In a very delicately-worded rebuke delivered through the Upland city attorney rather than directly to council members, the San Bernardino County District Attorney’s Office’s Public Integrity Unit has addressed the Upland City Council’s violation of the Ralph M. Brown Act, the State of California’s open public meeting law, during two closed door meetings of the city council this spring.
The Brown Act requires that the governing boards of local governmental entities, including city councils, conduct their affairs in a public forum, with only narrowly defined exceptions for issues which, if publicly discussed before they are internally and externally resolved, might represent a liability for the governmental entity, its constituents and taxpayers and the public at large. Practically speaking, the Brown Act prohibits a quorum of a board’s members from meeting or discussing together or in a serial fashion or forum outside of a scheduled public meeting any issue before the board or any action the council is to take. The Brown Act requires that the public must be alerted in the form of a published and publicly available agenda containing a general description of all such items to be discussed or upon which action will be taken at least 72 hours in advance of all meetings of a full city council or quorum thereof.
The Brown Act does permit a governing board to hold closed door meetings, but only for the purpose of holding discussions relating to four narrowly defined topics and only if a general description of the issue discussed is disclosed in agenda form in advance. Those four topics are performance reviews or the termination of an employee; litigation or pending litigation; contract negotiations; or negotiations for the purchase or sale of real estate. The discussions taking place at these closed door meetings are deemed confidential until such time as a decision of definitude with regard to the issue discussed is made, such as firing the individual employee in question; giving direction to the city’s legal team to settle or file a lawsuit; or a vote to enter into a contract or finalize the acquisition or sale of property. Consequently, attendance at these closed door meetings is limited to the elected body and senior staff whose participation is needed to assist in the elected body’s decision-making process. In a municipality this translates to the mayor and city council, the city manager, the city attorney and on occasion, a department head or even more rarely an employee whose input can help inform the decision.
At its April 24 and May 8 meetings, the Upland City Council adjourned into a closed session, as is routine. While the minutes for both the April 24 and May 8 meetings reflect that the council engaged in an evaluation of the city manager’s performance, and the agenda for the May 8 meeting announced that such an evaluation was to take place, the agenda for the April 24 meeting offered no such announcement. Moreover, during the course of the May 8 meeting, the council members were presented with a document, one apparently authored by councilwoman Carol Timm, titled “In House Policies of the Upland City Council.” That document laid out a set of recommended practices for the city council. There was no mention on the agenda that the document was to be discussed, and there was no mention whatsoever of the document in the minutes of the meeting produced afterward.
The document was passed around during the course of that closed session and signed or initialed by the council members as an indication that they at the very least informally accepted the terms of what was spelled out in it. The document was then secured by staff, which made no disclosure to the public about the document’s contents. Councilwoman Janice Elliot, however, sensing that the presentation of the document in closed session was improper because it did not fall within the rubric of the issues or matters that can be discussed outside the presence of the public in accordance with the Brown Act, had the presence of mind to snap a photo of it using her cell phone.
Thereafter, Elliott authored a letter to the district attorney’s office, requesting that it look into the matter to determine if the city council was acting in accordance with the Brown Act. In her communication with the district attorney’s office, Elliott noted that the city’s public relations consultant, Steve Lambert, had been present at the closed sessions.
After a duration of five months, the district attorney’s office made known its findings, or a portion thereof, which were summarized in a letter from deputy district attorney Carlo DiCesare to Upland City Attorney Jim Markman dated October 20, referencing the district attorney’s office nomenclature for the case, PI1812
Bearing a salutation to Markman only, the letter states, “As you know, our office has received a complaint from Upland City Council member Janice Elliot. In her complaint, councilmember Elliott alleges that the city council violated Government Code § 54954, et seq. (the ‘Brown Act’) during two closed session meetings held on April 24, 2017 and May 8, 2017, by discussing matters beyond the Brown Act’s personnel exception as set forth in Government Code Section 54957 (b) (1).”
The letter continues, “In considering this complaint, we reviewed councilmember Elliot’s correspondence to our office, meeting agendas for April 24, 2017 and May 8, 2017, a video recording of the May 22, 2017 city council meeting wherein you publicly recounted the discussions during the May 8, 2017 closed session meeting, my telephone conversation with you on July 21, 2017, my telephone conversation with councilmember Elliot on September 19, 2017, and relevant statutes and legal authorities you provided.”
DiCesare put forward that there was indeed a basis for Elliott’s suspicion that the city council had not abided by the Brown Act. “As I stated in my telephone conversation with you, we are primarily concerned with the city council’s activity on May 8, 2017,” DiCesare wrote. “It is our understanding that on that date, the city council went into closed session for an item listed on the agenda as “Government Code Section 54957 – Public Employee Performance Evaluation Title: City Manager.’ We further understand that during that meeting, a member of the city council produced a document entitled, ‘In House Rules of the Upland City Council.’ This document listed various rules that members of the city council should follow regarding issues such as interpersonal grievances and interfacing with the public.”
According to DiCesare, some order of commitment by the council to adhere to the principles laid out in the document was made, though a formal vote as such was not taken or recorded. Rather, that decision was memorialized through the council’s endorsement of the document. “We also understand that when the document was produced, you advised councilmembers not to vote on it, and that it had no legally binding effect,” DiCesare’s letter states. “It appears that the document was signed during the closed session by all members of the city council, save councilmember Elliot, who initialed items in the document with which she agreed.”
In the letter, DiCesare indicated Markman had made a legalistic concession short of an outright admission that the council had been less than fully compliant with the Brown Act’s provisions by agreeing to discontinue such practices as holding discussions of prohibited issues and assenting to policy decisions through secret written endorsements from here on. “During our phone conversation, it seemed you understood our concerns about the propriety of discussing and signing the document in question during closed session,” DiCesare wrote. “Without admitting any violation of the Brown Act, you indicated the city council would not undertake any similar action in the future. Moreover, we have considered the city council’s efforts to cure any appearance of impropriety by waiving the attorney-client privilege regarding the May 8, 2017 closed session. Pursuant to that waiver, on May 22, 2017 you discussed, in open session, the substance of the May 8, 2017 closed session meeting.”
While Brown Act violation complaints are relatively rare, they are not unheard of in the rough and tumble of politics, and in the normal course of things, the punishment meted out for such violations when they are proven to have occurred is usually very mild, most often a letter of warning or admonishment to the offending parties. Official action taken by a vote which occurred as a consequence of a Brown Act violation can be vacated. In rare circumstances, the members of a panel who have engaged in a Brown Act violation can be fined. The law in theory permits habitual Brown Act offenders to be jailed.
Since no official vote was taken or recorded by the Upland City Council in its skirting of the Brown Act, there is no identifiable action that was taken, the signing of the document notwithstanding, and the city cannot enforce or impose on the city council members the recommendations contained in the document provided by Timm at the May 8 meeting.
“As you have reiterated multiple times, you do not consider the document in question to be a valid agreement that is legally binding,” DiCesare told Markman. “We agree with that position, and thus believe that no action is necessary to nullify its provisions.”
DiCesare indicated that the matter would be closed out with the admonitions inherent in the letter and his phone conversation with Markman on July 21. “Thus, for the reasons set forth above, we will refrain from taking any further action and consider this matter closed, wrote DiCesare. “We appreciate the city council addressing this issue promptly and hope that bringing it to your attention will guide the city council’s continuing efforts to comply with the Brown Act.”
The letter was signed by DiCesare with the authority of district attorney Michael Ramos.
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