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Wednesday, March 27, 2013

City Council Says MTC Allegations of Brown Act Violations Founder

• Self-Appointed Political Watchdog Organization Indicates Court Action May Follow Verbal Challenge

BY BILL KOENEKER

Malibu attorney Frank Angel, representing the Malibu Township Council—the community’s six-decades-old civic group, asked the Malibu City Council Monday night to cure what he called were violations of the Brown Act by “pushing the reset button.”
“We urge you to do the right thing tonight and take corrective measures we recommended in our Brown Act demand letter. Start anew on a clean legal slate,” he said. “If you do take a correction, there is no admission of a [violation].”
However, City Attorney Christi Hogin, in her staff report had recommended the city council, “decline to cure or correct in response to MTC’s allegations of Brown Act violations and direct a response letter to be sent to MTC after the mayor executes it.”
The Malibu Township Council, the oldest civic group in the coastal 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.
Angel said his client has directed him to file for judicial review as soon as he receives the letter from the city.
Monday night, after Angel had made his presentation, Hogin tersely replied, “I listened carefully to what Mr. Angel said, and I have not changed my recommendation.”
The city on Tuesday issued a press release that quoted Mayor Lou La Monte, who was not at Monday night’s meeting and is out-of-town as saying, “Frank Angel was way off base. The Brown Act does not prohibit two council members from exploring ideas and developing proposals to take to the whole council at a regular meeting.”
However, that clashes with SMMC executive director Joe Edmiston’s assertion that those meetings produced a “deal” before the full council ever met. The press release goes on to say the accusation of Brown Action violations are “baseless.”
Another line in the press release reveals what MTC members are calling “Christi Hogin’s Secret Memo.”
“The facts show that the city council was briefed in writing by the city attorney and that a staff report was released to the public well in advance of the Jan. 14, 2013 meeting. Because the Brown Act does not prohibit staff briefings or council members acquiring knowledge about an upcoming agenda item, the city council concluded last not [sic]  the MTC accusations are without merit.”
The MTC wants to see that memo that might figure into upcoming judicial review of the matter.
Council members voted 4-0, with Mayor Lou La Monte absent, to decline to cure or correct in response to MTC allegations. The majority of the council remained tightlipped and made no comments on the proceedings.
Councilmember John Sibert said, “We were notified by the city attorney prior to Christmas that there had been a meeting and what was discussed. Other than that, I spoke to no one else about it, the staff or other city council members. Certainly not to Mayor La Monte or Mayor Pro Tem House.”
In her staff report, Hogin had said, “After reviewing the tape of the Jan. 14 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.
Angel said the city attorney has reacted with “strong words, but not strong arguments,” to the cure and correct demand. “Just because the city council discussed the parkland swap and took a vote on Jan. 14 in an open meeting does not magically wipe out earlier official business transacted in secret,”
“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 council members become aware that the agenda item is being prepared for an upcoming meeting,” responded Hogin.
Angel countered Monday night, “While the Brown Act does obviously not prevent a quorum or a majority of council members to know facts about an item before it is discussed at a public meeting,
contrary to he city attorney, the Brown Act expressly prohibits her or for that matter, any other staff members from conveying to other council members, in this case, to the three council members who did not themselves meet Mr Edmiston to negotiate on behalf of the city 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 council members are also aware of the item,” the city attorney said. “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,” Hogan noted.
Angel replied, “The city attorney confuses reasonable inferences of a collective concurrence by a majority of the council members to place the swap on a future council agenda or of an agreement to agree to move in the direction of the swap, as she puts it, ‘rank speculation…divorced from fact’ of conduct violative of the open meeting law.  For a court, a reasonable inference of conduct that constitutes a Brown Act violation is evidence of a Brown Act violation. Reasonable inferences are based on relevant facts, often referred to as ‘telling’ facts.”

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