TO:
Honorable Mayor and Members of the City Council
THROUGH:
Mark Danaj, City Manager
FROM:
Quinn M. Barrow, City Attorney
SUBJECT:Title
Ratification of Former Human Resources Director Separation Agreement (City Attorney Barrow).
RATIFY APPROVAL OF SEPARATION AGREEMENT WITH THE FORMER HUMAN RESOURCES DIRECTOR
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Recommended Action
RECOMMENDATION:
Ratify separation agreement approved on March 17, 2015.
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BACKGROUND:
The Brown Act provides that the governing bodies of public agencies such as the Manhattan Beach City Council may enter into closed session under a number of different facts and circumstances, including to discuss threats of litigation and to authorize settlement of pending litigation. In full compliance with the Brown Act, the City Council went into closed session on March 17, 2015 to discuss a threat of litigation and to authorize settlement of that litigation. After the conclusion of the closed session, the City Attorney announced that, by a 5-0 vote, the City Council authorized a settlement agreement with the former Human Resources Director, and that the agreement was available to the public. Shortly after the closed session, the City released the agreement to the public and local media pursuant to the Public Records Act.
On June 15, 2015, the law offices of Kelly Aviles emailed a letter asserting that the City did not properly describe the closed session.
On June 22, 2015, the City proactively reached out to Ms. Aviles. Ms. Aviles was not aware of the documentation that demonstrated that the City was proceeding under a different Brown Act section than the section cited in her letter. The Brown Act's reporting requirements differ depending on the basis for entering into a particular closed session. Based upon the documentation, Ms. Aviles informed the City (and the local media) that the City acted in good faith in full compliance with the Brown Act.
Accordingly, there is no legal requirement to revisit this issue or to place the agreement on the agenda. Nevertheless, in the interests of transparency and to provide the public another opportunity to comment, staff has placed this item on the agenda.
DISCUSSION:
The Brown Act: California's Sunshine Law. The Ralph M. Brown Act (California Government Code Section 54950 et.seq.), more commonly known as the "Brown Act," is California's "sunshine" law for local government. In a nutshell, the Brown Act requires local government business to be conducted at open and public meetings. The Brown Act allows city councils to conduct business in closed sessions under certain specified situations.
The Manhattan Beach City Council Properly went into Closed Session on March 17, 2015 to Discuss Anticipated Litigation and to Consider Authorizing Settlement of that Anticipated Litigation. The Brown Act allows a local legislative body such as the Manhattan Beach City Council to convene a "closed session" during a meeting in order to meet privately with its advisors on specifically enumerated topics. Examples of business that may be conducted in closed session include personnel evaluations of the City Manager or City Attorney, labor negotiations, real estate negotiations and discussion and settlement of pending litigation (including existing litigation, anticipated litigation and threats of litigation). In this case, the City Council went into closed session to discuss "pending litigation" pursuant to Government Code Section 54956.9.
Section 54956.9 provides:
"Closed sessions concerning pending litigation; Lawyer-client privilege
(a) Nothing in this chapter shall be construed to prevent a legislative body of a local agency, based on advice of its legal counsel, from holding a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation when discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.
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(d) For purposes of this section, litigation shall be considered pending when any of the following circumstances exist:
(2) A point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant exposure to litigation against the local agency."
As shown in the next section, the description of the closed session for March 17, 2015 contained this identical description.
The March 17, 2015 Closed Session was Described in Full Compliance with the Brown Act. The Brown Act requires that closed session business be described on the public agenda. Government Code Section 54954.5 provides a "bonus" of sorts for using prescribed language to describe closed sessions. If an agency uses the prescribed language, legal challenges to the adequacy of the description are precluded. This so-called "safe harbor" encourages many local agencies, such as Manhattan Beach, to use a very similar agenda format. Section 54954.5 provides: "For purposes of describing closed session items pursuant to Section 54954.2, the agenda may describe closed sessions as provided below. No legislative body or elected official shall be in violation of Section 54954.2 or 54956 if the closed session items were described in substantial compliance with this section. Substantial compliance is satisfied by including the information provided below, irrespective of its format."
The "safe harbor" language in Government Code § 54954.5 for anticipated litigation is:
"CONFERENCE WITH LEGAL COUNSEL (ANTICIPATED LITIGATION)
Significant exposure to litigation pursuant to (paragraph (2) or (3) of subdivision (d) of Section 54956.9 (Specify number of potential cases)
(In addition to the information noticed above, the agency may be required to provide additional information on the agenda or in an oral statement prior to the closed session pursuant to paragraphs (2) to (5), inclusive, of subdivision (e) of Section 54956.9.)"
The agenda description of the March 17, 2015 closed session agenda is substantially identical to the Brown Act's "safe harbor" language. Mirroring the "safe harbor" language set forth in Government Code Section 54954.5, the agenda described the closed session as follows:
"CONFERENCE WITH LEGAL COUNSEL (ANTICIPATED LITIGATION)
(Government Code Section 54956.9 (d) (2))
A point has been reached where, in the opinion of the City Council on the legal advice of the City Attorney, based on existing facts and circumstances, there is a significant exposure to litigation in 1 case."
The City Attorney's Announcement Fully Complied with the Brown Act.
Government Code Section 54957.1 provides that after a closed session, the legislative body must reconvene the public meeting and publicly report certain types of actions if they were taken, and the vote on those actions. After the closed session, the City Attorney announced that, by a 5-0 vote, the City Council authorized a separation agreement with the former Human Resources Director, and that the agreement is available to the public. Shortly after the closed session, the City released the agreement to the public and local media pursuant to the Public Records Act.
Dialogue with Californians Aware.
In reliance upon subsection (2) of Government Code Section 54956.9(e), the law offices of Kelly Aviles sent a letter on behalf of Californians Aware asserting that the City did not properly describe the closed session as required by subsection (2). The letter also requested that the City "cease and desist" from future violations of the Brown Act. (Subsequent to that date, Viet Ngo sent a demand asserting that the approval of the agreement was "illegal.")
Ms. Aviles is an experienced public interest attorney with an excellent command of the Brown Act. Shortly after receiving her letter, the City proactively reached out to Ms. Aviles. Ms. Aviles stated that she was not aware of the documentation that demonstrated that the City was proceeding under subsection (5) of Government Code Section 54956.9(e), a different Brown Act subsection than the one cited in her letter (subsection (2)). After subsequent dialogue, Ms. Aviles notified the City (and local media) that the City acted in good faith and she would not pursue any further action. According to the Easy Reader, Ms. Aviles added that she had learned of the matter on the eve of the statute of limitations, so she sent the letter "out of an abundance of caution" not knowing whether there was, in fact, a Brown Act violation.
It should be noted that Ms. Aviles' June 15, 2015 letter did not question the approval of the agreement in closed session or the City Attorney's announcement of the decision and notification to the public and media that the agreement was available to the public. The letter merely questioned whether the item was properly identified on the agenda. After the dialogue with Ms. Aviles, she agreed that the description was made in good faith.
Ms. Aviles also told the City that, prior to the initial news reports of her June 15 letter, she had informed the local press that she did not know if there was a violation. Ms. Aviles stated that her normal practice is to reach out to the City prior to sending a letter. But, in this case, faced with a deadline, she sent the letter to engage the City in dialogue. She was very appreciative that the City reacted so quickly to the letter, and looks forward to working with the City in the future to balance the needs of privacy against the public's desire to be engaged.
City staff likewise looks forward to future productive dialogue with Ms. Aviles, and staff recommends that the Council renew its unconditional commitment to transparency, open government and complying both with the letter and spirit of the Brown Act.
CONCLUSION:
There was no Brown Act violation in connection with any aspect of the City Council's approval of the agreement with the former Human Relations Director. Nevertheless, we recommend that the City Council invite further comments from the public on the agreement. After providing that opportunity, staff recommends that the Council ratify the agreement.