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Gilroy struggles with provisions of open government laws

Centering on a controversial raise for the city administrator, the Gilroy City Council is trying to balance the need for confidentiality in personnel matters and the public’s right to know. -DB

The Gilroy Dispatch
Aug 24, 2009
By Chris Bone

Many councilmembers have renewed their interest in secrecy regarding closed sessions, in part because information about proposed raises for two of the city’s top employees got out before an official announcement.

State and local laws forbid the disclosure of closed session conversations, and the city attorney distributes a sign-in sheet resembling a legal contract during closed sessions to remind attendees – including council members, city officials and special counsel – to keep their lips sealed lest they face a grand jury investigation. Some council members have called for violators to be prosecuted, but open government advocates argue that California law demands the decisions made in closed session be made public.

The Brown Act, California’s open government law, forbids revealing information the council has not specifically agreed to release with a vote. Gilroy’s sign-in sheet debuted Oct. 2, 2006, as a “double recognition” of this law because of the council’s general concern then that colleagues were talking about closed session items, former City Administrator Jay Baksa said.

The attendance sheet reads, “I understand that I cannot disclose confidential information learned in this closed session and related to the topic of this closed session.” Confidential information is defined on the reverse side as “communication made in a closed session that is specifically related to the basis” of the closed session.

Nearly all cities use similar attendance-cum-oath sheets during closed sessions, according to City Clerk Shawna Freels, and council members such as Peter Arellano and Dion Bracco have said it’s a simple document erring on the side of caution that preserves candor behind closed doors. Pinheiro and Councilman Craig Gartman have expressed even stronger opinions, decrying the leaks and demanding punishment.

“Anyone who leaks information … is subject to a Grand Jury investigation,” Gartman said earlier this month. He pointed not only to requirements under the Brown Act but also Gilroy’s Open Government Ordinance, passed a year ago, which requires salary discussions for City Administrator Tom Haglund and other top brass to occur in public while allowing performance evaluations in closed session.

The point came up earlier this month when information leaked that the council had voted 6-1 in closed session, with Councilman Gartman voting no, to approve a nearly $10,000 raise for Haglund, who earns $199,000, and 4-3 to approve a $4,700 raise for Freels, who earns $94,906, according to city figures.

The 5-percent merit raises mirror the $26,000 in pay hikes the council restored for 29 rank-and-file workers between March and June after the body froze such discretionary raises in March. The council restored those scheduled raises, also dubbed “performance reviews” at City Hall, when it approved contracts two months ago with the city’s five bargaining units. Those units do not include Haglund or Freels because they are Gilroy’s only two council-appointed employees. Despite the raise restoration, all the union agreements froze all raises for every employee, except Freels and Haglund, from July 1 through June 2010.

Before the council convenes another closed session to discuss Haglund and Freel’s expected raises, Mayor Al Pinheiro must confer with the two separately to consider any counter offers, which he will take back to the council. At that undetermined time, the body will take another vote behind locked doors and then schedule a final vote for the next open session. By then, though, the decision is practically foregone, irking residents and some of the 48 former employees who lost their jobs in January. Many of those who were upset turned to the comment boards on the Dispatch’s Web site.

“This raise is just plain unbelievable! In what reality would you give raises after laying off (48) people,” wrote one commentator.

The public should not be complaining yet, though, Pinheiro said. The raise discussions were billed on the council’s Aug. 3 agenda as performance evaluations and should have remained a secret, he said.

“I don’t know the councilmember that gave you all the pre-mature (sic) information and therefore put things into a spin without meeting with the people (affected) and they themselves have had no chance to talk to me and discuss anything before final council vote in open session,” Pinheiro wrote in an e-mail. “This issue will have to be dealt with (by) the council on a later date.”

Along with performance reviews, the council can convene closed sessions to discuss legal matters, salary negotiations with unions and property-related discussions. To convene a closed session under the local ordinance requires a majority vote by the council instead of the mayor and city administrator simply scheduling one. The ordinance also requires a vote after a closed session for the body to decide whether it will reveal any information before it has resolved the closed-door issue with a final vote.

The council’s Aug. 3 “vote” was a lead-up to the final public vote, but there seems to be misunderstanding around whether the council should have reported the preliminary decision. Any action, or vote, taken during a closed session requires reporting, but the mayor announced after the Aug. 3 session that the council simply gave him direction to meet with Haglund and Freels to review their evaluations, and other council members agreed. There was no mention of the so-called “straw poll” or pre-vote, a tricky legal issue that cities tend to interpret narrowly, said Terry Francke, general counsel for Californians Aware.

This council has before confronted the issue of what needs to be reported out of closed session. In December 2007, the council took an informal vote to direct Baksa to hire Denise Turner. Pinheiro never reported that action, and afterward Council members Perry Woodward and Cat Tucker said they thought they were voting, which contributed to the air of confusion surrounding what can and cannot be reported after a closed session.

Copyright 2009 MainStreet Media Group

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