The question of the day is: WHY did I send a "cease and desist" letter to the City? By calling attention to the Brown Act violation, aren't I just nit-picking and trying to shift attention from Eva's failures in complying with ENA deadlines? (More about Eva's failures in a future post!)
I started researching the Brown Act after the September 16 City Council meeting. The City Council went into closed session, and during that session, "they" "decided" to send a Notice of Default to the CSC. This was a serious and impactful action, and I have a lot of questions about how their decision was made. For example:
- Who voted to send the default notice? Who voted against?
- How much communication has occurred between staff and Eva Blaisdell?
- Did staff attempt to resolve discrepancies before default notice? How hard?
- Has the CSC requested any deadline extensions?
- Has the CSC requested any public hearings?
- Has the CSC requested anything else of the city staff?
- Who is the consultant?
- What are the consultant’s qualifications?
- What is the extent of the consultant's involvement, and how much money has the CSC spent on the consultant?
- Has any attempt been made to narrow or close the discrepancy between the language that the city used in the original RFQ and the language that the CSC requested in Addendum #1 of the ENA? (Teresa Gallavan's discussion of Adendum #1 starts at about 1:32 of the video here. PDF of ENA, including Addendum #1, here.)
- Does each city council member have a solid understanding of every one of the 14 points referenced in the default letter?
- Have the council members come to agreement, as to whether the information requested is reasonable? Has the city council considered rebuttals as to why the requests might not be reasonable?
Just for starters!
If the decision had been made during a regular City Council meeting, the public would have been informed via the agenda, that the city council was considering the issue of a Notice of Default. I, as a member of said public, would have been able to attend the City Council meeting and get some answers. I would have been able to express my opinion that issuing an NoD was an adversarial and unnecessary move that would complicate future negotiations. CSC team members would have shown up in force, hopefully apologizing for whatever role they had played in what was obviously a serious failure to communicate, explaining their progress and their challenges, and perhaps requesting an extension.
But that's what "shoulda', coulda', woulda'" happened.
Instead, the City Council, used the "real property exception" of the Brown Act to justify a complete lack of transparency.
So, another hobby! I became a student of the Brown Act.
To see the entire text of the "cease and desist" letter I wrote to the mayor, including citations, click here. But for a summary and a bit of a lecture on the Brown Act, stick with me.
The Brown Act says that meetings must be open to the public, except for a few exceptions. The exceptions make a lot of sense. For example - if the City Council is talking about "personnel issues" - like whether to fire someone - they are allowed to meet in closed session. If the City is being sued, they are allowed to discuss strategy with their attorney in closed session.
And then there is the "real property" exception. Say the city wants to buy a piece of property. The City Council is allowed to meet in a closed session to "grant authority to its negotiator regarding the price and terms of payment for the purchase." So for example, "Let's offer $500,000 for that piece of property, but if you have to go up to $540,000, go ahead. But let's make sure we get some concessions on terms, like try to get the sellers to agree to repaving the parking lot, or have them pay for a new roof." Because of the real property exception, the City Council is able to negotiate for the best possible deal, without "tipping its hand" in an open session meeting.
Interestingly, the First Amendment Coalition (FAC), in their "primer" about Brown Act exceptions, notes that the real property exception is frequently misused:
This provision has been the subject of considerable abuse. For example, government agencies involved in enormous, multi-faceted transactions have used a real property portion of the potential transaction to discuss the entire matter in secret. (FAC primer)In the case of the CSC, the City Council has no reason to meet in secret, because, for the duration of the ENA, there isn't any chance that the 82 acre parcel under consideration is going to be sold, leased, or otherwise conveyed. Further, the terms of the ENA are already public. Since the land is not being conveyed, they don't need to negotiate "price or terms of payment," and therefore the use of the real property exception is "inappropriate." (I'd say "illegal," but gosh, that sounds harsh, doesn't it?)
One final clarification about my intent. I have NO desire to take this to the District Attorney or sue the city. The city doesn't have to spend any money defending itself, and I haven't asked the city to undo anything its already done (you can't squeeze toothpaste back in the tube, and you can't erase the Notice of Default). I have sent a simple "cease and desist" letter, asking them to stop meeting in closed session about the CSC. If it's illegal, isn't it reasonable to ask them to stop doing it?
After what I've learned about the Brown Act in the past couple of weeks, I am absolutely convinced that the closed session was a violation. I'm not the District Attorney so I'm not worried about proving "intent" or getting an "official" verdict. I just want the city council to decide: Hey, let's have a public hearing about the CSC! Let's get it all out in the open and hug it out! Let's resolve not to have closed sessions until we're actually talking land transfer and terms!
That would be plenty good enough for me. You're welcome, Lompoc.
Some recent examples are relevant, I think. On October 6, there was a public hearing to review city service fees. The consultant did a presentation - he talked about why he was qualified to do the work that he did and he explained the work carefully. He referenced the Cost of Service Study (hundreds of pages long), and he taught the City Council how to use it. Why shouldn't the CSC consultant be asked to explain the 14 default points, and how it was decided that the CSC was in default? (See Oct 6 City Council Agenda and associated reports.)
As another example, Mayor Lingl has requested a monthly "Motorsports Park Update," to be presented by Planning Manager Lucille Breese. Why couldn't there be a monthly CSC Update? (See Oct 20 City Council Agenda.)
