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Councilmembers' risky business

Deputy city attorney warns of possible violations of Brown Act

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.

Prescilla Dugard

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."

Sherri Lightner

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."

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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.

Prescilla Dugard

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."

Sherri Lightner

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."

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4

And then there's the golf course, of course. Or walking across the patio outside city hall. No chit-chat, please. The California Brown Act has been in place since 2003, I believe, so it should be no surprise that it is coming to the attention of the City Attorney for San Diego now.

Dec. 1, 2015

The Ralph M. Brown Act was passed in 1953. The year 2003 was its 50th anniversary.

Dec. 2, 2015

For emphasis, let's remember that the "Brown" in the Brown Act wasn't this governor, nor was it his father. Don't let either of them get credit for the best bulwark against hidden governmental machinations in history. While I suppose that most states and the federal government have such prohibitions about secret dealing and back-channel communication by elected officials, the Brown Act has some of the strongest language of any such law. And that's why it keeps coming up again, and again, and . . . again. It keeps them from doing flagrant things out of sight and hearing of the voters.

Dec. 2, 2015

What? “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”. So she is amending the Rules of Council to allow councilmembers to ignore the Brown Act?

This doesn’t surprise me. In November 2014 she ignored the rules of City Council Policy 600-24 and amended the City approved bylaws of the Jolla Community Planning Association (LJCPA). She did this to allow the termed-out President of the LJCPA and the Community Planners Committee, Joe La Cava to serve an illegal third term while he ran for her 2016 City Council seat. But if she did this for La Cava in 2014, why hasn’t she endorsed him for City Council in 2016? Gloria and Emerald have endorsed their replacements. Alvarez and Emerald have even endorsed Barbra Bry for Lightner's termed-out 2016 seat.

Do you think while she was allegedly communicating behind closed doors with other councilmembers to garner their support for her bid for Council President, she made a deal? If you support me, I will support your candidate in 2016? Sorry La Cava and Bry.

Dec. 2, 2015

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4S Ranch Allied Gardens Alpine Baja Balboa Park Bankers Hill Barrio Logan Bay Ho Bay Park Black Mountain Ranch Blossom Valley Bonita Bonsall Borrego Springs Boulevard Campo Cardiff-by-the-Sea Carlsbad Carmel Mountain Carmel Valley Chollas View Chula Vista City College City Heights Clairemont College Area Coronado CSU San Marcos Cuyamaca College Del Cerro Del Mar Descanso Downtown San Diego Eastlake East Village El Cajon Emerald Hills Encanto Encinitas Escondido Fallbrook Fletcher Hills Golden Hill Grant Hill Grantville Grossmont College Guatay Harbor Island Hillcrest Imperial Beach Imperial Valley Jacumba Jamacha-Lomita Jamul Julian Kearny Mesa Kensington La Jolla Lakeside La Mesa Lemon Grove Leucadia Liberty Station Lincoln Acres Lincoln Park Linda Vista Little Italy Logan Heights Mesa College Midway District MiraCosta College Miramar Miramar College Mira Mesa Mission Beach Mission Hills Mission Valley Mountain View Mount Hope Mount Laguna National City Nestor Normal Heights North Park Oak Park Ocean Beach Oceanside Old Town Otay Mesa Pacific Beach Pala Palomar College Palomar Mountain Paradise Hills Pauma Valley Pine Valley Point Loma Point Loma Nazarene Potrero Poway Rainbow Ramona Rancho Bernardo Rancho Penasquitos Rancho San Diego Rancho Santa Fe Rolando San Carlos San Marcos San Onofre Santa Ysabel Santee San Ysidro Scripps Ranch SDSU Serra Mesa Shelltown Shelter Island Sherman Heights Skyline Solana Beach Sorrento Valley Southcrest South Park Southwestern College Spring Valley Stockton Talmadge Temecula Tierrasanta Tijuana UCSD University City University Heights USD Valencia Park Valley Center Vista Warner Springs
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