By Mark Gutglueck
In the face of substantial indications and evidence to the contrary, Upland City Attorney Steven Deitsch is maintaining that the Upland City Council did not engage in multiple violations of the Brown Act over the six month period city officials were seeking a city manager which ultimately culminated with the hiring of Michael Blay to fill that position, effective next week.
The Brown Act is California’s open public meeting law. It requires that all decisions made by a publicly elected governmental body, with several specific exceptions, be conducted in an open venue which can be witnessed by any and all citizens who wish to be present. Those meetings can only be held after the public is given at least 72 hours advance notice of the issues, topics or matters that are to be discussed and voted upon during the forum in which the decision is made. That notice must be given by the publishing or posting of the agenda for the meeting. When backroom discussion or decisions relating to matters that are given exception from immediate disclosure and public scrutiny take place, the Brown Act requires that the public be informed immediately upon a decision of the legislative/executive body being reached.
In the case of the process that ultimately concluded with Blay’s hiring, the city council and Deitsch, as the city council’s legal representative, failed to give advance notice of crucial action taken as it moved toward searching for and recruiting a replacement city manager, consisting of the city’s hiring of a professional executive search firm for that purpose. The council did not make an unsolicited public disclosure of that action after it was taken. Thereafter, the city council and interim city management essentially hid the evidence that the city had hired a consultant to engage in the recruitment and evaluation of candidates for the city manager post and kept secret the identity of the firm doing that recruitment and evaluation. Toward the end of the process, after the city council had reached a consensus on the hiring of Blay, city officials did not make immediate disclosure of that decision, as the Brown Act requires, but kept the decision under wraps for at least nine days and perhaps as much as a month.
Deitsch has asserted that no violations of the Brown occurred, but has not refuted the factual basis upon which allegations that the city failed to live up to the open meeting requirement have been made.
It has been hinted and is widely assumed that Deitsch and the city council are staking their defense against the allegations that they violated the State of California’s open meeting protocols on the preceptual assertion that they are covered by the exceptions carved out in the Brown Act relating to decisions with regard to certain matters. Indeed, the hiring of a city employee falls within that list of exemptions. Problematic, however, is that the literal extent to which those exceptions reach does not technically cover nor apply to the actions the city council took in at least three junctures in the recruitment and hiring process.
The Brown Act requires that all discussions pertaining to official business of a governmental entity involving a quorum of its elected board such as a city council be conducted in public, with exceptions for negotiations for land purchases, discussing employee discipline, hiring and firing employees, labor negotiations, pending and ongoing litigation, discussing threats to the security of public buildings, discussing or contemplating the licensing of individuals with criminal records, considering the investment of pension funds and discussing and arriving at the governmental entity’s final response to a state audit. The Brown Act restricts a quorum – consisting of a majority – of a public board of elected officials from meeting outside of a previously noticed and agendized public forum to discuss any matter pertaining to the governmental entity those elected officials represent. It prohibits serial meetings of the elected officials that ultimately involve discussion of official action by a quorum. With a five member board, a serial meeting takes place when one member, through whatever means – in person, by post, telephone, text message, through an intermediary and email included – discusses with one of his or her colleagues official action and thereafter discusses with another colleague that contemplated action through whatever means, so that three members of the board have discussed the action or potential action among themselves.
The Brown Act in general prohibits publicly elected members of a governmental board from reaching a consensus on a public issue outside of officially sanctioned forums and it precludes the government and those who constitute it from keeping a decision that was arrived at in secret from the public once that decision is made. Thus, any decision involving a matter legitimately discussed in secret under the exceptions provision of the Brown Act must be disclosed upon being reached.
By late winter/early spring of this year, the city council had grown dissatisfied with the performance of then-City Manager Rosemary Hoerning. Hoerning was placed on administrative leave on March 31, 2021, at which point the city council elevated Assistant City Manager Steven Parker to the position of acting city manager. On April 26, the city council in conjunction with Parker and City Attorney Steven Deitsch came to an accommodation with Hoerning, agreeing that the city and Hoerning would part company, without any recrimination or pursuit of legal claims against one another either way, and that the city would confer upon Hoerning a $235,903 severance payout.
At least two of the council members thought highly enough of Parker to consider elevating him from his official assistant city manager post to city manager. It is not publicly known how many of the council’s members were on board with making a go of prevailing upon Parker to take the promotion, but he in very short order gave indication he would not offer himself, and they should not consider him, as a candidate for city manager, given that he and his wife are raising young children and his dedication to his family would not allow him to sacrifice the time that would be demanded of him to serve as city manager on anything more than the stopgap basis he had just taken on, after which he intended to go back to the less time-and-stress-intensive assignment of serving as the city’s assistant city manager and finance director.
It was shortly thereafter that what appears to have been the first violation, or at least the first recognized violation, of the Brown Act relating to the recruitment of the city manager took place.
At its April 12 meeting, while Hoerning was yet suspended, the council in closed session engaged in a discussion and evaluation of her performance and considered her dismissal and further engaged in negotiations with Parker with regard to his role as the acting city manager. Upon returning from the closed session, Deitsch stated there had been “no reportable action.”
At its regularly scheduled April 26 meeting, the city council discussed in closed session, according to the agenda, Hoerning’s performance and her termination, and it also engaged in a negotiation session with Parker in regard to his role as acting city manager with the city.
Upon returning from that closed session, Deitsch reported that the city council had “unanimously approved an agreement accepting the resignation of the city manager.” that being Hoerning.”
Thereafter, during the council’s open session on April 26, its members took up consideration of temporarily uprating Parker’s administrative authority. At that time, Deitsch stated publicly that at the April 12 meeting “the council considered possible provisions for an amendment or an agreement in closed session regarding Mr. Parker’s tenure as acting city manager. Based on the city council’s direction, the city attorney has prepared a proposed Amendment Number 1 to Mr. Parker’s employment agreement.” The council unanimously approved that amendment, which officially placed Parker in the role of acting city manager and increased his pay and benefits to that equal to the bottom rung of remuneration provided to a city manager on the city’s pay scale for the duration of his time in the acting city manager’s role.
At the next regularly scheduled meeting on May 10, the city, according to its agenda, held a discussion relating to the appointment of a city manager. When the council returned from that closed session, Deitsch told the public there was “No reportable action.”
On May 24, 2021, pursuant to an agreement signed by Parker and Heather Renschler, the chief executive officer of Ralph Andersen & Associates, and witnessed by City Clerk Keri Johnson, the City of Upland entered into a $28,000 contract with Ralph Andersen & Associates to carry out identification, recruitment, screening, evaluation, and interviews, as well as research into and assistance with the selection, of city manager candidates. The contract was entered into on the basis of Parker’s authority as city manager. There has yet to be any disclosure of the city council giving Parker direction to hire Ralph Andersen & Associates or when the direction or authorization was given.
On the evening of the day the contract was entered into, May 24, 2021, a city council meeting was held. There were no closed session items on the agenda for that meeting, and at the initiation of the meeting, Mayor Bill Velto announced that there had been no closed session. There was nothing on the May 24 agenda relating to the search for a city manager or the hiring of a firm to carry out such search or recruitment or the hiring of Ralph Andersen & Associates specifically.
Over the next four months, at the regular July 12, July 26, August 9, September 13, September 27 and October 11 meetings, as well as at specially-held meetings of the city council on August 17, August 24 and August 31, the city council discussed, primarily in closed session with some mention in public, the search for a city manager. In all of his public utterances, Parker made no mention of Ralph Andersen and Associates, instead referring to the “city’s consultant” whenever the role Ralph Andersen & Associates played in the city manager recruitment came up in public discourse. No explanation has been provided as to why the city was maintaining silence with regard to the hiring of Ralph Andersen & Associates.
The city did not disclose, while the recruitment, evaluation and selection effort was ongoing, that there had been a total of 38 applicants to the post. By the third week of August, at least 15 and perhaps as many as 26 of the applicants for the Upland city manager post had been eliminated from consideration. On August 24, the city council, in a remotely-held and electronically-conducted meeting convened in open session at 9 a.m., performed perfunctory salutations and took public comments over the course of less than eight minutes, and then adjourned into a closed session that ran until 3 p.m., during which an as yet-undisclosed number of applicants, believed to be no fewer than six and perhaps as many as 18, were interviewed by the council. When that meeting moved back into open session, it was announced that no reportable action had been taken.
On the agenda for the September 13 city council meeting was a closed session item pertaining to the appointment of the city manager. When the council emerged from its closed session that evening, however, Deitsch informed the public that “no reportable action” had been taken. Thereafter, a member of the council let slip, unofficially, that the field of candidates had been reduced to two finalists.
Many in the Upland community anticipated that the city council at its September 27 meeting would select a new city manager. Despite the agenda showing that such action was on tap during the council’s closed session that night, when the council emerged from its executive session, Deitsch told the waiting public there had been no reportable action.
On October 11, the council went into a closed session during which a “public employee appointment” and negotiations relating to “labor,” i.e., salary and benefits for the “city manager” were scheduled for discussion. Yet, upon the conclusion of that closed session, Deitsch announced, “no reportable action” was taken by the council.
The council did not meet again until its regularly scheduled meeting on the fourth Monday of the month, falling on October 25.
On the agenda for that meeting were “Closed Session public employee appointment pursuant to Government Code section 54957 Title: City Manager [and] Closed Session conference with labor negotiators pursuant to Government Code section 54957.6 Agency Designated Representatives: Mayor Unrepresented Employee: City Manager.”
Among the items on the public portion of the meeting agenda was “Approval of a city manager employment agreement with Michael Blay Adopt an employment agreement between the city and Michael Blay, formalizing his appointment as city manager.” The back-up material to that item included the text of the contract with Blay. That represented the first time a contract had been included in the material attached to an agenda and presented to the city council.
The council went into a closed session prior to the opening of the October 25 meeting, returned from it and made no report whatsoever of any action taken during the closed session, and moved on with initiating the public portion of the meeting. Thereafter, as the council came to a consideration of the appointment of the city manager, Deitsch gave a rough preview of the contents and terms of Blay’s contract, after which the city’s four elected decision-makers present – Mayor Bill Velto, councilwomen Janice Elliott and Shannan Maust and Councilman Carlos Garcia voted unanimously to hire Blay, whereafter Councilwoman Elliott read a prepared speech that took as its antecedent that Blay had been hired. Elliott is typically articulate in her off-the-cuff remarks during the give-and-take of public discussion. In the case of her remarks relating to Blay on October 25, she moved beyond being articulate into the province of eloquence.
In this way, the events of October 11 and October 25 present a compelling case the council – or at the least the four council members present on October 25 – engaged in a violation of the Brown Act.
Previous to October 25, the city council’s agendas referenced the scheduled discussion, during various closed sessions, of an appointment of a city manager, suggesting that the decision had yet to be made as the meetings commenced. On October 10, Deitsch clearly indicated that no decision had been made with regard to the hiring of a city manager, as there was “no reportable action.” Yet the October 25 agenda, which was prepared several days in advance and which had become publicly available on October 20, referenced the appointment of not “a city manager,” but the appointment of Blay specifically as city manager. This was an indication that the council had reached a consensus to hire Blay before October 25. Solidifying that indication is that the back-up material submitted with the agenda contained a contract with Blay formulated in all of its particulars, which Deitsch reviewed during the council meeting on October 25. This implies a consensus of the council – a decision – to hire Blay had been reached prior to October 25. After the vote was taken, Councilwoman Elliott did not speak, as her colleagues did, seemingly extemporaneously with regard to the vote that had just been taken but from a text prepared, quite obviously, prior to the meeting. Elliott clearly accurately anticipated that Blay’s appointment was going to take place prior to the vote being made.
Taken together with the consideration that there were no properly agendized meetings of the council between October 11 and October 25, this seemingly presents an open and shut case that the Upland City Council – with the possible exception of Councilman Rudy Zuniga, who was not present at the October 25 meeting – violated the Brown Act, California’s open public meeting law.
Considered in conjunction with the secrecy the city council maintained in May and thereafter with regard to the hiring of Ralph Andersen & Associates, which was tasked to conduct the recruitment, evaluation and winnowing of city manager candidates from which Blay would ultimately be selected by the city council, it appears there was a pattern of Brown Act violations in regard to the city’s effort to find a long-term replacement for Hoerning.
In September, the Sentinel first learned that Ralph Andersen & Associates was the city’s consultant involved in assisting in carrying out the recruitment of a new city manager. City officials declined at that time to acknowledge that Ralph Andersen & Associates was serving in that capacity. The Sentinel also learned at that time the deadline for applying for the city manager post had elapsed in July.
On October 12, which was 13 days before the official city council action hiring Blay and eight days prior to the city giving official indication Blay was the finalist in Upland’s city manager sweepstakes, the Sentinel learned in unequivocal terms that the city council had settled on hiring Blay as city manager.
The Sentinel at that point made an exhaustive search of the city council agendas, minutes and videos from April until July to find indication or notice of the city’s hiring of Ralph Andersen & Associates. Unable to do so, the Sentinel on October 14 asked the city clerk’s office to direct the newspaper to where in the public record – on the city council agendas or minutes or meeting videos – the action taken by the city council to hire Ralph Andersen & Associates was documented. A deputy city clerk after a few hours phoned the Sentinel, stating no one in the city clerk’s office could identify when an item relating to the city contracting with Ralph Andersen & Associates had been brought before the city council. To complete a more thorough search of the city clerk’s records relating to the city’s contractual relationship with Ralph Andersen & Associates, the city clerk’s office instructed the Sentinel to submit a formal public records request for that information. The Sentinel did so.
On October 25, less than an hour prior to the beginning of the closed session for that evening’s meeting of the city council and less than two hours before the beginning of the public session of that evening’s city council meeting, City Clerk Keri Johnson responded to the Sentinel’s public records request. In her response, Johnson, by omission, made a tacit acknowledgment that the city council had violated the Brown Act, as she was unable to identify when the city council had directed Parker to hire Ralph Andersen & Associates or at which city council meeting – either in closed or open session – the city council had voted to retain Ralph Andersen & Associates. Johnson provided the Sentinel with a copy of the contract entered into between the city and Ralph & Associates on May 24.
In her response, Johnson wrote, “As you may be aware, the Public Records Act permits a local agency to withhold records that are exempt from disclosure. (Gov. Code § 6250, et seq.). Accordingly, the city is withholding records from disclosure, in whole or in part, pursuant to the exemption listed below: Records, or information contained in such records, for which the public interest served by nondisclosure clearly outweighs the public interest served by disclosure are exempt from disclosure under California Government Code Section 6255(a). Here, the city has determined that disclosure of the records would have a chilling effect on the submission of applications by discouraging applications from applicants fearing retribution from their current employers. Accordingly, the city has determined that the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.”
On October 28, the Sentinel emailed Deitsch, encapsulating the indications and evidence pointing to what appeared to be the Upland City Council’s pattern of violating the Brown Act during this year’s city manager recruitment.
“The City of Upland fully complied with requirements of law and, in particular, the Brown Act, in the selection of its new city manager,” Deitsch said.
The Sentinel made an effort to elicit from Deitsch an explanation as to why the city council did not disclose its hiring of Ralph Andersen & Associates. The Sentinel further asked Deitsch how city staff could have created for the October 25 meeting a contract with Blay in all of its particulars without knowing in advance of the meeting that there was a consensus on the council to hire him. The Sentinel asked the city attorney how, within the restrictions of the Brown Act, that consensus of the council could have been arrived at, given that on October 11 he himself had certified that the council had taken no reportable action and the council did not meet again until October 25.
“I have no further comment,” Deitsch said.
By Mark Gutglueck