The Brown Act battle in Costa Mesa is now going to the next level.

Costa Mesa City Attorney Thomas Duarte said this week that working groups established by the City Council in January — the most notable the two-member committee that formulated the city’s massive outsourcing plan — did not violate the state’s open meetings law.

Duarte made his determination in response to an objection to the working groups made last week by the First Amendment advocacy group CalAware. (CalAware is a partner of Voice of OC.) Upon hearing of Duarte’s decision, CalAware General Counsel Terry Francke said the group is moving to initiate a lawsuit against the city.

Francke said the Brown Act requires that the city make public the deliberations of the working groups because they have functioned as standing committees. Duarte countered that the deliberations don’t need to be disclosed because they are ad hoc committees.

The distinction is crucial because the working group of Mayor Gary Monahan and Mayor Pro Tem Jim Righeimer deliberated in secret to devise a plan to outsource nearly half of the city services and lay off possibly more than 200 employees.

Duarte says the city has a right to keep the deliberations secret.

“These groups are purely advisory and ad hoc in nature,” wrote Duarte. “They are limited in duration and each are assigned a specific task by the council.”

Duarte said the working groups don’t have indefinite subject matter jurisdiction over citywide issues. He also argued that the groups don’t meet upon any schedule fixed by charter, ordinance or formal action.

Francke said Duarte’s analysis is wrong.

“There’s nothing in the staff documents from the meeting supporting the statement of the city attorney,” Francke said. “In fact, it’s quite the contrary. The groups were given broad titles and member assignments but not limited duration.”

Francke said that under state law, legislative bodies like a city council or county board of supervisors cannot set up working groups on issues without specifying duration.

Imagine, Francke said, a legislature where all committees could meet in secret and members had the chance to vote on issues only where they came to the floor. That would never be accepted because it’s illegal, he said.

“Everything would come to the floor in a black box,” Francke said.

The key to legally setting up a working group, Francke said, is that it have limited, immediate purpose, a short duration and a date of expiration.

“None of that is here,” he said.


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