Open letter to the City Council of Arroyo Grande
September 23, 2014
OPINION By OTIS PAGE
Since the complaint to the Grand Jury has been fulfilled, we have been advised by the office of the San Luis Obispo County District Attorney it will not “interfere” at this time because of the decision by the Arroyo Grande City Council on Sept. 20.
This letter strongly recommends that the council request that the office of the district attorney select the investigating attorney and that neither members of the council or the city’s attorney be involved in the selection or the mentoring of the investigation — and that the investigation include the cover-up of the incident.
The open meeting issue
The Arroyo Grande City Council made a decision on Aug. 26 prompted by the testimony in public comment of the unhappiness by citizens regarding the Adams/McClish matter and their desire for an open investigation of the matter.
The Council agreed for an open meeting, an open process of transparency, in an expedited Special Meeting (Tim Brown, Jim Guthrie and Joe Costello). Barneich and Tony Ferrara agreed while apologetically defending Adams.
The invocation of code 54597
But city attorney Tim Carmel invoked Government Code Section 54957 to establish closed sessions in the general meeting of Sept. 9 and the special meeting of Sept. 20. He ignored the quest for an open meeting on the substance and transparent process of the matter, using an apparent legal diversion.
Carmel authored the following for the agendas for the regular meeting on Sept. 9 and the special meeting on Sept.20:
“b. PUBLIC EMPLOYEE PERFORMANCE EVALUATION pursuant to Government Code Section 54957: Title: City manager”
This law, 54957, used by Carmel, was inappropriately applied. It was not a true personnel “performance evaluation.” Adams was personally judged by the council as having only been indiscreet immediately following the original investigation by Carmel’s legal associate back on July 8.
This was decided in a closed session and was never put on the agenda for that meeting — a clear violation of the Brown Act. So as far as this indiscretion was concerned — whether sexual or social — Adams and McClish were declared innocent.
Brown Act violations
The subsequent meetings after Aug. 26 on Sept. 9 and 20 dealt with the substance of the matter, the specific item of approving an investigation of the incident. The meetings were not about a specific “evaluation” of Adams. The agendas did not reveal that a discussion would involve the questions of the background or the issue of another investigation of the matter.
This was an obvious Brown Act violation and the Council must instruct Carmel to desist in its use considering the clear intent of the council to have open hearings on the matter.
A personal “performance evaluation” of Adams is rightfully prescribed in law as a closed meeting requirement and that was specifically referred to by Brown Act in the council meeting of Aug. 26, which may have been appropriate in the first consideration of the matter on July 8. But not in the subsequent meetings from that day forward.
City attorney Carmel’s role in the cover-up
Besides this, there is the obvious and compelling contradiction and legal conflict of Carmel continuing to be included in selecting an attorney or in the monitoring of the investigation and depositions including the outline for the investigation.
(This letter does not address the outline of the task for the examination, and that outline will be addressed in another letter to the council.)
Carmel also should not be involved in the allegations regarding a “cover up” of the matter.
Carmel appears not to have “clean hands” as a co-conspirator in the cover-up in supporting Ferrara’s and Adams’ public comments and by the misapplication of 54957. Besides this, Carmel selected his associate that performed the first investigation, now critically assailed for many reasons.
The council has used a tactic utilizing awkward timing to obfuscate and complicate the attendance at the closed hearings: a late night item on the agenda in the meeting on Sept. 9 and in holding the next closed meeting on Saturday, Sept. 20, in the village — a time conflicting with the parking at the Farmers Market and of the typical weekend traffic attending the stores and restaurants. There were no open meeting as called for on Aug. 26, only closed meeting at awkward times to discourage those citizens concerned with the matter. This tactic of obfuscation added to the apprehension of cover up.
Finally, the council majority should acknowledge that:
– to serve the truth on the incident and the cover up of the incident,
– to satisfy the citizens believing there has been misconduct over the incident and its cover up, and
– to restore confidence in the council in the consideration of the matter,
– the council should not be involved in the selection of an outside independent counsel.
Carmel should not be involved in any way with the investigation. The council should request the district attorney select a truly independent legal counsel.
Otis Page is a long-time citizen of Arroyo Grande.