Brown Act

Jan 032015

splitlogoCity Manager evaluation, new “Hostage Negotiation” vehicle & new Vice Mayor also on agenda

Update: I have heard back from City Attorney Richard Pio Roda.  He says that the City does not believe that the potential plaintiffs in the case that will be discussed in closed session are aware of the facts and circumstances that will enable their lawsuit.  He confirmed that the case in question did not involve “an accident, disaster, incident, or transaction”, for example, a police shooting, where the potential plaintiff is aware that they have been harmed.

The first City Council meeting of the year will be this Monday, January 5th.  It will include new Mayor Pauline Cutter and new Councilmembers Deborah Cox (Dist 1), Lee Thomas (Dist 3) and Corina Lopez (Dist 5).  Councilmembers Ursula Reed (Dist 2) and Jim Prola (Dist 6) have two more years to go before being termed out while Councilmember Benny Lee (Dist 4) is two years into his first term.

The Council Agenda for this Monday is very light and includes 2 closed session items (those that are discussed without the public being present).  It also includes this Council’s first Brown Act violation.

The Brown Act allows a City Council to discuss very few issues in closed session.  One of those is pending litigation against the City (CA Gov code 54956.9), including situations where “based on existing facts and circumstances, there is a significant exposure to litigation against the [City]” (54956.9(d)(2)).  However, the Brown Act also requires that if the “facts and circumstances … that might result in litigation against the [City]  … are known to a potential plaintiff … [these] shall be publicly stated on the agenda or announced (54956.9(e)(2)).  Under former Mayor Stephen Cassidy, the Council almost invariably broke this section of the law, and the pattern seems to be set to continue under Mayor Pauline Cutter. However, she’s been advised of the potential violation and she could choose to cure the situation by announcing the facts and circumstances of the potential litigation during Monday’s meeting.

The law does not require that the City announce such “facts and circumstances” if these are not known to the plaintiff, but such situations are rare.  For example, the family of the woman who was shot to death by the San Leandro Police Department less than a month ago, is not only aware of the fact that she was killed, but they have retained an attorney.  If the City Council will be discussing this case in closed session – and if they are not, they definitely should be -, there is no legal reason whatsoever for them to not disclose such fact.
According to the Agenda, the City Council will also meet in closed session to conduct the City Manager‘s evaluation, though given that three of the seven members of the Council have never worked with the City Manager before, it’s difficult to see how they’d be able to conduct and independent evaluation of his performance.

Open session items of interest include:

– The vote for a new Vice-Mayor

– Allocation of $71K (up from $60K) for the SLPD to get a new “hostage negotiation” vehicle.  This is in addition to the paramilitary armored vehicle that the SLPD wants the City to acquire.

– Presentation from Safe Alternatives to Violent Environments, a Fremont-based organization that works with victims of domestic violence.



Feb 212012

It’s an Acknowledgement that they Violated Faith Fellowship’s Constitutional Rights but… is it good Public Policy?

Unfortunately it seems that most of my analysis below was right.  Read this short update about the Tuesday night City Council meeting.

Do you want to open a wrestling venue in the industrial area of San Leandro?  How about a comedy club, a lecture hall, a dance school offering recitals, a skating ring, something new and fun and family friendly? Right now, all you have to do is get a conditional use permit and you’re free to go.   But if you want to open a church instead, you are out of luck.  The San Leandro’s Zoning Code does not allow “assembly” use in those areas.

This is set to change tonight when the City Council votes on whether  to prohibit recreational and entertainment activities in the industrial areas of town.   While there will be some properties exempted, entertainment venues are also not allowed in residential areas so the end result would be that commercial recreational and entertainment activities would be banned from most of the city of San Leandro.

Lack of Rationale

City Staff has been unable to come up with a believable rationale for this change to the Zoning code.  First, Community Development Director Luke Sims implied it was in response to the triple homicide that took place in a warehouse in San Leandro earlier in 2011.  However, when faced with skepticism (the party in question was held illegally in the first place, and the facilities across the street from its location will still be allowed to hold parties), he quickly retreated into another argument.  The official line now is that this is just to “clean up” the Zoning Code, to make it consistent with the 1992-2002 General Plan.   The General Plan, they say, includes as its goals the protection of the city’s industrial areas by encroachment form incompatible uses and the attraction and retention of high-tech companies.  City staff, however, suggest that they didn’t realize this was the case for 20 years, and that now is the time to fix it.  Yeah right.

Bad Public Policy

As the CEO of the Chamber of Commerce Dave Johnson suggested, that argument is bogus.  We’re in 2012 now, and it’s time to look at the future, not the past.  And for a city like San Leandro, that should mean opening opportunities for growth, not shutting down.  San Leandro, said then Planning Commissioner Chris Crow, wants to attract high-tech companies, so we should look at what SiliconValley cities offer them: and that’s flexible zoning codes that allows recreational facilities near high tech companies.

As anyone with any experience in high tech knows (and unfortunately, that does not include anyone in the City Council or at City Hall), high-tech companies are very different from the factories of yesteryear.  They recognize that a 9-to-5 (or 8-to6) schedule doesn’t work for all employees, and they want to make it easy for their talent to stay at work as long as necessary while staying physically and mentally healthy. Many high-tech companies now offer in-site childcare centers, gyms and even dry-cleaning facilities.  Google has basketball courts; Xerox’s Parc biweekly lectures.   For companies not large enough to accommodate such services at their campuses, having commercial alternatives nearby is likely to be a big plus.

It’s also worth remembering that the high tech industry is moving in fast and unexpected ways – it makes little sense to proscribe uses of properties that don’t even exist at the moment.

Public Opinion is Against the Changes

So far, all San Leandro citizens (as opposed to staff) that have spoken up on the subject have been against the changes to the zoning code.  When staff took the matter to the Board of Zoning Adjustments, most members expressed their disagreement with the changes .  The Planning Commission twice voted to recommend against it.  And yet staff has rushed this to the City Council, and has tried to do it as surreptitiously as possible.

But… will it help in Court?

So what’s going on here? The only logical explanation I can think of is that this is part of the City’s legal strategy in the Faith Fellowship case.   That case had two basic components, in one the Church argued that the City violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) by placing a substantial burden on the Church, which wasn’t able to find another suitable property in San Leandro, for no compelling reason.  Indeed, the reason that the City gave the Court was exactly the same one that staff is now using to ban entertainment use in the area: the need to preserve it for industrial/high-tech purposes.  The 9th Circuit didn’t buy City’s position then, but I wonder if they have found a way to re-argue this part of the case.

Faith Fellowship had even a more compelling argument than the substantial burden one.  They said that the City’s Zoning Code violated both RLUIPA and the US Constitution’s Equal Protection Clause by allowing commercial entertainment venues in the industrial area but not churches.  The 9th circuit seemed to agree with the Church’s position, but it ultimately ruled in favor of the Church in other grounds, and it reserved this issue for further litigation.

I can’t say that I know for sure what the legal strategy behind this Zoning change is.  I do know that staff started working on this in September 2011, not too long after the 11th Circuit issued a decision saying that a claim for injunctive relief is moot once the Zoning Code is changed to become constitutional.  I’ve heard that Pastor Mortara wants the City to find him an acceptable property, rather than just pay money damages; after all, he still needs to accommodate 1,700 parishioners.  This change to the Zoning Code would pretty much guarantee that that wouldn’t happen.   I also know staff is hurrying to deal with this issue and that Marci Hamilton is still advising the City.

Stay tuned…

I do hope, however, that I’m wrong.   Any discussion about changing the Zoning Code must be done in open session, if the City Council was told about this strategy in closed session, they would be violating the Brown Act once again (as they are prone to do).  In any case, we will know how clean the City Council is tonight.  If Council Members are clean, they surely will follow the advise of the Planning Commission, the BZA and the citizens who’ve spoken on this issue.  If they don’t, I think we can fairly conclude that it’s because of some under the table deal.



* When I first asked Sims for a copy of the proposed changes – he claimed they hadn’t been written down, though the Rules Committee had already discussed them!  He later said City Planner Kathleen Livermore  would get back to me, and she did but only to ask me for my address.  She then proceeded to send me a notice of a meeting (later cancelled), with  no information again about what the proposed changes were.

Feb 062012

It’s worse than I thought, but is it intentional or just careless?

Just ask public officials, perhaps over a few beers, how they feel about the pesky public looking over their shoulder as they try to “get things done.”   They hate it.  Public oversight means they have to worry about following the law, hiding any corrupt deals and being held accountable for their actions.

As the corruption facilitated by secrecy has dire consequences for society at large (just think of the City of Bell), the California legislature long ago passed the Brown Act to guarantee the public notice and access to government meetings, and the California Public Records Act to grant access to government documents.  Local governments have been trying to skirt them ever since.

I have noted before actual and threatened violations of these laws by the San Leandro City Council.  Recently, I’ve become aware of a number of recurring and and very serious violations that allow the City Council to deliberate secretly.  I’ve given the City the benefit of the doubt – perhaps nobody at City Hall is actually aware of the law or perhaps they’ve just been careless – and I’ve written to City officials* requesting that they cease these violations.  How (and whether) they respond, and more importantly whether they actually comply with my request to obey the law, will be very indicative of the trustworthiness and ethics of our City Officials and our City Attorney.

The following are the Brown Act violations that I’ve discovered in the last few days

The City Council Appears to Have Deliberated Secretly on the Sale of the former Albertson’s Property

The City Council agenda for Feb. 6th, 2012 lists “Conference with Real Property Negotiators”  as one of its closed session items.  It says that they are currently negotiating the “price and terms of payment” with Innisfree Ventures II, David Irmer’s development firm.  This implies that the City Council has already agreed to sell the former Albertson’s property to Irmer, or at least has discussed it; you don’t negotiate a price for a property you are not ready to sell.   The Brown Act requires that any discussion on the sale of the property as well as any instruction to the City Manager (or anyone else) to initiate negotiations for the sale of the property, must be done in open session, after being properly agendized.  A search of the agendas, minutes and other public records in the online Public Records Database maintained by the city, did not produce any records of such discussions or decisions.  It would appear that these discussions were made informally or in closed session, in violation of the law.

The City Council Mislabels Public City Council Meetings as “Closed Sessions”

The City Council publishes agendas both for its open and closed sessions.  Closed sessions usually start at 6PM and open sessions at 7PM.  Agendas for closed sessions are labeled “Closed Session” while those for open sessions are labeled  “Regular Meeting”  or “Joint Meeting with Redevelopment Agency.”   I was just informed by the City Clerk, however, that a portion of the meeting labeled closed session is actually an open session, in which the City Council can transact all sorts of business, including making required announcements.  But as the meeting is not labeled “open session,” or “regular meeting”  or anything other than “closed session,” the public has no reason to know that this is a meeting they are free to attend.  The results are that practically nobody is likely to go to these meetings, and thus nobody witnesses what was said or not said there.

The City Council Fails to Include All Required Items in the “Open/Closed Session”  Agendas

The Brown Act provides that “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda.”  However, it would appear that actions and discussions not appearing in the agenda are actually carried out in what the City considers to be the “open” part of closed sessions (hereby described as “open/closed sessions”).  This came to my attention on Friday, when I e-mailed the City Council et al. to alert them to the fact that while the Brown Act allows the City Council to meet in closed session with property negotiators, as it was itemized in the agenda for the Feb. 6th meeting, the negotiators’  identities must first be announced in open session.  The City Clerk responded by saying that there would be an open session prior to the closed session in question, thus suggesting that the announcement would be made at that point.  However, the agenda for that open/closed session only included two items: Roll Call and Public Comments.  This is, indeed, the case with all the closed session agendas that I’ve seen.  So it would appear that the City Council conducts business during these open/closed sessions that is not disclosed in the agenda

The City Council Fails to Keep Minutes of the “Open/Closed Session” Meetings.

California law requires the City Clerk to “keep a correct record of [City Council] proceedings”, and indeed, minutes and/or recordings** are produced and posted online for regular open session meetings.  This does not appear to be the case, however, with respect to open/closed meetings.  For example, there are no minutes for the Dec. 13th, 2010 open/closed session, even though a number of people (including myself) attended and made public comments at that meeting.

So basically we have a situation in which the City Council seems to 1) be holding public meetings without alerting the public about it, 2) not including all items to be discussed in the agenda and 3) not keeping minutes of those meetings – all in violation of state law.

There is yet another serious way in which the City violates the Brown Act:

The City Council Fails to Disclose the Subject of Anticipated Litigation

The Brown Act allows the City Council to meet in closed session to discuss exposures to litigation against the City.  However, the law also provides that the closed session agenda must describe the “facts and circumstances” which have exposed the City to litigation, except when such facts are not known to the potential plaintiff.  A quick look through a sample of City Council agendas from 1998 on suggests that those facts and circumstances are never disclosed, even in cases where it’s very clear that the potential plaintiff is quite aware of what those facts are (e.g. the murder of Gwendolyn Killings and the disagreement with Dan Dillman about the use of the Bal Theatre).

The disclosure of this information is very important for the public as it allows San Leandrans to keep a closer tab on how the City is fulfilling its legal obligations towards the community.  A plethora of circumstances that make litigation against the Police Department likely, suggests that there are serious troubles with that institution.  The City Attorney’s judgement that the City may be sued for employment discrimination or Brown Act violations, will shine some light into what’s going on at City Hall.  Litigation is also very expensive, so it behooves the public to keep a close eye on what the City is doing to bring about lawsuits against it.

I find this pattern of violations of Open Meeting laws to be very disturbing.    I can only hope that they will be addressed immediately by our City Officials.  I will keep you posted of any response I receive.


* I sent my initial e-mail to Mayor Stephen Cassidy, City Council Members Michael Gregory, Ursula Reed, Diana Souza, Joyce Starosciak, Pauline Cutter and Jim Prola, City Attorney Jayne Williams, Community Relations Representative Kathy Ornelas and City Clerk Marian Handa.  Handa responded to that message, also copying City Manager Chris Zapata and Assistant City Manager Lianne Marshall.

** Minutes and/or audio from meetings from January 2011 on can be found at

Sep 072011

The San Leandro City Council is meeting tonight in closed session to discuss the appointment of a new City Manager.  At its July 5th meeting, the Council hired Teri Black & Company to conduct a broad search for a City Manager.  The search, which should start some time this month, will be open until October 16th.  According to the agenda for tonight’s meeting, the City Council will update the public on this search.

It’s not clear why the City Council is meeting in closed session before the public meeting.  Under the law, all meetings of the City Council must be public.  There are a few exceptions, one of which includes discussion on the appointment, discipline or dismissal of a public employee, but this section refers to specific persons.  This means that either the City Council is meeting to discuss the appointment of a specific person to this position, or that it will be violating the Brown Act.

Assuming that it’s the former, I can only speculate as to whom they will be considering.  As Black’s search has not started, it doesn’t seem likely that they will meet to discuss any new applicants for the position.  It’s possible that they’ll be discussing the past applicants – one, in particular, had impressed several members of the City Council, but he decided to take a job elsewhere.  It’s also possible that an internal applicant has suddenly appeared.  Neither the current interim City Manager, Lianne Marshall, or the Deputy City Manager, Jacqui Diaz, applied for the job back when it was opened in April.  However, it is possible that since then one of them has changed her mind.  Even if this is the case, I would hope that the City Council would continue the search (the firm has been hired and has put work on it, so we’ll have to pay them anyway) so as to assure that we get the best City Manager possible.

If, however, they are meeting in closed session to discuss something other than a specific individual that could be appointed to the City Manager position, this will be a  violation of the Brown Act and a sign of the City Council’s contempt for both the law and the citizenry, and they should be called on it.