Jul 14 2013

Brown Act Compliance: Issues Continue

Questions persist on Brown Act compliance.

Violation of the Brown Act by Council members’ contiguously and jointly meeting with Piedmont Recreational Facilities Organization (PRFO) leaders depends on the subjects discussed in the meetings, links of the various meetings, participants at the meetings and the possibility of staff acting as an intermediary.

The Brown Act (CA Gov. Code § 54952.2 (b)(1))  “A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, 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.”

Questions have been raised by citizens regarding the right of Council members together with the City Administrator to meet, without public notice, with individuals to discuss “any item of business that is within the subject matter jurisdiction of the legislative body.”

On January 31, April 11, and June 17, 2013 at various times three members of the City Council met with signers to an agreement between the Piedmont Recreational Facilities Organization (PRFO) and the City.  Because staff and Council members had indicated the intention to meet with PRFO to discuss the outstanding unpaid reimbursement balance, these meetings are  presumed to involve settling the payments owed by PRFO.  No other agenda has been offered for the three meetings with the PRFO leaders, but if no City business was discussed, no public notice was required.

At the meetings PRFO was represented by two leaders in each meeting and a third PRFO leader joined one meeting.  The City was represented by the City Administrator and the Mayor alone or with an additional Council member or by a third Council member alone. This composed a majority of the Council and the principals of PRFO meeting for the purpose of negotiating the amount of money owed to the City of Piedmont for expenditures on behalf of PRFO’s Blair Park project. 

In a statement in the July 5, 2013 , Piedmonter,  Assistant City Attorney Rafael Mandelman said,  “We take the Brown Act seriously.  I looked into (the matter) and it doesn’t seem to me there was a violation. There was never any deliberation among a (City Council) quorum or any discussion about what other council members said.  The elements don’t seem to be there.”

Piedmonter and former Planning Commissioner Melanie Robertson wrote, “..at the end of the three meetings, three of the five City Council members–Mayor Chiang, McBain and Fujioka–in addition to Grote, had met with PRFO officials Havian and Menke about the PRFO debt but without public notice, participation or comment.  The Brown Act provides that the three members of the council ‘taken as a whole invovles a majority of the body’s members.’ thus, the three meetings combined, as defined in the Brown Act, clearly constitute serial meetings and therefore are in violation of the Brown Act.”

It is not known what has been deliberated, but negotiations have been acknowledged in emails between the participants, which includes a majority (quorum) of the Council.   If the private negotiation meetings produced any conclusory information or direction, this has not been publicly announced.  Serial private meetings by a majority (quorum) of an elected body involving  negotiations, unless specifically exempted under the law, constitute a violation of the Brown Act.  It is unknown why the matter has not been placed on a public agenda for consideration and public input on the facts.   

During the review of  the development of Blair Park on Moraga Avenue in Piedmont by PRFO, an agreement to reimburse City expenses, for legal work and other consultants, was struck outside of public meetings between PRFO and the City.  The project was approved.   Following litigation brought by Friends of Moraga Canyon (FOMC) and objections by the City of Oakland, on May 7, 2012, the Council rescinded its approval. 

After the City’s costs were itemized, PRFO evidently contested some of the charges.  Details on the matter have been questioned and requested to be publicly discussed.  Costs, if not borne by PRFO, will fall to the City’s taxpayers through the City General Fund.

In response to a citizen inquiry, the City Administrator asserted that the private meetings supported by City staff are legal under the Brown Act. Tim Rood had observed that the meetings appeared inconsistent with the Brown Act.

The following links are provided for more information on the Brown Act:





2 Responses to “Brown Act Compliance: Issues Continue”

  1. I think one threshold question here is whether a 501 3(c) organization is considered a constituent under the Brown Act.

  2. In Mr. Grote’s letter to the PCA of July 5, he says several things that make it clear that in his mind, he was meeting with “constituents”, “residents of Piedmont”, or “members of the public”, not with an impersonate 501c3 organization.

    Here are some quotes:

    “Tim, I fear that you have misconstrued the Brown Act in such a way as to imply that the Act prohibits constituents from discussing issues with their elected officials.”

    “The residents of Piedmont have a basic right to meet with their elected officials”.

    “ … the [Brown] Act has not previously been interpreted to prohibit members of the public from discussing issues with their elected officials.

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