Watchdog Group Notifies Council of Potential Open Meetings Violation

A government accountability watchdog group put the San Carlos City Council on notice Monday for potentially violating open meeting laws.

The group demanded the city either make the appropriate corrections or face legal repercussions.

Mayor Omar Ahmad and city staff deferred further comment to the city’s legal counsel. City Manager Jeff Maltbie said he believes city officials are acting in good faith.

“It is not the city’s intention to circumvent [open records laws],” Maltbie said. “Based on the advice we’ve been given we’ve been operating within the law.”

In a March 28 closed session meeting, city officials appointed Ahmad and Councilman Randy Royce to represent the city in fire service mediation with the city of Belmont, claiming anticipated litigation on the agenda .

Today's letter, sent to officials by Vice-President for Open Government Compliance Richard P. McKee of Californians Aware, said the meeting had nothing to do with anticipated litigation, but instead had to do with concerns the council had with the continuation of the present terms of the fire services agreement.

“I don’t see any situation that qualifies the current state of affairs as litigation in any sense,” said Terry Francke, legal counsel for Californians Aware.

Initially, Francke had agreed with San Carlos’ special counsel Joan Cassman that mediation would be within the scope of litigation, but Francke said he changed his mind after reading a report on San Carlos Patch. 

Cassman refused to comment on the letter, saying instead she would need to first talk to her client about it, something that may not happen for a few days.

“If what I understand to be the city’s rationale were applied generally, that would mean any number of disputes or anxieties about disputes that had not reached the point of litigation could be confidential,” Francke said. “And that essentially means any kind of agreement based on some transaction or relationship could be taken under closed session even though there was no particular consideration of suing anyone or no threat of being sued.”

The Brown Act was enacted in 1953 by the California State Legislature to ensure transparency in government. Councils and other government agencies are allowed to hold private closed session meetings only when certain criteria are met.

The Joint Powers Agreement shared by Belmont and San Carlos for fire services is set to dissolve in October 2011 at the request of San Carlos. Board of Supervisors' members Carole Groom and Adrienne Tissier suggested the two cities explore options regarding fire services through mediation. San Carlos immediately agreed to participate in the mediation. On March 22, Belmont agreed to mediation with San Carlos after a 3-2 vote from its city council. 

Californians Aware found additional Brown Act violations regarding the agenda's failure to provide an opportunity for the public to address closed session items of business, the letter read.

Francke said the Brown Act requires the agenda to provide an opportunity to address the body on whatever is on the agenda as well as city related issues not on the agenda.

 “The way it was presented the city creates the impression that things that are on the agenda are not open for discussion,” Francke said. “The people need to be clearly advised they can discuss issues on the agenda and issues not on the agenda.”

  The letter said there is no such thing as preliminary meetings within the Brown Act and demanded the city not use the term in the future, deeming it confusing.

 “The term ‘preliminary meetings’ seems to be a suggestion that if something might end up in litigation we can have a preliminary discussion discussing what might be,” Francke said. “That is not the law. You can either have a specific possibility or opportunity for litigation by the city to be discussed or the threat of litigation against the city or an actually filed case. Anything preliminary to that is legally premature for a closed session under the Brown Act.”