Members of the Pismo Beach City Council may have violated the Ralph M. Brown Act, California’s open meetings law, according to agenda and email documentation provided to The Tribune.
Julie Tacker, a self-described “community activist” and Los Osos resident, filed a complaint with the San Luis Obispo County District Attorney’s Office after Tacker said she noticed that the agenda for a May 10 closed session of the Pismo Beach City Council included mention of a city employee’s pay.
The meeting involved discussion and eventual staff recommendation to promote then-assistant city manager Jorge Garcia to the interim position after former city manager Jim Lewis left to assume the same role for the city of Atascadero.
With the move to interim city manager, Garcia received a $1,575 monthly salary increase for a total of $17,327 a month, a 10% increase for the six-month interim assignment to reflect his additional duties as acting city manager, according to salary information included in the agenda.
Prior to the closed session meeting, Tacker “sent a message to somebody that (she) had been in communication with in the city, and said, ‘Be careful — don’t talk about compensation in a closed session,’ and then I found out later that there was a contract in the session,” Tacker said. “While they may not have discussed it verbally, the document was there.”
Tacker alleged this constitutes a violation of the Brown Act because legislative bodies cannot call special meetings regarding the salaries of its employees under Section 54956(b) of the California Government Code.
“Whether or not any councilmember ‘discussed’ the compensation proposed, the fact remains that the compensation increase was presented for all the councilmembers to consider,” Tacker wrote in an email to the City Council notifying them of the alleged violation. “Silence is consent. A lack of response to an action is a tacit approval of that action.”
Deputy District Attorney Ken Jorgensen later emailed the City Council on Aug. 3 about the county’s investigation into the alleged violation, and said the question the District Attorney’s Office had to answer revolved around whether the council went beyond “oblique” references to the terms of Garcia’s employment.
In the email, Jorgensen also said over the course of communications between the District Attorney’s Office and Pismo Beach city attorney Dave Fleishman, Fleishman raised the issue of a separate alleged Brown Act violation stemming from Tacker’s knowledge of the contents of the closed session.
“(Fleishman) noted that he was in the closed session and that the complaint’s factual description of what happened would seem to indicate that someone who was present impermissibly disclosed confidential information,” Jorgensen said in the email. “If this did transpire, Mr. Fleishman noted that this too would indicate that either a councilmember or city employee breached the confidentiality of the meeting and violated the Brown Act.”
In email exchanges between May 22 and Jul 21, Fleishman and Jorgensen debated Tacker’s allegation that a draft employment contract was present at the closed session, and whether any City Council members were aware of the salary changes.
In a May 22 email to Jorgensen, Fleishman said it is not clear how Tacker learned what was said in the closed session, or who informed her. Tacker also did not identify this individual to The Tribune.
In a July 20 email, Jorgensen said Fleishman was attempting to “stonewall” the district attorney’s informal investigative inquiry rather than cooperating in good faith after the City Council declined to authorize the release of confidential information at a July 18 closed session meeting.
In his Aug. 3 letter to the City Council, Jorgensen said his office did not have enough information to verify allegations of Brown Act violations.
He also said alleged violations can be addressed through prosecution or civil proceedings, but prosecution is unlikely in this case.
“By removing that threat of litigation, I think that kind of opens things up so that (the City Council) can address these concerns openly and without fear of any type of litigation,” Jorgensen told The Tribune. “That’s what we believe would be in the best interest of justice.”
Jorgensen recommended the City Council take the following actions:
City officials and employees that regularly attend closed-session meetings should undertake additional Brown Act training to address Mr. Fleishman’s concern that confidential information was impermissibly shared outside the closed-session meeting;
The city’s staff and council should take further procedural planning steps to ensure that closed-session discussions and documents are limited to topics permitted under the Brown Act; and
That the council add this letter as a public business item to be discussed at the council’s next meeting given the issues raised.
Pismo Beach City Council meeting agendas for the Aug. 15 and Sept. 5 meetings did not list Jorgensen’s letter as public business items.
Jorgensen said his office has not heard back from the city whether they would move forward with his recommendations.
The Tribune reached out to Fleishman for comment but did not receive a response.