City Attorney Responds to PCA Articles on Brown Act Disclosure
City Attorney Gives Interview to Piedmont Patch on Issues Raised by the Piedmont Civic Association (PCA)
In an unusual action, the City Attorney responded to questions raised by PCA in an interview with Piedmont Patch.
“Although they had been signed weeks earlier, two agreements related to the proposed development of Blair Park were released by the city only last month. The disclosure prompted the Piedmont Civic Association to ask how the agreements could have been made without a public hearing or city council vote, or even notice of a closed session discussion in an itemized agenda.”
The interview focuses on the City Council’s closed session actions authorizing staff to enter into agreements with the attorneys of Piedmont Recreational Facilities Organization (PRFO), proponents of the Blair Park project. The agreements waive conflicts of interest, allow PRFO attorneys to assist the City in legal review of environmental documents and require PRFO to provide legal defense and indemnification of the project in event of litigation.
In the interview, City Attorney Tom Curry explained, “Had the council finalized the retainer and reimbursement and indemnification agreements in a closed session, under Brown Act rules, the Council would have had to reconvene in open session to report those actions and provide copies to anyone requesting the documents within 24 hours.”
The Brown Act narrowly tailors the circumstances and requirements for closed sessions of City Council meetings. “The fact that material may be sensitive, embarrassing or controversial does not justify application of a closed session unless it is authorized by some specific exception. Rather, in many circumstances these characteristics may be further evidence of the need for public scrutiny and participation in discussing such matters.” (See Brown Act Pamphlet, Chapter VI 1.(A).)
With few exceptions, the Brown Act requires the City Council to publicly report on any action taken in closed session and any vote on that action immediately after the closed session. (See § 54957.1.) To date, no reports of action or votes have been made on the closed sessions concerned with pending litigation, despite the fact that two legal contracts were executed in July and August as a result of closed session decisions.
Reporting Requirements – Is an Exception Applicable?
According to the Patch, Curry indicated there was no reporting of the two agreements immediately after closed session because no action had been finalized at that time:
“. . . instead the council directed Grote to sign the agreements later, once the other parties involved had done so, Curry explained.”
Curry may be referring to Brown Act 54957.1 (a) (3)(B): “If final approval rests with some other party to the litigation or with the court, then as soon as the settlement becomes final, and upon inquiry by any person, the local agency shall disclose the fact of that approval, and identify the substance of the agreement.” (Emphasis added.)
Curry was not asked in the interview why the Council chose to use this procedure or why the City did not choose to voluntarily disclose the agreements once they were executed and, therefore, finalized. The two agreements were not disclosed until late September.
City Council Votes
Curry states in the interview that the Council “directed” Grote to execute the contracts. The preamble to one of the two contracts states: The contract signed July 25, the Limited Retainer Retainer Agreement, was entered into “…for the sole purpose of assisting the City in review and preparation of environmental documents under the California Environmental Quality Act (CEQA).” Its recital (F) states:
“The City Council, in consultation with the City Administrator and the city Attorney, has determined that CEQA may require additional environmental review of the Project, and the City desires to retain Limited Engagement Outside Counsel for the limited purpose of assisting the City Attorney in reviewing and commenting on any additional environmental review documents that may be required for the Project.” (Emphasis added.)
Although the Patch raised the question of how agreements could be made without a Council vote, there is no comment from Curry on the decision to substitute staff direction for a Council vote, other than to note that direction was given to the City Administrator by the Council.
The Brown Act provides a specific definition of when an action is taken: “Action taken” means a collective decision made by a majority of the members of a legislative body, a collective commitment or promise by a majority of the members of a legislative body to make a positive or a negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.” (Section 54952.6; emphasis added.)
The Piedmont City Charter requires three affirmative votes by the City Council for all Council actions. (City Charter Section 2.07 (C).S See also Govt Code 54952.6. Definition of action taken.) As noted by Mr. Curry, no vote was taken.
Use of Closed Sessions
The City Attorney indicated in his interview that closed sessions were appropriately held on the two agreements because of potential litigation regarding Blair Park.
Closed sessions may be utilized by a local agency “to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.” Government Code 54956.9 “Prior to holding a closed session pursuant to this section, the legislative body of the local agency shall state on the agenda or publicly announce the subdivision of this section that authorizes the closed session. Government Code 54956.9(c) Pending litigation includes:
- Litigation, to which the local agency is a party, has been initiated formally Section 54956.9(a)
- A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency.” Section 54956.9(b)(1)
The City Attorney expressed general concern about potential litigation, but he did not offer specific reasons why the two agreements necessitated closed sessions, or explain how public consideration of an attorney retainer agreement might adversely affect the City in future litigation. Given the potential conflicts of interest created by the attorney retainer agreement, balancing of interests between open and closed sessions becomes crucial.
Many reasons exist to hold discussions in open session, even when they are related to potential litigation. A city council always has the option to hear any matter in open session to allow full public discussion and input. Rather than automatically discussing matters concerning potential litigation in closed session, good governance requires that the public’s interest in full discussion and input be weighed against the risks associated with potential future lawsuits.
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Timing of execution and finalizing the agreements: The Retainer agreement was executed by PRFO on July 21st, and executed by the City on July 25th. The Reimbursement and Indemnification agreement does not fully document the precise manner of its execution and finalization. However, the document reflects it was “made and entered into on August 12, 2011”, suggesting both parties may have executed the document on August 12th. No closed sessions dealing with “pending litigation” occurred between July 18 and September 6.
Piedmont City Charter, Section 2.07 (C) : “No action of the Council, except as otherwise provided for in this Charter, shall be valid or binding unless adopted by the affirmative vote of three (3) or more members of the Council.”
It’s great to see my reporting on Piedmont Patch, in response to the questions posed here, have sparked additional analysis.
To clarify, Mr. Curry did make it clear to me that City Council could have chosen to be more specific about what they were discussing in closed session and could have elected to disclose the signing of the agreements earlier. But, as I wrote in my story, Curry advised the council that they were not obligated to do so by Brown Act Rules. The question of why council then made the decisions they did with regard to disclosure is a question appropriate for council.
Curry did explain that he felt the agreements necessitated closed sessions because the discussions surrounding them also dealt with what the city’s strategy might be in defending a potential lawsuit, not just the ultimate terms of the agreements themselves.
Thanks again for bringing up these intriguing issues.
Regarding the statement in the retainer agreement,
“The City Council, in consultation with the City Administrator and the city Attorney, has determined that CEQA may require additional environmental review of the Project, and the City desires to retain Limited Engagement Outside Counsel for the limited purpose of assisting the City Attorney in reviewing and commenting on any additional environmental review documents that may be required for the Project.”
that statement gives the impression that the City sought out this agreement for assistance with the additional CEQA review. To the contrary, PRFO proposed the limited retainer agreement to staff which brought it to Council. I for one thought the City had adequate capabilities with the consultant, special Counsel and City Attorney to conduct the additional CEQA review.
The first CEQA issue is whether the changes from the certified EIR, by CEQA guideline § 15164, are “minor and have no significant impact on their own.” The certified traffic plan relied on a pedestrian bridge and free flow of traffic; that has been fundamentally altered with removal of the bridge and insertion of the Maxwelton mini-roundabout, designed to slow traffic and fundamental contrary to FHA technical guidelines. This and other issues, under CEQA guideline § 15163, make a supplemental EIR and public recirculation mandatory. The threshold has been easily met, and some would argue that because of the many other insufficiently analyzed issued that an entirely new EIR is required by § 15162.
There is every appearance that Mr. Grote and Mr. Curry have made a determination to go ahead, with the use of the PRFO supplied “special counsel,” to complete an addendum. Although the secret City/PRFO legal agreements may be shielded by the Brown Act, the issue that 80% of Patch readers found disturbing is that a more transparent alternative was not chosen by Mr. Grote. Such a transparent process would have allowed public input on the content and manner of these agreements. Now the already concluded agreements allow the preparation of an addendum when clearly a supplement is required. That decision to do a supplement or recommend that course strongly to Council, should come from Mr. Grote.
Council now will be left on its own to mandate a supplemental EIR on Dec. 5. An addendum cannot satisfy CEQA because of the many plan changes. The present course of actions seemingly encourages and invites litigation by a city that claims not to be litigious.
I agree with Rick Schiller’s analysis regarding the need for a supplemental EIR. Piedmont’s new general plan was adopted in April 2009, and one of it main components is emergency preparedness. In various sections of the report, Moraga Avenue is designated as one of Piedmont’s four primary evacuation routes, in the event of an earthquake (probability of a 6.7 or greater in the next 20 years stated as being 62%), fire, or other disaster, as well as a primary route for emergency vehicles. Narrowing existing lanes and installing a roundabout will be in direct conflict with the general plan. An EIR is essential to fully analyze how this will impact life safety.