In a November 20 memorandum of law, chief deputy city attorney Prescilla Dugard found the city is at risk of violating California's open-meeting laws if councilmembers continue to issue memos on issues and attend committee hearings if they are not members of the committee.
An example is if a city councilmember issues a memo before a city-council committee hearing, reads the legal brief, then it invites committee discussion, which in turn, results in a majority of city councilmembers discussing a certain issue without notifying the public beforehand, as required by the Brown Act.
The same goes if a councilmember attends a committee hearing and is given a special seat at the dais or is allowed to discuss the issue outside of public comment.
Reads the memo, "While one could argue that a councilmember’s memo to a committee of which he or she is not a member is a matter of the public record on the agendized item, it could also be argued that this essentially converts the committee meeting into a meeting of the city council not properly noticed and in violation of the [Brown] Act.
"This exposes the City to potential claims (and legal costs) and could jeopardize decisions on important matters. To avoid potential Brown Act violations, Councilmember memoranda should be treated like any other form of Council communication and occur in the context of a meeting of the appropriate Council committee or City Council meeting."
Potential Brown Act violations first came to light in December of last year as councilmember Sherri Lightner was poised to take over, unexpectedly, as council president from then-president Todd Gloria. The council was required to take two votes after assistant city attorney Paul Cooper discovered that some councilmembers were allegedly communicating behind closed doors about their support for Lightner.
The closed-door discussions led Lightner and other members to have the city attorney's office look into the matter.
According to the memo, Lightner's office is working on amending the Rules of Council to allow for councilmembers to speak up on issues to committees and the public without breaking the law.
In the meantime, the city attorney's office is asking councilmembers to "confine their communications to committees of which they are a member or bring the matter to the full city council...to be discussed at a properly noticed city council meeting."