HomeMy WebLinkAboutItem 4a - Rescind Closed Session Item of May 5, 2015GPyIF0R'N
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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