Last time we looked at the report prepared by the consultants for the Parks and Recreation Commission’s (PRC) deliberations on the Village Pond Park. It seemed obvious that the report as delivered was in substantial breach of contract between the City and the consultants for (at least) the following reasons -
· Prior to submitting to the Council, the contract required 3 community meetings but the consultants only conducted 2.
· The contract specified an inventory of lake characteristics which was not supplied.
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· The contract called for cost estimates, which weren’t supplied.
· The consultants promised to provide recommendations, but instead provided merely a list of possible actions.
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Today we want to look at the Brown Act. The Brown Act was passed in 1953 and governs how legislative bodies in California must conduct business. The City Council is covered as is the PRC (# 54952). The Act specifies what can and can’t be done, as well as providing guidelines.
FAILURE TO PROVIDE PROPER NOTICE
The Act requires that 72 hours in advance of the meeting, an agenda must be posted with “a brief general description of each item of business…” (# 54954.2)
In this case, the intent of the PRC/Staff was to present the conceptual (so-called) plan to the PRC for approval and forwarding to the City Council. But the PRC/Staff failed to properly identify this on the agenda, and instead gave the false impression that “workshop 3” was going to happen. Workshop 3 did not happen. By failing to properly identify the agenda item, the City violated the Brown Act. The public were entitled to know that a “report” had been done and that the City intended to forward this report to the Council. Instead the public were deliberately deceived into believing that a workshop was going to be conducted. In fact, when I confronted the staff with this fact, they admitted that the workshop was not going to happen and they were instead presenting the “report”.
FAILURE TO PROVIDE AGENDA PACKET IN ADVANCE
The Brown Act requires that copies of the material “constituting the agenda packet” be made available in advance (# 54954.1)
When a legislative body conducts business, it must be done in public, and the public has the right to be able to review the material so that they can participate in the discussion. Usually the City does an excellent job making this information available in advance at the City’s website. In this case, however, despite the fact that the staff had the e-mail addresses of people who requested that information be provided to them, the information was not sent in advance. By denying the public the information that is going to be presented at the meeting, the City put the public at a distinct disadvantage, and broke the law.
The City claims they didn’t have the “presentation” until the last minute. If this is true, it gives you some idea of how poorly managed the City is. If the true intent of the meeting was to let people review the “presentation” and work with the consultants and staff to make a decent plan, as was required by the contract, then not insisting on having the “presentation” in advance was very poor management.
ACTING WITHOUT AUTHORIZATION
The Act provides that “no action shall be taken on any item not appearing on the agenda…” (54954.3).
At the end of the meeting, they decided to send the report (with some minor modifications that came up in the meeting) to the Council. However, the report was never on the agenda, only the non-existent workshop. Hence, it was illegal for them to take action on a report that was never put on the agenda in the first place. But, even if the report had been on the agenda, which it was not, the authorized action was listed as “Review and Comment”. The use of the words “review and comment” restricts the PRC from what they can do. Had they wanted to be allowed to approve the report the action would have been listed as “Approve as Submitted”. Alternate wording could have been “Adopt a PRC resolution…”, “Consider, discuss, and provide City staff direction…”, etc. By using the words that they used, the PRC/Staff limited their choice of actions to reviewing the report and commenting. They had no authority to approve the report much less send it to the Council. A recent lawsuit in Anaheim addressed exactly this same issue, and the Superior Court Judge said - "The notice given of the Development contract fails to substantially comply with the Brown Act by only stating that the Counsel would discuss and consider the existing economic assistance contract and failing to state that it would authorize execution of the agreement."
BOTTOM LINE
It appears that the City is in substantial violation of the Brown Act on at least two issues (notice and action), and possibly a third. I’m not a lawyer so I can’t make this judgment. Of course, “You don’t have to be a weatherman to know which way the wind blows”, so there is a clear pattern of behavior here. In fact, during the preparation of this article I came upon two other indications of Brown Act violations.
Next week I will be submitting a detailed report on this issue (and the other two issues I discovered) to the OC Grand Jury, the OC District Attorney, and other appropriate agencies, and time will tell whether or not the City’s actions rise to a breach of the law. Meanwhile, if you’re interested, you can write to me at DrJGardner@gmail.com and I will be happy to send you a copy of my memorandum.
Even if it turns out that the City's actions here (and elsewhere) do not rise to the standard of a breach of the law, it's clear that the City has embarked on a policy that does not put the public's interest first.
