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Wednesday, March 20, 2013

City Attorney Says Council Members Did Not Violate State Brown Act

• Interpretation Hinges on Who Knew What When and Policy Being Established without Public Notice

BY BILL KOENEKER

Malibu City Attorney Christi Hogin is recommending the city council at its meeting next week, “decline to cure or correct in response to Malibu Township Council’s allegation of Brown Act violation and direct the response letter to be sent to the MTC after the mayor executes it.”
The Malibu Township Council, the oldest civic group in the city, issued a formal demand citing violations of the Brown Act, asking the city council to nullify its action on Jan. 14 directing the city attorney to negotiate a swap of Charmlee Wilderness Park for the 83 acres of Malibu Bluffs Park currently owned by the state.
The demand, in a form of a letter to the city clerk, is the first step in MTC filing a lawsuit for a judicial determination that the council’s actions setting in motion the land swap were taken in violation of the Brown Act’s open meeting requirement.
“I watched the video of the Jan. 14, 2013 meeting, reviewed the minutes from the meeting and considered carefully the arguments and information presented by MTC. After careful examination, I conclude that no violation of the Brown Act occurred,” wrote Hogin in her staff report.
The MTC letter, written by attorney Frank Angel, who represents the group, alleges that Councilmember John Sibert is the pivotal member in the Brown Act allegations.
The Angel letter quotes Sibert as saying, “I did find out before Christmas that there was a meeting to discuss the swap.”
“Finding out about a meeting to discuss the proposed parkland swap is the same as finding out about the proposed swap itself. Especially considering that the swap proposal was put forth by Mayor Lou La Monte and Councilwoman [Joan] House, acquiring knowledge of a meeting to discuss their proposal and acquiring knowledge of their positions,” wrote Angel in the letter.
“MTC is incorrect. The Brown Act does not prohibit two council members from developing a proposal to present to the city council at an open and public meeting and the Brown Act is not violated when other councilmembers become aware that the agenda item is being prepared for an upcoming meeting,” responded Hogin.
Angel noted that because three council members form a majority of the five-member council, Sibert’s acquiring knowledge before Christmas of the meeting at which the swap was discussed violates the Brown Act.
Hogin responded. “These facts are both true and do not constitute a violation of the Brown Act. MTC’s novel theory is that the Brown Act is violated once a third councilmember ‘acquires knowledge’ about a pending matter of city business if two other councilmembers are also aware of the item,” the city attorney countered. “The Brown Act is simply not aimed at regulating thought at that level. The purpose of the Brown Act is to have the city council conduct its deliberations and take its actions openly. It does not take much scrutiny to reveal the absurdity of MTC’s position: MTC claims that a majority of councilmembers cannot ‘know facts’ about an item before it is discussed at an open and public meeting.”
Hogin goes on to say that the Brown Act prohibits council members from discussing items that are not posted on the agenda of the meeting. Because the council members must receive the agenda in advance, all council members will have “acquired information” about agenda items before they are discussed at meetings.
“MTC does not even suggest that councilmember [John] Sibert discussed the matter with another Councilmember outside the meeting. And he did not. He said he did not at the January 14, 2013 meeting.,” the city attorney stated.
“In addition, as MTC points out, the Santa Monica Mountains Conservancy staff had produced comments on the proposal. Possession of this information was not a violation of the Brown Act. It was a necessary step toward being prepared to deliberate at the open and public city council meeting at which this item would be discussed.”
The city attorney also commented on MTC’s concern over “nonpublic fact finding’ saying it finds no footing in the Brown Act, insisting every staff report for every item on every city council agenda at every open and public meeting “since the city incorporated reflects ‘nonpublic fact finding.’”
“That is what the staff report does; It gathers information outside the public meeting and reduces it to writing for presentation to the council at a properly noticed city council meeting,” added Hogin.
“Not withstanding MTC’s attempts to paint a nefarious gloss on the events, MTC presents no facts—and none exist—to support its baseless accusation. This was one perfectly valid approach: see if the SMMC staff was receptive to the idea before asking the city council if it was interested, In preparing the proposal for presentation to the city council, the city manager and the city attorney are well within their Malibu City Attorney Christi Hogin is recommending the city council at its meeting next week, “decline to cure or correct in response to Malibu Township Council’s allegation of Brown Act violation and direct the response letter to be sent to the MTC after the mayor executes it.”
The Malibu Township Council, the oldest civic group in the city, issued a formal demand citing violations of the Brown Act, asking the city council to nullify its action on Jan. 14 directing the city attorney to negotiate a swap of Charmlee Wilderness Park for the 83 acres of Malibu Bluffs Park currently owned by the state.
The demand, in a form of a letter to the city clerk, is the first step in MTC filing a lawsuit for a judicial determination that the council’s actions setting in motion the land swap were taken in violation of the Brown Act’s open meeting requirement.
“I watched the video of the Jan. 14, 2013 meeting, reviewed the minutes from the meeting and considered carefully the arguments and information presented by MTC. After careful examination, I conclude that no violation of the Brown Act occurred,” wrote Hogin in her staff report.
The MTC letter, written by attorney Frank Angel, who represents the group, alleges that Councilmember John Sibert is the pivotal member in the Brown Act allegations.
The Angel letter quotes Sibert as saying, “I did find out before Christmas that there was a meeting to discuss the swap.”
“Finding out about a meeting to discuss the proposed parkland swap is the same as finding out about the proposed swap itself. Especially considering that the swap proposal was put forth by Mayor Lou La Monte and Councilwoman [Joan] House, acquiring knowledge of a meeting to discuss their proposal and acquiring knowledge of their positions,” wrote Angel in the letter.
“MTC is incorrect. The Brown Act does not prohibit two council members from developing a proposal to present to the city council at an open and public meeting and the Brown Act is not violated when other councilmembers become aware that the agenda item is being prepared for an upcoming meeting,” responded Hogin.
Angel noted that because three council members form a majority of the five-member council, Sibert’s acquiring knowledge before Christmas of the meeting at which the swap was discussed violates the Brown Act.
Hogin responded. “These facts are both true and do not constitute a violation of the Brown Act. MTC’s novel theory is that the Brown Act is violated once a third councilmember ‘acquires knowledge’ about a pending matter of city business if two other councilmembers are also aware of the item,” the city attorney countered. “The Brown Act is simply not aimed at regulating thought at that level. The purpose of the Brown Act is to have the city council conduct its deliberations and take its actions openly. It does not take much scrutiny to reveal the absurdity of MTC’s position: MTC claims that a majority of councilmembers cannot ‘know facts’ about an item before it is discussed at an open and public meeting.”
Hogin goes on to say that the Brown Act prohibits council members from discussing items that are not posted on the agenda of the meeting. Because the council members must receive the agenda in advance, all council members will have “acquired information” about agenda items before they are discussed at meetings.
“MTC does not even suggest that councilmember [John] Sibert discussed the matter with another Councilmember outside the meeting. And he did not. He said he did not at the January 14, 2013 meeting.,” the city attorney stated.
“In addition, as MTC points out, the Santa Monica Mountains Conservancy staff had produced comments on the proposal. Possession of this information was not a violation of the Brown Act. It was a necessary step toward being prepared to deliberate at the open and public city council meeting at which this item would be discussed.”
The city attorney also commented on MTC’s concern over “nonpublic fact finding’ saying it finds no footing in the Brown Act, insisting every staff report for every item on every city council agenda at every open and public meeting “since the city incorporated reflects ‘nonpublic fact finding.’”
“That is what the staff report does; It gathers information outside the public meeting and reduces it to writing for presentation to the council at a properly noticed city council meeting,” added Hogin.
“Not withstanding MTC’s attempts to paint a nefarious gloss on the events, MTC presents no facts—and none exist—to support its baseless accusation. This was one perfectly valid approach: see if the SMMC staff was receptive to the idea before asking the city council if it was interested, In preparing the proposal for presentation to the city council, the city manager and the city attorney are well within their authority to make whatever inquiries and hammer out whatever details their respective professional judgment suggests is warranted,” the city attorney opined.
Hogin noted that MTC claims that the city council initiated negotiations over the land swap largely based on MTC’s speculation that neither the city manager nor the city attorney would devote time to any matter without it being given direction by a majority of the city council. “This assumption may be based on a lack of understanding about the fundamental roles of the various public officials in the city manager form of government. Suffice it to say that MTC is incorrect that such council direction was required for the city officials to undertake the initiatives they did prior to the January 14, 2013 meeting.
“Finally, MTC holds out as proof of a secret pre-meeting agreement the fact that the mayor boldly suggested that additional  ball fields were a primary motivator of interest in the land swap. If MTC thinks that the city’s belief that it lacks adequate playing fields first arose in secret meetings over Christmas, MTC has fallen out of touch with the community. Providing more playing fields is a long-standing priority of the city. When the mayor asserts that acquisition of the state’s portion of Bluffs Park is attractive if the city has the potential to install additional ball fields, he speaks not just for the current council, but echoes the sentiment of council after council before him and numerous members of the community.”

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