SLO City Council accused of Brown Act violations

July 28, 2011

Christine Dietrick

By STACEY WARDE and KAREN VELIE

San Luis Obispo City Council members and administrative staff have come under fire for alleged violations of open meetings laws that protect public access to information and participation.

Several critics have filed or voiced complaints about the city council’s lack of transparency and its apparent ongoing disregard for the Ralph M. Brown Act, a stringent California open-meetings law that requires legislative bodies, in particular city councils, to conduct their business in public view.

The charges claim, among other things, that council has on more than one occasion discussed and decided city business matters outside the scrutiny of the public as required by law. They claim council has surreptitiously promoted its agendas regarding city financial issues, public safety worker benefits, and Smart Meters without public input.

On April 20, Matthew Blackstone, president of the San Luis Obispo Police Officer’s Association, filed a complaint with the Fair Political Practices Commission, alleging that an email discussion had occurred between council members and city staff that constituted an open-meetings violation.

In his complaint, Blackstone points out that in his role as president of the police officers association he regularly monitors items on the agenda for each city council meeting. During this routine review, he says, a Jan. 3, 2011, email from City Councilman Andrew Carter to council and staff caught his attention.

“This email included Councilman Carter’s ‘summary arguments’ on an issue not on the agenda for a meeting of City Council the following day,” Blackstone said in his complaint. “The content of this email was clearly intended to build consensus among members of Council for the issue at hand.”

Building a consensus, or discussing an issue with a majority of council, outside the public purview, he said, is illegal.

The Brown Act states that a majority of a legislative body shall not “use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.”

The “issue at hand” was Carter’s suggestion that the Fiscal Sustainability Task Force, organized by City Manager Kathy Lichtig to advise her on budget cuts and staff reductions, an issue the police officers association has followed closely, be allowed to give a presentation of its findings to the city council during one of its meetings.

He also asked that City Clerk Elaina Cano “red file” the email, which would put it into the public realm.

Carter’s missive was a response to an email from Lichtig earlier in the day on Jan. 3, which she addressed to “Mayor and Council,” giving her reasons for why she thought it wasn’t necessary for the task force to give a report.

Since Lichtig “has provided her arguments in advance for your consideration,” Carter wrote, “I will provide my summary arguments now and follow with more detail later.”

It was this last comment that alerted Blackstone, who then filed a public records request on Jan. 10 for subsequent communications between staff and council.

City Attorney Christine Dietrick responded to Blackstone’s request 10 days later, sending one document and withholding other documents on the grounds of “attorney/client privilege,” which may also be in violation of public records requests, according to several attorneys consulted by CalCoastNews.

Lichtig, meanwhile, may have also violated the Brown Act in her suggestion that Carter’s email and follow-up discussion were not appropriate items for the red file.

“In the spirit of ‘no surprises,’” she began, “and to give you time to think about the issue, I wanted to let you know that Andrew has let me know that he intends to raise the issue of whether to ask the Fiscal Sustainability Task Force to make a presentation directly to the Council on their work and recommendations.”

Lichtig argued against Carter’s request to put the presentation on the agenda, suggesting that she formed the task force for her own “educational purposes, not policy measures that required immediate action” by council.

It would be better, she said, for her to filter through the task force’s report and present her own plan based on its recommendations to council in May.

She concludes the email, hinting at the inappropriateness of discussing the issue outside public knowledge: “I’m letting you know in an attempt to give you time to think about this issue before it is raised tomorrow night. Because this is NOT an item on the agenda, issuing red files on this topic is not appropriate. In other words, please just use this time to think about the idea and not be in touch with your colleagues.”

However, the mere fact that the discussion had already reached the level of a quorum, with more than three council members involved, and debating the issue, would require these emails to be included in the red file for public review.

City Attorney Dietrick, meanwhile, appeared to support Lichtig’s suggestion that the emails weren’t meant for public review by refusing to honor Blackstone’s request for full disclosure.

On Jan. 31, Blackstone asked Dietrick in an email for a legal explanation for why some documents were withheld and others redacted. Dietrick responded that she was in the midst of composing her formal response, claiming the exemptions were due to “attorney client privileged communications.”

The FPPC, after investigating Blackstone’s complaint, said that the matter did not fall under its jurisdiction, and directed him to take it up with the district attorney’s office as a criminal matter.

The Ralph M. Brown Act was passed in 1953 because of mounting concerns that government bodies were avoiding scrutiny by meeting secretly. The act, which has been amended and strengthened in the years since, guarantees the public the right to attend and participate in meetings of legislative bodies, to have forewarning of discussion items through posted agendas, and forbids a majority of board members from discussing government issues in private.

“My obligation is to share information with the entire council,” Lichtig said to CalCoastNews. “”I don’t think there is any thing inappropriate.”

The law, however, states that “agendas of public meetings and any other writings, when distributed to all, or a majority of all, of the members of a legislative body of a local agency by any person in connection with a matter subject to discussion or consideration at an open meeting of the body, are disclosable public records…and shall be made available upon request without delay.”

For his part, Carter said he wasn’t trying to hide anything from the public.

“My intent was not to cover up,” Carter said.

Dietrick, Lichtig, and Carter claim that if an item is not yet on the agenda, they can discuss the issue, and then decide whether or not to place it on the agenda without making their discussion public.

Dietrick sent her rationale in an email:

“At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting, including items to be discussed in closed session, 54954.2,” usually a code used to set up an emergency meeting.

A claim that attorney Leila Knox with the firm of Holme Roberts & Owen LLP, general counsel for the First Amendment Coalition, said did not make sense and isn’t relevant to the issue at hand.

Dietrick also redacted part of another email that discusses communications between Chip Visci, the former publisher of the San Luis Obispo Tribune, and Carter.

On Jan. 4, Visci emailed Carter saying that he met with Executive Editor Sandra Duerr of the San Luis Obispo Tribune earlier in the day to show her some possible editorial and news stories about public sector pensions he would like her to assign to the paper’s reporters.

“She (Duerr) indicated that over the next few weeks, they would attempt a couple of news stories tied to the nationwide concern over public pensions,” Visci said. “BTW, one reason I’m reluctant to present the report to council is that I’m not a resident.”

In a Jan. 5 email, Carter laments that because of recent marijuana busts, the media may miss the pension issue.

Visci, a member of the task force, responds: “Bummer. Maybe we can pull together a few people to brainstorm a smart counter campaign that gets some traction outside the council chambers.”

On Feb. 22, in open session, the council was unable to come to an agreement on how to word the pension portion of the ballot measure.

Then, in closed session during a subsequent meeting, even though it was not on the agenda, Carter, Mayor Jan Marx and Councilman John Ashbaugh began discussing their views on pensions and came to an agreement, said Councilman Dan Carpenter.

Uncomfortable with what appeared to be another Brown Act violation, Councilwoman Kathy Smith said she would leave the room if they did not stop talking about an issue they were slated to vote upon in open session.

“I was uncomfortable and verbally said if it didn’t stop I would leave the room,” Smith told CalCoastNews. “It was a Brown Act violation.

“We owe it to our citizens to be as transparent as possible and when we screw up, we need to fix it and move on,” Smith added, noting that they have to take attorney Dietrick’s word for what the law says.

Even so, Dietrick and City Manager Lichtig contend the discussion was permitted because the safety workers’ union had sent a letter to the council saying they needed to have a meeting before they could vote to put an issue on the ballot. Dietrick told CalCoastNews they were permitted to discuss the wording of the ballot measure in closed session because the union letter could lead to legal action against the city.

“Once we got into the discussion about the ballot measures she (Dietrick) said we had veered and it was very quickly terminated,” Ashbaugh said. “Once it began to get into a grey area, Kathy got up to leave.

“I, too, thought this is crossing the line; let’s stop. We were observant of the Brown Act and closed off avenues that would lead us to a violation. My commitment is for full implementation of the Act.”

At the next open meeting, Councilman Dan Carpenter said that Carter, Ashbaugh and Marx voted as they had stated in closed session and added that he felt they had violated the Brown Act.

Another alleged Brown Act violation occurred on May 17 shortly before midnight during the time set for Communications, a time when council members can make brief announcements or ask to have items placed on a future agenda. The Council undertook a discussion about Smart Meters.

They collectively agreed not to place Smart Meters on a future agenda and instead decided to have Marx send a letter to the California Public Utilities Commission indicating the council’s specific position on the meters.

Dietrick interrupted the discussion and said, “If there is going to be significant debate of the issue it does need to be agendaized or if there is direction to leave it to the discretion of the mayor. That’s fine,” according to a tape of the meeting.

Mayor Jan Marx responded: “I actually think I have a letter somewhere the board of supervisors drafted, or if I don’t, I will find another one and take out the salient points. Another assignment, I shall do it this week.”

Local activist Kevin Rice objected in a letter to Dietrick, saying he thought the action violated the Brown Act.

“The San Luis Obispo City Council has taken action on items not appearing on a posted agenda, Rice said in his letter. “The San Luis Obispo City Council has neglected to opportune the public to directly address the legislative body on agenda items before or during consideration of each item (§ 54954.3.).”

Dietrick said in an email to Rice that no violation occurred and noted that after a brief discussion they agreed Marx would send a letter.

“There was no substantive discussion of the topic and there was no action taken,” Dietrick added. “Any letter authored by the Mayor was to be subject to her sole discretion, without the input of other Council members, and would become a public record upon its completion.”

Although Dietrick said the council had not broken the Brown Act, she agreed to ask the mayor not to write the letter until the issue was placed on an agenda.

“Notwithstanding my conclusion that no violation has occurred, further debate or analysis of this matter would constitute an unnecessary waste of public time and resources, which cannot be justified given the volume and scope of the very substantive issues currently facing the City,” Dietrick said in the email. “Thus, the Mayor’s letter will be placed on an upcoming agenda prior to any distribution to the PUC and the Council and public will have an opportunity to comment on its substance.”

After hearing that CalCoastNews was looking into the issue of alleged violations of the Brown Act, Dietrick sent out an email on June 8, labeled “privileged communication,” informing council that CalCoastNews would be writing a story on alleged Brown Act violations.

Attorneys are not permitted to hide illegal acts by claiming attorney client privilege.

Nevertheless, Dietrick refused a public records request for the email, claiming her denial is covered under attorney client privilege.


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41 Comments

  1. SLORider says:

    @Paperboys,

    Your assertion that confidentiality is broken by divulging information from an unlawful closed session is entirely errant.

    Gov. Code 54963(b) defines ‘confidential information’ as “a communication made in a closed session that is specifically related to the basis for the legislative body of a local agency to meet LAWFULLY in closed session…”

    FURTHERMORE, whistleblowers are expressly protected:

    Gov. Code 54963(e) “nor shall it be deemed a violation for… expressing an opinion concerning the propriety or legality of actions…in closed session, including disclosure…” OR “Disclosing information acquired by being present in a closed session…that is not confidential information.”

    AND, FINALLY, disclosure of confidential information is not a crime anyway (as you say, the Brown Act is full of holes).

    It is ENTIRELY BOGUS to claim any impropriety exists by this whistleblowing or that any action could arise from it.

    (0) 0 Total Votes - 0 up - 0 down
  2. Paperboys says:

    What I find interesting is all this talk about things that went on in closed session, which is supposed to be confidential.
    But I guess when someone’s being accusing of violating the law, that all goes out the window to point the finger at someone else, or at least away from them.
    So I would say that the Brown Act was probably violated and so too was the confidentiality of closed session with this news story.
    Makes me wonder if the reporters aren’t being played like fiddles by both the unions and council.
    Someone on the city council is flapping his or her lips and if I were them, I’d be a lot more concerned about what could happen when that person is outed.
    Also makes me wonder who’s running this nut house?
    Also here’s the funniest statement in this entire story:
    “…stringent California open-meetings law that requires legislative bodies, in particular city councils, to conduct their business in public view.”
    The Brown Act has more holes than Swiss cheese.

    (-4) 8 Total Votes - 2 up - 6 down
    • MaryMalone says:

      They are supposed to give a cursory summary of what went on in closed session…something like, “X was discussed. No action was taken.”

      (0) 0 Total Votes - 0 up - 0 down
  3. slojo says:

    This is exactly why binding arbitration is necessary. How can you trust a council like this to make good decisions regarding the public’s safety if they can’t even be trusted to follow basic rules of the law?

    (-7) 23 Total Votes - 8 up - 15 down
  4. bobfromsanluis says:

    I’m pretty sure that most citizens are somewhat “aghast” at the wages and pensions of our safety personal here in sleepy lil ‘ole SLO, and given the state of the economy, the state of our national debt situation, our state budget mess and how much money locally is eaten up by pensions of retired government supervisory personal (mostly, the rank and file not so much), people most likely would like to see the binding arbitration situation here altered. I do agree that perhaps arbitration is not the best process; during my time in a union, when we had contract negotiation impasses, we occasionally went to “binding mediation” which is a much better situation than binding arbitration. Think about it; an arbitrary decision is just that, arbitrary – but a mediated decision takes some points from both sides and arrives at a decision that is usually much more fair to both parties. If we had the ability to change the binding arbitration to binding mediation, the safety personal would continue to bargain in good faith during contract negotiations, the city has to continue to negotiate and the final results would be fair to all concerned. My biggest concern about repealing binding arbitration is that when a contract negotiation comes up, a city council could string out the negotiations, give the personal a “take or leave it” offer with little regard to how much of an impact the final offer would have on current personal, and if you have a city council that operates with secret meetings in violation of the Brown Act and circulate emails to each other, the city manager and the city attorney without regard to how those communications could be in violation of the Brown Act, you really have to wonder who the city council is truly serving. If a city council willingly violates state law in how communication is supposed to be open, couldn’t there be a situation at some time where decisions about dealing with local businesses might be discussed in secret; the city could sell off city property at less-than-current-market-value to some favored business people?; oh wait a minute, our city council has done that in the past already.
    I am deeply disturbed at the actions and justifications by our city attorney and city manager, I am disappointed that our Mayor, Jan Marx and city council members John Ashbaugh and Andrew Carter seem to not understand that the Brown Act is very clearly written and if you are going to err, it is always prudent to err on the side of caution. I do feel somewhat better about Dan Carpenter being on the council since he did raise an objection to some of the potential Brown Act violations, and my respect for Kathy Smith has raised considerably. If we had a county District Attorney’s office that actually investigated violations of the law regardless of who has committed them, I would think that some sort of action would be taken, but given how either ineffective or just plain lazy Jerry Shea seems to be, I doubt much of anything will ever come of these charges against our city leaders. They really should know better. Sorry for the length of this rant.

    (6) 10 Total Votes - 8 up - 2 down
  5. CA Native says:

    Blackstone’s motive here is to defame and smear Carter and the city council. Nothing more.

    (-19) 39 Total Votes - 10 up - 29 down
    • MaryMalone says:

      Red herring.

      The issue is the obvious Brown Act violation(s) (I think Lichtig’s actions also constitute a Brown Act violation).

      You can’t possibly know anyone’s motivations for an act. You an guess, but you cannot know for certain. Heck, most people don’t know what their own motivations are for what they do.

      No matter what the motivation of the person reporting the Brown Act violation, it does not change the actions that compromise the violation. In fact, even if nobody ever reported the Brown Act violation, there would still be a Brown Act violation…it would just be covered up.

      (12) 22 Total Votes - 17 up - 5 down
      • roxcam says:

        The whole damn county and city government are corrupt. Sure wish someone would investigate the county public guardians office, lots of seniors and their heirs have been ripped off by this agency. They take control of senior citizens assets, sell them off, pay themselves commissions, charge the people a monthly service fee, if you have less than 25K in assets they turn the senior citizens over to the state public guardian, if you have more than that they keep them because they have complete control and thats how they make their money. They spent over 200,000 in 3 years taking contol of my husbands grandfathers assets, he lived in his own home, had supplemental insurance, had no medical problems except alzheimers disease. within the first 1 1/2 years they took a reverse mortgage out on his home, he had over 35,000 when they took over, he had lived on his ss check just fine up to the point that they started selling off his assets, within the first 2 1/2 years they put him in assisted living facility, tried to sell the house which was over encumbered with reverse mortgages (7 assignments of rent) filed within a year, commissions held out for broker, public guardians office and mortgage people each time, filing fees were also taken out of his money. By December 2010 he has less than 7500.00 left. Good thing he died the end of december or he would have been broke, his house in forclosure and sent to a county paid for nursing home, thrown away like the broke poor sap they made him. They have not accounted for the expenditure before or after his death to the beneficiary of his will and after he died spent the balance of his money without permission or knowledge of the executor of the will. It took them 7 months to give executor 60 page document, after they went to court and had judge sign off on the accounting, notified no one of the hearing so no one was there to dispute. These people are criminals and have been stealing from these senior citizens for years. Before the hearst got back control of randolfs sisters assets, they were selling off her stuff saying that she needed the money. The woman had enough cash to live 5 life times but they don’t make money off cash, they make money off the assets and since no one has the authority of step in and stop them until they get a judge to actually be honest, they have the power to do whatever they want. Can you imagine selling off hearst assets for cash inflow to take care of her when she had millions in the bank. I smell corrupt Please uncovered slo, investigate this agency, help get these peoples inheritances and these seniors sitting in nursing homes broke their money back. SLO county needs to stop being corrupt and covering for their corrrupt agencies and the people running them

        (10) 10 Total Votes - 10 up - 0 down
  6. r0y says:

    Jan Marx was pretty incompetent to begin with – is anyone surprised she’s still incompetent to lead this council? Why do we keep getting the crappiest of choices when elections come around?

    (29) 35 Total Votes - 32 up - 3 down
  7. slojo says:

    FINALLY! Some light is shed on the lack of transparency this council and administration has. Why is it ok for the city to violate these rules put in place to protect the citizens???? CRAZY.

    (23) 43 Total Votes - 33 up - 10 down

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