HomeMy WebLinkAboutItem I - Response Letter ��pE 5EA(' 4
AGENDA STAFF REPORT
,C: IF tzNP:
DATE: March 28, 2016
TO: Honorable Mayor and City Council
FROM: Craig A. Steele, City Attorney
SUBJECT: Response Letter to Kelly Aviles, Esq.
RECOMMENDATION:
That the City Council direct the Mayor to send a response letter in substantially
the form prescribed by Government Code Section 54960.2(c)(1) to Kelly Aviles,
Esq.
BACKGROUND:
On March 7, 2016 the City Council received a letter from Kelly Aviles, Esq., a
Brown Act advocate. Ms. Aviles alleges that the City Council violated the Brown
Act in two closed sessions, on June 8, 2015 and October 26, 2015. She requests
that the City Council cease and desist from engaging in further such "violations"
and provide greater information regarding closed session agenda items.
The letter is, in some ways, factually incorrect as to each allegation. Staff and the
City Attorney believe the closed sessions were appropriate and complied with the
Brown Act. However, additional transparency and public information are valuable
goals. Obviously, the City's legal interests must be protected with confidentiality
when appropriate.
Sending a letter substantially in the form attached does not admit any violation,
but does agree to a renewed focus on these issues. Sending the letter does
avoid the potential for litigation over these issues.
Staff and the City Attorney recommend that the City Council authorize the Mayor
to send a lett= in substantially the form specified in the statute.
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(73-
Craig A. Steele
City Attorney
Agenda Item
LAW OFFICF,S OF KELLY A. AVILES
March 7,2016
City Council (via U.S.mail and email)
Mayor Sandra Massa-Lavitt
smassalavitt@sealbeachcagov
Mayor Pro Tern Mike Varipapa
mvaripapa @sealbeachcagov R E C I O V E D
Ellery A.Deaton
edeaton @sealbeaehca.gov MAR 0 S 2016
David W. Sloan
sloandistrict2 @veriton.net CITY CLERK
Gary A.Miller CITY OF SEAL BEACH
gmiller@sealbeachca.gov
City of Seal Beach
211 Eighth Street
Seal Beach,CA 90740
NOTICE OF VIOLATIONS
OF THE RALPH M. BROWN ACT
DEMAND TO CEASE AND DESIST pursuant to Gov. Code section 54960.2
Dear City Council:
This office represents Californians Aware, a non-profit group dedicated to open, transparent
government. Please direct all further communications regarding this matter to our office.
The purpose of the Ralph M. Brown Act is to provide notice and opportunity for members of the
public to participate in the decision-making process of local agencies. To that end, the Brown Act
requires that the agenda contain a general description of each item of business to be transacted,
including those to be discussed in closed session. Government Code §54952.2(a)(1). The Brown Act
prohibits a public agency from taking action or discussing any item not appearing on the posted agenda.
Government Code§54954.2(a)(2).
We have reason to believe that the City has repeatedly held unauthorized, dosed sessions under the
guise of anticipated or threatened litigation or has discussed and/or taken on matters therein that
exceed the scope of the closed session exemption. Moreover, the City has also categorically failed to
properly notify the public,prior to the closed sessions, of the underlying facts and circumstances which
the City claims is the basis for each closed session.
When questioned, the City Attorney took the position that (1) the City has announced the facts and
circumstances when required and (2) facts and circumstances are not always required to be announced
because the facts and circumstances have not been known to the potential plaintiffs. As to the first
contention, after an extensive review, we have found no evidence that the City has ever publically
disclosed the existing facts and circumstances which justify closed sessions on anticipated litigation,
1502 Foothill Boulevard,Suite 103-140.La Verne,California 91750
Phone: (909)991-7560.Fax: (909)991-7594.Email: kaviles @opengovlaw.com
a
Law Offices of Kelly Aviles
Seal Beach City Council
March 7,2016
Page 2
even though such disclosures are required by Government Code, section 54956.9(e)(2).1 As to the
second contention,it is our experience that it is only in unusual and rare cases that potential plaintiffs
are unaware of the facts and circumstances that might lead to litigation. It would be almost impossible
for the routine failure to disclose any information about potential litigation to be explained by this
limited exception.
For example, during the June 8, 2015 closed session, the City took action to enter into a $120,000
contract with Khouri Consulting, a lobbying firm, which is a completely improper topic for dosed
session under any circumstances. The public was never notified that the topic would be discussed in
closed session and the City failed to disclose the action taken even after the closed session.
On another occasion, October 26, 2015,the agenda listed two closed session items. The second was a
closed session on anticipated litigation,where,again,no facts and circumstances were disclosed. It was
only after the closed session had occurred that the members of the public were finally alerted that the
item that had been discussed in closed session was the "blue cottage,"which had recently been donated
to the City. The property had been the subject of much public interest. During the closed session, the
Council decided to relocate the property as part of a settlement of"potential litigation." However,such
actions are prohibited from being taken in closed session, even where the action settles potential
litigation, because it deprives the public of being able to participate in that decision. See Trancas
Property Owners Assn. v. City of Malibu (2006) 138 Cal.App.4th 172, 183-87 [City's agreement with
developer, made in closed session settling litigation violated the Brown Act by usurping public's ability
to participate in decision.j2
CEASE AND DESIST DEMAND
The Brown Act provides that any interested person may "commence an action by mandamus,
injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened
violations," "to determine the applicability of this chapter to ongoing actions or threatened future
actions of the legislative body, or to determine the applicability of this chapter to past actions of the
legislative body." See Government Code,section 54960.
In order to avoid litigation,my client demands that the City Council cease and desist from the practices
set forth above,which impair the public's ability to participate in its government. Namely, the Council
must acknowledge the Brown Act violations set forth above by making an unconditional commitment
to refrain from the following practices in the future:
1. Failing to properly agendize or announce the facts and circumstances that justify
threatened or anticipated litigation closed sessions, pursuant to Government Code
554956.9;
2. Discussing or taking action on items not specifically permitted to be discussed or acted
upon in closed sessions,under the guise of threatened or anticipated litigation.
1 If evidence exists of occasions where the City has made additional disclosures prior to closed sessions on threatened or
anticipated litigation,we would gladly welcome review of such evidence.
2 Should the City fail to immediately change its practices, as demanded below, we believe that discovery will uncover
additional instances of closed session violations.
Law Offices of Kelly Aviles
Seal Beach City Council
March 7,2016
Page 3
Pursuant to Government Code §54960.2, you have 30 days from the receipt of this cease and desist
demand to provide an "unconditional commitment" that the Council will refrain from engaging in the
practices described above at any time in the future. The unconditional commitment must be approved
by the City in open session at a regular or special meeting as a separate item of business, and not on its
consent agenda. If you fail or refuse to cease and desist as demanded, such action may lead my client to
file an action pursuant to Government Code §54960,in which case,it will seek an award of court costs
and attorney fees pursuant to Government Code §54960.5.
Sincerely,
1
cc: Jill R. Ingram,City Manager(via email to jingram@sealbeachca.gov)
Robin Roberts, City Clerk(via email to rroberts@sealbeachca.gov)
Craig Steele,City Attorney (via email to csteele@nvglaw.com)
3/24/2016 CA Codes(gov:54950-54963)
(c) (1) If the legislative body elects to respond to the cease and
desist letter with an unconditional commitment to cease, desist
from, and not repeat the past action that is alleged to violate this
chapter, that response shall be in substantially the following form:
•
To
The [name of legislative body] has received your cease and desist
letter dated [date] alleging that the following described past action
of the legislative body violates the Ralph M. Brown Act:
[Describe alleged past action, as set forth in the cease and
desist letter submitted pursuant to subdivision (a)]
In order to avoid unnecessary litigation and without admitting any
violation of the Ralph M. Brown Act, the [name of legislative body]
hereby unconditionally commits that it will cease, desist from, and
not repeat the challenged past action as described above.
The [name of legislative body] may rescind this commitment only by
a majority vote of its membership taken in open session at a regular
meeting and noticed on its posted agenda as "Rescission of Brown Act
Commitment." You will be provided with written notice, sent by any
means or media you provide in response to this message, to whatever
address or addresses you specify, of any intention to consider
rescinding this commitment at least 30 days before any such regular
meeting. In the event that this commitment is rescinded, you will
have the right to commence legal action pursuant to subdivision (a)
of Section 54960 of the Government Code. That notice will be
delivered to you by the same means as this commitment, or may be
mailed to an address that you have designated in writing.
Very truly yours,
[Chairperson or acting chairperson of the legislative body]
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54960.2. (a) The district attorney or any interested person may
file an action to determine the applicability of this chapter to past
actions of the legislative body pursuant to subdivision (a) of
Section 54960 only if all of the following conditions are met:
(1) The district attorney or interested person alleging a
violation of this chapter first submits a cease and desist letter by
postal mail or facsimile transmission to the clerk or secretary of
the legislative body being accused of the violation, as designated in
the statement pertaining to that public agency on file pursuant to
Section 53051, or if the agency does not have a statement on file
designating a clerk or a secretary, to the chief executive officer of
that agency, clearly describing the past action of the legislative
body and nature of the alleged violation.
(2) The cease and desist letter required under paragraph (1) is
submitted to the legislative body within nine months of the alleged
violation.
(3) The time during which the legislative body may respond to the
cease and desist letter pursuant to subdivision (b) has expired and
the legislative body has not provided an unconditional commitment
pursuant to subdivision (c) .
(4) Within 60 days of receipt of the legislative body's response
to the cease and desist letter, other than an unconditional
commitment pursuant to subdivision (c), or within 60 days of the
expiration of the time during which the legislative body may respond
to the cease and desist letter pursuant to subdivision (b), whichever
is earlier, the party submitting the cease and desist letter shall
commence the action pursuant to subdivision (a) of Section 54960 or
thereafter be barred from commencing the action.
(b) The legislative body may respond to a cease and desist letter
submitted pursuant to subdivision (a) within 30 days of receiving the
letter. This subdivision shall not be construed to prevent the
legislative body from providing an unconditional commitment pursuant
to subdivision (c) at any time after the 30-day period has expired,
except that in that event the court shall award court costs and
reasonable attorney fees to the plaintiff in an action brought
pursuant to this section, in accordance with Section 54960.5.
(c) (1) If the legislative body elects to respond to the cease and
desist letter with an unconditional commitment to cease, desist
from, and not repeat the past action that is alleged to violate this
chapter, that response shall be in substantially the following form:
•
To
The [name of legislative body] has received your cease and desist
letter dated [date] alleging that the following described past action
of the legislative body violates the Ralph M. Brown Act:
[Describe alleged past action, as set forth in the cease and
desist letter submitted pursuant to subdivision (a)]
In order to avoid unnecessary litigation and without admitting any
violation of the Ralph M. Brown Act, the [name of legislative body]
hereby unconditionally commits that it will cease, desist from, and
not repeat the challenged past action as described above.
The [name of legislative body] may rescind this commitment only by
a majority vote of its membership taken in open session at a regular
meeting and noticed on its posted agenda as "Rescission of Brown Act
Commitment." You will be provided with written notice, sent by any
means or media you provide in response to this message, to whatever
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3/24/2016 CA Codes(gov:54950-54963)
address or addresses you specify, of any intention to consider
rescinding this commitment at least 30 days before any such regular
meeting. In the event that this commitment is rescinded, you will
have the right to commence legal action pursuant to subdivision (a)
of Section 54960 of the Government Code. That notice will be
delivered to you by the same means as this commitment, or may be
mailed to an address that you have designated in writing.
Very truly yours,
[Chairperson or acting chairperson of the legislative body]
(2) An unconditional commitment pursuant to this subdivision shall
be approved by the legislative body in open session at a regular or
special meeting as a separate item of business, and not on its
consent agenda.
(3) An action shall not be commenced to determine the
applicability of this chapter to any past action of the legislative
body for which the legislative body has provided an unconditional
commitment pursuant to this subdivision. During any action seeking a
judicial determination regarding the applicability of this chapter to
any past action of the legislative body pursuant to subdivision (a),
if the court determines that the legislative body has provided an
unconditional commitment pursuant to this subdivision, the action
shall be dismissed with prejudice. Nothing in this subdivision shall
be construed to modify or limit the existing ability of the district
attorney or any interested person to commence an action to determine
the applicability of this chapter to ongoing actions or threatened
future actions of the legislative body.
(4) Except as provided in subdivision (d), the fact that a
legislative body provides an unconditional commitment shall not be
construed or admissible as evidence of a violation of this chapter.
(d) If the legislative body provides an unconditional commitment
as set forth in subdivision (c), the legislative body shall not
thereafter take or engage in the challenged action described in the
cease and desist letter, except as provided in subdivision (e) .
Violation of this subdivision shall constitute an independent
violation of this chapter, without regard to whether the challenged
action would otherwise violate this chapter. An action alleging past
violation or threatened future violation of this subdivision may be
brought pursuant to subdivision (a) of Section 54960, without regard
to the procedural requirements of this section.
(e) The legislative body may resolve to rescind an unconditional
commitment made pursuant to subdivision (c) by a majority vote of its
membership taken in open session at a regular meeting as a separate
item of business not on its consent agenda, and noticed on its posted
agenda as "Rescission of Brown Act Commitment," provided that not
less than 30 days prior to such regular meeting, the legislative body
provides written notice of its intent to consider the rescission to
each person to whom the unconditional commitment was made, and to the
district attorney. Upon rescission, the district attorney or any
interested person may commence an action pursuant to subdivision (a)
of Section 54960. An action under this subdivision may be brought
pursuant to subdivision (a) of Section 54960, without regard to the
procedural requirements of this section.
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