Saying that the remedies were civil, the Lake County district attorney dropped a misdemeanor charge of violating the Brown Act brought when a Clearlake City Council member allegedly violated the confidentiality of a closed session by discussing an evaluation of the city administrator. -DB

Lake County News
August 6, 2009
By Elizabeth Larson

CLEARLAKE – The Lake County District Attorney’s Office is dropping a misdemeanor charge of violating the Brown Act against a Clearlake City Council member.

Councilman Roy Simons, 83, was arraigned on the single misdemeanor charge on July 20, and was set to return to court at 8:30 a.m. Aug. 17 before Judge Stephen Hedstrom in Lake County Superior Court’s Southlake Division.

But on Thursday Chief Deputy District Attorney Richard Hinchcliff sent a motion to the south county court seeking to have the charge against Simons dropped.

Deputy District Attorney Trang Vo had filed the case against Simons, but Hinchcliff determined that the remedies were largely civil and that the case shouldn’t proceed.

Public defender John Hinely, who was assigned to represent Simons, had no comment on the case.

Simons said Thursday he was relieved to get the news. He said he’d been told very little about the accusations against him.

“Maybe something did slip out,” said Simons. “I will assure you this – that nothing I’ve ever said would be of any dire consequence to any cause of this city.”

Peter Sheer, executive director of the California First Amendment Coalition, said, “These kinds of prosecutions are exceedingly rare.”

He called it “a rather extreme step” to criminally prosecute a Brown Act violation, with the worst penalties usually being fines.

The charge that the District Attorney’s Office had filed against Simons alleged that the violation occurred on March 18, when Simons allegedly was heard by two individuals speaking about a closed session discussion the council held regarding an employee evaluation of City Administrator Dale Neiman.

The witnesses against Simons were Dick Price, manager of the Provinsalia project, which Simons voted against earlier this year, and Lori Peters, executive director of the Clear Lake Chamber of Commerce, which Simons repeatedly has criticized publicly.

Simons, who was elected in 2006, is up for reelection next year.

Investigation documents alleged statements

The investigation into the charges was launched when Clearlake Vice Mayor Judy Thein and Councilman Curt Giambruno submitted a complaint to the District Attorney’s Office.

District Attorney’s Investigator Jim Crane met with Thein and Giambruno April 27, at which time Thein submitted a letter she had written outlining the alleged violation.

Then told Lake County News that she reported the alleged violation to the District Attorney’s Office because, based on her oath of office, she had promised to guard the constitution of the United States and the State of California.

“To knowingly have knowledge of a breach of the laws governing our Constitution, and do nothing about it, would be wrong,” she aid. “It would be a betrayal of the trust placed in me.”

Thein, who said the problems have been “ongoing” and are jeopardizing the city’s integrity, called Neiman to get clearance to speak with City Attorney Malathy Subramanian, who she then called. She explained the situation to Subramanian, who was in contact with the District Attorney’s Office. Thein sent Subramanian a draft of her letter before submitting it to the investigators.

Specifically, Thein accused Simons of divulging information from a closed session that took place on March 17, which city records show Simons attended. She also alleged that Simons discussed details of closed session property negotiations for a development project within the city at a public meeting he hosted on March 25.

According to Thein’s letter, Simons disclosed details of Neiman performance evaluation to Lori Peters at her store, Wild About Books. Peters also is executive director of the Clear Lake Chamber of Commerce.

Peters would not comment on the case to Lake County News.

Crane’s investigative report details his interview with Peters, who said Simons stated he was unhappy that Neiman was getting a good job review.

“She described Mr. Simons as seeming very frustrated about the politics of the city of Clearlake and the Chamber of Commerce,” Crane’s report states. “Ms. Peters said Mr. Simons was making complaints about Mr. Neiman. Mr. Simons was upset because Mr. Neiman would not do what Mr. Simons wanted.”

Peters said she told Simons that the store wasn’t the place to be discussing the matter, to which Simons reportedly said something to the effect that he didn’t care and that was what he thought.

Simons reportedly continued talking about the matter, telling Peters he felt pressured into signing a document accepting Neiman’s evaluation, according to investigation documents.

While they were talking, Price walked up. Crane’s report states that Peters told Simons who Price was and Simons then left.

During an interview with Crane, Price said he had arrived at Wild About Books to speak with Peters about chamber business and overheard Simons talking to Peters and three or four other people at the register.

Price told Crane he heard Peters talking about Provinsalia and Simons talking about Neiman’s review. Later that same day, Price related the encounter to Neiman at his office, telling Neiman he thought Simons’ statements were “inappropriate.”

Neiman, who was listed as a witness, told Lake County News that he knew little about the case.

On the afternoon of May 6, Crane and District Attorney Investigator Edward Bean went to Simons’ home to speak with him. The found him in his workshop, and he agreed to speak with them.

In an 11-minute interview, told investigators, “I’m a one in five vote, how’s that,” about his role on the council.

He agreed that talking about closed session items in a public place is a Brown Act violation. When Crane told him the allegation about discussion the March 17 meeting, Simons said he didn’t remember talking about it.

“Mr. Simons started laughing and told me he had to work with a ‘bunch of muppets,’” Crane’s report states. “Mr. Simons told me, ‘If I said something … maybe I did. I’m not going to say I didn’t.’”

Simons then asked Crane what would happen to him. Crane, explaining the allegation was a misdemeanor, told him he would write a report and give it to an attorney for review.

“’You do what the f*** you can with it,’” Simons told Crane, adding that was all he had to say.

When the investigators turned to leave, Simons followed them out and continued to talk. “Mr. Simons told me he’s tried to be as honest as he could throughout his entire life and that he wasn’t a criminal. Mr. Simons started laughing and stated, ‘I think this is stupid.’ He further told me he knows of two people on the city council that hates his guts.”

The investigative files in the case include a confidential memorandum from Subramanian to the council, dated Aug. 27, 2008.

“It has recently come to our attention that members of the public have been told confidential information from City Council closed session meetings,” Subramanian wrote. “Regardless of how these people obtained this information, each Council Member and staff member needs to be aware that failure to preserve the confidentiality of items discussed during closed session can have very serious legal and political ramifications.”

Those ramifications can lead to a grand jury investigation, prosecution and violation of a member’s oath of office, and discipline of staff, Subramanian’s memo states.

Her report explained that one of the few instances in which closed session information can be disclosed is in making a complaint to a district attorney or grand jury.

Council members explain actions

Both Thein and Giambruno deny that they took action because of who Simons is.

“The closed session leaks were the ones that were getting to us,” Giambruno said.

He added, “We’re not after him personally. It was just time.”

Simons said he believes some of his fellow council members – including Thein – want him off the council.

He is highly critical of Neiman and his performance. “Dale Neiman runs the whole show. There’s nobody else got anything to say about it.”

Simons said he also is concerned about the chamber – he estimated that the city has given the organization more than $500,000 over many years, and claimed the city has gotten no accounting or repayment.

On Feb. 27, Simons was the only council member to enter a no vote on several motions for the Provinsalia project, which proposes 665 housing units and a nine-hole golf course along Dam Road. Before registering any further votes, he left the meeting early due to a hearing aid failure.

On April 10, Simons and Council member Joyce Overton voted against rezoning the property 292-acre property where the project is slated to be built.

Simons – who lived for many years in the Bay Area, and saw it grow explosively – said communities can grow too quickly and added that he voted against the project because that’s what his constituents wanted.

While Simons said he believes he offers a degree of necessary diversity on the council, he said he doesn’t expect to run for reelection next year.

He even questioned whether or not he’ll finish his current term. “It’s much more than I can bear,” he said.

He added, however, that many people are urging him to finish his term, just like they previously urged him to run for the council.

Copyright 2009 Lake County News