Rich McKee, President of Californians Aware, is deciding whether to pursue the City of Fillmore for yet another alleged Brown Act violation. On December 3rd McKee presented the city with a letter for Demand for Correction for an alleged violation on the Council’s November 24th agenda concerning “Existing Litigation…Richard P. McKee v. City of Fillmore; Ventura County Superior Court…” No such litigation existed on November 24, 2009, according to McKee. The “pending litigation” referred to McKee’s lawsuit against the city for three previous Brown Act violations. McKee, and his attorney Kelly A. Aviles, contend that the litigation was no longer “pending”, having been settled on November 16, 2009.

In his Demand, McKee sought two remedies at the December 8th council meeting: first, the council was to announce that it violated the Brown Act on November 24, 2009, by agendizing and holding a closed session…when in fact the litigation identified did not exist; and second, disclosure of the entire discussion had in that improperly held closed session.

The City sees it differently. At the December 8th meeting City Attorney Ted Schneider and Council went into closed session to discuss what he considered “existing litigation” between McKee and the city, as it was announced in the agenda and amended agenda.

Schneider, in his letter addressing the Demand for Cure read, “California law makes clear that litigation, which is otherwise settled and dismissed, is still “pending” for settlement agreement enforcement purposes when the parties to the settlement have expressly agreed in writing to the court’s continuing jurisdiction.” Also in his letter Schneider cited case law to support his contention that the lawsuit “was, and still is, ‘pending’ for purposes of settlement agreement compliance and enforcement.”

Aviles responded to this line of reasoning by saying, “As for our current Demand, we believe that whether the court has continuing jurisdiction is irrelevant to the Brown Act question at issue.” Aviles explained that in the settlement agreement, the Ventura County Courts retain jurisdiction to enforce the settlement agreement.
“Does that mean the litigation would be pending indefinitely? Can they continue to meet in secret about our litigation forever? We think not.”

Aviles went on to say that in order to use the litigation exceptions in the Brown Act, you must show that "discussion in open session concerning those matters would prejudice the position of the local agency in the litigation.”

“The City Attorney argues they were discussing how to comply with the settlement agreement. How would compliance with the settlement agreement possibly prejudice their position in litigation?” stated Aviles.

The City’s letter of response went on to state that the city “appreciates Mr. McKee’s continuing vigilance to ensure Brown Act compliance. However, in light of the above discussion [in the letter], and the City Council’s demonstrated compliance with the reverence for the Brown Act, it is my sincere hope that Mr. McKee recognizes further litigation with the City of Fillmore is unwarranted.”

In his Opinion, Attorney General Daniel E. Lungren stated, “”Furthermore, the litigation would still be “pending” until a final adjudication or a dismissal of the cause.” (See the Attorney General’s Opinion in its entirety online at www.fillmoregazette.com under “Front Page” as an attachment.)

Aviles, speaking on McKee’s behalf, said that despite the Council’s public statements ensuring their commitment to the Brown Act, and that they should error on the side of openness, “Still the Fillmore City Council and the Fillmore City Attorney search for ways to meet in secret and then try to justify the unjustifiable.”