Jim Righeimer’s inadvertent leak to a reporter didn’t break any of the state’s open-meeting laws because the city council decision he revealed was itself likely illegal.
State law requires officials to do all their business in public. But things like closed session discussions offer rare exceptions for elected officials to formally go behind closed doors.
But if the meeting is illegal – meaning that the discussion doesn’t stick to the narrow exception – then any leaks can’t be illegal, argues Voice of OC open records consultant Terry Francke.
Last week, Costa Mesa council members went behind closed doors during their regularly scheduled meeting. They told the public they were going into private session to discuss the price and terms of payment on the fairgrounds negotiations.
Costa Mesa faces a looming deadline to respond to Gov. Arnold Schwarzenegger’s $100 million offer to buy the OC fairgrounds.
Council members came out of last week’s meeting announcing that they had also decided to appoint a council subcommittee and advisers but declined to say who was discussed or approved as an adviser.
It didn’t take long for former Costa Mesa Mayor Sandy Genis – currently President of the OC Fairgrounds Preservation Society – to tell the council they were wrong.
“It seems like there was more going on than was announced to the public,” Genis told council members when they came out. “I’m just concerned that all actions regarding the fairgrounds be taken in an orderly and decent manner. I don’t want the deal to fall apart because somebody has a concern about this.”
Genis advised council members they should just talk about the subcommittee process out in the open. They even had a discussion of a host of subcommittee assignments already agendized, right in front of them.
That caused Councilwoman Wendy Leece to ask the city attorney aloud whether putting the discussion on the public session of the council agenda made sense under the section titled, committee appointments.
That triggered a motion from Katrina Foley to take the whole matter back into private. When that failed on a 2-2 vote (with Mansoor and Councilman Gary Monahan voting against it), Foley asked for a break and conferred with the city attorney.
It was never mentioned again in formal session. Council members later told the media an announcement would be forthcoming and all the secrecy would make sense then.
Whether it makes any sense remains to be seen. But that the closed session was illegal is pretty clear.
The Daily Pilot ran a solid story by Mona Shadia on Sunday covering the details of the violation.
Terry Francke, general counsel for Californian’s Aware and Voice of OC’s open-records consultant also said the meeting was illegal. “It doesn’t fit any of the categories that are recognized by the Brown Act,” said Francke.
Francke and others note that the exemptions under the Brown Act are very narrow and talking about subcommittees isn’t even close in terms of whether such a discussion violates the act.
“There was no basis for discussing a council negotiating team,” Francke said. “Why is it a necessarily a secret to know who it would be. They are going to be disclosed anyway.”
And that means Righeimer’s disclosure doesn’t violate state open records laws, mainly because of other statutes that protect whistle blowing.
“The Brown Act is violated by a leak only if the closed session did not violate the act,” Francke said. “People in unlawful closed sessions have whistleblower protections.”
“The only kind of sanction, realistically speaking, that a disclosure to the press or public of an unlawful action is a political sanction. But there would be no criminal conduct involved,” said Francke.
Even when someone gets caught knowingly violating a legitimate closed session discussion, Francke said sanctions are not criminal in nature. Mostly, the sanction is a political one, he said, such as a censure resolution.
Another path the issue could take is the County Grand Jury, if some individual filed a complaint.
The district attorney would get involved if the grand jury issued an indictment, Francke said, which would likely trigger removal from office for the public official.
“The only penalty is removal from office, if it found that the member has breached a serious fiduciary duty,” Francke said. “If they were convicted of a malfeasance in office, they could be removed from office by order of the court.”
— NORBERTO SANTANA JR.