Did the Escondido City Council Violate the Brown Act on November 16, 2005
According to the Brown Act, "No action or discussion shall be undertaken on any item not appearing on the posted agenda. . ." The exceptions are very few and very specific. Cal. Gov. Code: 54954.2. (a)(2)
The Brown Act allows: "Notwithstanding any other provision of this chapter, a legislative body of a local agency may hold a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease. . . ." Cal. Gov. Code §54956.8
The full text of the Brown Act is available at the following link:
http://www.leginfo.ca.gov/cgi-bin/displaycode?
section=gov&group=54001-55000&
file=54950-54963
On November 16, 2005, the Escondido City Council met in closed session (late into the evening) to discuss the following item:
20. CONFERENCE WITH REAL PROPERTY NEGOTIATOR (Government Code §54956.8)
b. Property: Valley Boulevard between Grand Avenue and Valley Parkway and certain portions of Pennsylvania Avenue between Valley Parkway and Elm
Agency Negotiator: Clay Phillips and Jeffrey Epp
Negotiating parties: City of Escondido and the Palomar Health District
Under negotiation: Price and terms of payment
http://www.ci.escondido.ca.us/government/
docs/ca20051116.pdf
This same item was discussed at the City Council Meeting of September 14, 2005 (Closed Session Item I.c.). See links to meeting agenda and minutes:
http://www.ci.escondido.ca.us/government/
docs/ca20050914.pdf
http://www.ci.escondido.ca.us/government/
docs/cm20050914.pdf
A similar item was on the agenda of a closed session PPH Board special meeting on September 12, 2005. See links to the PPH special meeting agenda and minutes:
http://civics.robroy.cc/PPHBdAgenda091205s.pdf
http://civics.robroy.cc/PPHBdMinutes091205s.pdf
http://civics.robroy.cc/PPHBdMinutes091205.pdf
So much closed session discussion on the price and terms of payment for two small streets segments around Palomar Medical Center and no discussion on the following items:
1. long-term infrastructure improvements by PPH for the ERTC (including Citracado Parkway);
2. development agreement between PPH and Escondido for the downtown site;
3. JRM (private developer) agreement with PPH to build medical office buildings (not part of the hospital) on PPH land in the ERTC?
My concern on the scope of permissible discussions was presented to the City Council before the closed session (click on video library item 3: Oral Communications [at 3 minutes]):
http://escondido.12milesout.com/Escondido/
EventList.aspx?id=73
When developing PETCO park, San Diego tried to argue that complicated negotiations related to the park's development required that "the discussions taking place in a closed session should be able to include matters 'reasonably related' to those specified in the posted agenda items." An appellate court disagreed stating "[t]he scope of the permissible discussion in the closed sessions should be defined by the notice given in the agenda and the public announcements, together with the rule against discussing items not identified in the agenda." The court further stated "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." Shapiro v. San Diego City Council (2002).
http://caselaw.lp.findlaw.com/data2/
californiastatecases/d037323.pdf
Price and terms of payment for the identified properties. That is all that can be discussed with the real property negotiators in the closed session.
Late in the evening of November 16, 2005, while the Escondido City Council was in closed session, I happened upon the Escondido City Attorney and City Manager (the listed negotiators) in the parking lot east of City Hall. Based on their responses to my questions, and the fact that they were not in the meeting, I believe that the Escondido City Council was discussing items beyond the price and terms of payment for property identified as Valley Boulevard between Grand Avenue and Valley Parkway and certain portions of Pennsylvania Avenue between Valley Parkway and Elm. At a minimum, the Escondido City Council was not holding "a closed session with its negotiator" as required by Gov. Code §54956.8 because, during the closed meeting, the listed negotiators were in the parking lot with me discussing the permissible scope of closed session meetings under the Brown Act.
Further investigation and vigilance is warranted.
It should be understood that the Ad-Hoc Subcommittee of the City of Escondido and the corresponding site selection committee at PPH ARE NOT legislative bodies covered by the Brown Act, and they can meet with staff and each other in private discussions. But once a quorum of the legislative bodies are involved in the discussion by any manner, then Brown Act restrictions are in full force.
The Brown Act allows: "Notwithstanding any other provision of this chapter, a legislative body of a local agency may hold a closed session with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease. . . ." Cal. Gov. Code §54956.8
The full text of the Brown Act is available at the following link:
http://www.leginfo.ca.gov/cgi-bin/displaycode?
section=gov&group=54001-55000&
file=54950-54963
On November 16, 2005, the Escondido City Council met in closed session (late into the evening) to discuss the following item:
20. CONFERENCE WITH REAL PROPERTY NEGOTIATOR (Government Code §54956.8)
b. Property: Valley Boulevard between Grand Avenue and Valley Parkway and certain portions of Pennsylvania Avenue between Valley Parkway and Elm
Agency Negotiator: Clay Phillips and Jeffrey Epp
Negotiating parties: City of Escondido and the Palomar Health District
Under negotiation: Price and terms of payment
http://www.ci.escondido.ca.us/government/
docs/ca20051116.pdf
This same item was discussed at the City Council Meeting of September 14, 2005 (Closed Session Item I.c.). See links to meeting agenda and minutes:
http://www.ci.escondido.ca.us/government/
docs/ca20050914.pdf
http://www.ci.escondido.ca.us/government/
docs/cm20050914.pdf
A similar item was on the agenda of a closed session PPH Board special meeting on September 12, 2005. See links to the PPH special meeting agenda and minutes:
http://civics.robroy.cc/PPHBdAgenda091205s.pdf
http://civics.robroy.cc/PPHBdMinutes091205s.pdf
http://civics.robroy.cc/PPHBdMinutes091205.pdf
So much closed session discussion on the price and terms of payment for two small streets segments around Palomar Medical Center and no discussion on the following items:
1. long-term infrastructure improvements by PPH for the ERTC (including Citracado Parkway);
2. development agreement between PPH and Escondido for the downtown site;
3. JRM (private developer) agreement with PPH to build medical office buildings (not part of the hospital) on PPH land in the ERTC?
My concern on the scope of permissible discussions was presented to the City Council before the closed session (click on video library item 3: Oral Communications [at 3 minutes]):
http://escondido.12milesout.com/Escondido/
EventList.aspx?id=73
When developing PETCO park, San Diego tried to argue that complicated negotiations related to the park's development required that "the discussions taking place in a closed session should be able to include matters 'reasonably related' to those specified in the posted agenda items." An appellate court disagreed stating "[t]he scope of the permissible discussion in the closed sessions should be defined by the notice given in the agenda and the public announcements, together with the rule against discussing items not identified in the agenda." The court further stated "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." Shapiro v. San Diego City Council (2002).
http://caselaw.lp.findlaw.com/data2/
californiastatecases/d037323.pdf
Price and terms of payment for the identified properties. That is all that can be discussed with the real property negotiators in the closed session.
Late in the evening of November 16, 2005, while the Escondido City Council was in closed session, I happened upon the Escondido City Attorney and City Manager (the listed negotiators) in the parking lot east of City Hall. Based on their responses to my questions, and the fact that they were not in the meeting, I believe that the Escondido City Council was discussing items beyond the price and terms of payment for property identified as Valley Boulevard between Grand Avenue and Valley Parkway and certain portions of Pennsylvania Avenue between Valley Parkway and Elm. At a minimum, the Escondido City Council was not holding "a closed session with its negotiator" as required by Gov. Code §54956.8 because, during the closed meeting, the listed negotiators were in the parking lot with me discussing the permissible scope of closed session meetings under the Brown Act.
Further investigation and vigilance is warranted.
It should be understood that the Ad-Hoc Subcommittee of the City of Escondido and the corresponding site selection committee at PPH ARE NOT legislative bodies covered by the Brown Act, and they can meet with staff and each other in private discussions. But once a quorum of the legislative bodies are involved in the discussion by any manner, then Brown Act restrictions are in full force.
posted by Robroy at 9:53 AM
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