Behind closed doors

Local activist Jessica Allen acknowledges there’s been confusion regarding the cease-and-desist letter she sent to the city of Chico on Aug. 5.

In the 22-page document, Allen alleges five violations of the Ralph M. Brown Act by the Chico City Council, mostly relating to Mark Orme’s appointment to the city manager post on July 1.

“People think I’m complaining about the appointment of Mark Orme—which was legal in a closed session,” she said during a recent interview with the CN&R. “But the fact that they don’t properly put the items on the agenda and they don’t make the announcements after they [take action] is really the problem.

“The process needs to be sound and follow the Constitution.”

The Brown Act was passed by the California Legislature in 1953, largely in response to government officials using secretive meetings guised as “study sessions” or “workshops” to avoid public scrutiny. The law’s intent was to ensure that members of the public have unrestricted access to meetings of public bodies.

This June, California voters reinforced both the Brown Act and the California Public Records Act by approving Proposition 42, a measure requiring that local governments fully comply with those laws.

Right around the time of that vote, the Chico City Council made some high-profile decisions behind closed doors—namely, hiring Orme for a set salary and producing a series of options for the Chico Certified Farmers’ Market on June 3 regarding its longstanding franchise agreement on city-owned property.

Did the council violate the Brown Act? According to La Verne-based attorney Kelly Aviles, an expert on the law, that depends on the details.

The most egregious alleged violation outlined in Allen’s letter occurred during closed session on July 1, when the council met to discuss hiring a permanent city manager. If that’s as far as the conversation went, Aviles said, there would be no issue.

“They can go ahead and talk about the appointment of a city manager [in closed session],” she said. “But they cannot discuss compensation.”

Mayor Scott Gruendl sent out a press release on July 2 announcing that the council had appointed Orme to the city’s top position. The release reads: “[The council] made a statement by reducing the city manager’s pay by $9,500, from the $217,000 the former city manager was paid to $207,500.”

To both Allen and Aviles, that suggests compensation was in fact discussed. “If they didn’t talk about it in closed session that day,” Aviles asked, “when did they do it?”

Further, the council should have announced the action taken during that closed session at the council’s regular meeting, Allen maintains. Instead, City Attorney Vince Ewing announced that the council had voted 4-3 in closed session on a matter concerning the city manager position; what the council voted on and how each member voted was not explained to the public.

Aviles pointed to California government code, section 54957, which reads: “Action taken to appoint, employ, dismiss, accept the resignation of, or otherwise affect the employment status of a public employee in closed session … shall be reported at the public meeting during which the closed session is held.”

Allen argues the council was in violation again on July 3, when it held a special meeting to approve Orme’s contract. During that meeting, the council realized its mistake. Gruendl explained they received legal advice that an employee contract cannot be approved at a special meeting. The panel went on to discuss only whether to hire Orme.

Further back, during a closed session held on June 3 under an agenda item labeled “anticipated litigation,” the council produced a series of options for the Saturday farmers’ market, which Allen says contained “content not protected by any exemptions in the Brown Act.” Aviles agreed that the council appeared “to be making policy decisions … in closed session because it happened to relate to a lawsuit.”

On June 5, following that closed session meeting, the city announced via press release that then-Interim City Manager Orme had been authorized by the council to negotiate with farmers’ market representatives.

Starting on Aug. 5, the day Allen submitted her letter, the City Council has 30 days to respond to Allen. After that, she will have 60 days to take the matter to court.