Brown Act violated

Council members not saying who did it
By: Patty McAlpin, Reporter
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What is the Brown Act?

The Ralph M. Brown Act, GOVERNMENT CODE SECTION 54950-54963, states that public agencies in California exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly. The people of this state do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created. 54950.5.  – Definition courtesy of California Newspaper Publishers Association 

None of the five Lincoln City Councilmen are saying how information was leaked between their Nov. 27 5:30 p.m. closed session meeting at City Hall that ended at 5:45 p.m. and their regularly scheduled 6 p.m. City Council meeting at McBean Park Pavilion.

The leaked information was about pulling a consent agenda item about the city manager’s contract concessions.

Lincoln City Manager Jim Estep asked about 10 minutes into the regular Nov. 27 City Council meeting that a consent agenda item regarding changes to his contract be pulled because of misperceptions by the public, specifically an e-mail floated around by Lincoln resident Rich MacKirdy.

Estep had announced at the prior closed session that he would pull that item.

But residents MacKirdy and David Kawas, about five minutes before the City Council meeting began, asked City Clerk Pat Avila if they could still talk on a pulled item. The pulled item was one of two subjects during the closed session.

The closed session discussion was not disclosed publicly.

“Each approached me separately to ask if he could still speak to an item that has been pulled from the City Council’s agenda,” Avila said. “I asked which item and said the meeting has not yet begun. After I asked the question, they walked away.”

Asked by The News Messenger how he knew an item was going to be pulled, MacKirdy said, “I didn’t know if an item had been pulled or not. I just heard a rumor going around and I thought I would ask the question. I have no further comment.”

Kawas did not answer the same question for comment by press deadline.  

MacKirdy sent an e-mail out Nov. 26 to “All Concerned Residents of Lincoln” asking residents to come to the Nov. 27 City Council meeting to “voice your opinion or at least attend the City Council meeting at the City Hall.”

He wrote in the e-mail, “No announcement of this compensation increase was made on the agenda pages. Item 6.1A is absent from the pages citizens normally read to see if they should attend the City Council meeting. You must download and read the main, large agenda packet to get this notice.”

MacKirdy complained in the e-mail that the agenda was sent out the day before Thanksgiving “when most of us were on our way or were in preparations to be with family.”

None of the Lincoln City Council members claimed responsibility for disclosing Estep’s contract consent item, when asked by The News Messenger.

The News Messenger asked for a response by 3 p.m. Nov. 30, 2012 as to who leaked information. All council members except Stan Nader responded by that time. He came to the office in person Dec. 3 but declined to answer the question citing closed-session confidentiality.

Mayor Spencer Short said he was speaking with the city clerk when she was approached by MacKirdy and Kawas at the City Council meeting to ask if they could speak to an item that had been pulled from the agenda.

“Someone violated the sanctity of closed session,” Short said. “The item was pulled in the first five minutes of the meeting. Until that point, there was no discussion. There’s a clear violation of the Brown Act. The question is who.”

Councilman Tom Cosgrove said participants in closed session are prohibited by law from disclosing the content of closed-session discussions prior to that information being made public.

“Following the closed session, I spoke with no one regarding this item prior to the announcement of the city manager. I was as surprised as the mayor to hear that members of the public had knowledge of the closed session discussions within minutes of the end of the closed session,” Cosgrove said.

Councilman Gabriel Hydrick said he doesn’t know how the information became known.

“I don’t know how they knew,” Hydrick said. “I didn’t speak to either of those gentlemen that night.”

Councilman Paul Joiner had a similar reaction.

“That’s a very good question and one you may want to ask of Mr. MacKirdy and Mr. Kawas,” Joiner said. “I was both surprised and angered to hear that information had gotten out of closed session in an apparent violation of the Brown Act.”

When Nader appeared at The News  Messenger office Monday, Nader said he “would like to be more forthcoming but can’t due to the nature of closed sessions.” He quoted California Code 54957.7 (e), 2 and 3 which states respectively, “A local agency may not take any action authorized by subdivision against a person, nor shall it be deemed a violation of this section, for doing any of the following; expressing an opinion concerning the propriety or legality of actions taken by a legislative body of a local agency in closed session, including disclosure of the nature and extent of the illegal or potentially illegal action; disclosing information acquired by being present in a closed session under this chapter that is not confidential information.”

California Newspaper Publishers Association General Counsel Jim Ewert said California Code 59457.7 does not prevent Councilman Nader from disclosing the identity of those who leaked the information because it only protects information that the councilman learned about in the closed session.

“He may not want to disclose the leakers for other reasons but the only way 54957.7 would prohibit him from telling The News Messenger is if there was a discussion in closed session about leaking the information.”

Incoming mayor questions meeting procedure

On Dec. 3, Nader questioned how City Council could have both a special meeting and a regular meeting in the same session on Nov. 27. Nader, who becomes mayor Dec. 11, said he has asked the city attorney and the City Council this question.

“As someone once said, you cannot be half pregnant,” Nader said. “It’s either one or the other but not both.”

The Nov. 27 Lincoln City Council meeting was listed as a special/regular meeting agenda.

According to California Code 54956.b, a legislative body shall not call a special meeting regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits, of a local agency executive, as defined in subdivision (d) of Section 3511.1. However, this subdivision does not apply to a local agency calling a special meeting to discuss the local agency’s budget.

“It’s the city attorney’s job to review agendas for legality,” Nader said. “I’ve asked him to explain what a special/regular meeting is.”

On Dec. 4, City Attorney Jon Hobbs said the combination is not uncommon and “all was done above board.”

“The council ran a special meeting and a regular meeting concurrently,” Hobbs said. “The reason for the special meeting is the council asked that the discussion on Village 1 (a future housing development) be brought back as a special meeting. The reason this was also a regular meeting is the meeting was held on a regular council meeting night and followed the regular meeting formalities. The meeting was noticed at least 72 hours in advance.”

The closed session for the Nov. 27 City Council meeting began at 5:30 p.m. and the special/regular meeting began at 6 p.m.

The closed session part of the agenda listed a performance review of the city manager and a conference with the labor negotiator. The city’s representative was listed as Spencer Short. Estep was the unrepresented employee.

Under the consent agenda for item 6.1A the council was to approve an amendment to the city manager’s agreement for employment.

Controversial item pulled from agenda

But Estep pulled the item, saying, “I’m asking that this be removed from the agenda. I’m disappointed that it was not taken as intended.”

Estep’s five-year contract is up in June 2013. His salary is $197,000. He pays $70.89 monthly toward his healthcare plan.

For 2013, if the agreement was amended, his portion would have been $393.97 per month, which means he would have paid $323.08 more toward healthcare. His salary would have been $200,000.

Short also expressed his disappointment.

“It’s unfortunate because this would have saved the city a substantial amount of money over time,” Short said.

Two residents commented about the city manager’s contract during the public comment section of the meeting.

“If we cannot afford to establish better safety for Lincoln, how can we afford to increase an employee’s salary at this time,” said Walter Green, a Lincoln Hills resident.

Lincoln resident Dave Gordon said he was disappointed that the contract was removed from the council’s agenda.

“It’s been a concern of mine since the agenda was released on the 21st (Nov. 21),” Gordon said. “I guess I’ll look forward to the item being aired at a future meeting.”

That meeting has not been determined yet.

“I don’t have a date to bring this back at all. There’s been a lot of misinformation,” Short said.