The Perils of "Relying on Staff"

Jane writes an open letter to her favorite Councilmembers:
_____________________________________________

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 Requirements
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. 

Mayor 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.

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.

Important to note, gentleman, that this is certainly an incomplete accounting. These are the errors and omissions that I have witnessed in the past several months. I shudder to think about the quality of advice he's offered out of public view.

Please ask yourselves: Why do you still trust your City Attorney?

Sincerely,

/s/ Jane C. Behr

District Attorney's Office Investigates Lompoc City Council

Happy Sunshine Week!

Sunshine Week is an annual celebration of government transparency that’s coordinated by the American Society of News Editors and the Reporters Committee for Freedom of the Press.
2016 marks the 11th year that Sunshine Week has sparked dialogue and reporting, nation-wide, to spotlight the efforts and commitments of those who demand open and accountable government at all levels.

Seems like an apt time for an update on my Transparency Quest, especially since I just got an email from Chief Deputy District Attorney of Santa Barbara County, Kelly Scott, to let me know that she is writing a letter of inquiry to the Lompoc City Council, regarding my Brown Act complaint.

When I first talked to Kelly Scott, I asked her if she remembered the details of her previous investigation of the Lompoc City Council.  She did, of course, and her first question was, is that City Attorney still there? What was his name? Joseph Pannone, I replied.  Oh, aahhhh, she said, yes, I remember him.

This is happening a little less speedily than I might have wished - I TRY to be patient - but the good news is, Ms. Scott HAS initiated the investigation and is reviewing my cease and desist letter and other related documents.

So I shared my good news with the City Council.  From the meeting on March 15, here's the text of my public comment:

I have been reminded – and I’m here to remind the city council now - that “The wheels of justice grind slowly, but they grind exceedingly fine.”  The Santa Barbara County District Attorney’s office is investigating my Brown Act complaint and your improper response to my cease and desist letter.  On March 7th I was informed that the Chief Deputy District Attorney, Kelly Scott, is planning to write a letter of inquiry to your City Attorney.  You might recognize the name – Kelly Scott –  since Ms. Scott is the same attorney who wrote a cautionary letter, the last time the city council was accused of a Brown Act violation.  

At that time Mayor Lingl, you were quoted by the Lompoc Record as follows: “I’m going to be leading the city down a path of openness - as opposed to personal agendas, micromanagement, and legal actions by the district attorney’s office.”  

I am here to give you a heads up about this most recent District Attorney’s inquiry, so you’ll have some thinking time on what a “path of openness” might look like in this case. Otherwise, when Mr. Pannone gets the letter from Ms. Scott, I’m afraid he will draft a reply without consulting with you, in an attempt to make the whole thing disappear quietly.  I’m afraid that you’ll be gobsmacked into silence and acquiescence – that you’ll decide to follow the advice of your attorney without question. I think that would be a mistake.  Instead, I think you might want to back the train up, and take a serious look at when the council is permitted to have closed sessions.

Mayor Lingl, you stated, “I always have, and I will, operate with complete transparency.” In fact, all of you have said, publicly and repetitively, that the city council is committed to transparency.

I don’t believe that to be true any longer, but please, prove me wrong.  Prove your commitment by putting transparency on the agenda of a future city council meeting.  Schedule a workshop on the importance of open government, and ask for the public’s feedback and input.  Invite a Brown Act expert to Lompoc, to educate you and other interested citizens.  

Or, you could do nothing. But if that’s your choice, please, stop telling the citizens of Lompoc that you’re committed to transparency.

Coming up: For Part 2, I was planning on the rather depressing post title: City Council Decides Against Transparency Discussion. But since the meeting, there has been a positive development - read about it here: One of Five City Council Members Willing to Talk Transparency.

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.

Dissed.

In my quest for an open and responsive local government... I been dissed.

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.

Note to the City Council: Now, over to you.

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....]

My Responsive and Respectful Local Government

On September 15, 2015, the Lompoc City Council met in closed session, agendized as follows:

CONFERENCE WITH REAL PROPERTY NEGOTIATORS: Property: approximately 82 acres including and adjacent to Ken Adam Park. City Negotiators: Teresa Gallavan, Economic Development Director/Assistant City Administrator and Joseph W. Pannone, City Attorney. Negotiating Party: Eva Blaisdell. Under Negotiation: Price and terms of payment.

After the closed session, the City Attorney reported that the Council had directed him to send a Notice of Default (NoD) to the California Space Center (CSC). According to city staff members, the CSC had not provided the City with all the information required by the Exclusive Negotiating Agreement (ENA).

The decision to send the NoD was completely unexpected, and I thought it was inappropriate that such a decision was made without public input. I sent a cease and desist letter in accordance with CA Code Section 54960.2, to prevent future inappropriate closed sessions:



There was a front-page article and an editorial about the Brown Act violation in our local Lompoc Record:






I also wrote a blog post to explain the intent behind the cease and desist letter.

On November 3, 2015 the City Council met in closed session, agendized as follows:

CONFERENCE WITH LEGAL COUNSEL – ANTICIPATED LITIGATION Significant exposure to litigation pursuant to paragraph (2) of subdivision (d) of Section 54956.9: One Matter regarding alleged Brown Act Violation regarding Notice of Default to California Space Center, LLC

After the closed session, the City Attorney stated that “no reportable action” was taken during the closed session. However, I received a letter from the City Attorney on November 4, which took the form of an “unconditional commitment to cease, desist from, and not repeat the past action”:



The Lompoc Record wrote another front page article about the City’s response:



In the Record, I expressed my "hope that the city's response is indicative of a renewed commitment to open government." But on November 10, after reviewing the City's response letter, I wrote another "cease and desist" letter.  Not only did the City Council fail to respond with an unconditional commitment, it violated the Brown Act again by discussing the unconditional commitment in closed session:



In the letter above, I asked Mayor Lingl: "Were these procedural errors made through ignorance or with ill-intent?" By the City Attorney's emailed response, see below, Mr. Pannone is apparently rejecting "ignorance" as the source of the problem, since he assures me that he is well versed in Brown Act requirements.



In our next installment! My slicing and dicing of Mr. Pannone's email can be found here, along with further developments.