But let's not get ahead of ourselves. Before I post this latest update on "The Quest," a brief recap is in order.
Be aware: The Quest is not about the California Space Center (CSC) project, although it did, indeed, begin that way. It began because I was confused about why the City Council met in closed session on September 15 in order to approve a Notice of Default to the CSC. This was a serious and impactful action, and I had questions about how the decision was made. If it had been made during a regular City Council meeting, the public would have been notified ahead of time via the agenda; and I, as a member of said public, would have been able to attend the meeting, get some answers, and express my opinion. CSC team members could have attended to explain their progress and their challenges, and perhaps to request an extension. I discuss the "shoulda, woulda, coulda" here and here, but let's not get distracted by this one issue and this one decision. Regardless of how you feel about the CSC project, you should be concerned about our City Council's decision-making process.
So it began with the CSC, but it has become a quest for transparency. The stakes are high, and our road map is the Ralph M. Brown Act.
I've been reminded, through this journey, that the City Council is conducting our business, so by God we need to keep an eye on them. According to the Brown Act,
...Public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly.So, the Brown Act has been my friend. I've written elsewhere about the "cease and desist" letter that I sent to the Lompoc City Council. Instead of a lawful and appropriate response, I got this letter from Joseph Pannone, the City Attorney.
In another cease and desist letter, I explained why the City Attorney's letter was inadequate. Mr. Pannone replied via email, admitting that his original response was neither lawful nor appropriate: “I agree my letter did not meet all the criteria established by Government Code section 54960.2. My letter did not reference that section.” (The entire string of correspondence can be found here.)
Now we're up to date, and we're taking a closer look at the City Attorney's comment: “I agree my letter did not meet all the criteria established by Government Code section 54960.2. My letter did not reference that section.”
His letter didn't reference that section? Disingenuous, much? A side-by-side comparison of Mr. Pannone's letter and Section 54960.2(c)(1) would lead one to believe that he did, in fact, "reference" it. This section of the Brown Act details how legislative bodies should respond to a cease and desist letter, starting with paragraph 1:
The [name of legislative body] has received your cease and desist letter dated [date] alleging that the following described past action of the legislative body violates the Ralph M. Brown Act:Coincidentally, this is also how Mr. Pannone begins his letter:
The City Council of the City of Lompoc (the "City") has received your cease and desist letter, dated October 6, 2015, alleging the following described past action of the City Council violated the Ralph M. Brown Act:
Continuing with paragraph 2 from 54960.2(c)(1):
In order to avoid unnecessary litigation and without admitting any violation of the Ralph M. Brown act, the [name of legislative body] hereby unconditionally commits that it will cease, desist from, and not repeat the challenged past action as described above.
Here is Mr. Pannone's language:
In order to avoid unnecessary litigation and without admitting any violation of the Ralph M. Brown Act, the City Council hereby unconditionally commits it will cease, desist from, and not repeat the challenged past action, as described above.
Finally, Paragraph 3 from 54960.2(c)(1) reads:
The [name of legislative body] may rescind this commitment only by a majority vote of its membership taken in open session at a regular meeting and noticed on its posted agenda as "Recission of Brown Act Commitment." You will be provided with written notice, sent by any means or media you provide in response to this message, to whatever address or addresses you specify, of any intention to consider rescinding this commitment at least 30 days before any such regular meeting. In the event that this commitment is rescinded, you will have the right to commence legal action pursuant to subdivision (a) of Section 54960 of the Government Code. That notice will be delivered to you by the same means as this commitment, or may be mailed to an address that you have designated in writing.
And here is Mr. Pannone's third (and nearly identical) paragraph:
The City Council may rescind the above commitment only by a majority vote of its membership taken in open session at a regular meeting and noticed on its posted agenda as "Recission of Brown Act Commitment." You will be provided with written notice, sent by any means or media you provide in response to this message, to whatever address or addresses you specify, of any intention to consider rescinding that commitment at least 30 days before any such regular meeting. In the event that commitment is rescinded, you will have the right to commence legal action pursuant to subdivision (a) of Section 54960 of the Government Code. That notice will be delivered to you by the same means as this commitment, or may be mailed to an address that you have designated in writing.
Yes, I think it's fair to say that, in spite of his claim to the contrary, Mr. Pannone was indeed referencing Section 54960.2 as he tried to "expeditiously" dismiss my concerns.
I remain concerned. Now, moreover, I am also irked. Provoked, even.
Let's be clear: the City Attorney's attempt to subvert the Brown Act not only failed but led to a second Brown Act violation.
It's time to take a step back and address the Brown Act violations in open session, as the law requires. Mr. Pannone writes that it is because of my "second threat of taking legal action," that he will reluctantly add this "item" to the December 1 City Council agenda.
Note to Mr. Pannone: The City Council should discuss my cease and desist requests not because they're afraid of being sued, but because they are concerned about and committed to transparency, and because the Brown Act calls for it.
Update - late breaking news! I just took a look at the Draft Agenda for the December 1 City Council Meeting. Crafty Mr. Pannone has another trick up his sleeve: yet another way of addressing my concerns "expeditiously," instead of openly. The City Attorney has decided that both Brown Act violations can be dispatched by putting an "item" - the first Brown Act violation - on the Council's Consent Calendar. However strategically Mr. Pannone might try to parse the law, the Brown Act clearly states that an unconditional commitment must be approved “in open session at a regular or special meeting as a separate item of business and not on its consent calendar” (54960.2(c)(2), my emphasis).
So: Mr. Pannone is taking a stand against discussion. He is advising the Council, once again, that they don't need to follow the Brown Act. He is advising the City Council: Here's the easiest way to get this woman off your back. Slip it through as a Consent Calendar Item - you know, one of those items that are defined as "routine," and thus require "no separate discussion." Just sign this letter, Mayor Lingl. Let's not waste time.
Democracy is a highly inefficient process, what with having to operate in the open, include citizens in the process, and follow state law. Very tedious. But there you have it. I await the Council's response.
[Update:
Here is the package that the City Attorney prepared for the Council Meeting on December 1, which includes the letter that the Council decided to send....]
