Jul 1 2013

OPINION: Council Violated Brown Act

Serial meetings are not allowed under California law. Council is asked to cease and desist. –  

In the following letter a resident points out problems with Council actions.

Mr. John Tulloch, City Clerk City of Piedmont
120 Vista Avenue, Piedmont, CA 94611

July 1, 2013

Dear Mr. Tulloch,

This letter is to call your attention to what I believe was a substantial violation of a central provision of the Ralph M. Brown Open Meetings Act (“Brown Act”), one which may jeopardize the finality of any action that may be taken by the City Council (“Council”) and the City of Piedmont (“City”) regarding the funds due to the City from the Piedmont Recreational Facilities Organization (“PRFO”) under the terms of the Reimbursement and Indemnification Agreement between the City and PRFO dated August 12, 2011 (“Agreement”).

The dispute between these two parties is over the approximately $220,000 expended by the City on consultant expenses for the Moraga Canyon Sports Complex project in excess of the balance of the Reimbursement Account established pursuant to the Agreement. The City of Piedmont appears to have expended these additional funds in anticipation of reimbursement by PRFO, while neglecting to enforce the notification requirements for replenishment of the reimbursement account set out in Section 3(a) of the Agreement.

As reported on Piedmont Patch on May 4, 2012, http://piedmont.patch.com/articles/council- advance, “invoices for eligible work done through Oct. 31, 2011, already totaled $155,304.98, or $37,304.98 more than PRFO had paid to the City [a fact that was not disclosed to the Council before it voted on Dec. 5, 2012 to approve the Project]. A third bill dated Feb. 7, 2012 showed eligible costs of $303,588.55 for work done through Dec. 30, 2011, with PRFO now owing $185,588.55.” In a June 18, 2012 staff report, Mr. Grote stated that the sum in dispute had risen to $220,267. At a joint meeting of the Budget Advisory & Financial Planning Committee and the Capital Improvements Program Committee on May 9, 2013, in response to my question, Mr. Grote stated that the City had not sent any demand letters to PRFO.

The nature of the Brown Act violations is as follows:

On January 31, 2013; April 11, 2013; and June 17, 2013, according to information provided to me by the City Administrator, negotiations between PRFO and City representatives occurred regarding the resolution of the dispute. These meetings were private and were not noticed publicly. Also according to the City Administrator, three members of the City Council, constituting a majority, attended one or more of these negotiation sessions: Mayor Chiang on January 31 and April 11, 2013; Councilmember McBain on April 11, 2013; and Vice Mayor Fujioka on June 17, 2013.

In a Piedmonter article dated June 19, 2013, City Administrator Geoff Grote is quoted as follows:

“If we demand more than they are willing to pay, we have two choices — let it drop or proceed in arbitration that was included in the indemnity and reimbursement agreement (with PRFO).

“The City Council will make the final determination of the issue. We should have an announcement in the next several weeks.”

The Agreement calls in Section 8 for binding arbitration to finally settle any dispute and in Section 9 for any amendments, modifications or changes to the agreement to be in writing and to be signed by both parties. Mr. Grote’s comments indicate that a proposal modifying the Agreement to remove the arbitration requirement will come before the City Council in the next few weeks, if it has not already done so. In his June 20, 2013 email to me, Mr. Grote stated the following: “The Council is in the process of deciding what course of action they wish to pursue.” This indicates that the Council has already begun deliberating, as may be indicated by the June 17, 2013 closed session agenda, “Pursuant to G.C. Sec. 54956.9 the City Council will meet relating to possible initiation of litigation (one case)” which could be construed as referring to deliberations regarding entering into arbitration with PRFO.

I believe the participation of a majority of the members of the City Council in one or more of the negotiation sessions with PRFO constituted a serial meeting of the City Council that was not properly noticed under the Brown Act. If the Council takes action to forgive these debts to the City or to otherwise modify the terms of the Agreement, such action would not be in compliance with the Brown Act because there was no adequate notice to the public of the serial discussion of this issue by a majority of the Council members.

The Brown Act specifically prohibits any use of direct communication, intermediaries or technological devices by a majority of the members of a legislative body to develop a collective concurrence as to action to be taken. (Gov. Code § 54952.2). Such a series of separate discussions by individual members of a legislative body regarding matters within their jurisdiction without actually coming together and meeting is referred to as a serial meeting. This type of prohibited meeting can result from a series of communications of individual members or groups of members that are less than a quorum which then result in involving a majority of the members of the legislative body. A serial meeting is prohibited by the Act because the acquisition of information, as well as all debate, discussion, or any other aspect of the deliberative process is required to occur in public. The term “deliberation” has been broadly construed to include “not only collective discussion, but the collective acquisition and exchange of facts preliminary to the ultimate decision.” Rowen v. Santa Clara Unified School Dist. (1981) 121 Cal. App. 3d 231; 84 Ops. Cal. Atty. Gen. 30 (Feb. 20, 2001) Thus, the use of direct communications, personal intermediaries, or technological devices by a majority of members to develop a collective concurrence as to action taken by the legislative body is illegal.

Providing substantive information from staff to members of a legislative body may be a violation when such information is a part of systematic communications for preparation for a meeting or engaging in discussion, lobbying or any other aspect of the deliberative process. For example,

Briefing members in separate meetings on policy decisions and background events are part of the deliberative process. Such communications are problematic because the public is “able only to witness a shorthand version of the deliberative process, and its ability to monitor and contribute to the decision-making process will have been curtailed.” (Calif. Attorney General’s Office, The Brown Act (1994) p. 12)

Pursuant to Government Code Section 54960.2, I demand that the City Council publicly and unconditionally commit that it will cease, desist from and not repeat the practice of holding serial meetings on this or any other issue.

Respectfully yours,

Timothy Rood
Member, Budget Advisory & Financial Planning Committee

cc: Thomas R. Curry, Esq., City Attorney
Nancy O’Malley, Alameda County District Attorney

Editors’ Note:  The opinions expressed are those of the author and not necessarily those of the Piedmont Civic Association.

Prior Piedmont Civc Association article.

4 Responses to “OPINION: Council Violated Brown Act”

  1. I am wondering where the City is getting its legal advice from, or perhaps it is not getting any. Mr. Grote is quoted as saying that the City’s indemnification agreement with PRFO requires it to arbitrate. Yet when I read the agreement, it says disputes between the City and “Limited Engagement Counsel” are required to be arbitrated, it says nothing about claims by the City against PRFO for breach of contract. Maybe there are secret addenda that were negotiated in secret and are still secret that we don’t know about? Maybe they entered into another secret agreement? I think one thing is clear. The City’s actions have been less than forthcoming and the council should be ashamed that they have apparently felt they have something to hide and have therefore choosen to act in secret and against the City’s best interests.

  2. Council could have voted in public to authorize the meetings with PRFO, and then properly noticed them under the Brown Act. This was not done and those negotiating with PRFO were not given authority to do so. As the secret negotiations are apparently Brown Act serial violations, any settlement is apparently legally suspect. Piedmont taxpayers may be harmed by the City’s apparently illegal activities.

    Additionally if negotiations are considered an administrative function, then the Piedmont City Charter at 2.08 has been violated: “The Mayor . . . shall have no administrative duties.”

  3. On second thought, maybe I just wasn’t being cynical enough when I first looked at the City’s apparent decision to arbitrate. Maybe it wasn’t bad advice at all, maybe it was brillant Machiavellian advice to enable the Council to avoid its open governance obligations and instead maintain its secrecy when dealing with its “friends”. After all, arbitration can be confidential, while litigation is a matter of public record. Could it be that this is a conscious decision to maintain the shroud of secrecy regarding the arrangements with PRFO from cradle to grave, so the Council never has to explain its position on the gift. If the Council wants to cut a deal that harms the public, at least have the political guts to admit it – the City’s financial and legal interests come second as far as the Council is concerned. Can there be any other explanation for the extended secrecy and apparently Brown Act violations?

  4. Thank goodness for the insight and tenacity of the distinguished late Assemblyman, Ralph Brown.

    Mr. Rood and the responding gentlemen all make good points.

    I appreciate that Mr. Rood copied the Alameda County District Attorney. Who knows, maybe the good members of the city council will find out that they are, indeed, accountable to authorities beyond the city limits, and beyond their circle of cronies.

    I appreciate Mr. Hendrickson’s analysis of how the arbitration aspects of indemnification agreement were cleverly manipulated so as to squirrel around the basics of open governance.

    If the City Council members, or even the PRFO contingent, believe that their behavior has been proper, why don’t they speak out and explain themselves (?), in this very forum, for example.

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