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Wednesday, March 13, 2013

Civic Group Alleges Brown Act Violations Taint Parks Swap Process

• MTC Starts Legal Ball Rolling—One Council Member Has Been a Party to Every Municipal Transparency Issue

BY BILL KOENEKER

The Malibu Township Council, the oldest civic group in the coastal city, issued a formal demand to the city citing violations of the Brown Act and asking the city council to nullify its action on Jan. 14 directing the city attorney to negotiate a swap of city-owned Charmlee Wilderness Park for the 83 acres of Malibu Bluffs Park currently owned by the state.
The demand, in the 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.
City Attorney Christi Hogin was not immediately available for comment.
The law allows the city council 30 days to “cure and correct its violations” or inform MTC of its decision refusing to take action.
The letter, written by Frank Angel, who represents the MTC, alleges that Councilmember John Sibert is the pivotal member involved in one aspect of the Brown Act violations.
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 House, acquiring knowledge of a meeting to discuss their proposal entails acquiring knowledge of their positions,” wrote Angel in the letter.
The Malibu attorney 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.
Angel also alleges that Sibert received the SMMC executive director Joe Edmiston’s email outlining two separate meetings before the city council meeting date on Jan. 14.
“Thus he had acquired direct knowledge of not only who proposed the swap, but also the major deal points, as well as arguments for and against it. That too violates the Brown Act, regardless of whether prior to January 14, House, La Monte and Sibert had collectively committed to the swap or committed to voting,” Angel wrote.
The second half of the MTC letter focuses on why the top city officials would have met with SMMC officials on two separate occasions without council directive.
“Any suggestion that the go-ahead for the swap-related commitments of city resources that precede the January 14 council meeting lacked a collective concurrence of a majority of the council members would be incredulous in light of council policy,” Angel stated.
This is not the first time local city councils have been accused of violating the Brown Act. In at least one instance, judicial review found a previous council of violating the Brown Act.
In 2005, a settlement agreement between the City of Malibu and a developer was voided by the Second District Court of Appeal, which ruled the city council had violated the Brown Act, which does not permit cities to agree in advance to make zoning decisions that would ordinarily require public hearings.
The settlement agreement, made in a closed session, committed the city not to make zoning decisions that would block the proposed housing development planned for Trancas field and to exempt the project from density requirements.
The court ruled that the density exemption amounted to a variance that required administrative proceedings and findings for which the city did not provide. The city’s action required public proceedings. Because the city acted in closed session, it violated the state’s Brown Act law, the court opined.
City Attorney Christi Hogin was Malibu’s counsel at the time and House was a council member at the time.
In another case when the council was accused of Brown Act violations, the city won at the trial court level and on appeal. House and then Councilmember Jeff Jennings were accused of violating the Brown Act after the two council members held a number of private meetings with various individuals, constituents and city staff to “go over the city’s responses to the Coastal Commission draft Land Use Plan. Jennings and House did not invite the general public to their meetings.
At a regular council meeting, the two submitted to the council their recommendations on how Malibu should respond to the draft Land Use Plan.
The council did not adopt the recommendations and instead directed the city staff, Jennings and House continue to “negotiate” the LUP with the Coastal Commission.
Week’s later, the appellants Taxpayers for Livable Communities and Jay Liebig, filed a petition against Malibu and its city council alleging the public’s exclusion from Jenning’s and House’s meetings violated the Brown Act and sought a temporary restraining order.
The lower court found the Brown Act did not apply to Jenning’s and House’s private meetings because Jennings and House were not a “legislative body.”
The appellate court found for Malibu saying the lower court resolved the conflicts in evidence against the appellants, when it found Jennings and House were not an “other body.”

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