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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isoslo

I find it interesting that the unions can have all the secret meetings, private communications, planning sessions and strategy groups they want. But if a city person so much as voices a thought without full disclosure they are in violation of the brown act. I think before Blackstone makes all these politically motivated accusations, the union try disclosing all of their communications. Can you image what those would show. I know the city is governed by the brown act and the unions are not, but the unions should and least offer us similar disclosure if they want our support.


MaryMalone

Unions aren’t cities. They are organizations.


I’m not saying that open meetings for all isn’t a great idea…but the Brown Act doesn’t cover organizations.


slo4u

This is quite a hit piece on the city attorney- why run her picture when almost the entire article is about council and Litchig supposedly violating the law.


Just so we’re clear:1. the binding arbitration issue was discussed at public meetings, 2. at those meetings the public overwhelmingly asked the council to put the measure on the ballot, 3. the council followed the public’s wishes and put the measure on the ballot even though they refused to do the same thing for the unions the first time around, and 4. SLO voters will now decide the issue in an election.


Where exactly is the back room, secret dealing? This is much ado about nothing.


“Attorneys are not permitted to hid illegal acts by claiming attorney client privilege.” Wow. Shouldn’t this article be in the “Opinion” section with unsourced, uninformed statements like that?


Elected officials and city attorneys take the Brown Act very seriously because no one wants to go to jail for discussing something as stupid as whether the task force on blah blah blah should produce a report or not.


MaryMalone

Sometimes, if you read the article, you’ll find–often near the top–the reason for why the article is written:


“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.”


slo4u

Give me a break. This article was not written because a police union official is concerned about the Brown Act. The issue that concerned Mr. Blackstone was Andrew Carter building support to put the binding arbitration repeal on the ballot. All the Police Union cares about is finding some way to keep binding arbitration. I’m sure if the “consensus building” was to decline to put the binding arbitration measure on the ballot Mr. Blackstone would not have cared one bit.


MaryMalone

I’m sure everyone in the article has their own motivations for what they are doing. For instance, Maria Kelly baked tasty home-cooked meals to take to the closed meetings of the SLOCSD BOD, and she would serve the meals during closed session while she pimped Ogren’s sewer vision.


I don’t care one whit if Kelly does–whatever–to every member of the BOD, as long as there isn’t a conflict of interest. That’s what makes it worthy of pitching a fit about.


MaryMalone

Sorry, hit “submit” too soon. Didn’t get the last paragraph in.


Like Kelly’s actions with the SLOCSD BOD and her tasty meals, the group email about an item on the agenda appears to be wrong because it violates the Brown Act. If Carter would have sent an email saying “Merry Christmas,” I don’t think that would be an issue.


slo4u

I understand your point entirely. But why does this article lead with the city attorney’s picture and end with very serious insinuations- and that’s all it is because there is no proof whatsoever- that the city attorney has “covered up illegal acts.” That’s a very serious charge. The Brown Act generally forbids “a majority of a legislative body…” from deliberating on public issues behind closed doors.


The article seems to go out of its way to hit city attorney and city manager when it is the council who is responsible for any violations. They are the elected officials and they should not be deliberating behind closed doors except when permitted. It should be Andrew Carter’s picture and leave out the unsupported insinuation that the city attorney sent an email to the council to cover up something. A lawyer notifying their client of a reporter investigating them is routine and does not amount to a cover up. The reporter must have seen the email, right? Why not post it or quote from it? Likely because the message contains no cover up at all but it makes for a better story to insinuate.


That’s why this article looks like a hit piece to me.


MaryMalone

I don’t know why the attorney’s image is run with the article.


I think it is appropriate because I consider those with the most power to have the wherewithall to know what is going on in their purview, and to stop it from recurring. This doesn’t mean everyone else gets a free pass, however.


That would be the city attorney and city manager. They both have access to the board packets. Why didn’t they know Brown Act violations occurred.


For heaven’s sake, the people of SLO City pay Dietrick to cover legal issues for the city, and they pay Lichtig to manage the city.


Yet neither one either bothers to review the board packets for issues? Indeed, Lichtig may herself have violated the Brown Act.


Absent the SLO City Council, its city manager and its city attorney committing the actions that led to the violation of the Brown Act being filed, there would be no reason to file the violation of the Brown Act.


It makes no sense to me to blame the person who discovered the violation, or the reporter writing about it, when the reporting and the writing were both done in response to the actions of the SLO City Council, city attorney and city manager.


The Gimlet Eye

“Elected officials and city attorneys take the Brown Act very seriously….etc.”


Really? Well, excuse me if I find this statement just a bit much! And we are just supposed to take your word for it? I wasn’t born yesterday, and it’s been my experience that unethical dealings are going on all over the place and have been since the dawn of time! Government is full of people who think “public participation” a nuisance!


Have you ever hear of Tammany Hall? The Pendergast Machine? Do you think the wrongdoing of these particular political machines was “unique,” or unusual? I assure you, it was and is not! Most cities in this country are run by political “machines,” make no mistake. Such “machines” are not famous for their sensitivities regarding the niceties of the law. Maybe SLO is, maybe it’s not.


In any case, a little light on the issue can’t hurt the public weal; it can only help.


MaryMalone

QUOTING GIMLET EYE:

07/28/2011 at 4:14 pm


“’Elected officials and city attorneys take the Brown Act very seriously….etc.’ Really? Well, excuse me if I find this statement just a bit much!”


ITA. According to the self-reported and self-documented actions of the city council and the city manager, THESE “elected officials” and appointed/hired officials, did NOT take the Brown Act very seriously.


It takes a lot of gumption to violate the Brown Act and then in the next breath tell everyone else not to do it anymore.


MaryMalone

QUOTING THE ARTICLE: “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. ”


1. Great job, Karen, on putting all this information together in an understandable format.


2. Has SLO City always been this screwed up?


3. I think the city attorney is showing signs of guilt as charged by the SLO City Police Officers Association. She sure panicked when she heard CCN was going to cover the alleged Brown Act violations.


4. Nevertheless, I don’t have a lot of confidence in Blackstone. Because of his role as head of the SLOCPD Association, after what happened with Ryan Mason, I don’t have have a lot of confidence in anything or anybody associated with the SLOCPD Association.


rogerfreberg

Well…. I would have a little more faith in the police association if there wasn’t a ballot initiative to be decided by the people of San luis Obispo real soon!. Their motivations are a bit suspect.


r0y

While I will not be supporting the unions, I am thankful that Blackstone was one of the people to raise this issue. It is good for the citizenry that this issue was raised from several sources, including the PD/FD union guy.


Most issues “raised” against something often stem from grievances…


slobody

So, Rog, if somebody you like reports that somebody else broke the law, you believe it; if somebody you don’t like reports that somebody else broke the law you question their motives? Nice logical symmetry there.


slobody

Glad Cal Coast News is finally paying some attention to the shady Brown Act dealings at SLO city, which have been a problem for many years, ignored by the Tribune (no wonder if their former publisher and current editor are implicated!!!). While the current BA issues aren’t that earthshaking, others of the recent past certainly have been. Example: the whole Copeland takeover of prime downtown taxpayer-owned real estate for pennies on the dollar was orchestrated in secret meetings and worked out before it ever hit a public meeting — under some legal pretext that it had to do with legal negotiations, a justification the current CA cites in the story above as an excuse for the current wrongdoing. There’s been deal after deal worked out this way, out of public sight, and the public gets screwed. The Brown Act is quite clear: The people in delegating their power to elected/appointed officials do not give them the right to decide what is good for the public to know, and what is not good for them to know; the public demands full information all the time. That’s the law. Look it up, it’s very powerful, very educational. If only our public officials were actually educated in it. Sounds like Smith, maybe Carpenter are, but the rest, including the CA, sure aren’t doing it justice. As for putting the CA’s photo on the story, it’s entirely justified. Her job is to keep the city on the straight and narrow, and clearly she hasn’t. Since she was in the thick of all of this, and let it happen, that reflects upon her legal judgment and loyalty to those who pay her, the people of SLO.


As for the rest of the story, how delicious that Chip Visci, who hates other people’s public pensions but signed up recently for a high paying state job that will provide one for himself, who lives in Pismo but wants to mess in SLO politics, has qualms about being out in public leading the charge against city pensions and pay because he lives outside the city, so gets Tribune editor to front it for him and as a result she does the truly mean stories about pensions they keep doing, and all this gets exposed in this story. Wonderful! (BTW Did you notice that the Trib got scooped on local news two days in a row this week by the LA Times — first on the Ken Hampian/Bell story, then on Sam Blakeslee’s $40,000 luxury car he ordered at taxpayer cost but now doesn’t want to drive — or pay his share for — because constituents would see him in a bright red state-purchased Lincoln when they’re struggling to pay the rent and put food on the table? Sums up the local meaning of the word “newspaper.”) Now, if only Cal Coast would have the courage to expose the other half of this story (that most public pensions are peanuts, not the outrageous lucre cited in the press as poster kids for the right wing class war on public employees and their unions. Half of state pensions are LESS THAN $22,000, and many of these people were excluded from social security — that’s a poverty level retirement income, not a nice fat five figure ripoff like the press keeps reporting.)


Cindy

Just once, it would be nice to see the DA step up to the plate on these issues. He won’t and he run’s for office unchallenged so what are we to do?


monkscrew

Write in candidate. Parkinson seems qualified for nearly any position in the county so why not “IAN for DA”. HAHA


Cindy

I gave you a thumbs up, I appreciate good humor, most of us could use some with these frustrating times.


danika

Amen to that!


ApathyWillKillYou

FYI


A vote for a WRITE IN candidate will NOT count if the individual you write in has not filed the correct paperwork and paid fees to the SLO County Clerk Recorder just like any other candidate on the printed ballot!


MaryMalone

Write in another candidate’s name.


“Your candidate” most likely won’t win, but it will be a vote of no-confidence in what is being offered, and your unhappiness with the current DA running for reelection.


BTW, I suggest this for ALL elections, including the 2012 presidential election.


As long as we endorse the piece-o-crap candidates that end up on the ballot with our votes, the government (city, state, federal, whatever) has no reason to offer anything better.


Many people nearly faint when I make that recommendation. They say “It will be throwing away my vote!”


I reply to them, “NO, it will be making a clear statement: you don’t like what is offered and refuse to have any part of the candidate getting elected.”


Another argument is “X candidate is the lesser of two evils.”


To this I reply, “A choice for the lesser of two evils is still a choice for evil.”


Finally, some will respond, “But he’s the only candidate so I HAVE to vote for him!”


I reply, “WRONG!” This is a time when you MUST vote in the election, but make your vote count by voting for someone other than the one candidate offered. Write in another person’s name, a credible name, so it won’t be discounted as “wing-nut fever.”


We have to stop endorsing these worthless candidates, otherwise there will never be a positive change.


ApathyWillKillYou
MaryMalone

Well, you’re a handy fella/gal to have around! Thanks!


mbactivist1

Watch, also, for local government politicians talking in public meetings about things that are not on the agenda. It is another way to prevent public participation, and another way to violate the Brown Act


MaryMalone

You mean, like how it was reported that Maria Kelly would bring in her “homebaked meals” for closed session meetings where they would be discussing Ogren’s vision for the sewer in Los Osos? Like that?”


TacomaRose

And people wonder why the police and fire employees worked to get binding arbitration in the first place.


It becomes obvious when we see the backroom crap that goes on with the officials at the top. They don’t represent the people, rather they represent dishonesty and self service.


Dietrick is either clueless or unethical. Perhaps a little of both. She should be fired along with Lichtig the hun.


Same ol crap, different town.


danika

Another “Amen”!


mkaney

The police and fire worked to get binding arbitration because they are greedy, self absorbed control freaks who think they are entitled to more money and will TAKE it if they are not given it. That said, I am not excusing the city council from its actions, nor any of the other thousands of city/county/state employees which are also guilty of similar things. I just wanted to be clear that the motives of the police were not in our best interest or to “protect” themselves.


easymoney

The Brown Act is very clear as to the whys and reasons for it’s creation and this article points out a perfect example of why we need it.

The secret meetings and backroom deals by our public Representatives have to stop and accountability for illegal behavior is needed…