On August 31, 2009 Californians Aware, a non-profit political watchdog organization, sent a Demands for Cure or Correction to the City of Fillmore regarding a possible Brown Act violation. And according to Richard McKee, President of Californians Aware, with the presentation of the letter “…the clock will start ticking,” alluding to a possible “Brown Act lawsuit.”

The Demands stems from the August 25, 2009 Fillmore City Council meeting in which the council held an “emergency closed session” regarding an alleged violation of the Brown Act due to “spoke and hub” meetings, as reported in the Gazette’s August 27th edition.

The controversial session was held in response to a letter submitted by Councilman Steve Conaway to Fillmore City Clerk Clay Westling on August 25, 2009. The letter stated that he became aware, via email sent to him from Mayor Patti Walker, that a [different] Brown Act violation occurred involving three of his fellow council members. The letter read that the “serial meeting was arranged and facilitated by transitional City Manager Larry Pennell. Mr. Pernell intentionally sought concurrence of thought from a majority of the city council. He and Mayor Walker received and acted upon information which, they gleaned from the ‘hub and spoke’ serial meeting.”

In the letter Conaway said he expected the City Manager to conduct business fairly, openly and with the highest ethics. “Sadly, Mr. Pennell’s actions resulted in implicating three of my council members in this Brown Act violation. As a result of the serial meeting, the trust instilled upon Fillmore officials will be diminished.”
The letter went on to read, “When this issue came to my attention I urged Mayor Walker to not act on the ill-gotten information. She chose to do otherwise. At this time I am seeking a demand for cure for the violation.”
Upon returning to regular meeting, Mayor Walker declared that there had been “an unintentional Brown Act violation” and that the Council had determined “the matter is now closed.” However, the closed session vote of each member was not announced.

On August 27th the Gazette received an email from McKee, stating that he had, “…noticed what was termed an “emergency closed session” where Councilman’s Conaway’s letter (allegation) was discussed. There is no provision within the Brown Act that authorizes such a closed session discussion.”

McKee said local elected bodies can run amuck quickly when three things come together, which he terms as “the perfect storm”. First, a CEO fails to set a tone of respect for all points of view, and instead seeks a rubber-stamp for the policies he is promoting, i.e., instead of looking for ways to create unanimity, this City Manager looks only to count to three votes. Second, partisan electeds come to a meeting seeking a win for what they (and their friends) have already decided, rather than working open-mindedly together with their colleagues to create the best answer for their community. And third, an agency attorney who is unwilling to confront his employers in an effort to protect the public (e.g. by enforcing the Brown Act) for fear of losing his lucrative position, and instead just gives them advice that supports what they want to do.

On August 31, 2009, Calaware sent a Demands for Cure or Correction letter to the City of Fillmore. The letter contends that the posted agenda for the Council Meeting included no reference to the Closed Session held at the beginning of the August 25th meeting, where the Council discussed the accusation of a Brown Act violation and reported out of that closed session that there had been “an unintentional Brown Act violation” (Mayor Walker). The letter reads, “Therefore, this closed session was held in violation of the Brown Act”.

“The failure here is that of the City Attorney and City Manager, who should never allow this kind of secret discussion nor an action taken on an item of business not on the posted agenda,” stated McKee.

The letter also addressed the on-the-spot raise given to the city’s Interim Financial Director, Leonore Young, at the meeting. The request for a 5% raise was introduced by Mayor Walker in a motion, and quickly seconded by Councilmember Laurie Hernandez. Councilmember Gayle Washburn opposed the motion citing inappropriate timing, and stated that it was the manager’s job to review employee performance, not the Council’s. Conaway said that having the Council award raises based solely on its perception without procedure was reckless and set “dangerous precedent”. The motion passed 3-2.

Calaware demanded to cure this possible violation of Government Code § 549544.2, stating, “the Council/Agency Board shall, within the next 30 days, rescind the action taken to increase the pay of Interim Financial Director Leonore Young by 5%.”

In a letter from Fillmore City Attorney Ted Schneider to Richard McKee dated September 1, 2009, he wrote, “You have improperly characterized the closed session held on August 25, 2009 as an “emergency closed session.” Although not on the posted agenda for the August 25 meeting, the closed session was held pursuant to Government Code section 549554.2(b)(2).” The letter reads that the “two-prong” test of [that] section was met.

Schneider’s letter also addresses the spontaneous pay raise issue stating that the adoption of the City’s municipal budget for fiscal year 2009-10 was “…clearly on the agenda…”. He goes on to say that “pages D-18 through D-19 or the budget contain a detailed summary of the salaries of all City of Fillmore employees, by employee name and position, including Ms. Young’s salary.”

A check of the city’s website and posted ‘FY 09-10 Municipal Budget’ on Tuesday, Sept. 15, showed no pages D-18-D19. The Gazette contacted Pennell and City Clerk Clay Westling by email that evening, and again by phone on Wednesday morning to ask if the missing pages were going to be posted online and when.

Westling said that he had witnessed the machine printing out the budget and that it had a “few hiccups” which may have omitted pages D-18-19.

City assistant Ky Spangler called the Gazette at 11 a.m. saying the pages were now available on the city’s website. (http://www.fillmoreca.com/docs/budg/budget0910.pdf)

McKee followed his Demands for Cure letter on September 11, 2009 with a Request for Copies of Public Records. The City of Fillmore has 10 days from receipt of the request to determine whether the request seeks copies of “disclosable public records”, and should promptly notify the person making the request of the determination. In unusual circumstances, the time limit may be extended by written notice by the city or their designee, to the person making the request, setting forth the reasons for the extension and the date on which a determination is expected to be provided. No notice shall specify a date that would “result in an extension for more than 14 days.” (Govt. Code § 6250).

McKee said that residents, council, and city manager should remember that all are seeking the same end, the best community they could hope for. “While this may mean different things to different people, respect for all points of view expressed in and ‘open marketplace of idea’ is the best way to begin. And that does not include flashing a victory sign to a news camera,” referring to the Gazette’s August 25 front page photo of Councilmember Washburn “flashing a victory sign” with the city’s vote to pass the 09-10 budget.

Californian’s Aware is a non-profit organization “…established to help journalists and others keep Californians aware of what they need to know to hold government and other powerful institutions accountable for their actions. Its mission is to support and defend open government, an enquiring press and a citizenry free to exchange facts and opinions on public issues. In short, Californians Aware will be a center for information, guidance and initiatives in public forum law.” www.calaware.org.