SLO City Council accused of Brown Act violations

July 28, 2011

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.