HomeMy WebLinkAbout10 and IV.D - Response to Ralph M. Brown Act Allegation - CorrespondenceReceived After Agenda Printed
May 8, 2018
Item No. 10/Closed Session
May 8, 2018, Council Agenda Items IV.D and 10 Comments
The following comments on an item on the Newport Beach City Council agenda are submitted by:
Jim Mosher (iimmosher(c)yahoo.com ), 2210 Private Road, Newport Beach 92660 (949-548-6229)
Item N.D. CONFERENCE WITH LEGAL COUNSEL
According to the agenda, the City Attorney will be inviting the Council to discuss in closed
session, under the above heading, their response to the April 10 Brown Act violation letter from
Lauri Preedge, which is the subject of open session Item 10.
The staff report for the latter suggests the Council will be told that sending the letter suggested in
Item 10 will prevent the initiation of litigation against the City regarding the matter cited in the April
10 violation letter. I do not believe that is correct.
Please see my comment on Item 10, below
Item 10. Government Code Section 54960.2(c)(1) Response to Ralph
M. Brown Act Allegation by Lauri Preedge Servedon the City of
Newport Beach April 10, 2018
It is strange this item does not include a copy of the violation letter (see item IV.D, above) that it
purports to respond to.
The suggested response is even stranger, at least to me.
To clarify, the Brown Act contemplates two kinds of complaint letters.
"Cease and desist" demands are requests for the Council to not repeat (in the future)
something similar to a questionable past action. They are filed pursuant to Gov. Code Sec.
54960.2.
"Cure or correct" letters are demands to set aside and nullify an improper past action. They
are filed pursuant to Gov. Code Sec. 54960.1.
The two are not the same, and the response to the two is not the same, although in both cases
litigation against the city is not possible without a complaint letter seeking non -judicial resolution
and the city's response (or non -response) to it.
As explained on page 16 of the 29 page PDF of the presentation by Thomas B. Brown and
Stephen A. McEwen presentation at the League of California Cities' May 2017 Spring
Conference, a city attorney's first task would normally be to decide which kind of letter was
received (and possibly trap the unwary complainant by observing they had citied the wrong
section).
In this case, Ms. Preedge has clearly and repeatedly cited the correct section of the Brown Act for
her "cure or correct" demand, but the City Attorney is inexplicably asking the Council to provide
the response to a "cease and desist" letter -- even though none was ever received.
The result is somewhat comical, considering everything in the proposed letter (Attachment A to
the staff report), other than the quoted paragraph, is boilerplate required by the inapplicable Gov.
Code Sec. 54960.2(c)(1). Without the Council's having access to a time machine, it is difficult to
find much substance to a promise for a certain cast of characters not to return — Ground Hog Day
May 8, 2018, City Council Agenda Items IV.D & 10 Comments -Jim Mosher Page 2 of 3
like --to March 27, 2018, at some date in the future. Or how not doing it again will correct what
was done.
More importantly, since Attachment A is from a section of the Government Code unrelated to the
section under with the complaint letter was filed, it is hard to see how it does anything toward
preventing future litigation. It is, in my opinion, simply inappropriate.
Although Ms. Preedge's letter is not totally clear that it is demanding the cure of a violation of
Section 54953 (that is, an action taken by a majority of the Council without a noticed meeting),
the correct city response to the Sec. 54960.1 letter that it is, is clearly detailed in Sec.
54960.1(c)(2). Namely, to avoid litigation the Council is supposed reply to the complaint with a
letter to Ms. Preedge explaining what it has done, or will do, to cure the alleged prior errors
(typically, by retracting the prior action and re -doing it publicly).
The fact that the response letter proposed in Item 10 is not the one contemplated by the Brown
Act is especially strange since I think the Council could successfully argue that any non -noticed
collusion alleged in Ms. Preedge's complaint letter was corrected by the public actions noticed in
the April 10 agenda: namely, the evaluation of the City Manager's performance by the full
Council in Item IV.A, the contract instructions in Item IV.B and the contact approval in Item 12
(albeit, after the same results had been obtained non -publicly).
That said, even in the absence of a proper response letter, I believe that if Ms. Preedge were to
proceed with her litigation it would be dismissed with prejudice per Gov. Code Sec. 54960.1(e),
because of the April 10 "cures" — but the absence of a proper response letter hardly helps the
City's case.
In addition, the fact that the Council is being asked, on May 8, to approve a letter dated April 24
(see heading under Attachment A) adds to the strangeness of this item.
However, I see no reason for the Council to agree to send this nonsensical and unsolicited
"cease and desist" response letter and believe they should instead explain to Ms. Preedge, in
writing, what was done to cure the problem she cites — although sadly, a Section 54960.1(c)(2)
response is not on the agenda.
As mentioned in my comment on Item IV.E on the present agenda, an example of a "cease and
desist" letter, and a proper response to one, can be found in the 2016 correspondence between
Ventura County District Attorney and the City of Port Hueneme (6:30 pm Item 8.A from their
March 21, 2016, agenda), over what can and cannot be discussed under the headings of "Public
Employment" and "Public Employee Appointment" on a closed session agenda.
The complainant is normally seeking a commitmentfrom the city to a particular interpretation of
the Brown Act, arguing going a bit beyond, in the interest of transparency, the bare minimum
clearly required by the statute.
In the Ventura case, the future relief sought (and granted) was a commitmentfor closed sessions
under those headings to be confined to discussion of actual employees or candidates for
appointment.
In the present case, although Ms. Preedge did not submit a "cease and desist" letter, her core
complaint seems to be that when individual City Council members privately discuss with a public
employee that employee's performance and retirement plans, once the employee hears the same
May 8, 2018, City Council Agenda Items IV.D & 10 Comments -Jim Mosher Page 3 of 3
message from four or more, it creates the impression a decision has been made outside of a
public meeting.
To prevent this in the future, the Council might be asked to cease and desistfrom something like:
"City Council members discussing, outside a properly noticed public meeting, the performance or
employment plans of the officials they appoint."
That would be a real commitmentto transparency, and one that would not materially impede the
functioning of government, since Section 54957(b) of the Brown Act provides the full Council with
the opportunity to discuss those matters with its appointees. And that is the proper venue for such
discussion. Speaking about these matters individually is not only unnecessary, but, as we have
seen, creates unwelcome divisions in the Council, with some members feeling both they have
been left out of the discussion and that the members speaking to the appointee are not speaking
for them.
Received After Agenda Printec
May 8, 2018
Item No. Closed Session
From: gary belt <garywbelt@gmail.com>
Sent: Monday, May 07, 2018 5:13 PM
To: Dept - City Council
Subject: City manager qualifications
As a community resident there are two areas that are important in selection of city manager;
1 This person should be good at communications with public. That means being an advocate for the public and not
special interests.
2. This person should be a manager who practices zero base budgeting.
A special thank you to Dave Kiff who in my mind met those two priorities.
Sent from my Whone
Received After Agenda Printed
May 8, 2018
Item No. Closed Session
From: Susan Skinner <susanskinner949@gmai1.com>
Sent: Tuesday, May 08, 2018 6:03 AM
To: Dept - City Council; Harp, Aaron; Brown, Leilani; jimmosher@yahoo.com; phil greer
Subject: Closed session items
To all:
I communicated with Aaron Sunday about items in the closed session and did not receive a satisfactory answer.
I believe that your lack of information about item A, "pending litigation", violates the Brown Act, which
requires a description of an item being discussed. As it stands now, I can't tell if this is the DA preparing to
charge the Gang of 4 for a prior Brown Act violation or discussion about another matter, but I would like to
know. The lack of any identifying information is contrary to the requirements of the Brown Act as I read them.
I would like to second Jim Mosher's wonderfully detailed letter regarding item E, "Public Employee
Appointment, City Manager." As was previously pointed out to you, a general discussion of the next City
Manager or a discussion of the process to hire this person is a clear violation of the Brown Act. This type of
discussion is not only required by law to be held in an open forum, but you also committed that the process
would be fully transparent. A discussion behind closed doors is not transparency.
Thus, I conclude that this agenda item is in regard to replacing Mr. Kiff and have notified as many people as
possible of my concern. I remain horrified by your actions, as does much of the city. I would encourage you to
keep Mr. Kiff until August, as originally planned.
Susan Skinner
Received After Agenda Printed
May 8, 2018
Item No. Closed Session
From: Susan Eaton <seaton727@earthlink.net>
Sent: Tuesday, May 08, 2018 4:43 AM
To: Dept - City Council
Subject: City Manager
As if it wasn't bad enough that Newport Beach is losing a City Manager, Dave Kiff, who has done so much
good for the City and kept its citizens aware of developments in different very important areas like the airport.
He is someone I hate to see reach retirement time at all. I was at the City Council meeting when it was
discussed who would be handling the recruitment for a new city manager. I absolutely couldn't believe my ears
when the council voted to have the City Clerk oversee this - when she answered that she had never done this
work before. It had Always been done by HR in the past. Then, we learned that the HR wasn't directly tied to
the council whereas the City Clerk was. I couldn't believe my ears in hearing that the majority city council
members were obviously taking on this task that isn't in their professional training or experience. Now, boom
within a month, the council is apparently (from the agenda) going to appoint a new manager in a closed setting.
I can't believe that a city council could operate like this in the city of Newport Beach with an intelligent
citizens. Apparently, you on the City Council who have instigated and implemented this highly suspect tactic,
have your head in a hole to think that you can do whatever you like to achieve your goals. This is beyond
absurd!
Susan Eaton, 40+ year resident of Newport Beach
3350 Park Newport Apt. 104
Newport Beach, CA 92660
Received After Agenda Printed
May 8, 2018
Item No. Closed Session
From: Jim Mosher <jimmosher@yahoo.com>
Sent: Tuesday, May 08, 2018 8:06 AM
To: Harp, Aaron; Brown, Leilani; phil greer; Susan Skinner
Cc: Dept - City Council
Subject: Re: Closed session Item IV.A
Susan,
FYI, Item IV.A ("Anticipated litigation" -- without specifying what is anticipated) can be a legitimate
closed session subject under Government Code § 54956.9(d)(2) ... (e)(1), as listed, but I believe the
heading has been much over -used, in recent years, in Newport Beach, and it's one I've often
complained about.
Normally, and in most cities, and in Newport Beach in some past years, an "Anticipated Litigation"
notice would be accompanied by a description of the subject of the litigation that is anticipated.
The non -disclosure of the subject -- the "(e)(1)" part -- is supposed to be used only in the rare
circumstance where the City has done something for which they could be liable, but the injured
party doesn't yet know about it and revealing the problem at this point might damage the City's
ultimate position.
An example I've heard is of City staff knowing there is a sink hole developing under a home caused
by a faulty City water main but having not yet told the homeowner, and seeking guidance on how to
handle the situation.
I suppose it could also be used if the Council knew they'd held an illegal meeting which the public
didn't know about, and were seeking advice on what to do about it, the unknowing injured party in that
case being the public.
An example of the apparent misuse of this heading in Newport Beach in the past would be the
closed session discussion one has to assume took place last year to avoid litigation from CW Driver
and settle the dispute with them over the Civic Center audit. I am guessing -- but only guessing -- it
took place under this agenda heading. But if it did, it's use would clearly have been inappropriate
because CW Driver was fully aware of the matter under discussion. The only person shielded from
knowledge of the topic was the public.
In the present case, we have no idea if the open meeting exemption heading is being used
legitimately, or not. All we can do is trust -- with a trust that is eroded, a little more, each time a
heading like this appears on an agenda.
-- Jim Mosher
On Tuesday, May 8, 2018 06:02:45 AM, Susan Skinner <susanskinner949@gmail.com> wrote:
To all
I communicated with Aaron Sunday about items in the closed session and did not receive a satisfactory answer
I believe that your lack of information about item A, "pending litigation", violates the Brown Act, which requires a
description of an item being discussed. As it stands now, I can't tell if this is the DA preparing to charge the Gang of 4 for
a prior Brown Act violation or discussion about another matter, but I would like to know. The lack of any identifying
information is contrary to the requirements of the Brown Act as I read them.
I would like to second Jim Mosher's wonderfully detailed letter regarding item E, "Public Employee Appointment, City
Manager." As was previously pointed out to you, a general discussion of the next City Manager or a discussion of the
process to hire this person is a clear violation of the Brown Act. This type of discussion is not only required by law to be
held in an open forum, but you also committed that the process would be fully transparent. A discussion behind closed
doors is not transparency.
Thus, I conclude that this agenda item is in regard to replacing Mr. Kiff and have notified as many people as possible of
my concern. I remain horrified by your actions, as does much of the city. I would encourage you to keep Mr. Kiff until
August, as originally planned.
Susan Skinner
Received After Agenda Printed
April 10, 2018
Item No. 12
April 10, 2098
Mayor Duffield
Members of City Council
City of Newport Beach
Dear members of City Council,
This letter is to call your attention to what I believe is a substantial violation of a central
provision of the Ralph M. Brown Act, one which may jeopardize the finality of the action
taken by Newport Beach City Council. .
The nature of the violation is as follows: In its meeting of March 27, 2018, four members of
the Newport Beach City Council conspired to, and did, take action to terminate the
employment of City Manager Dave Kiff by acknowledging an alleged request by Mr. Kiff,
apparently made under duress and threat of termination without cause, to have his current
employment renegotiated and prematurely concluded.
The action taken was not in compliance with the Brown Act because it occurred as the
culmination of discussions over a period of weeks by a majority of the city council members
in private, either directly or through intermediaries. The Act does not allow for this type of
clandestine activity, either in closed session or outside of a properly scheduled meeting.
There was no adequate notice to the public on the posed agenda for that meeting that the
matter acted upon would be discussed and there was no finding of fact made by the
Newport Beach City Council that urgent action was necessary on a matter unforeseen at
the time the agenda was posted. In violation of the Act, the matter was premediated,
preapproved and choregraphed.
I call your attention to California Government Code Section 54952.6, which defines "action
taken" for the purposes of the Act as "a collective decision made by a majority of the
members of a legislative body, a collective commitment or promise by a majority of the
members of a legislative body prior to an open meeting) to make a positive or negative
decision, or an actual vote by a majority of the members of a legislative body when sitting
as a body or entity, upon a motion, proposal, resolution, order or ordinance."
As you are aware, the Brown Act creates specific agenda obligations for notifying the public
with a "brief description" of each item to be discussed or acted upon, and also creates a
legal remedy for illegally taken actions—namely, the judicial invalidation of them upon
proper findings of fact and conclusions of law.
Pursuant to that provision (Government Code Section 54960. 1), 1 demand that the Newport
Beach City Council cure and correct the illegally taken action as follows: immediately
terminate any and all contract negotiations, discussions or approvals regarding the
negotiation of Dave Kiffs contract as City Manager, provide a public meeting to discuss the
circumstances and reasons for the forced resignation of Dave Kiff; identify the parties
involved in any and all discussions regarding the forced resignation of Dave Kiff prior to the
March 27, 2018 City Council meeting and charge the City Attorney, pursuant to the Newport
Beach Municipal Code, to immediately initiate an investigation into the allegations of
violations of the Brown Act and the forced resignation of David Kiff.
As provided by Section 54960. 1, you have 30 days from the receipt of this demand to either
cure or correct the challenged action or inform me of your decision not to do so. if you fail to
cure or correct as demanded, such inaction may leave me no recourse but to seek a judicial
invalidation of the challenged action pursuant to Section 54960. 1, in which case I would
also ask the court to order you to pay my seek court costs and reasonable attorney fees in
this matter, pursuant to Section 54960.5.
spectfully yours,
auri Preedge
Lpreedge(dQgmail. com
949.413.1307