Politics & Government

Attorneys Respond to Watchdog Group, Halt Potential Lawsuit

The San Carlos city attorney and fire service special counsel responded to Californians Aware

Letters written by the San Carlos city attorney and fire service legal counsel, and addressed to Californians Aware, have halted a threatened lawsuit against the city.  The letters inform the watchdog-group of revisions now made to the city’s agenda and council and defend the city's decision to hold a closed session meeting.

 “I had a phone conversation with the city manager about 4:30 pm today,” Vice President for Open Government Compliance Richard P. McKee wrote in an email to San Carlos Patch. “I believe this will be resolved by the council doing everything from here on in open session and not going forward with the mediation plans. If that happens it would resolve our concerns.”

 McKee wrote a “cure or correction” letter to the city council on April 4 after potential open meetings violations were brought to public attention. The council appointed two negotiators to represent the city in fire mediation with Belmont in closed session, citing “anticipated litigation” as its cause for the closed meeting.

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 “The City Council shall rescind the 3-28-11 closed session action taken to appoint two members to mediate the Belmont-San Carlos Fire JPA issues with representatives from the city of Belmont,” the letter read. “The City Council shall report to the public at an open meeting all of the discussion illegally had in this improper closed session.”

 The letter went on to further chastise the council for its use of the term “preliminary meetings,” claiming the term confusing, and demanding it be removed from future agendas.

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 The city attorney responded with an April 8 email addressing the issue of “preliminary meetings.”

 “I am in the process of reviewing this issue and the long history of noticing of preliminary meetings before the city council meetings,” city attorney Greg Rubens wrote. “However, in an abundance of caution, I am instructing the City Clerk for all future meetings to revise the City Council’s agendas. Future agendas will remove the term “preliminary meetings” and separately agendize Special Meetings when the location and/or time are different than that set forth in the Municipal Code.”

 Addressing the watchdog-group concerns over the city council’s March 28 closed session meeting under the heading of “anticipated litigation,” special counsel Joan Cassman responded with a letter stating the council had acted lawfully.

 “Your letter asserts that the March 28, 2011 closed session was improper in that it "had nothing to do with anticipated litigation" but rather concerned only the future of the Belmont-San Carlos Fire District ("JPA"). In fact, it is exactly that future that gave rise to a closed session held in conformance with the Brown Act,” Cassman said.

 Cassman said litigation under the Brown Act includes any adjudicatory proceeding and the March 28 closed session meeting in question meets the criteria to be labeled as “anticipated litigation.”

 “Because the closed session was appropriate, there is no need for either a cure or a correction as you demand,” Cassman wrote. “As a further point of information, I can share with you that the City is placing on the agenda of its next regular meeting an open session item in which the City Council will clarify its plans for the mediation - including making a public determination of who will represent the City during the proceedings -- and will engage in such other discussion on the topic as the Council may desire. There will of course be an opportunity for public comment on this item.”

 During Monday night’s city council meeting, Cassman again defended the city’s decision to hold a closed session meeting.

 “We feel then and now there was an adequate reason,” she said. “The mediation is not the subject but the symptom, and gives rise to the potential of litigation, not necessarily with Belmont, but a number of stakeholders who have an interest.”

 The city is set to participate in mediation with Belmont regarding fire services on April 22, just days before they are scheduled to choose a fire proposal on April 25.

 On Feb. 15, the San Mateo County Board of Supervisors proposed the idea of free mediation to San Carlos and Belmont to explore options regarding fire services.  Ahmad immediately accepted the offer.

 The Belmont city council approved participating in mediation on March 22. According to assistant city manager Brian Moura, this will be the first mediation between the two cities since the Harbor Industrial Association annexation issue was mediated 15 years ago.

 The question still looming is whether Belmont will decide they want one or two mediators to represent the cities during mediation.

 During Monday night’s meeting the city addressed both possibilities by unanimously voting to send Mayor Ahmad and Councilman Royce to mediate with Belmont should Belmont decide it wants two mediators per city, and for Ahmad to represent the city by himself should Belmont decide they prefer one negotiator per city.

 City staff described the mediation to consist of representatives sequestered in separate rooms with mediator walking from room to room as a messenger looking for points of agreement between the two sides. The mediation is anticipated to be a private event.

 “This has been a fatiguing event,” Ahmad said. “Since we sat down with the County some months ago, Egypt has thrown out a dictator, and not only that, they voted on a new constitution. We haven’t been able to get into a room together.”


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