The Palm Desert City Council approved the salary for a new city manager in closed session in the belief that was allowed under the Brown Act, but a leading open government advocate says salary discussions must be public. -DB
The Desert Sun
March 14, 2009
By K. Kaufmann
The Palm Desert City Council may have violated the state’s open records law by approving a contract with new city manager in closed session on Jan. 22, a Desert Sun review of public documents shows.
The contract sets John Wohlmuth’s salary at $215,000 per year, plus a car allowance of $500 per month.
Under the state’s Brown Act, “Closed sessions shall not include discussion or action on proposed compensation except for a reduction of compensation that results from the imposition of discipline.”
Approval of the contract and salary has not been on any of the council’s public agendas since city officials announced Wohlmuth’s hiring in December.
Mayor Robert A. Spiegel said he was unaware of the violation.
“I thought it was done properly,” Spiegel said.
City Attorney David Erwin said he interprets the Brown Act to allow contracts such as Wohlmuth’s — including terms of compensation — to be approved in closed sessions.
“My recollection of the Brown Act (is) when you take an action on a contract, it (the salary) doesn’t have to be announced,” Erwin said.
“Somebody needs to call them on it,” said David Greene, executive director of First Amendment Project, an Oakland-based nonprofit organization.
“They might be able to discuss the specific appointment of a person (in closed session),” Greene said, “Once they hire that person, the salary discussions would need to be public.”
“To me that would all go in favor of it being an open procedure,” Greene countered. “The negotiation of a noncompetitive contract is something you have to do in public.”
The council can “cure and correct” the situation by holding a new vote on the contract in a public meeting, he said.
“If they refuse to cure and correct, they risk being sued and criminally prosecuted (for) a misdemeanor,” he said.
Councilman Jim Ferguson, an attorney, said he would support a public vote.
“I don’t take ‘Oops, we blew it; we’ll fix it’ as a satisfactory response,” Ferguson said. “The public should have trust you’re announcing it in the first place.”
The council decided to hire Wohlmuth to replace outgoing City Manager Carlos Ortega during a closed session on Dec. 16.
According to minutes from the council’s Jan. 22 meeting, Wohlmuth’s contract was approved in closed session, with Erwin announcing the unanimous vote during the council’s regular meeting.
The minutes also show he did not announce Wohlmuth’s salary.
The contract itself, dated Jan. 26, is signed by Wohlmuth, Erwin, Spiegel and City Clerk Rachelle Klassen.
Copyright The Desert Sun 2009