Eureka: City attorney investigating possible open meeting violation

The Eureka City Attorney is investigating a possible violation of California’s open meeting law, but an expert said that it was a procedural matter rather than a violation to ask a another member of the council to join in a meeting with staff. -db

The Times-Standard
December 15, 2010
By Allison White

The Eureka City Attorney’s Office said it is investigating a complaint alleging the city council violated the state’s open meeting law last week when two members volunteered to meet with the city manager to discuss whether he might be willing to stay on-board.

Acting Interim City Attorney Paul Hagen, who was at the Dec. 7 meeting, said that the office had been looking into the issue since the city received the letter on Friday. A draft response to the complaint was forwarded to City Hall on Tuesday, Hagen said.

City Manager David Tyson said he could not comment on the matter because it was being handled through the city attorney’s office.

Commonly known as the Brown Act, the state’s open meeting law requires local government boards — from city councils to school districts — to post an agenda 72 hours before a meeting, and restricts elected officials from straying from that agenda, with some emergency exceptions.

Eureka resident Sylvia Scott said she took exception to one aspect of the Dec. 7 council meeting when two council members decided during council reports to meet with Tyson, but the specific item was not on the agenda. Councilman Lance Madsen asked Mayor Frank Jager to appoint someone to join him in meeting with Tyson to discuss Tyson’s retirement or possibly staying with the city. Jager asked if anyone was interested, and Councilwoman Linda Atkins volunteered.

Madsen and Atkins are scheduled to meet with Tyson today.

Scott said she was watching the meeting from home, and she was “shocked by what was done.”

”I would have liked to comment on it, and I bet a lot of people would have liked to,” Scott said in a telephone interview with the Times-Standard on Tuesday.

In her letter to the city, Scott said the council essentially created an ad hoc committee by having two members agree to meet with Tyson on a specific issue. She argued that it should be considered an action, requiring it to be on the agenda for the council to discuss it. She said it may be that some of the council members are new and don’t understand the Brown Act fully, but it is important that this is corrected.

The letter stated that if the city does not correct the action or respond within 30 days, she will seek a judicial invalidation of the “challenged action” and will seek a monetary award for court costs and attorney fees.

Madsen said he appreciates Scott’s concern, but that he didn’t see a Brown Act issue.

”I basically just disagree with her,” he said.

Madsen requested another council member come with him to talk with Tyson and announced it at the meeting to allow for more transparency.

”So it’s not just me negotiating behind closed doors,” and then reporting to the council later, he said.

Asking another council member to join Madsen in a meeting with staff did not have to be done in a public forum, said Terry Francke, a Brown Act expert and general counsel for Californians Aware, a nonprofit group dedicated to informing state residents of public forum rights.

Francke said the Brown Act requires that items requiring a collective action by the council need to be on the posted agenda. It was a “kind of procedural decision or housekeeping decision,” and did not even need to go through the mayor, he said.
The Legislature likely did not intend the Brown Act to require a “single council member to put an item on the agenda to invite one other member to meet with staff,” Francke said.

If the council members come back to the council with a proposal stemming from that meeting, it will then fall under the Brown Act, Francke said.

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