(December 4)  The city of Upland has attempted to redress a situation in which it was alleged its city council  had violated the Brown Act.
The Ralph M. Brown Act is the state of California’s open meeting law that requires that all public business, with a few specific exceptions, must be conducted openly.
On two occasions in the last two months, the council undertook action that appeared to be in violation of the Brown Act’s provisions. The first of these occurred on October 25 when city manager Stephen Dunn provided members of the council with a questionnaire which called for them to rank municipal programs with regard to their necessity and importance to provide Dunn with guidance as to where he should pare back city operations in an attempt to balance the city’s upcoming 2014-15 budget.
In the second instance, the council selected members of its newly formed Fiscal Task Force Committee by having each member of the council simply forward his or her two allotted  nominees to the city manager outside of a public forum, without a previous public discussion or vote to ratify those nominees as actual appointees.
Ruth Musser-Lopez, who is a columnist for the Sentinel, delivered two  cease and desist letters, one dated October 30 and one dated November 12, to the city after those actions. In response, city attorney Kimberly Hall Barlow drafted two letters, each dated November 26, in which she gave Musser-Lopez assurances the council would refrain from such action in the future. The city council also scheduled a hearing at its November 25 meeting at which it officially made the committee appointments in public.  With regard to Dunn’s request that the council members fill out questionnaires, Barlow wrote, “We believe that the conduct was not a violation of the Brown Act. The Brown Act does not require all city council actions to be taken within the context of an open meeting. It only requires that, with few carefully defined exceptions, all ‘meetings’ of a city council must be open to the public. Therefore, the written submission of documents by council members to the city manger outside of a regular meeting would only violate the Brown Act if the act of submitting those documents itself constituted a meeting.”
Barlow’s letter continued, “Government code Section 54952.2 makes clear that for a ‘meeting’ to occur, there must be some discussion, deliberation, or communication among the council on a topic within the subject matter of its jurisdiction that results in the development of a collective concurrence. By individually submitting information to the city manager, no interaction among council members occurred, no deliberation took place and no consensus was reached.”
Despite that defense of the council’s action,  Barlow’s letter also stated, “In order to avoid unnecessary litigation and without admitting any violation of the Ralph M. Brown Act, the Upland City Council hereby unconditionally commits that it will cease, desist from and not repeat the challenged past action as described above. Rest assured that the city council takes the obligations of the Brown Act very seriously, and it is for this reason that the commitment contained in this letter is made. Even though we do not believe a violation occurred, the city  council wants to ensure that the public maintains confidence in the process through which these difficult issues will be discussed and decided.
With regard to the council’s selection of the committee members outside the forum of a public meeting, Barlow wrote Musser-Lopez another letter, also dated November 26, in which she repeated her representation that “The Brown Act does not require all city council actions to be taken within the context of an open meeting.”  Barlow propounded, “Therefore, the written submission of ad hoc budget committee appointees by council members to the city manager outside of a regular meeting would only violate the Brown Act if the act of submitting appointee names itself constituted a ‘meeting.’ By individually submitting  names of their individual appointees to the city manager, no interaction among council members occurred, no deliberations took place and no consensus was reached. To the contrary, the complete discussion and deliberation regarding the committee occurred in a duly noticed and open public meeting. In that process, it was made clear that each council member would have 2 appointees to the ad hoc committee. Any member of the public wishing to address the formation of the committee, its membership, process for appointment, etc., could have done so at the meeting of October 28th. Therefore, the appointments did not qualify as a ‘meeting’ under the Brown Act and was not required to be made during an open meeting. If post-appointment ratification of those on the committee had been required, it would have to have been done at a public meeting; however, no ratification was required by Upland ordinance or by the process expressly agreed upon at the public meeting. Thus, the committee is not illegal as you contend in your letter dated November 11, 2013 (sic). As no action was taken outside of a noticed and public meeting there is nothing to cure. Nonetheless, the full council acted to ratify the appointments at their meeting of November 25, 2013.”
Musser-Lopez, who formerly resided and was registered to vote in Upland, now divides her time between her residence in Needles and Upland, where she is a caretaker for an elderly family member. She was formerly a councilwoman in Needles.
“I had to pay money to obtain documents that included information that should have been readily accessible online in the minutes or as a part of an agendized discussion,” she said of her recent experience in Upland. “Instead, I had to go out of my way, make a special trip and expend my own personal funds to obtain information that a majority of the council had acted on. When I was on the city council in Needles, I was given instruction on the Brown Act.  There is a reason why this kind of written communication involving a majority of the council is illegal.   They are discussing and deliberating outside of the public’s view as to how they would likely vote on the budget or fiscal matters. The public can’t see or hear that discussion. In California, we voted to have open meetings, not meetings behind our backs.  When there is a majority involved in the discussion, they are not allowed to use an intermediary to communicate with each other outside the purview of the public,” she said.
“When Councilman Gino Filippi says he would like to see a discussion on ‘privatizing of city utilities’ and he does so on a piece of paper that can be viewed by his council colleagues but is not available to the public,  to me that means they are discussing selling the water utility.   The public should know that this is the direction that Mr. Filippi is interested in taking the city.  Because this polling or questionnaire was done outside of view of the public, the only reason I know that Mr. Filippi is oriented this way is because I took the time and my own money to file a Public Records Act request to obtain those filled-out questionnaires.  But the rest of the world has not seen the questionnaires.  These answers should have been made public as a part of the council packet that is prepared and published online by the city manager.  We should not be made to file a Public Records Act request.   This goes way too far in keeping information from us, information that we need to have to get an equal start on trying to fight to protect our pocketbooks and our property.”