correspondence because Staff had abandoned its intention to remove the project for the CWA.

But just in case, I followed up with the clerk: if you couldn’t send me the correspondence, could you at least tell me if the discussions with the CWA’s counterparties had even taken place? Her response: “I cannot confirm whether Staff has discussed with CWA counterparties.”

With that response, I felt pretty confident that the CWA still applied to the TeWinkle lakes project, at least as of March 2025. First, given the language of the CWA (discussed in detail below), it didn’t even occur to me that Staff might amend the CWA unilaterally without even discussing changes with the CWA’s counterparties. I further assumed that, if the project had been removed from the CWA, neither the “preliminary draft” nor the “deliberative process” exemptions should apply because a final decision would have been made. The other exemptions (legally privileged documents or personal private information) also just wouldn’t apply to a mundane contract amendment. So, if the amendment had been completed, the clerk should have been able to confirm the answer to my bare factual question. That she didn’t made me think the issue hadn’t been resolved.

I’ve since learned that the TeWinkle lakes project was, in fact, removed from the purview of the CWA before I sent in my March 2025 public records request. It was removed by the Staff unilaterally, meaning there was no written agreement (not even email confirmation) with the CWA’s counterparties memorializing the change. And no update to the CWA has been posted to the city website.

So, what do I take from this?

Frankly I think it’s arguable that the city violated the CPRA in its response to my request. If the Staff unilaterally removed this project from the scope of the CWA, and if that decision had been made before March 2025, my request would have pertained to internal correspondence regarding a final, completed decision: not a decision that was in the midst of being deliberated or that would be considered a “preliminary draft”. And if the decision had already been made, the clerk’s response that it could not confirm whether Staff had discussed with CWA counterparties is, at best, misleading.

But hey: I learned some things. Clearly I need to word my requests much more broadly. And I also learned that public records requests might not be all they are cracked up to be. In this case I relied too heavily on vague language in my public records request response. I should have sought out another source for verification. Live and learn.

But what about those agenda reports?

So here’s my other quibble. The CWA is a material, public contract. It was approved by the Costa Mesa City Council, and that approval included the project list that would be subject to the CWA’s requirements.

Therefore, if the Staff believes it has the unilateral authority to materially amend that contract, and it further believes it doesn’t have to disclose those amendments to the public, I have some questions.

First, recall that the original staff report pertaining to the first failed bid for the TeWinkle lakes project contained disclosure of the Staff’s proposal to remove the CWA requirement and that it would “add several other replacement projects under the CWA to ensure the City’s commitment”?:

Well, to my knowledge, Staff never publicly followed up on this “proposal” or on what projects were added as “replacement projects”. In the agenda report attached to the TeWinkle lakes project presented last Tuesday, there was zero mention of the CWA — even though the project’s development timeline was discussed at length and the Staff had clearly fingered the application of the CWA as a significant factor in the failure of the first bid.

That in and of itself poses a problem: even if Staff has the authority to unilaterally add or remove projects under the CWA, it doesn’t have the authority to do that outside of the public’s view. I’ve since learned that there were no “replacement projects” added to the scope of the CWA in exchange for removing the TeWinkle lakes project. That seems material, right? Especially if the City Council thought it was approving the removal of the lakes project in exchange for other valuable projects being added?

But let’s back up: did Staff have unilateral authority to remove the TeWinkle lakes project? Let’s look at the CWA itself. Here’s the relevant language about adding or removing projects listed in “Attachment F”, which lists the projects subject to the CWA:

I don’t know about you, but the language seems pretty clear to me: the city can add any project it wants to the CWA, but it can only remove projects that “do not move forward”.

And yet, the TeWinkle lakes project is moving forward (it squeaked through on a 4-3 vote last Tuesday night). Setting aside the issue of whether such a removal is a violation of the CWA — I assume the CWA counterparties haven’t complained, or else we’d be having a different conversation — this language makes me question whether the City Council actually delegated unilateral authority to the Staff to remove projects from the CWA that nonetheless move forward at the time the City Council approved the CWA. I don’t think it did. Instead, this language, especially the last sentence of Section 2.2.2, makes it pretty clear that Staff can’t just remove a project from the list to so that the CWA’s requirements can be avoided altogether.

And, look: that’s a hyper-legal, technical point. But for this highly technical ex-lawyer, that heightens underscores the need for public disclosure here.

So, in my opinion, the Agenda Report presented on Tuesday night bordered on a Brown Act violation in two ways.

First, it did not close the loop on the “proposed” action in the June 2024 agenda report by disclosing the action the Staff had in fact taken since that time. This robbed the public of the opportunity to review and digest this action and ask questions about it. While I certainly don’t mind removing projects from the CWA — honestly, I’d like to see them all removed — if I were a member of a union, I would have a lot of questions. And I don’t think just discussing it the staff presentation is sufficient: the Brown Act is concerned about notice, and no one was given public notice that this action had occurred.

Second, there has been no public update of the CWA itself. The “record” copy was disclosed in the 2022 public contract listing on the city website. As of this morning, the link still directs to a version of the CWA that includes the TeWinkle lakes on Appendix F. So… how would anyone in the public know that the Staff is unilaterally amending this agreement to add or remove projects? And how can the City Council track how the CWA is helping or hurting projects if they have no idea whether the project list is up to date?

Closing thoughts

In the end, I’m very glad to see this project moving forward and I am thrilled that the Staff found a way to liberate the project from the clutches of the CWA. And I am dismayed that, even after they had done so, we didn’t see more bidders come forward for the second bid. Maybe there really aren’t that many companies that do artificial lake engineering… though the copious number of regional parks and golf courses in our area that feature artificial lakes and ponds makes that hard to believe.

Or maybe the damage had already been done. In any event, my hat is off to the Public Works team to cobble together a plausible project to salvage this debacle. I just hope they provide better transparency on how they got there next time.