A publishers association lawyer said that the Porterville City council violated the Brown Act by failing to indicate in their meeting agenda that they were going to act on a bailout for the Fourth of July fireworks show. -DB
The Porterville Recorder
April 15, 2009
By Glenn Faison
The Porterville City Council broke the law April 7 when it voted to bail out the Exchange Club’s Fourth of July fireworks show with a $13,000 infusion of cash, a Sacramento-based media lawyer said on Wednesday.
Jim Ewert, legal counsel for the California Newspaper Publishers Association, said there’s no question about it: Council members ran afoul of the state’s open meetings law, the Ralph M. Brown Act, on April 7. City officials disagree.
“That’s a big, fat violation of the Brown Act,” Ewert said after reviewing the specifics of the posted agenda for the April 7 meeting and comparing it to the council’s action.
City Manager John Lollis on Wednesday said the city attorney, Julia Lew, has a different take on the matter.
“In her opinion, she felt that the item was not a violation of the Brown Act,” Lollis said after conferring with Lew. “She feels very confident there was not a violation of the Brown Act.”
The City Council stepped in last week and saved the Fourth of July fireworks show after the Exchange Club canceled it, citing an inability to raise the money needed to pay the $18,000 cost for the fireworks.
Members of the Exchange Club, buoyed by a fundraising campaign in The Recorder, raised about $5,000 toward the initial $9,000 down payment, which came due late last month. The Exchange Club subsequently canceled the show.
The council, on a 3-1 vote, agreed on April 7 to kick in $13,000 to cover what the club needed to pay for the fireworks.
Vice Mayor Pete McCracken voted no. Councilman Felipe Martinez did not vote due to a conflict of interest: He sits on the Exchange Club’s board of directors.
The April 7 City Council agenda included an item titled “Council Member Request — Status of Exchange Club of Porterville’s Annual Fourth of July Community Fireworks Show.” The three-sentence staff report offered a brief history of the show and noted the cancelation.
No staff recommendations were made.
Ewert said the agenda notification was not sufficient to support the action that was taken. He cited the 1971 case of Carlson v. Paradise Unified School District.
In that case, Ewert said the school board noticed a continuation school site change, but during the meeting discussed and voted to close a school. He said the court ruled the description on the agenda was not sufficient to alert the public that trustees were going to discuss and take action on closing a school and transferring students.
“The standard that the court set is the public has to have a sufficient understanding of what it is the body is planning to do,” Ewert said. “The facts of your situation are eerily similar as the facts in the Carlson case because someone reading the description in the staff report … would not know that the council intended anything other than to hear what the Exchange Club was doing, and certainly would not have understood that to mean that the council intended to discuss taking over the financing of the show, and therefore anyone who might have been interested in that discussion and potential action, and wanted to be involved in it, was not able to do so.”
Ewert also cited California’s constitution and language found there that requires maximum public access to the workings of state and local government.
Lollis said Lew is reviewing relevant case law. He said based on council direction from the April 7 meeting, the matter is scheduled for the April 21 meeting so the council may consider recommended budget modifications to seal the deal, and to review possible venue changes to rein in costs.
“If there’s any concern, there’s still another opportunity for the council to discuss it if it needs to be done,” Lollis said.
Copyright 2009 The Porterville Recorder