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HomeMy WebLinkAbout10 - Response to Ralph M. Brown Act AllegationPO e CITY OF z NEWPORT BEACH ,q City Council Staff Report May 8, 2018 Agenda Item No. 10 TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL FROM: Dave Kiff, City Manager 949-644-3001, dkiff ja�newportbeachca.gov Aaron Harp, City Attorney 949-644-3131, aharp _newportbeachca.gov PREPARED BY: Aaron Harp, City Attorney TITLE: Government Code Section 54960.2(c)(1) Response to Ralph M. Brown Act Allegation by Lauri Preedge Served on the City of Newport Beach April 10, 2018 ABSTRACT - On April 10, 2018, Lauri Preedge served the City of Newport Beach ("City") with a letter alleging a violation of the Ralph M. Brown Act ("Brown Act"). Under Government Code Section 54960.2(c)(1), the City has thirty (30) days from receipt of Ms. Preedge's letter to respond thereto. City staff has reviewed Ms. Preedge's letter and found the allegations to be without merit. Council Member Herdman, however, has asked the City Manager to place this matter on the agenda so the City Council can consider responding to Ms. Preedge's letter before the statutory deadline. Even though City staff has determined there is no merit to the allegations, City staff is recommending the City Council adopt an unconditional commitment letter, which is provided for in Government Code Section 54960.2(c)(1), so that the City can avoid the further expenditure of public resources and unnecessary litigation ("Letter"). The Letter does not admit liability or the presence of a Brown Act violation but it does conserve limited public resources by preventing Ms. Preedge or any other person from initiating unnecessary litigation. RECOMMENDATION: a) Determine this action is exempt from the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) and 15060(c)(3) of the CEQA Guidelines because this action will not result in a physical change to the environment, directly or indirectly; and b) Select one of the following three options: (1) Authorize the Mayor to sign the attached Letter pursuant to California Government Code Section 54960.2(c)(1), which admits no fault but avoids unnecessary and costly litigation from Ms. Preedge; (2) Direct staff to prepare a rejection letter to Ms. Preedge denying the allegations contained in Ms. Preedge's letter. However, this recommendation may result in Ms. Preedge filing a lawsuit against the City costing public resources; or 10-1 Government Code Section 54960.2(c)(1) Response to Ralph M. Brown Act Allegation by Lauri Preedge Served on the City of Newport Beach April 10, 2018 May 8, 2018 Page 2 (3) Take no action, which will result in a rejection of the allegations in Ms. Preedge's letter and the possible filing of a lawsuit against the City costing public resources. FUNDING REQUIREMENTS: There is no funding requirement associated with the recommended item (b)(1); however, if the City Council chooses to pursue options (b)(2) or (b)(3), Ms. Preedge may file a lawsuit against the City, which will cost the City public resources to defend against. DISCUSSION: On April 10, 2018, Ms. Preedge submitted a letter to the City alleging a Brown Act violation. The Brown Act allows any person to submit a letter alleging a violation to the City. The Brown Act does not require that an allegation be correct or 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 thirty (30) calendar days of receipt of a Brown Act violation allegation. The language for the Letter is statutorily provided in California Government Code Section 54960.2(c)(1). 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 in Ms. Preedge's letter, to conserve City resources and avoid unnecessary litigation we recommend following the process outlined in Section 54960.2(c)(1) and approving the Letter. ENVIRONMENTAL REVIEW: Staff recommends the City Council find this action is not subject to 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). ATTACHMENT: Attachment A — California Government Code Section 54960.2(c)(1) Letter 10-2 ATTACHMENT A April 24, 2018 To Lauri Preedge: The City Council of the City of Newport Beach ("City Council") has received your cease and desist letter dated April 10, 2018 alleging that the following described past action of the legislative body violates the Ralph M. Brown Act: "In its meeting of March 27, 2018, four members of the Newport Beach City Council conspired to, and did, take action to terminate the employment of City Manager Dave Kiff by acknowledging an alleged request by Mr. Kiff, apparently made under duress and threat of termination without cause, to have his current employment renegotiated and prematurely concluded. The action taken was not in compliance with the Brown Act because it occurred as the culmination of discussions over a period of weeks by a majority of the city council members in private, either directly or through intermediaries." 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, Marshall "Duffy" Duffield Mayor 10-3