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Dear Councilmembers Holmdahl, Mosby, Starbuck, and Vega,
On December 1, 2015, I stood before you at a Council meeting and said: “I am going to try to save you from the trust you have placed in your City Attorney.”
July, 2016: I'm still trying.
To that end, let me point out just a few of the ways in which Mr. Joseph Pannone has lately failed you.
On September 16, 2015, Mr. Pannone recommended a closed session meeting, during which the Council decided to issue a Notice of Default to the California Space Center. The County District Attorney's Office has now informed you that this closed session meeting was a violation of the Brown Act. According to Chief Deputy District Attorney Scott, Mr. Pannone’s “expansive reading of the real property exception is not supported by law” (June 16, 2016, my emphasis). This is not a "difference of opinion," as Mayor Lingl would have you believe. When your City Attorney has a "different opinion" from the County District Attorney and the State Attorney General, that makes him wrong.
On November 3, 2015, Mr. Pannone agendized a closed session meeting, during which he apparently convinced the Council that he should send an improper "unconditional commitment" letter in response to my "cease and desist" request. The unconditional commitment was decided upon in secret (instead of in open session as the Brown Act requires). The letter was signed by Mr. Pannone (instead of by the Mayor as the Brown Act requires, Section 54960.2).
On November 10, 2015, after I informed your City Attorney that the unconditional commitment letter was an unlawful response, he backtracked and said he never intended it to be an "unconditional commitment" letter. Seriously. Read my blog post, "Dissed," to remind yourself of how blatantly underhanded and ill-intended this letter was. It should matter to you because, by informing you of his plan during the closed session (as I can only assume he did), he made you - deWayne Holmdahl, Jim Mosby, Dirk Starbuck, and Victor Vega - you, jointly and severally, complicit in this disrespectful ploy.
On December 1, 2015, Mr. Pannone continued his efforts to limit public discussion of my request by adding it to a Council agenda as a "consent calendar item," even though 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).
On March 15, 2016, Mayor Lingl unilaterally switched the order of two agenda items during a Council meeting, which is against the rules, according to your City Council Handbook. When I raised the issue during public comment, Mayor Lingl told me FOUR TIMES that switching the order of agenda items was at his discretion.
Here are the relevant sections from your City Handbook:
B2.5 Order of Business
[...]The Presiding Officer should call the meeting to order promptly at the time set, and the business of the Council will be taken up for consideration and disposition in the order set forth in the published agenda, except that, with the consent by acclamation of two-thirds of the members present, items may be taken out of order. See, also, Section B6.3 of this Handbook.
B6.3 Supermajority RequirementsMayor Lingl called me the morning after the meeting, to admit that he was wrong. But here's what I find most remarkable: Mr. Pannone sat silently on the dais and watched the entire painful exchange. Your City Attorney, remember, is your parliamentarian, and is supposed to be ensuring that you follow your own rules. Watch the video, starting at 3:04:05.
Motions which limit a procedure designed to allow the expression of all points of view or which may affect public access to Council deliberations require a “supermajority” vote. One example is a change in order of the published agenda, which can cause persons relying on the published order to miss the opportunity to observe or speak on the issue prior to Council action.
On May 17, 2016, a member of the public (Ruth McKenna) made Mayor Lingl uncomfortable by asking the City Council a direct question. You can see it here. After Ruth was shut down, watch Mr. Pannone step in to defend Mayor Lingl, starting at about 31:40 on the video. Your City Attorney stated:
Mr. Mayor, just for the public to know, the public comment period is an opportunity for the public to give comment, it’s not to create a situation of dialogue between the council and the public. The purpose is for the public to give comment.Mr. Pannone's statement is incorrect. During comment periods, members of the public may, according to your Council Handbook, ask questions. It is up to the Presiding Officer - the Mayor - to decide whether or not he wants to answer a question or allow other Councilmembers or City Staff to answer a question. (See Sections B2.3, B2.4, and B4.9 of your City Council Handbook, which all reference the appropriateness of members of the public asking questions.)
On June 7, 2016, when Councilmember Mosby made a detailed motion to restart the Motorsports Park Project, and it was clear that Councilmember Vega also had a printed version of that motion, your City Attorney said:
I see you holding a piece of paper, and I see Councilman Vega holding a piece of paper, and you mentioned – and you mentioned – that it’s something that Mr. Mosby had. If that’s something that you gave Mr. Vega, then what we need to do is make the copies of it so the public can have it.Well. What Mr. Pannone did here is wrong on SO many levels.
Your City Attorney, while calling out Mr. Mosby and Mr. Vega in public, insinuated that the Council might have acted improperly, or even unlawfully. To be clear: the lawyer that you hired to protect the interests of the City publicly called attention to what he believed might be an unlawful act.
Even worse: Mr. Pannone had no valid reason to assume that anything inappropriate had happened. That Councilmembers Vega and Mosby each had a copy of the same document should not been surprising. Councilmembers often all receive copies of the same documents (besides the agenda packet). For example, I sent identical letters to each of you about the California Space Center project. I'm sending you each identical letters right now, and surely other residents have done the same thing, regarding various topics. As I understand it, any such documents would appropriately be considered part of the public record. Incidentally, Mr. Mosby had already read the motion into the public record.
Further, Mr. Pannone had no reason to assume that Councilmembers Vega and Mosby had discussed the piece of paper with each other (which would have been lawful), and no reason to assume that they had discussed it with a third Councilmember (which would have been a "serial" meeting, and thus unlawful according to the Brown Act). Perhaps, if he was genuinely concerned about the Brown Act (I have my doubts), a private discussion after the meeting would have been proper. But if his aim, in this case, was to cast general suspicion on two Councilmembers, a public interrogation was much more effective. It should go without saying: this is not how lawyers are supposed to protect the interests of their clients.
To sum up, let's review some of the many ways in which your City Attorney has been wrong.
- Wrong about the real property exception to closed session meetings.
- Wrong on how to write an unconditional commitment letter to conform with the Brown Act.
- Wrong by putting the unconditional commitment letter on the agenda as a consent calendar item.
- Wrong in allowing Mayor Lingl to switch agenda items unilaterally.
- Wrong about the appropriateness of questions during public comment periods.
- Wrong that any "piece of paper" held by two Councilmembers is part of the public record and should be immediately copied and distributed to the public.
- Wrong to publicly insinuate that two Councilmembers had violated the Brown Act.
Please ask yourselves: Why do you still trust your City Attorney?
Sincerely,
/s/ Jane C. Behr
