The Seal Beach City Council Monday formally promised not to break the state’s open meetings law in the future after allegations that council members violated the statute on multiple occasions over the past year, including one instance in which they approved a particularly costly lobbying contract behind closed doors.
Kelly Aviles, a lawyer with the open government advocacy group Californians Aware, contends that Seal Beach broke the law because it met at least twice in closed session to discuss “anticipated litigation,” but didn’t specify the facts and circumstances of the litigation as required under the Ralph M. Brown Act.
And the types of actions taken during these meetings — including approving a four-month lobbying contract with Sacramento-based Khouri Consulting worth $120,000 – are unequivocally forbidden from being done in secret, said Aviles who represents Voice of OC, among other news organizations, in open government cases.
“There’s no stretch of the imagination that you could approve that lobbying contract in closed session,” she said.
City leaders insisted at Monday’s regular council meeting they hadn’t violated the law, and that Aviles incorrectly stated some of the facts in her March 7 letter demanding the pledge. But they didn’t specify what Aviles had wrong, and council members decided to approve a commitment to follow the law to avoid a lawsuit from Californians Aware.
“We don’t believe it’s in anybody’s interest to waste time and resources litigating these issues,” City Attorney Craig Steele told the council.
Mayor Sandra Massa-Lavitt didn’t return a phone call seeking comment. But in an email, she wrote: “The City Attorney has advised the Council that there is no violation of the Brown Act.”
City resident and council watcher Robert Goldberg said he discovered the $120,000 contract with Khouri Consulting after perusing the city’s check register. He said he remembers seeing payments to the lobbying firm, but couldn’t recall the council approving a contract. Then later, city staff disclosed the contract in an agenda report, and that’s when Goldberg said he started asking questions.
“I follow the money,” Goldberg said.
The contract calls for Khouri Consulting to lobby the state legislature against a bill sponsored by Assemblyman Tom Daly (D-Santa Ana) that would have pared down the Orange County Fire Authority’s board of directors from 25 members to 13.
Supporters of the bill argue the unwieldy board is bad for policy making at the county’s largest emergency services agency. But as things stand now, each member city at the Fire Authority has a seat on the board, and cutting out almost half the board’s representatives means at least some small member cities – like Seal Beach — would probably lose their seats.
Shortly after Seal Beach awarded its lobbying contract, Daly requested that the legislative committee considering the bill hold off on its decision. The bill hasn’t been revived since, and Fire Authority officials consider it dead.
Goldberg also questioned the price of the contract during public comments, and said if council members had discussed it publicly, residents might have suggested ways to save money, like splitting the cost with another city.
The Fire Authority, which also opposed the bill, approved a contract amendment last May with its lobbying firm, Nielsen, Merksamer, Parrinello, Gross & Leoni, LLP, that added $5,000 monthly over four months – $20,000 total — to pay for the additional lobbying costs associated with Daly’s bill. That was on top of the $5,500 the Fire Authority was already paying its lobbyist for all its services.
And the Fire Authority’s contract amendment to lobby against Daly’s bill did make it to a public meeting agenda.
By comparison, Seal Beach’s contract with Khouri Consulting just to lobby against Daly’s bill was $120,000 over four months, or six times the cost of the Fire Authority’s amendment.
And not only did Seal Beach pay six times as much as the Fire Authority to lobby against Daly’s bill, the city topped a list of seven Khouri Consulting lobbying clients listed on the Secretary of State’s website. Of the $292,646 paid to the firm between 2015 and 2016, $120,000 – or 41 percent – came from the Seal Beach contract.
Gus Khouri, principal at Khouri Consulting, didn’t return a phone call seeking comment.
Aviles and Goldberg suspect that Seal Beach violated the Brown Act on other occasions. Another example, they claim, was an illegal closed-session vote last October to approve moving a blue cottage donated to the city.
The “anticipated litigation” exception in the Brown Act is meant for situations in which officials have been made aware of a public agency’s vulnerability to a lawsuit. However, even though elected officials are allowed to discuss legal matters in private, they almost always have to provide the public with basic details about the possible case. The only time the law allows them to provide no information is when the potential plaintiff in the case is completely unaware of the circumstances that could lead them to sue, Aviles said.
She gave the example of a ruptured sewer line under a house that has caused a sinkhole, but the owner of the house isn’t yet aware of the situation. Council members could talk privately about the city’s liability before alerting that homeowner or anyone else to what is going on.
Aviles said such situations are relatively rare. However, according to Goldberg, Seal Beach council members met in closed session 10 times since January last year based on the threat of anticipated litigation and without specifying the circumstances.
“It’s almost impossible that all of those situations fell under that limited exception,” Aviles said.
Aviles also had a message for other city councils considering making it a habit of holding closed session meetings without telling the public what they’re about. While Californians Aware can’t check every agenda in the county, sooner or later the group will be made aware of the violations, she said.
“If you’re not giving information about closed sessions like you’re supposed to, we’re eventually going to find you,” Aviles said.
Clarification: This article has been updated to more fully describe how Robert Goldberg said he came across the $120,000 contract with Khouri Consulting.
Please contact Adam Elmahrek directly at firstname.lastname@example.org and follow him on Twitter: @adamelmahrek