City Council

San Leandro City Council Systematically Violates Open Meeting Laws

 San Leandro City Council Systematically Violates Open Meeting Laws  City Hall, Legal, Transparency  3 Responses »
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 http://www.sanleandro.org/depts/cityhall/council/audio/audiostream.asp

Benny Lee to run for City Council

 Benny Lee to run for City Council  Short Notes  No Responses »
Jan 272012
 

Benny Lee has announced he will be running for the City Council, District 4 seat being vacated by Joyce Starosciak.  Lee is the president of the ) Heron Bay Home Owners Association and the Asian Community Cultural Association of San Leandro.  He is currently in the City’s Personnel Relations Board and is a former Parks & Recs Commissioner.

Lee was a supporter of former Mayor Tony Santos.  He opposes Rank Choice Voting and medical marijuana dispensaries.  I’m sure we’ll learn more about his positions as the campaign progresses.

Is Wal-Mart coming to Downtown San Leandro?

 Is Wal-Mart coming to Downtown San Leandro?  Businesses, City Hall, Featured  3 Responses »
Jan 062012
 

Despite community opposition, the San Leandro City Council is set to approve the development of the old-Albertson’s property downtown into yet another strip mall, euphemistically dubbed “Village Marketplace“.  The anchor of the mall, occupying slightly less than half the total space, is supposed to be a branch of the “Fresh & Easy” grocery stores – but it’s just as likely that it will actually be a Wal-Mart, San Leandro’s third.

Fresh & Easy is a chain of small grocery stores, mostly located in California.  It was started in 2007 by British supermarket giant Tesco as a daring attempt to break into the American grocery market.  They modeled it after their own successful grocery stores back in England, offering assorted dry goods, packaged fresh vegetables and meats while emphasizing  frozen and refrigerated prepared meals and private labels.  They save costs by only using self-checkouts and running bare-bone stores.

So far, Fresh & Easy is not doing well.  In the four years since it opened it has lost $1.1 billion, while sucking up $1.5 billion in capital.  Fresh & Easy now recognizes it failed by attempting to impose the UK model onto the US market and it’s starting to revamp its stores to make them more appealing to American tastes.  It’s putting homey touches on the clinical decor, adding bakeries and loose produce and introducing loyalty cards.   But all of this ads cost while providing uncertain results and Fresh & Easy is running out of time.  Tesco’s brand-new CEO has suggested that Fresh & Easy must break even by the the beginnings 0f 2013, analysts believe if it doesn’t, Tesco will cut their losses.  It won’t be the first time; in August Tesco pulled out of Japan, closing its 129 stores.

So what happens if Fresh & Easy closes?   The Financial Time suggests that Walmart may pick up its crumbs.  Indeed, Walmart has been posing to compete with Fresh & Easy for a while.  Currently, it is pushing its Neighborhood Store concept in the Bay Area, but it’s also starting a new chain of even smaller stores dubbed Wal-Mart Express.  This stores are set to copy and provide competition to the very profitable dollar stores that have popped out throughout the country.  Walmart plans to open hundreds of these stores in the coming years, acquiring existing retailers to speed up the process.  While Wamart’s fortunes have also been declining, it has the knowledge of the US market and the buying power to succeed where Tesco has failed.  Village Marketplace’s developer, David Irmer, has previously spoken on the difficulties of finding tenants for the development, so it’s unlikely that Walmart will have much in the way of competition if it decides to move to that space.

It’s also unlikely there would be anything City Hall could do.  Once the city sells the property to Irmer (for half of what it paid for it in 2009), it will be up to Irmer to decide who he rents it to.  In the past, the City was able to use the Transit Oriented Development plan to keep Grocery Outlet out of the location, but once it permits Fresh & Easy to operate a grocery store on that property, it will need to allow any other company to do the same.  This is exactly what happened when Wal-Mart decided to open a second San Leandro store at the former Target property on Hesperian Blvd.

I can only hope that City Council members will take the issue of whether this is how they want Downtown San Leandro to develop.

 

The search for City Manager continues, but will it be transparent?

 The search for City Manager continues, but will it be transparent?  City Hall, Legal, Transparency  No Responses »
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.

Hiding in Plain Sight: How the SL City Council Circumvents the Brown Act

 Hiding in Plain Sight: How the SL City Council Circumvents the Brown Act  City Hall, Transparency  3 Responses »
Jun 302011
 

Americans generally believe in open government.  We give our democratically-elected federal, state and local governments enormous authority over our lives and pay for the privilege with a substantial percentage of our earnings, the least we want in return is to know what the government is up to.  To that end, both the federal and state governments have passed “open government” laws that require open meetings and the release of public information.    In California, the Brown Act regulates how government meetings can be held, while the California Public Records Act (CPRA) provides for access to public records.

Local politicians and city employees are not particularly fond of these laws.  They limit the deals they can do behind the scenes and make them more accountable to the public – at least in communities where there is a functioning press keeping tabs on local government.  While San Leandro is not one of those communities – the Daily Review doesn’t even have a journalist assign to our city, and neither the San Leandro Times or San Leandro Patch do any investigative journalism -, it does have a few independent bloggers as well as concerned citizens that once in a while organize around a particular issue.  City officials, therefore, have an interest in trying to circumvent these open government laws that might expose their doings.

I have written before about how recently the City Council moved to pass a policy that would automatically destroy all their e-mails and how they have gotten rid of narrative minutes of city meetings.  Just as egregious, however, is a little known City Council policy of approving items without properly agendizing them – thus hiding their actions from the public.

According to the Brown Act, before any meeting the government body must  “post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting.”  The City Council, however, does not need to either discuss any item on the agenda or vote individually on those items.  Indeed, most meeting agendas include a “Consent Calendar” of items that the City Council will approve altogether and without discussion.  Any member of the City Council can “pull” an item from the consent calendar, for individual consideration, but members of the public cannot do so.  Members of the public can speak about any of the items in the Consent Calendar, but in order to do so, they must know what those items are.

The San Leandro City Council operates both as a full body and through standing committees.  These committees are usually composed of 3 City Council members are usually deal with concrete issues: rules, finance, facilities, relationship with the school district, etc.  In addition to the standing committees, the City Council occasionally creates ad-hoc committees to handle issues that come up, such as the hiring of a new city manager.  These committees are supposed to do the nitty-gritty work of the Council, read staff reports, discuss issues and decide upon them.  While these committees must publish agendas for their meetings and their meetings are open to the public, they mostly meet during the day when most people are at work and unable to attend, and therefore they seldom see any public participation.  City Council Committee members are therefore free to discuss and decide on issues without any public input.

The recommendations made by City Council Committees are supposed to be discussed and approved by the whole City Council before they become “law”.  They should be listed in the agenda as such, as required by the Brown Act.   They are not in San Leandro.  Rather, the City Council is asked to approve the minutes of the different committee meetings within the consent calendar, and by doing so, they approve their recommendation.   For example, let’s say that the Business & Housing Development Committee recommends increasing business fees by 1,000%, the agenda for the next City Council meeting should say: “Action: Approve increase of business fees by 1000%”.  What it would actually say  is: “Accept Business & Housing Development Committee minutes”.   When the City Council approves the minutes, it also approves the tax increase.  The public would have no clue as to what had just happened.

It’s not only the public that gets blindsided – new City Council members do as well, as they’re often not told of this policy until something comes up.   Indeed, due to complaints by a City Council member, more recent City Council agendas have been a bit more clear as to what the Council is voting to approve, actually listing the committees’ recommendations, but they still don’t make it clear that the Council is approving those recommendations when they approve the minutes.

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