San Carlos Officials Deny Brown Act Violation

San Carlos officials are denying any potential Brown Act violations after a recent closed session meeting.

The meeting saw the appointment of Mayor Omar Ahmad and Councilman Randy Royce to represent the city during fire mediation with Belmont, a decision made in closed session despite there being no indication of that issue on the closed agenda.

Instead, the city agenda included an item stating “anticipated litigation,” giving council the right to meet in private.

“Just writing “anticipated litigation” is never enough,” said Terry Francke, a Brown Act expert and legal counsel for Californians Aware. “It should have been more specific. The whole point of the Brown Act is to remove as much mystery and needless ambiguity as possible. There needs to be some way for the public to have clarity.”

The Brown Act, established in 1953 and enacted by California State Legislature, was set into place to ensure transparency in government. The act allows for council’s to hold private closed session meetings only when certain criteria are met, namely personal matter which could include employee appointment, evaluation, or discipline; real estate negotiations; labor negotiations; or existing or pending litigation.

Francke explained the several distinctions of Brown Act violations.

“There are those that lead to criminal prosecution, those that lead to an action being overturned, and those that simply lead to a court deciding that a violation has been committed. I believe this situation would fall under the last one,” Francke said.

Councilman Matt Grocott first voiced concerns the day after Monday’s closed session regarding what was discussed in the meeting and what the final action was that came out of it.

“The next morning I was looking at my agenda, and I thought, “Where on here is there anything about fire?” Grocott said.

Grocott then saw the item on the agenda which stated anticipated litigation, but thought, “this doesn’t make any sense to me. There’s no anticipated litigation that I know of.”

In an email to San Carlos Patch, Vice-Mayor Andy Klein explained the need for the council to hold a closed session meeting was valid due to potential litigation that may arise from the decision regarding fire.

Joan Cassman, legal counsel for the city regarding fire services, had a different explanation for the closed session meeting. The anticipated litigation, she explained, was neither due to the threat of a pending lawsuit or San Carlos’ anticipated engagement in one, but rather, the city viewing the mediation itself as a legal process protected under the Brown Act.

“The detriment at this stage of having San Carlos discuss these matters in public would be a forfeiture of a fulsome opportunity to discuss our position and posturing,” Cassman said.  “It’s hard to do that in public.”

Cassman’s interpretation of the Brown Act was supported by Francke, who agreed that mediation was within the scope of pending litigation.

On March 22, Belmont agreed to mediation with San Carlos after a 3-2 vote from its city council. Mayor Coralin Feierbach and Vice-Mayor Dave Warden voted against the proposal.

The mediation was first suggested by county Board of Supervisors Carole Groom and Adrienne Tissier.

For years, the two cities have forged a JPA for fire services, a JPA set to officially dissolve in October 2011.

The decision of the closed session meeting was announced to an empty room after midnight by city manager Jeff Maltbie. No public vote was taken. Vice-Mayor Klein sent San Carlos Patch an email announcing the decision of Mayor Ahmad and Councilman Royce to represent the city in fire mediation early Tuesday morning.

Councilman Grocott remains uncomfortable with how the city handled the situation, concerns echoed by Feirerbach and Warden. 

 “If somebody wants to skirt the law, they can always find a way,” Feierbach said. “I’m ready to go to the District Attorney over this. Why would we want to participate in mediation with them when they may have violated the Brown Act? What are they hiding?”