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Old Morro Bay council improperly changed contracts of city manager and attorney

September 25, 2013

morro bayThe former Morro Bay City Council violated the Ralph M. Brown Act in November 2012, when it increased the severance pay of the city manager and city attorney in closed session without notifying the public. [Tribune]

In a a November 1, 2012 closed session meeting, the council increased the severance pay of both City Manager Andrea Lueker and City Attorney Rob Schultz from six months to nine months. The current council is considering firing Lueker and Schultz and hired outside counsel Tuesday to explore doing so.

At the time of the Brown Act violation, the council consisted of Mayor Bill Yates and council members Carla Borchard, Nancy Johnson, George Leage and Noah Smukler. Mayor Jamie Irons and Councilwoman Christine Johnson have since replaced Yates and Borchard and, along with Smukler, have moved forward with plans to fire Lueker and Schultz.

The Brown Act requires bodies to disclose the content of closed session meetings in advance and to announce any action taken after the meeting concludes. The state’s open meeting law prohibits agencies from discussing public executives salaries in closed session and from discussing compensation in special meetings.

Executive Director of the California Newspaper Publishers Association attorney Tom Newton said the closed session meeting on severance pay was conducted illegally.

“They can’t even have a closed-session discussion, let alone action, on matters associated with compensation under code 54957,” Newton told the Tribune. “The law allows these limited closed sessions to protect the privacy interests and potential embarrassment of employees, but once you start talking about compensation, the public interest overrides the employee’s interest.

Two days prior to the closed session meeting, the city released a notice describing the agenda as “Discussion regarding Personnel Issues including (2) public employees regarding evaluation, specifically the City Manager and the City Attorney.”

The notice did not mention any possible contractual discussions.

Yates told the Tribune that the failure to notify was “a total error.”

“It was just a goof,” Yates said. “There was no malice there. We were not trying to hide anything from anybody.”

A 90-day statue of limitations exists on Brown Act violations, so it is too late for a citizen to file a complaint requesting that the council correct the action. It will cost more than $300,000 in severance pay and legal fees for the current council to fire Leuker and Schultz without cause.

 


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The Brown Act is a joke in San Luis Obispo County, and its on record. Time & time again the

California Valley CSD violates the Brown Act and most of this county just smirks. Well….right back at you. Finally.


People like Jim Patterson, & firms like Shipsey & Seitz, have done their very best to make

sure of that the Brown Act is just a game. Combine that with the fact that the “Grand Jury”

is without any authority, and theD.A. only listens to his “big” campaign contributors and youcan see why the public trust has no footing in San Luis Obispo.


For the past 16 years, every time the California Valley CSD General Manager gets a pay

raise, it is always in closed session, and the district attorneys are always there to keep the

public out.


In the end, it all comes down to the highest bidder at the table.


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So whats this got to do with the mayor wanting to fire them, I gathered from the trib last night that there may have been a problem with Irons and this issue before he got elected.


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Interesting because it is Legal Counsel’s job to look over notices and (as in the case of last week’s emergency meeting) change them if needed. Even if the mayor wants to post a notice, it still has to go through Legal’s hands before being posted.


Elected officials aren’t hired because of their Brown Act knowledge–that comes with time– No, City Attorneys are hired to do this job so the City Council can do theirs. So the legal buck stops where?


Last week’s notice was changed BY Schultz to ADD Schultz’s and Lueker’s names. (To “rally the troops?” you decide.) But the closed session notice in the article wasn’t.


Who benefited from the wording of both notices? Remember, Cui bono, follow the $$.


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So? Yates and the city council goofed. There is a 30 day window for these kinds of Brown act violations to be tabled and it wasn’t. You snooze and you lose. The bottom line is Lueker and Schultz are finally being compensated relative to the compensation of other city managers and attorney’s. Interesting how the Trib digs this story up to run along side of the Irons story. Nice try Tribune…AAAHAHAHAHAHAHAHA


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No, the bottom line is that an important part of the City Attorney’s job is to make sure the Council operates within the law. He is the legal “expert” they depend on. He failed to tell them that the way they handled raising is severance pay was illegal. That’s a very big deal.


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If Schultz were in the room while his pay was being discussed and the Brown act was being violated and said nothing then you are correct…that would be a big deal. However I find it hard to swallow that he was in the room at the time the council was discussing his contract. If he was there It would also be “cause” for termination so why did Irons say there was no “cause”? I know one thing for sure…you! don’t know if he was in the room or not. And none of this explains Luekers situation. Unless or Until further information comes to light I think you and the Tribune are grasping at straws.


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Not so. Even if the City Attorney had been unaware that the Council was going to be discussing and/or was discussing his severance pay, when he was informed that it had been set from 6 months back to 9 months, he would have known that the Council made that decision.


Clearly, he would have realized that they made the decision in private instead of in the public forum. Unless he is really, really dumb, he would have figured out that they made that decision in the closed session meeting on November 1.


If he didn’t know that was wrong, he is not qualified to give the Council legal advice. If he did know, and didn’t insist that the matter be corrected, it is even worse.


As for Irons saying there is no cause, I think he is being kind and trying to give Schultz and Lueker a break – trying to ensure that they have the best possible chance of getting a good job after they leave Morro Bay.


Clearly, if there were no performance issues, this would not be happening. Nobody starts a miserable process like this for the fun of it. It is done only because it is necessary to protect the best interests of the City.


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The city attorney’s responsibility is to advise the council not over rule them. Your point is well taken however…if he stayed quiet when he should not have and he benefited from his silence then that is wrong.


Whether it’s a large enough offense as to change the people of Morro Bay’s opinion of him is not up to any of us here. At this time anything we say is pure conjecture.


Your last sentence ” to protect the best interest of the city” that’s debatable. Some may view that this whole thing is to protect the best interest of the current majority of the city council. The cost of terminating these two demands a full explanation. In public.


If the performance and or unethical behavior by these two are so blatant and unforgivable then Mayor Irons owes it to the greater community to expose their illegal and unethical tenure with our city. Not stay quiet and cover it up.


I would also add…If their job performance and illegal activity is so bad that it is worth the $300 – $500 thousand it will take to remove them then it must really be bad don’t you think?


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So what could the city manager have done to deserve termination? Hypothetically? I’d like to know your opinion. You seem to have a rational outlook on this whole issue.


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What better time to slip a zinger into things than during all the excitement generated by such an unusually ‘clean’ election? Plenty of people wondered

when the next shoe would drop – or some sort of elixir of manure would explode

There will be a clean-up on Aisle 7 and Morro Bay will never return to that shady past.


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It is the law.


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The Morro Bay City Attorney is responsible for making sure the City Council operates within the law, and this is made clear in the Morro Bay Municipal Code. He is supposed to be their legal “expert” In fact, he regularly gives Brown Act training sessions to City employees and the public.


So, why didn’t he stop the old Council from violating the Brown Act when they met to raise his and Lueker’s severance pay, or at least ensure that they corrected the violation after the fact? Was it because he benefited from the Brown Act violation, or did he actually not know that there was any violation?


Either way, this is a very serious. He was not doing his job. I suspect this is not the only so-called “mistake” that the current Council is aware of.


Some people are saying the old Council raised the severance pay to make it harder for the new Council to fire the City Attorney and Manager. Others say it was to make sure they would get more money if they were fired. I find these possibilities very troubling.


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So, following your reasoning, is Smuckler culpable? Should he be removed from the council?


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You are not following my reasoning. To repeat what I said before,


“The Morro Bay City Attorney is responsible for making sure the City Council operates within the law, and this is made clear in the Morro Bay Municipal Code. He is supposed to be their legal “expert” In fact, he regularly gives Brown Act training sessions to City employees and the public.


So, why didn’t he stop the old Council from violating the Brown Act when they met to raise his and Lueker’s severance pay, or at least ensure that they corrected the violation after the fact?”


So, we get rid of the City Attorney, because he is culpable. If he had been doing his job, there would be no problem here


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Do you know how Smukler voted?


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It was a closed session, so this information is unavailable


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Yes it is.

The tally on votes in Closed Session are public record. But how individual council people voted is not.

As an example, the Sept. 12 special meeting minutes, it notes the “No Action” vote was 5-0.


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Actually, the individual votes of each member are to be reported out of closed session. See 54957.1.


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I think San Luis Obispo should take one of those odd size slips of land they have that doesn’t really serve any purpose anywhere and give it to Kevin Rice to rule. I’ll donate the Jester’ Hat with a big, shiny bell. Maybe at Thursday night market we could vote for a Ms. Take with the requisite “bubbly beauty” features to keep his interest centered somewhere?


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I guess we’re headed down the Road To Why, now. Last week it was Political Suicide Lane. My, how thing change.


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Uh, well, OK. Possibly what we’re hearing is the sound of the other shoe dropping.


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This Ralph Brown, whoever he is, sure causes a lot of trouble for the Morro Bay elite. What does he have against Bill Yates, Carla Borchard, the Solu’s, the Leage’s? Leave our elitists alone, Ralphie – we want to keep things the way they’ve always been. How bout recall YOU? Huh, would you like that?


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