City of Bakersfield staff and City Council members may be in violation of the Ralph M. Brown Act for discussing city finances behind closed doors, open meeting law advocates say.
According to information provided to The Californian, city officials and council members talked at least three times in closed session regarding a possible ballot measure authoring tax increases on Bakersfield residents.
“A request has been made to staff to provide copies of the presentations regarding the fiscal outlook matters that were discussed during closed sessions on July 19, September 6 and September 20,” Assistant City Manager Chris Huot wrote in an Oct. 5 email provided to The Californian.
According to city agendas, the only closed-session items listed on those dates were conferences with 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.
“I get a lot of calls about potential Brown Act violations. This seems to be one of the clearer instances of a violation that I’ve seen,” said David Snyder, executive director of the First Amendment Coalition, a nonprofit organization focused on promoting free speech and open government.
“A legislative body can consult with lawyers (in closed session) about specific litigation, not ... about something that could in some way lead to litigation sometime down the line,” he said. “It has to be very specific. The exception doesn’t seem to apply here. These are several topics that have nothing to do with litigation.”
Several city officials declined to comment for this story, instead directing The Californian to City Attorney Virginia Gennaro.
“The City Attorney’s office takes great care in agendizing closed session matters,” Gennaro said in a statement. “I am confident that as long as I have been city attorney, closed session matters have been properly agendized and that City Council has met in closed sessions under the parameters of the Brown Act.”
Californians Aware, a nonprofit organization similar in focus to the First Amendment Coalition, sent a cease and desist letter to the city on Tuesday after being notified of the discussions by a Bakersfield resident. The letter requests that Mayor Karen Goh respond within 30 days with a promise to the organization that the city will not violate the Brown Act again. Failure to do this could lead to legal action, according to the letter.
“The Brown Act permits closed sessions only for a specified list of topics. None of those topics include the kind of discussion that took place here in at least three separate meetings,” said Terry Francke, general counsel for Californians Aware. “I’ve never seen any local agency use a closed session to discuss revenue needs and projections. This is the first example I’ve ever seen.”
Snyder said the First Amendment Coalition is considering its own response to the apparent violation.
“We’re weighing our options,” he said. “We haven’t contacted the city yet, but it’s likely that we will.”
Michael Turnipseed, executive director of the Kern County Taxpayers Association, was concerned to hear about the closed-session issue.
“If they did (talk about finances and tax proposals) I certainly think it was a violation of the Brown Act. The public has a right to know,” he said.
Documents provided to The Californian show that the city is looking into implementing a tax increase in response to an expected revenue shortfall for the next fiscal year due to rising CalPERS, medical and workers compensation costs and other expenses.
In one scenario presented in the document, if the city raised the current 7.25 percent sales tax by 3 percent (just under a quarter-point increase each year), property taxes by 5 percent and all other revenues by 2 percent each year over a five-year period, the city would still face a $5 million gap through the 2020-21 fiscal year, and that’s with no new hiring.
The city said permanent staff cuts could shorten the gap to about $400,000, but staff said in the document that they “[do] not believe that ‘no growth’ in staffing and no [cost of living] adjustments over the past three years plus the next five years looking forward is an acceptable set of circumstances.”
If hiring and cost of living adjustments were increased just 1 percent each year, the document shows the revenue gap would eventually expand to $16 million in the 2022-23 fiscal year.
“Their budget’s been flat for four years, but costs have gone up,” Turnipseed said. “Their expenses continue to rise and if their revenues are flat, eventually you have to address the issue. That gap isn’t going away.”
According to the documents, the city could also save money by closing a fire station and/or community centers. The documents don’t indicate if city staff and council members were actively considering those options.
There’s also no indication of whether City Council members were in favor of a tax increase. A sales tax measure could bring in at least $7 million in revenue each year for the city, according to documents. A parcel tax has been estimated to raise $5 million to $11 million annually.
Presentations were given to the City Council after Vice Mayor Bob Smith requested that the city provide revenue projections for the next five years.
The document shows that if the council decides to move forward with a tax measure, the city would like to add it to the November 2018 election ballot. The presentation explains that the next steps for the city were to continue research as well as City Council discussion.
City officials will discuss Bakersfield’s fiscal outlook at the City Council meeting Wednesday night in open session, according to the agenda. It will likely include information discussed in closed session or some form of it.