The First Amendment Coalition has sent a cease and desist letter to the City of Bakersfield regarding what it believes to be violations of state open meetings laws.
The letter, provided to The Californian, lists multiple ways the coalition says the City violated the Ralph M. Brown Act when it held closed-session City Council meetings to discuss municipal revenues and a possible a tax increase. The letter includes a request for records relating to those meetings.
The nonprofit organization, which promotes free speech and open government, sent the letter earlier this week after it received copies of presentations that city staff allegedly went over with council members in closed session.
The documents were also sent to Californians Aware, a nonprofit organization similar to the First Amendment Coalition, which sent its own cease and desist letter to the city last week.
According to the documents, which were provided to The Californian, city officials and council members talked at least three times this year in closed session regarding a possible ballot measure authoring tax increases on Bakersfield residents.
The presentation documents said the increase is needed because of an expected revenue shortfall over the next several years from rising CalPERS retirement system costs and other staff-related expenses. The shortfall was confirmed by city staff during an open-session presentation at the Oct. 11 City Council meeting.
The only closed-session agenda items listed on the dates the discussions allegedly took place were conferences with legal counsel regarding potential or existing litigation.
The Brown Act requires legislative bodies to meet openly about most issues. There are some exceptions, such as discussions about litigation or personnel, but the First Amendment Coalition said the revenue discussions don’t fit those exceptions.
“There is no exception to the Brown Act’s open-meetings requirement which would allow for the general financial discussion the City held in its closed sessions on July 9, September 6 and September 20,” First Amendment Coalition Executive Director David Snyder said in the letter. “The City’s reference to ‘anticipated litigation’ provides no cover for such discussion. The purpose of the [litigation] exception is to permit the body to receive legal advice and make litigation decisions only; it is not to be [used] as a subterfuge to reach non litigation-oriented policy decisions.”
Snyder said closed-session discussions on anticipated litigation can only be held if the legislative body believes there is enough evidence to show that the agency would be significantly exposed to litigation.
The letter said that the coalition has examined some past City Council agendas and found that in most cases when there were closed-session items listed regarding litigation, the city failed to provide the “existing facts and circumstances” of the litigation, which Snyder said must be made known to the public.
There is a legal exception that if such information is not known by the potential plaintiff, there is no requirement, an exception that the coalition says the city uses too often.
“Because it would be highly unusual for a potential plaintiff to not know the facts that would give rise to possible litigation, the routine use of this ... appears to be a pro forma way for the City Council to avoid its disclosure requirements,” Snyder said.
The letter says that the closed-session discussions also violated the Brown Act by failing to provide notice of the discussions. The coalition said no action or discussion can be held on an item not on the agenda.
The letter asks the city to cease and desist from discussing matters in closed session when there is no valid legal exemption for doing so. It also asks the city to make sure to properly identify items to be discussed in closed session and disclose the facts and circumstances that justify closed-session discussion.
In addition, the letter asks that the city acknowledge the alleged Brown Act violations.
The coalition is also asking the city for all communications and documents relating to the alleged meetings. The organization also seeks any information from before and after the meetings regarding any action taken because of the meetings, according to the letter.
The coalition said the city has a few days left to respond if it believes any of the requested information is legally exempt from disclosure. The response must be sent in writing.
Snyder said that if the city withholds all or part of the requested documents and doesn't have a valid reason for not providing them, the coalition could pursue legal action and request that a court require the city to provide the records.
City Attorney Virginia Gennaro confirmed that the city has received the letter. She said the city will respond to the Californians Aware letter in early November and will likely respond to the First Amendment Coalition’s letter after that one.
Snyder said he looks forward to seeing how the city responds to the letter.
“We’re eager to see what the city’s explanation is, if there is one,” he said.