The Path of Least Resistance

When the Imperial Beach City Council decided to forego a special election and appoint former mayor Diane Rose to fill the vacant council position left after councilmember Fred McLean passed away from cancer, the city council thought they had found the path of least resistance.

During the June 3 city council meeting, minutes before Rose was sworn in, city attorney James Lough used Poway as an example for not going through a time-consuming and expensive nomination process: “Poway took four meetings and did a bunch of interviews and nearly ran into a problem running up against the 30-day deadline,” said Lough.

The city attorney later assured the four-person council that there were no legal questions pertaining to the appointment. “I’ve been doing this for over 30 years. We’re fine. We’re fine,” repeated Lough before pursing his lips and nodding his head to the council.

The path of least resistance has turned into a rocky road.

On June 9, Leon Schorr of the San Diego County district attorney’s office informed city attorney Lough that the City is under investigation for violating the Brown Act -- the government statute that insures public access to local government meetings and deliberations.

“We got some complaints from the general public about the appointment,” said Schorr in a June 10 phone interview.

Those complaints stem from a May 26 notification sent out by the city clerk of Imperial Beach to a local paper, requesting applications to fill the vacant council seat. The next day, at a special meeting intended to “consider filling the vacancy,” mayor Jim Janney informed the council that Rose had contacted him and volunteered to fill the position. The council then agreed to appoint the former mayor.

“There was no mention at all or any intent given in the agenda that Rose was to be appointed that evening,” read the complaint submitted to the district attorney’s office. “The intent of the agenda was to decide on how to fill the vacant seat by holding a special election or an open application process. There was no mention of filling that seat at the May 27 meeting.”

As for the investigation by the district attorney’s office, Schorr says his office has to wait until the City of Imperial Beach releases the official record of the June 3 council meeting before his office can determine whether or not the appointment is valid.

“We let the city council know, through the city attorney, that an allegation has been made,” says Schorr. “Now, we’ll look at the minutes and the agenda to see what took place. If it wasn’t properly done, the decision needs to be made by the council whether or not they will cure the situation. If Ms. Rose was appointed in violation, then [the council] would probably have to redo any votes.”