Rights

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

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.

Time to clean up the San Leandro Police Department

 Time to clean up the San Leandro Police Department  Featured, Police  10 Responses »
Jun 132011
 

SLPD officers involved in fatal shooting identified.

Anthony Morgan and Ryan Gill have record of police brutality.

The arrest of San Leandro Police Officer Jason Fredriksson for furnishing marijuana to a confidential informant with whom he was having an affair has put the San Leandro Police Department (SLPD) in the spotlight. In its wake, there have been several allegations of misconduct by Fredriksson and other San Leandro police officers. The SLPD has responded with its usual wall of silence and the City Council continues to look the other way. It’s hard to know how deep the problems at the SLPD are, but it’s becoming more and more clear than the Fredriksson case may be the tip of the iceberg.

Gwendolyn Killings

In late December 2010, a San Leandro police officer shot to death Gwendolyn Killings, an African-American woman from Hayward. Killings was driving a car that had been reported stolen earlier in the day; SLPD officers spotted it and chased it until it crashed just after the Oakland border, near the San Leandro city limits. The passenger got out of the car and fled. The two officers got out of their own car;  one officer chased the escaping passenger while the other approached the stopped car. That officer shot and killed Killings while she was in the car. The police would later say that the officer was afraid Killings would put the car in reverse and hit his partner. However, witnesses said the car was boxed in and couldn’t go anywhere. The SLPD has not disputed that account. The case is being investigated by the Oakland police as the shooting happened in Oakland, but no report has been released so far.

The Oakland Police, however, have released documents identifying Ryan Gill and Anthony Morgan as the two SLPD officers involved in the incident. We don’t know at this point which officer shot Killings but both officers have a history of allegations of police misconduct that should concern anyone interested in having a clean police department.

San Leandro Police Officer Ryan Gill

Ryan Gill, 33, is an affable and well-liked officer. He was named San Leandro Officer of the year in April 2011 and is admired for his broad knowledge and as a mentor of younger officers. He started his police career in the Oakland Police Department and was there for 7 years – which casts doubts on how  objectively Oakland PD will investigate their former colleague. In 2003, Gill shot to death an unarmed man. Gill and his partner entered the apartment of the victim while he was sleeping, woke him up and claim they were trying to restraint him when he struggled and tried to get Gill’s gun. Both Gill and his partner shot him. The City of Oakland settled the ensuing lawsuit. In another lawsuit settled by Oakland, Gill was accused of beating a man while arresting him. In a third incident, Gill walked out of a review board conduct hearing where he was to be questioned about a charge of falsely arresting a teenager after his partner ram a car into him.

San Leandro Police Officer Anthony Morgan

Gill’s partner, Anthony Morgan, has spent less time in the press but probably just as much in the courtroom. A quick search of the district court’s database shows two recent lawsuits against Morgan for police brutality. One was settled, but the other one is still open.

Unfortunately, the Killings shooting has not been the only recent killing at the hands of San Leandro Police. In 2005, SLPD officers tasered a man to death; the city settled that lawsuit for nearly $400,000. And Morgan is far from being the only SLPD officer with a history of brutality. Tricia Hynes, the lawyer most often appointed by Meyers Nave to represent the city in litigation, boasts on her webpage of how – thanks to her representation – the City of San Leandro only had to pay a few hundred thousand dollars in damages to seven plaintiffs who were beaten by a dozen SLPD officers while searching a home during a 4th of July party. She is even prouder of another case in which the brutal beating of an unarmed man by SLPD officers only cost the city $20,000.

Gill was hired by then-Police Chief Dale Attarian, an old-style San Leandro cop during whose tenure the City was subjected to multiple lawsuits for civil rights violations, sexual harassment and discrimination and police brutality. Attarian was hired by former City Manager John Jermanis, himself a product of the old-all-white-boys network that ruled San Leandro for decades. Jermanis’ hand-picked successor, Steve Hollister, was a former policeman and did not keep a close eye on the SLPD. Under both men, SPLD officers learned that they could do as they pleased with almost no risk of consequences.

SLPD Chief Sandra Spagnoli

It’s a new day in town, however. Sandra Spagnoli was recently hired as Police Chief with the express purpose of reforming the department – at least ridding it of its culture of sexual harassment. It is too soon to know whether she’ll undertake real, rather than purely cosmetic reforms. So far the indications are mixed – Spagnoli investigated the allegations against Fredriksson, but only after an independent witness had contacted multiple authorities with his accusations. Spagnoli has done nothing to discipline the handler of a police dog that got loose and killed another dog earlier in the year – and Gill was named “officer of the year” after Spagnoli became Chief.

San Leandro needs more than a perhaps-well-intentioned Chief of Police to clean up the Police Department of any criminality or maverick behavior by its officers. It needs elected officials willing to tackle the issue of the police head on. This is hard, because politicians usually kowtow to the police union in order to get their support during elections – Council members Ursula Reed and Joyce Starosciak, in particular, have relied on heavy police support for their campaigns. Starosciak herself is married to an Alameda County Deputy Sheriff.   However, even the strongest police advocates should note that a department that allows criminal behavior and abuse by its members tarnishes both the city and the institution of the police itself.

The City of San Leandro needs to do two things to nip this problem in the bud. One is to appoint a strong City Manager with experience dealing with insubordinate Police Departments. The other is to form a Citizens Police Oversight Commission (aka Review Board) to evaluate complaints of police misconduct, help set hiring practices and discipline standards and act as a liaison with the community. Currently, the city of Oakland is considering following San Francisco in getting private citizens to investigate allegations of Police misconduct, we might want to look into that as well. While Police Officers are protected by an incredibly generous bill of rights, a Citizens Commission could at least identify systematic problems within the police department and push for their resolution.

The question is whether the City Council has the political will to push for a meaningful review of what’s really going on at the Police Department, or whether the powers-that-be in San Leandro will just hope that the community forgets about the recent incidents and pray that there are no big scandals during their term of office.

SLPD: Tell us about your experiences.

 SLPD: Tell us about your experiences.  Police  3 Responses »
May 232011
 

The San Leandro Police Department has had a checkered history.  Until the 1980s, the Police Department was instrumental in keeping San Leandro white by following and harassing black people who came to town.  While the Department diversified in the 90s, it’s still overwhelmingly white and male.  In recent years, it’s been the object of sexual harassment lawsuits both by female officers and private citizens.  While we haven’t had any widespread scandals, there have been grumblings here are and there about police misconduct and racism.  The shooting of an unarmed woman late last year and the mauling of a dog by an SLPD  dog – and the complete lack of accountability by the officers involved, also raise concerns about the professionalism of the Police Department.

Personally, my experiences with the SLPD have mostly been positive.  Officers have been professional and somewhat helpful in the few personal encounters I’ve had with them.  However, I am concerned about the pettiness of the Police Union and its members.  They’ve been boycotting the Zocalo Coffeehouse for more than a year because its owner, Tim Holmes, was the campaign manager for Stephen Cassidy’s successful Mayoral run.  Cassidy advocated for Officers to pay their own share of pension contributions.   The Police’s pettiness turned dangerous when they did not show up to direct traffic at the 2010 annual Safe Streets, Safe Treats Halloween event, organized by Holmes and other businesses in the Dutton/Bancroft area.   That meant that hundreds of children were left to cross two very busy streets without any help.  The Police had helped with traffic every year since the event was started, and had said they would be there last year as well.   It’s one thing to be mad at a business owner, but to put the lives of hundreds of children at risk because of your personal grudge is unconscionable.   I’ve recently experienced the Police Union’s lack of professionalism myself. When I publicly questioned the excuse given by Police officers as to why most of them do not live in town, Mike Sobek, the head of the union, “suggested” I move out of town.

But my limited experiences, or the few accounts of such experiences found online, paint a very partial picture.  I’d like to hear from all readers about their experiences, whether bad or good, professional or unprofessional – as well as their suggestions as to what could be done to improve the SLPD.  So, if you have something to say, post it as a comment.  You can do so anonymously if you like.

San Leandro gears up for Constitutional fight.

 San Leandro gears up for Constitutional fight.  Faith Fellowship v. SL case, Religion  2 Responses »
May 072011
 

Hires premier anti-RLUIPA advocate to argue for its unconstitutionality

I was sad, if not surprised, to read that the San Leandro City Council voted 5-2 (with Mayor Cassidy & Councilwoman Cutter in the minority) to appeal the 9th circuit Faith Fellowship decision to the US Supreme Court.   That’s exactly what I predicted Meyers Nave, the City’s law firm, would push the City Council to do.  I was tickled, however, to read that they’ve engaged Cardozo Law Professor Marci A. Hamilton to represent them on this appeal.  Hamilton is not only the country’s most prominent critic of RLUIPA,  and of government accommodation of religion in general, but she’s a woman with a mission:  get the Supreme Court to declare RLUIPA unconstitutional.   San Leandro may just help her accomplish that goal.

The Faith Fellowship case has so far involved rather technical matters: what is the proper standard for “substantial burden” under RLUIPA.  Circuits courts have come to different conclusions as to what this entails, which allows the Supreme Court to take on the case.  However, the US Supreme Court has so far denied all cert petitions on RLUIPA land issues, most recently in January.  This is not surprising, finding a “substantial burden” test that would make the law both meaningful without being abusive in all circumstances is quite difficult, courts have gone back and forth on definitions as new situations arise.  The Supreme Court may find it prudent to wait until the dust is a bit more settled at the circuit court  level before it intervenes.

But I don’t believe that Professor Hamilton has any plans to appeal this case, other than nominally, on the proper definition of “substantial burden”.  Hamilton, indeed, has repeatedly said that RLUIPA allows religious institutions to do anything they want.  She’s suggested the statute be subtitled “A Bill to Permit Religious Landowners to Do Whatever They Want in Residential Neighborhoods and to Subsidize Lawyers for Religious Landowners with an Attorney’s Fee Provision”.   A narrow “substantial burden” definition would not fit neatly with her description of RLUIPA as a “circus“.

Hamilton, I suspect, will use this opportunity to lounge a full front attack on the constitutionality of RLUIPA, most likely on federalist grounds (i.e. that the federal government doesn’t have the right to tell municipalities how to regulate land use).  She’s well suited for the task.  In 1997 she represented the City of Boerne in the landmark Supreme Court case that overturned the Religious Freedom Restoration Act vis a vis state and local governments.  While Congress created RLUIPA mindful of the Boerne case, and every single circuit court that has looked at the constitutionality question has upheld it, Hamilton is hopeful that the more conservative members of the court will side with her.  My guess is that if the Supreme Court does take this case it will do so to tackle the constitutional question.  The fact that Hamilton will be the one arguing the case, may indeed make it more likely that they’ll take it.  The odds are still quite slim, however.

If the Supreme Court does take the case, Hamilton won’t just be facing the able lawyers from the Pacific Justice Institute (PJI).  The US Justice Department will most likely intervene to defend the constitutionality of the law.

Even if the Supreme Court finds that the “strict scrutiny” provisions of RLUIPA are unconstitutional, the Supreme Court (or lower courts, if the Supreme Court remands the case) will still have to consider the question of whether the City of San Leandro violated Faith Fellowship’s constitutional rights to freedom expression and religious exercise and its constitutional and statutory right to equal protection of the laws.  The latter claims come about because San Leandro allows “commercial entertainment” uses in the industrial area but not “assembly” uses.  The 9th circuit didn’t address this issue, but left it open for future litigation.

Personally, I continue to believe that appealing this case to the Supreme Court is a costly mistake.  If the Supreme Court takes the case, it’s very unlikely that it will rule for the city on all grounds without remanding any to a lower court.  If it does remand the case, that would mean further litigation and much more money spent on attorneys’ fees.  We are a poor city that has had to cut libraries, recreational activities and most social services – we can’t afford to be handing money to lawyers for no good reason.

The prudent thing for San Leandro to do is to work to settle this case, preferably in the next 6 months before the Supreme Court either rejects it or takes it on.

Update 5/8/11

I e-mailed Prof. Hamilton and asked her why she took the case.  Here is her answer:

“I took this case, because it meets the typical criteria that interest the Supreme Court: the relevant issues have been percolating for a significant period of time, the courts are split on the proper interpretation of the key terms, and the issues were directly addressed by the appellate court.  It is time for the Court to take up one or more RLUIPA land use issues.

 Also–the Ninth Circuit’s interpretation in this case is an extreme interpretation that unfairly favors religious land owners and, therefore, is a good case to take up to the Supreme Court.”

Marci Hamilton on the Daily Show

Marci A. Hamilton on Flaws of Religious Land Use Law

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