HomeMy WebLinkAbout11 - Response to Brown Act AllegationsCITY OF
City Council Staff Report
p� SEW Pp� 6
Agenda Item No. 11
October 8, 2013
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Attorney's Office
Aaron Harp, City Attorney
949 - 644 -3131, aharp @newportbeachca.gov
PREPARED BY: Michael Torres, Assistant City Attorney
APPROVED:
TITLE: Response to Ralph M. own Act Allegations Pursuant to California
Government Code Section 54960.2(c)(1)
ABSTRACT:
On September 17, 2013, the City of Newport Beach ( "City ") received a letter alleging
various violations of the Ralph M. Brown Act ('Brown Act'). Staff has reviewed the letter
and found the allegations to be largely without merit. However, to avoid further
expenditure of public resources and to avoid unnecessary litigation, staff recommends
the approval of an unconditional commitment letter pursuant to California Government
Code Section 54960.2(c)(1) ( "Letter"). The Letter does not admit liability or the
presence of a violation but it does conserve limited public resources by immunizing the
City from unnecessary litigation.
RECOMMENDATION:
Authorize the Mayor to sign the attached proposed unconditional commitment letter
pursuant to California Government Code Section 54960.2 to conserve public resources
and avoid unnecessary litigation.
FUNDING REQUIREMENTS:
There is no funding requirement associated with this item.
DISCUSSION:
Allegations
On September 17, 2013, the City received a cease and desist letter alleging four
separate Brown Act violations occurred at the September 10, 2013 City Council
meeting. As explained below, the allegations are largely without merit and only present
Response to Ralph M. Brown Act Allegations Pursuant to California Government Code
Section 54960.2(c)(1)
October 08, 2013
Page 2
one small area where clarification may be beneficial. When these types of allegations
are made against a public agency, the Brown Act provides a process whereby a public
agency may approve a Letter, without admitting any fault, and avoid any potential
lawsuits and further expenditure of public funds. In accordance with the Brown Act, the
Letter is approved by the City Council and signed by the Mayor and in the simplest of
terms is a statutory method of "agreeing to disagree." The four specific allegations
related to the September 10, 2013 meeting and staffs responses are provided as
follows:
Allegation One: "On September 10, 2013, the Newport Beach City Council
adjourned to Closed Session without any oral announcement of the matters to be
considered in closed session."
At the September 10, 2013 City Council meeting, an announcement was made that the
City Council would adjourn to closed session, presumably to discuss the items listed on
the City Council closed session agenda. The allegation appears to be that although an
announcement was made prior to closed session, the announcement was deficient
because it did not specifically reference the closed session agenda itself. Presumably,
most people understood that the announcement to adjourn to closed session would be
for the purpose of discussing the items listed on the closed session agenda.
Nonetheless, going forward the City may choose to make its pre - closed session
announcement by referring to the numbered item on the agenda which describes the
closed session matter(s).
Allegation Two: "Closed Session Item A (`Conference with Labor Negotiators
(Government Code § 54957.6)) was too vaguely noticed, even on the agenda, for the
public to have any meaningful opportunity to comment on it."
The City's closed session description was in substantial compliance with the model
description provided in California Government Code Section 54954.5. Pursuant to
Section 54954.5 "[n]o legislative body or elected official shall be in violation of [the
Brown Act] if the closed session items were described in substantial compliance with
[Section 54954.5]." The model description is as follows:
Model Description
CONFERENCE WITH LABOR NEGOTIATORS
Agency designated representatives: (Specify names of
designated representatives attending the closed session) (If
circumstances necessitate the absence of a specified
designated representative, an agent or designee may
Response to Ralph M. Brown Act Allegations Pursuant to California Government Code
Section 54960.2(c)(1)
October 08, 2013
Page 3
participate in place of the absent representative so long as
the name of the agent or designee is announced at an open
session held prior to the closed session.)
Employee organization: (Specify name of organization
representing employee or employees in question)
Following the language of the model description, the closed session agenda for
September 10, 2013 provided as follows:
Citv's Description
CONFERENCE WITH LABOR NEGOTIATORS
(Government Code § 54957.6)
Heading Agency Designated Representatives: Dave Kiff,
City Manager and Terri Cassidy, Human Resources Director;
Negotiators
Employee Organizations: All Labor Associations:
Association of Newport Beach Ocean Lifeguards (ANBOL);
Newport Beach City Employees Association (NBCEA);
Newport Beach Employees League (NBEL); Newport Beach
Firefighters Association (NBFA); Newport Beach Fire
Management Association (NBFMA); Lifeguard Management
Association (NBLMA); Newport Beach Part Time Unit (UPEC,
Local 777); Newport Beach Police Assocaition (NBPA);
Newport Beach Police Management Association (NBPMA);
and Newport Beach Professional and Technical Association
(NBPTEA).
Because the City's closed session item description is in substantial compliance with the
model description, there is no Brown Act violation.
Allegation Three: `Although Section 54957.1(a)(6) would seem to contemplate the
possibility that 'an agreement concluding labor negotiations with represented
employees' might be approved in a closed session held pursuant to Section 54957.6,
Section 54957.6 actually confines the purpose to `reviewing its position and instructing
the local agency's designated representatives. "'
Rules of statutory construction require us to give meaning to all sections of a statutory
scheme. The interpretation of California Government Code Section 54957.6(a) in the
Response to Ralph M. Brown Act Allegations Pursuant to California Government Code
Section 54960.2(c)(1)
October 08, 2013
Page 4
allegation negates the meaning of Section 54957.1(a)(6) by labeling it misleading and
without purpose. Section 54957.1(a)(6) specifically contemplates the approval of a
labor agreement with represented employees in closed session and provides a
reporting out requirement;
'The legislative body of any local agency shall publicly report
any action taken in closed session and the vote or
abstention on that action of every member present as
follows. Approval of an agreement concluding labor
negotiations with represented employees pursuant to
Section 54957.6 shall be reported after the agreement is
final and has been accepted or ratified by the other party.
The report shall identify the item approved and the other
party or parties to the negotiation"
The language cited in the allegation in Section 54957.6(a), which provides, in part,
'[c]losed sessions of a legislative body of a local agency.shall be for the purpose of
reviewing its position and instructing the local agency's designated representative' is
balanced by another part in Section 54957.6(a) which provides "[c]losed sessions held
pursuant to this section shall not include final action on the proposed compensation of
one or more unrepresented employees" This language does not include a limitation on
final action on represented employees.
When Section 54957.6(a) is read together and consistent with the reporting out
requirements of Section 54957.1(a)(6) it becomes evident that the City Council may
take final action in closed session on represented employee agreements provided the
City Council reports out the final action and vote, which occurred at the September 10,
2013 City Council meeting.
Allegation Four: `Mhe Mayor implied he had brokered the deal by meeting
personally with Orange County Employees Association General Manager Nick
Berardino and with "our employee leadership." This seem contrary to the intent of
the... Brown Act...."
The actions of an individual City Council Member are not subject to the Brown Act.
(California Government Code Section 54952.2; Wilson v. San Francisco Mun. Ry.
(1973) 29 Cal.App.3d 870.)
Approval of the Letter
The Brown Act, as amended, allows any person to submit a letter alleging Brown Act
violations to the City. The Brown Act does not require that an allegation be correct or
Response to Ralph M. Brown Act Allegations Pursuant to California Government Code
Section 54960.2(c)(1)
October 08, 2013
Page 5
vetted by an independent third -party prior to submission. To avoid liability, unnecessary
litigation and conserve public resources, the Brown Act authorizes local agencies, like
the City, to approve an unconditional commitment letter within 30 days of receipt of a
Brown Act violation allegation. The language for the unconditional commitment letter is
statutorily provided in California Government Code Section 54960.2. The Letter
explicitly does not acknowledge the presence of a Brown Act violation and instead is
designed to conserve public resources and avoid unnecessary litigation by agreeing to
comply with the law, which the City already does. Although we strongly disagree with
the allegations, to conserve City resources and avoid unnecessary litigation we
recommend following the process outlined in Section 54960.2 and approving the Letter.
ENVIRONMENTAL REVIEW:
Staff recommends the City Council find this action is not subject to the California
Environmental Quality Act ( "CEQA ") pursuant to Sections 15060(c)(2) (the activity will
not result in a direct or reasonably foreseeable indirect physical change in the
environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378)
of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it
has no potential for resulting in physical change to the environment, directly or
indirectly.
NOTICING:
This agenda item has been noticed according to the Brown Act (72 hours in advance of
the meeting at which the City Council considers this item).
Submitted by:
Aaron Harp, City Attorney
City Attorney's Office
Attachment: Proposed Unconditional Commitment Letter
October 8, 2013
To Jim Mosher:
The City Council of the City of Newport Beach has received your cease and desist letter
dated September 17, 2013 alleging that the following described past action of the
legislative body violates the Ralph M. Brown Act:
"On September 10, 2013, the Newport Beach City Council adjourned to closed session
without any oral announcement of the matters to be considered in closed session."
In order to avoid unnecessary litigation and without admitting any violation of the Ralph
M. Brown Act, the City Council hereby unconditionally commits that it will cease, desist
from, and not repeat the challenged past action as described above.
The City Council 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,
Keith D. Curry
Mayor
CITY OF NEWPORT BEACH
OFFICE OF THE E MAYOR
Mayor
Keith D. Curry
October 8, 2013
Mayor Pro Tem
Rush N. Hill, H
Council Members
Mr. Jim Mosher
Leslie J. Daigle
2210 Private Road
Nancy Gardner
Newport Beach, CA 92660
Michael P. Henn
Tony Petros
Dear Mr. Mosher:
Edward D. Selich
The City Council of the City of Newport Beach has received your cease and
desist letter dated September 17, 2013 alleging that the following described past
action of the legislative body violates the Ralph M. Brown Act:
"On September 10, 2013, the Newport Beach City Council adjourned to closed
session without any oral announcement of the matters to be considered in closed
session."
In order to avoid unnecessary litigation and without admitting any violation of the
Ralph M. Brown Act, the City Council hereby unconditionally commits that it will
cease, desist from, and not repeat the challenged past action as described
above.
The City Council 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,
Keith D. Curry
Mayor
City Hall o Post Office Box 1768 o Newport Beach, California 92658 -8915
www.newportbeachca.gov o (949) 644 -3004
2210 Private Road
Newport Beach, CA. 92660
October 16, 2013
City Clerk
City of Newport Beach
100 Civic Center Drive
Newport Beach, CA. 92660
Madam Clerk,
Thank you for sending me the letter of unconditional commitment dated October 8, 2013,
and signed by Mayor Curry, promising that the Newport Beach City Council will cease and
desist from adjourning to closed session without an oral announcement of the matters to be
considered in closed session.
That letter asks that I respond with a preferred means of contact in the event the City Council
should ever consider rescinding its commitment. For the moment, notice to either the postal
address, or the email address, indicated on this (and the former) letter would be satisfactory
to me.
Yours sincerely,
James M. Mosher
iii-nmosher@vahoo.com
(949) 548 -629