The Mayor's Platform

When I watch the December 1 City Council meeting, what strikes me most is the absolute SILENCE of Councilmembers Mosby, Starbuck, and Vega.  Not one word. No questions about the Brown Act. No discussion about various interpretations, no review of the letter that I found to be "intentionally misleading." No effort to reassure the public of their professed commitment to transparency.

Councilmember Holmdahl at least offered a single half-hearted question: he asked the City Attorney if he had any response to public comments. Mr. Joseph Pannone basically reiterated that he and I disagreed on how to interpret the Brown Act. What: no follow up questions, Mr. Holmdahl? Maybe you could have asked him to specifically address the State Attorney General's Opinion (since it clearly undermines Mr. Pannone's position)?

The next thing that jumps out at me, as I review the video, is Mayor Bob Lingl's reiteration of his campaign platform. First, he acknowledges my concerns about transparency; he says it's true that "all of us have run on the platform of trying to be transparent."

But there's more. Starting at 43:15, in explaining his motion to accept the City Attorney's recommendation, he explains:

• "one of the things I ran on was that we as councilmembers, we certainly are not experts in everything that happens in the city"
• "we rely on the staff that we hire"
• "I believe that we did hire two very good people for the positions of city manager and the city attorney; for that reason I rely on their expertise"

Mayor Lingl seems to be saying that, regardless of any facts or opinions that the public might bring him, he is committed to RELYING ON THE EXPERTISE OF THE CITY STAFF.

Another important take-away: the mayor professes that "trying to be transparent" and relying on the expertise of the city staff are both campaign commitments - but when those two aims directly contradict each other, it is the "trying to be transparent" that gets tossed.



Discussion about Brown Act begins at 16:10, ends at 46:50.

But don't miss my final two cents (in two minutes), beginning at 1:08:50.

City Council Ignores Opinion of State Attorney General

Mayor Lingl thinks that the real property exception of the Brown Act entitles the council to meet in closed session whenever a piece of property is somehow part of the discussion; even when there are no negotiations in progress. As he explained in the Lompoc Record: "We always discuss property in closed session."

All together now: NO.  That's not how it works.  According to Section 54956.8 of the Brown Act:

Notwithstanding any other provision of this chapter, a legislative body of a local agency may hold a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease. [my emphasis]

In the interest of securing a more transparent local government, I followed the procedure as detailed in the Brown Act. I asked the City Council for an unconditional commitment to cease and desist from the use of closed sessions to discuss property - EXCEPT, using a narrow interpretation of the Brown Act, when the Council is discussing property transfer, and it needs "to grant authority to its negotiator regarding the price and terms of payment."

The "cease and desist"/"unconditional commitment" request and response are intended to "remedy" an alleged Brown Act violation in a non-adversarial, non-litigious way. The Council doesn't even have to admit that the action in question was a violation - they only have to promise not to do it again.

In fact, if a proper "unconditional commitment" would have been offered, the city would have been immune from litigation.  But the City Attorney recommended against the unconditional commitment that I requested, and the Council followed the City Attorney's recommendation.

The City Attorney (unfortunately for all of us) holds to an overly-broad interpretation of the Brown Act's real property exception. It might be slightly more nuanced than the Mayor's interpretation (property = closed session), but apparently, his argument is that Council should be able to meet in secret whenever they are discussing a piece of property that may, at some point in the distant future, be bought, sold, leased, or otherwise transferred, even if the Council has no bargaining position to protect.

Second verse, same as the first: NO.  According to an opinion published by the State Attorney General's office (10-206):

We cannot accept the view that the real-estate-negotiations exception permits the closed-session discussion of any and all aspects of a proposed transaction that might have some effect on price and payment terms. The purpose of the exception is to protect a local agency’s bargaining position, not to keep confidential its deliberations as to the wisdom of a proposed transaction. [my emphasis]

Remember, the Council and the CSC were not engaged in any "bargaining" at this point.  According to the State Attorney General, the ONLY topics that may be discussed in closed session are:

(1) the amount of consideration that the local agency is willing to pay or accept in exchange for the real property rights to be acquired or transferred in the particular transaction; (2) the form, manner, and timing of how that consideration will be paid; and (3) items that are essential to arriving at the authorized price and payment terms, such that their public disclosure would be tantamount to revealing the information that the exception permits to be kept confidential.

Note: the terms of the Exclusive Negotiating Agreement (ENA) had already been publicly disclosed, and the ENA did not call for the transfer of property at any point, for any price.

It seems so clear to me.  But this happened.  On December 1, the City Council  decided that protecting their closed sessions was more important than protecting the City from litigation, and more important than transparency. The Councilmembers decided that they would "rely on [Mr. Pannone's] expertise" - even though they were presented with compelling evidence that the City Attorney's advice runs counter to guidance from the State Attorney General.

Before December 1, I thought: When the Councilmembers get the facts, they'll do the right thing. They'll restore my faith in their good intentions; they'll reiterate their commitment to transparency.

After December 1... AGAIN: NO. Unacceptable. Disappointing.