HomeMy WebLinkAbout00 - Closed Session - CorrespondenceReceived After Agenda Printed
May 28, 2019
Closed Session Item
Subject: FW: Closed session discussion of my cure and correct letter on 5/28/19
From: Susan Skinner <seskinner@me.com>
Sent: Monday, May 27, 2019 10:09 PM
To: Dept - City Council<CityCouncil@newportbeachca.gov>; Harp, Aaron <aharp@newportbeachca.gov>; Brown, Leilani
<LBrown @ newportbeachca.gov>
Subject: Closed session discussion of my cure and correct letter on 5/28/19
Dear City Council:
You will be discussing my `cure and correct' letter at the 5/28/19 meeting tomorrow. As I pointed out to Mr. Muldoon,
this is an opportunity for the city to review the Brown Act and hopefully correct its practices in the future. There is no need for
litigation to occur if the issues laid out in my letter are `cured' and `corrected.' I again reiterate my request for any of you who
can point out how I am wrong in my logic to please do so. I am a brain doctor, not a lawyer, and would appreciate a better
understanding of where I may be erring in my suppositions.
In the last 12 months, there have been 17 items listed in the closed session without any identifying information. Each of
these was coded under California Gov't Code 54956.9(d)(4). In reviewing case law, it does appear the city can put items into
closed session without a title using this code. This section states: "(4) Based on existing facts and circumstances, the
legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation."
However, Gov't Code 54957.1 requires that there be a closed session report out of actions taken with the votes by each
council person. In the case of 54956.9(d)(4), Gov't Code section 54957.1(a)(2) requires: "(2) Approval given to its legal
counsel to defend, or seek or refrain from seeking appellate review or relief, or to enter as an amicus curiae in any form of
litigation as the result of a consultation under Section 54956.9 shall be reported in open session at the public meeting during
which the closed session is held. The report shall identify, if known, the adverse party or parties and the substance of the
litigation. In the case of approval given to initiate or intervene in an action, the announcement need not identify the action, the
defendants, or other particulars, but shall specify that the direction to initiate or intervene in an action has been given and that
the action, the defendants, and the other particulars shall, once formally commenced, be disclosed to any person upon inquiry,
unless to do so would jeopardize the agency's ability to effectuate service of process on one or more unserved parties, or that to
do so would jeopardize its ability to conclude existing settlement negotiations to its advantage."
In the 17 cases mentioned above, there was a report for only 3 of them, which appears to be a violation of the Brown
Act. The Brown Act requires report outs of any actions taken in closed session, but Mr. Harp only rarely makes the required
report. Of greater concern is the apparent use of closed session to discuss items that do not fall within the criteria required. The
discussion of the Newport Aquatic Center certainly appears to be in this category. There has been no threat that Newport Beach
would be sued and it defies logic that Newport Beach would sue the NAC. Thus the use of Gov't Code 54956.9(d)(4) would be
inappropriate and actually illegal.
In another example of a Brown Act violation, in May 2018 the case of Leonie Mulvihill accusing Aaron Harp of gender
discrimination was settled by the council for 150K. Gov't Code 54957.1(4) requires that "(4) Disposition reached as to claims
discussed in closed session pursuant to Section 54956.9 shall be reported as soon as reached in a manner that identifies the
name of the claimant, the name of the local agency claimed against, the substance of the claim, and any monetary amount
approved for payment and agreed upon by the claimant." May I point out that no one listening to the report out of that
settlement would have known that Aaron Harp had just cost the city 150K by his actions. The disclosure made did not meet the
requirements of the law.
Gov't Code 54959 states: Each member of a legislative body who attends a meeting of that legislative body where action
is taken in violation of any provision of this chapter, and where the member intends to deprive the public of information to
which the member knows or has reason to know the public is entitled under this chapter, is guilty of a misdemeanor." I
interpret this as meaning that if a council member is knowledgeable about what the Brown Act requires and participates in
future meetings with inappropriately labeled closed session items, they are personally responsible for this action and may be
guilty of a misdemeanor.
The Brown Act exists to ensure that the public is aware of what their elected representatives are doing. The misuse of
closed session requirements diminishes our democracy and I request that the city review their practices and ensures compliance
with the law.
Thank you,
Susan Skinner