OC District Attorney Criticizes City Council Action

In response to citizen complaints (1, 2), the OC District Attorney has quietly conducted an inquiry and formally objected to actions of our City Council in connection with approval of an agreement to purchase property for “Open Space” in the northwest area of the City. On January 20, 2009, the Council met in secret session and approved an Option Agreement that provides that the City may purchase the property for $10 million, but also included provisions related to water supply, parking, access, and other land-use considerations for the land developer.

While not objecting to the City’s right to consider a real-estate transaction in private, the District Attorney objected to secret consideration of these other provisions, claiming the City’s action exceeded the narrow real-estate exception contained in the Ralph M. Brown Act -- California’s open meeting law. To support this contention, the DA cited case law, “Shapiro v. San Diego City Council (2002)” in which a court examined similar facts and ruled that San Diego had violated the Act.

In Shapiro, the State Court of Appeals wrote:
If we were to accept the City's interpretation of the Brown Act in this respect, we would be turning the Brown Act on its head, by narrowly construing the open meeting requirements and broadly construing the statutory exceptions to it. (See Bell v. Vista Unified School Dist., supra, 82 Cal.App.4th 672, 682.) That would be incorrect. We do not denigrate the important consideration of confidentiality in negotiations. However, we believe that in this case, the City Council is attempting to use the Brown Act as a shield against public disclosure of its consideration of important public policy issues, of the type that are inevitably raised whenever such a large public redevelopment real estate based transaction is contemplated. The important policy considerations of the Brown Act, however, must be enforced, even where particular transactions do not fit neatly within its statutory categories. In this case, the trial court reached an appropriate balance in applying the Brown Act to this particular set of circumstances.
Remarkably, our City’s response to the DA inquiry was the deny wrongdoing and challenge the DA’s interpretation of the law. In a fact-to-face meeting involving former Mayor Mark Nielsen, City Attorney Omar Sandoval, and City Manager Joe Tait, with DA representatives, it was decided that the City would stipulate that it would not again consider the land-use provisions in secret, and agreed that the DA and City would seek an opinion from the Attorney General on their differences of legal opinion. The City’s formal response and stipulation is contained in a letter from Omar Sandoval to William Feccia, Sr. Assistant DA, dated December 18, 2009.

Since December, those involved in discussions with the DA have chosen to remain silent on these matters. It is uncertain whether they ever intended to reveal the commitment offered to the DA on behalf of the City.  The OC District Attorney has gone forward with the referral to the Attorney General, and by public comments before the City Council last night, this matter has been publicly revealed.

§ A related article containing additional source documentation appears on The Capistrano Insider blog. Also check out the OC Weekly blogs.  Finally, the OC Register also commented.

No comments:

Copyright © 2014, All Rights Reserved - Commonsense.com LLC