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HomeMy WebLinkAboutItem 4a - Rescind Closed Session Item of May 5, 2015GPyIF0R'N r /� �lu6ust 5, 1903 -?� -42 it, of v i j DATE: June 16, 2015 TO: Honorable Mayor and City Council FROM: Stephen P. Deitsch, City Attorney STAFF REPORT Office of the City Attorney SUBJECT: RESCIND ACTIONS TAKEN IN CLOSED SESSION AT THE MAY 5, 2015, CONTINUED SPECIAL CITY COUNCIL MEETING RELATED TO ZONING AND OTHER STUDIES IN THE HIGHLAND OAKS AREA; CONSIDER TAKING NEW ACTIONS RELATIVE THERETO; AND CONSIDER BROWN ACT CEASE AND DESIST LETTERS AND RELATED ACTIONS Recommended Action: Rescind previous actions and consider the foregoing items SUMMARY On May 5, 2015, the City Council took several actions in Closed Session related to the Save the Arcadia Highlands v. City of Arcadia, et al. lawsuit, which were reported during the open session that evening. Specifically, the City Council directed staff to temporarily suspend the Citywide Zoning Code Update and Neighborhood Impacts Committee meetings and to go forward with a Citywide Historic Preservation Survey but to temporarily exclude the Highland Oaks area, until the subject lawsuit is completed. Since that time, resident David Arvizu raised concerns over alleged Brown Act violations for making these decisions in Closed Session. In an abundance of caution, to avoid even the appearance of such a violation and unnecessary litigation, it is recommended that the City Council rescind the May 5 Closed Session actions and consider taking new actions relative thereto, as well as approve a response to Mr. Arvizu's cease and desist letters in open session. DISCUSSION The City Council has received from Mr. David Arvizu two letters, dated May 18 and June 2, threatening litigation alleging violations of the Brown Act relative to decisions reached by the City Council in Closed Session at its Continued Special City Council Meeting on May 5, 2015. Rescind Actions Taken in Closed Session on May 5, 2015 June 19, 2015 Page 2 of 3 Without conceding that the City Council violated the Brown Act, the Brown Act allows a public entity's legislative body, such as the City Council, to avoid potential litigation by rescinding any action allegedly taken in violation of the Brown Act, and then consider taking any such action, any variation thereof, or any new action relative thereto, at an agendized open session of the legislative body. Similarly, without conceding that the City Council violated the Brown Act, the Brown Act allows the legislative body to respond to a demand for cure or cease and desist letter, such as Mr. Arvizu's letters, by informing the complaining party that the City will not repeat any specified past action that is alleged to violate the Brown Act. Pursuant to the Brown Act, if the City Council wishes to take the foregoing actions, the City must do so within 30 days of receipt of a letter from a complaining party. With respect to Mr. Arvizu's May 18 letter, the 30 day period expires on June 17. With respect to Mr. Arvizu's June 2 letter, the 30 day period expires on July 2. Copies of Mr. Arvizu's letters are both attached to this staff report. A draft responsive letter is included with this staff report for City Council consideration. RECOMMENDATION It is recommended that the City Council: (1) Publicly report the vote of each Council Member concerning each of the May 5, Closed Session actions, as previously told to newspapers. (2) Rescind the following actions taken in closed session at the May 5, 2015, Continued Special City Council Meeting concerning suspension of the following until resolution of the pending litigation in Save the Arcadia Highlands vs. City of Arcadia, et al.: (a) Work on the Citywide Zoning Code Update project; (b) That portion of a historical preservation survey pertaining to the Highland Oaks Homeowners Association area; and (c) Further formation and meetings of the Citywide Neighborhood Impacts Committee. (3) Consider taking action to suspend the following until resolution of the pending litigation in Save the Arcadia Highlands vs. City of Arcadia et al.: (a) Work on the Citywide Zoning Code Update project; Rescind Actions Taken in Closed Session on May 5, 2015 June 19, 2015 Page 3 of 3 (b) That portion of a historical preservation survey pertaining to the Highland Oaks Homeowners Association area (c) Further formation and meetings of the Citywide Neighborhood Impacts Committee; and /or (d) Take any other action relative to the foregoing. (4) Consider authorizing dispatch of a letter to Mr. David Arvizu responding to his letters threatening Brown Act litigation dated May 18 and June 2, 2015. Approved Dominic LazzarsW City Manager Attachments: Letters from David Arvizu dated May 18, and June 2, 2015 Draft Letter Responding to Mr. David Arvizu e -. per. Ao4, A�e RECEIVED DAVID ARVIZU 1321 Highland Oaks Dr., Arcadia CA 91006 MAY 18 2o15 626 627 -6503 CITY OF AR+CADIA CITY ATTORNEY May 18, 2015 Arcadia City Council City Attorney Stephen P. Deitsch 240 W. Huntington Drive Arcadia, CA 91006 Re: Closed Session City Council Meeting May 5, 2015 To City Council and City Attorney Deitsch: I did not come to the City Council meeting on Tuesday, May 5, 2015 because the closed study session was not posted on the agenda. At no time was it ever put on any agenda that in closed session you would be making policy decisions regarding the Mills Act, historical survey and zoning code updates. It has been alleged that the closed session was continued from April 7, 2015 and therefore did not necessitate a separate, new or included notice or posting of the agenda. However, the discussion of zoning code updates, historical survey or Neighborhoods Impact Committee were never identified in any notice of closed session from April 2015. The zoning code updates, historical survey, Mills Act and Neighborhood Impacts Committee are unrelated to the issues of the Petition for Writ of Mandamus filed by Save The Arcadia Highlands against the City of Arcadia. The Petition is requesting an Environmental Impact Report based on the unusual circumstance of the size of the projects at 29 E. Orange Grove and 1600 Highland Oaks and the cumulative effect of these projects. The policy decisions made by City Council did not qualify as subject matter which can be discussed in a closed session meeting of City Council. There was no opportunity for public comment regarding these items. Resident, April Verlato brought this to the attention of Attorney Stephen Deitsch on May 5, 2015 and was told that public comment had been closed on April 7, 2015 and there was not an opportunity on May 5, 2015 to have any public comment. I am requesting that City Council set aside their decisions of May 5, 2015 and proceed with Zoning Code Updates, Historical Survey of all areas of Arcadia and conduct meetings of the Neighborhood Impacts Committee or, in the alternative, make the recordings of the closed session meeting of May 5, 2015 available to the public. Please provide a response within 15 days from the date of this letter. If I do not hear from you within this time, I will file the appropriate complaints with the District Attorney's office pursuant to Government Code Section 54959 or in a court of competent jurisdiction pursuant to Government Code Section 54960 (a). Respectfully, ®lam DAVID ARVIZU 1321 Highland Oaks Drive Arcadia, California 91006 (626) 627 -6503 June 2, 2015 [By hand delivery] Arcadia City Council City Attorney Stephen P. Deitsch 240 W. Huntington Drive Arcadia, CA 91007 WIN grem DEMAND TO CURE OR CORRECT pursuant to Gov. Code §54960.1 um DEMAND TO CEASE AND DESIST pursuant to Gov. Code §54960.2 To City Council and City Attorney Deitsch: In my letter of May 18, 2015, 1 notified you of a Brown Act violation regarding the City Council's May 5, 2015 Meeting. Please consider this correspondence my formal demand to both cure and correct the actions taken during closed session pursuant to Government Code, section 54960.1, and to cease and desist from these violations in the future pursuant to Government Code, section 54960.2. On April 7, 2015, the Council held a special meeting to discuss only one item of business. The item was described as a closed session pursuant to Government Code, section 54956.9, entitled: a. Pursuant to Government Code Section 54956.9(d)(1) to confer with legal counsel regarding the matter of Save the Arcadia Highlands v. City of Arcadia, City C,pu,ng;il of the City of Arcadia and Does 1 through 10; and Robert Tong, Bowden Development, Inc, 29 East Orange Grove Avenue, LLC and Does 11 through 25; 1 1 P a g e Los Angeles Superior Court (Central District -- Stanley Mosk Courthouse); Court Case No. 85154327 At the end of that meeting, the closed session was continued to Tuesday, May 5, 2015 at 5:30 p.m. in the Council Chamber Conference Room. Pursuant to Government Code, section 54955, an agency "may adjourn any regular, adjourned regular, special or adjourned special meeting to a time and place specified in the order of adjournment." On May 5, 2015, the Board held a meeting at 4 p.m., which it then adjourned to go into closed session well past 5:30, before reconvening at 7 p.m. for the regular meeting. The May 5 meeting was held at the police department. While the closed session held on May 5 was apparently continued from the closed session from April 7, because the meeting did not start at 5:30 and was located at the Police Department Emergency Operations Center, 250 W. Huntington Drive, and not at City Council Chambers, 240 W. Huntington Drive, as the notice of continuance or announcement provided, this continued/adjourned meeting was not properly noticed. Additionally, the May 5t" special meeting agenda was not posted on the City's website, nor were people who had signed up to receive notices and agendas provided with information about the meeting. At the end of the closed session, the City Attorney issued a statement regarding the actions taken in closed session. The announcement confirms that during closed session, the Council discussed and took action on items outside of the specific litigation noticed, including decisions regarding the Mills Act, the historical survey, and zoning code updates. None of these items were included on either the April 7 agenda, nor were they listed on the notice of continuance. This robbed interested persons of notice and opportunity to be heard on these important decisions, a right which is guaranteed by the Brown Act. Further, these items could never be discussed in closed session, regardless of whether the City or its legal counsel believe they somehow relate to the litigation or would give the city some advantage in litigation. Trancas Property Owners Ass.Qciali v -City of Malibu (2006) 138 Cal.App.41" 172. Finally, the City did not disclose the vote of each councilmember as required by the Brown Act. (See Best, Best & Krieger Legal Alert "Practical Tips for Publicly Reporting on Legislative Body Action Taken and Votes or Abstention on the 2 1Page Actions available on their website at http://www.bbklaw.com/? t =40 &an = 2 782 9 &format =x m l .) Pursuant to Government Code, section 54960.1, you have 30 days from the receipt of this demand to cure and correct the challenged actions by: 1. Rescinding all actions taken in the closed session at the May 5th meeting; 2. Publicly reporting the vote or abstention of eAch council member on each action taken in closed session at the May 5th meeting; If you fail or refuse to cure and correct as demanded, I may seek judicial invalidation of the challenged actions pursuant to Government Code, section 54960.1, as well as an award of court costs and reasonable attorney fees pursuant to Government Code, section 54960.5. The Brown Act also provides a separate and distinct remedy allowing an interested person to "commence an action by mandamus, injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations," "to determine the applicability of this chapter to ongoing actions or threatened future actions of the legislative body, or to determine the applicability of this chapter to past actions of the legislative body." Government Code, section 54960. in order to avoid litigation, the Council must agree to cease and desist from the practices set forth above, which impair the public's ability to participate in its government. Namely, the Council must acknowledge the Brown Act violations set forth above by making an unconditional commitment to refrain from the following practices in the future: 1. Adjourning or continuing a special meeting to a specific time and place, but holding the adjourned or continue meeting in a different location than provided for in the notice, in violation of Government Code §§ 54955 and 54955.1; 2. Failing to post the notice of a special meeting on the City's website, in violation of Government Code § 54956; 3. Failing to provide notice of a special meeting to people who have signed up to receive notices and agendas of meetings, in violation of Government Code § 54954.1; 3 1 P a g e Q 4. Discussing and taking action on items not listed on the agenda during a special meeting, in violation of Government Code §§ 54954.3, 54956, and 54957.7; 5, Discussing items during a closed session on pending litigation that are outside the scope of the litigation, in violation of Government Code §54956.9 and 54957.7; and, 6. Failing to report the vote or abstention of each councilmember on actions, in violation of Government Code § 54953 (c). Pursuant to Government Code, section 54960.2, you have 30 days from the receipt of this cease and desist demand to provide an "unconditional commitment" that the District will refrain from engaging in the practices described above at any time in the future. The unconditional commitment must be approved by the District in open session at a regular or special meeting as a separate item of business, and not on its consent agenda. If you fail or refuse to cease and desist as demanded, I may file an action pursuant to Government Code, section 54960, as well as an award of court costs and reasonable attorney fees pursuant to Government Code, section 54960.5. S vid Arvizu cc: City Attorney Stephen P. Deitsch 41 Page June 17, 2015 91CL1aI Mr. David Arvizu 1321 Highland Oaks Drive Arcadia, CA 91006 Re: Your May 18 ( "May 18 Letter ") and June 2, 2015 ( "June 2 Letter ") letters to the City of Arcadia alleging Brown Act violations ( "Letters ") Dear Mr. Arvizu: This is to confirm that the City has received from you the above described Letters. Following actions taken in response to the Letters ( "Council Actions ") by the City Council ( "City Council ") of the City of Arcadia ( "City ") in open session at its regular meeting on June 16, 2015 ( "June 16 Meeting "), the City submits to you this response to the Letters. May 18 Letter In the May 18 Letter, you requested that the City Council set aside its decisions made in closed session ( "Continued Closed Session ") at its continued special meeting on May 5, 2015 ( "Continued Special Meeting ") to temporarily suspend the following until resolution of the pending litigation captioned, Save the Arcadia Highlands vs. City of Arcadia, et al.: (1) the City's zoning code update project, (2) the historic preservation survey pertaining to the Highland Oaks Homeowners Association area, and (3) further formation and meetings of a neighborhood impacts committee (collectively, "Council Closed Session Actions "). In the alternative, you requested making available to the public audio recordings of the closed session commenced at the April 7 special meeting of the City Council ( "Special Meeting ") and of the Continued Closed Session (collectively, "Closed Session "). This is to advise you that for the reasons hereinafter set forth and without admitting any violation of the Brown Act, the Council Actions at the June 16 Meeting fulfilled that part of the request in the May 18 Letter to set aside the Council Closed Session Actions. At the June 16 Meeting, the City Council further considered whether to proceed with the Council Closed Session Actions, or any variation or alternative thereto, following receipt of public comment and new deliberation. Finally, since there are no audio recordings made of the Closed Session, it is not possible to make available to the public any such audio recordings. June 2 Letter In the June 2 Letter, you demanded that the City Council rescind all actions taken in the Closed Session. At the June 16 Meeting, in order to avoid unnecessary litigation and without admitting any violation of the Brown Act, the City Council as part of the Council David Arvizu June 17, 2015 Page XX Actions rescinded the Council Closed Session Actions, and there are no other actions which were taken by the City Council in the Closed Session. You also demanded that the City Council report the vote or abstention of each Council Member on each action taken in the Closed Session. At the June 16 Meeting, in order to avoid unnecessary litigation and without admitting any violation of the Brown Act, the actual vote of each Council Member concerning the Council Closed Session Actions was publicly announced as part of the Council Actions. It should also be noted that the City Attorney provided the actual vote of each Council Member concerning the Council Closed Session Actions to a newspaper reporter from the Arcadia Weekly newspaper immediately following adjournment of the May 5, 2015 regular City Council meeting (the same evening at which the Continued Closed Session occurred and the report on that closed session was otherwise delivered in open session of the regular City Council meeting). Furthermore, the following day the City Manager provided to a reporter from the Pasadena Star News and the Arcadia Weekly Newspaper the same information concerning the actual vote of each Council Member concerning the Council Closed Session Actions. It is the City's belief and understanding that these votes were reported in newspaper articles appearing in the foregoing newspapers promptly after May 5, 2015. As a result of the foregoing, to avoid unnecessary litigation and without admitting any violation of the Brown Act, your demand to "cure and correct" has been fully satisfied by the Council Actions at the June 16 Meeting. Furthermore, at the June 16 Meeting, the City had placed and the City Council considered as a separate item of business on the open session agenda the cease and desist demand set forth in the June 2 Letter. After considering public comment, in order to avoid unnecessary litigation and without admitting any violation of the Brown Act, the City Council voted to issue this unconditional commitment to cease, desist from and not repeat certain of the past actions that you alleged in the June 2 Letter to be a violation of the Brown Act, specifically: "4. Discussing and taking action on items not listed on the agenda during a special meeting, in violation of Government Code sections 54954.3, 54956, and 54957.7: 5. Discussing items during a closed session on pending litigation that are outside the scope of the litigation, in violation of Government Code section 54956.9 and 54957.7: and, 6. Failing to report the vote or abstention of each councilmember on actions, in violation of Government Code section 54953(c)." Thus, in order to avoid unnecessary litigation and without admitting any violation of the Brown Act, the City Council hereby unconditionally commits that it will cease, desist David Arvizu June 17, 2015 Page XX from and not repeat the foregoing challenged past actions pursuant to Gov. Code sec. 54960.2. The City Council may rescind this commitment only by a majority vote of its membership taken in open session at a regular meeting and noticed on its posted agenda as "Rescission of Brown Act Commitment." You will be provided with written notice, sent by any means or media you provide in response to this message, to whatever address or addresses you specify, of any intention to consider rescinding this commitment at least 30 days before any such regular meeting. In the event that this commitment is rescinded, you will have the right to commence legal action pursuant to subdivision (a) of Section 54960 of the Government Code. That notice will be delivered to you by the same means as this commitment, or may be mailed to an address that you have designated in writing. The City Council specifically does not commit to cease and desist from, and to not repeat, the following set forth in the June 2 Letter: 1. Any alleged violation of Gov. Code sections 54955 and 54955.1, based on adjourning or continuing to a continued special meeting at a specific time and place, but holding the adjourned or continued special meeting in a different location and at a delayed time of day from that provided in the notice. The City respectfully submits that the City Council continued its properly noticed April 7, 2015 special meeting, held at the Executive Conference Room in the City Council Building on the civic center campus, to the Continued Special Meeting (on May 5) for purposes of conducting the Continued Closed Session. The Closed Session had begun at the April 7 special meeting following receipt of public comment prior to commencing the Closed Session. Pursuant to Gov. Code sec. 54955, within 24 hours following the City Council's order of continuance of the special meeting, the City posted at or near the door of the Executive Conference Room a Notice of Continued Special Meeting to be held at 5:30 p.m. on May 5. Subsequently, when it was determined that the City Council would be meeting at 4:00 p.m. on May 5 for a special meeting (budget workshop) normally conducted at the Police Department Headquarters on the civic center campus, the City posted notice on April 21 of the changed location of the Continued Special Meeting so that it could take place at the same location as the budget workshop, to which the public was invited and which members of the public attended. The City posted this notice at the 3 locations at which the City posts notices and agendas of all City Council meetings, plus in this case at the Police Department Headquarters, as well. The City respectfully submits that the notice of change of location of the Continued Special Meeting was in compliance, but in any event in substantial compliance, with Gov. Code sections 54955 and 54955.1. The City further respectfully submits that the Continued Special Meeting commenced promptly following the budget workshop and within one hour after the David Arvizu June 17, 2015 Page XX posted meeting time of 5:30 p.m., which does not violate any provision of the Brown Act. 2. Any alleged violation of Gov. Code sec. 54956 for failing to post the notice of a continued special meeting on the City's website. The City respectfully submits that the April 7 special meeting was properly posted on the City's website. The City respectfully submits that there is no requirement in Gov. Code sections 54955 or 54956 that a notice of continued special meeting (in this case the Continued Special Meeting) be posted on a city's website, and thus no requirement that Arcadia do so. It should also be noted that it was publicly reported in the televised open session of the April 7, 2015 City Council regular meeting that the special meeting begun earlier that evening was continued to the Continued Special Meeting on May 5. 3. Any alleged violation of Gov. Code sec. 54954.1 for failing to provide notice of a continued special meeting to people who have signed up to receive notices and agendas of meetings. The City respectfully submits that as required by law, the City provided notice of the April 7 special meeting to persons who had signed up to receive notices and agendas of City Council meetings. There is no requirement in Gov. Code sec. 54954.1 that notice of a continued special meeting (in this case the Continued Special Meeting), be provided beyond that which had been given as required by Gov. Code sec. 54955 for notice of the Special Meeting commencing April 7, as discussed above. It should once again be noted that it was publicly reported in the televised open session of the April 7, 2015 City Council regular meeting that the special meeting begun earlier that evening was continued to the Continued Special Meeting on May 5. Very truly yours, Gary A. Kovacic, Mayor City of Arcadia