Jul 24 2013

OPINION: Legal Questions Regarding Council Actions

Re:  Blair Park City-PRFO Negotiations and Brown Act

Dear Mayor, Vice Mayor and Council Members:

“It’s time to assure city residents that council members will stop acting on their own to advance their personal agendas, bolster their pet projects or benefit their political backers.”
 (Oakland Tribune Editorial, Friday, July 19, 2013)

             We suspect, after review of public records and past practices, another Piedmont City Council majority’s violation of the heart of the Brown Act.  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.” (Gov. Code Sec. 54952.2(b)(1))

 The Council majority met at least 3 times with PRFO.  Council members discussed, coordinated and then negotiated.  The only possible closed sessions were without subject matter information to the public or required Brown Act notice.  But for information pried loose by Tim Rood, the public has been locked in the dark about the PRFO $200,000+ bad debt.

         The City-PRFO agreement requires PRFO to pay City project costs and an $118,000 security deposit, and authorized termination of City participation if the deposit ceased covering City costs.  Ineptly or intentionally, City leadership spent beyond the deposit without requiring its replenishment and then inexcusably has sat on the arrearage for over a year.

 City leadership has taken pains to avoid admitting negotiations occurred, pretending the meetings were merely “constituents … discussing issues with their elected officials” (Grote’s July 5 letter to Tim Rood).

 Call it pork, or call it ham, City emails show both negotiations and most elements of a Gov. Sec. 54952.2(b)(1) violation:  discussion of negotiating strategy among Council members and the City Administrator; involvement of PRFO’s President Menke, PRFO’s General Council Havian and Ellis, PRFO’s Chair-Fund Raising Committee; City Council subject matter jurisdiction — PRFO’s bad debt.

It is highly unusual for a public agency’s majority to be negotiating, especially without its lawyer when the other party’s (PRFO’s) lawyer is always present.  This raises a strong potential for Brown Act violations.  Were the negotiations for a public relations campaign to cover an already-made Council majority decision for non-payment?

 Shrouded in darkness, the negotiating Council majority’s support of the City-PRFO partnership and marching banner –“Say Yes to the Gift! No Taypayer cost!”– has become a civic monument to deception and poor planning.  It has cost taxpayers many $100,000s and become one of most divisive events in Piedmont history.

 Before the 2012 sewer surtax election we confronted the Council with uncontroverted City records: a 3-member Council majority (Barbieri, Chiang and Weiler), in violation of Sec. 54952(b)(1), and with the City Administrator as intermediary, privately prepared and approved rebuttal ballot arguments to the surtax opposition. We suspect an illegal pattern and practice by a Council majority, now with a different majority, but with the same City Administrator intermediary.

               City leadership replaced open government with back-room dealing and, when challenged, has responded with calculated obfuscation.  Taxpayers risk even greater financial loss from more of this bad behavior.  Replace this all too-cute tap dance around the Brown Act with a demand for immediate payment of PRFO’s bad debt and, if necessary, pursuit of legal collection.

Very Truly Yours,

Thomas D. Clark

Rick Schiller

Piedmont residents

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


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