Norberto Santana, Jr.
A pioneering leader in the nation’s rising nonprofit news movement and an award-winning journalist. Santana has established Voice of OC as Orange County’s civic news leader, uncovered the truths across Southern California governments for more than two decades and reported on Congress and Latin America.
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The notion that Anaheim city officials should be free to secretly negotiate with the LA Angels over the future of the city’s stadium is not only crazy but I believe, illegal.
Taxpayers get hosed in private, every time.
That’s why I was horrified to hear Anaheim City Councilman Trevor O’Neil last month declare that because of the sensitive nature of stadium negotiations, one man – City Manager Chris Zapata – should solely drive the city’s negotiations in the stadium negotiations, which are on a ticking clock (because of the Angels opting out of their lease).
Mayor Harry Sidhu was so motivated by O’Neil’s comments that he actually spoke up – saying, “I actually agree with that.”
Well taxpayers shouldn’t.
The state’s law governing how city officials can buy or sell public property – known as the Ralph M. Brown Act – is quite clear that such negotiations have to be done in public.
That doesn’t mean just rubber-stamping in public session a deal that’s been cooked in private.
Yet that seems to be where Anaheim is headed.
Note, this is a city council that will this week consider Mayor Sidhu’s proposal to enact time limits on city council members themselves, in order to limit any sort of dissenting debate.
While City Councilman Jose Moreno fought the effort last month to end the council’s practice of periodic city manager stadium updates at meetings, his colleagues followed O’Neil and Sidhu’s lead and ended the public updates – leaving Zapata as the main liaison with the Angels.
Now, as I understand it, it’s up to Zapata to talk to council members privately and get a sense of their priorities as the city enters stadium negotiations.
That process, also called Daisy-chaining a decision, is illegal as it allows city leaders to get a sense of a vote majority privately ahead of any public debate.
Now, keep in mind that under state law, the only thing that can be discussed in private – closed session – is price and terms of payment for a piece of real property or a long-term lease of government property.
That’s it.
Price and terms of payment…
For a piece of government property…
City officials and their attorneys nearly always insist that the term – price – allows them to basically conduct public negotiations over city assets like the stadium, in private.
They argue that figuring out price means officials can discuss a host of items – like development rights, maintenance, naming rights, labor pacts, etc. – all in secret.
That’s just plainly wrong.
And frankly, I’m stunned at how many city attorneys allow cities to go down this route.
Remember that the section of the Brown Act that allows officials to privately talk about this narrow topic – price and terms – is an Exemption.
An exemption.
And it’s one that courts have consistently interpreted very narrowly.
That means it’s designed as an exception to a rule – and note that the rule is one that is intended to force politicians to do the public’s business in public.
Reading the preamble to the state Brown Act, it’s pretty clear what standard of transparency was intended by the legislature.
“The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”
Now, this rule has been around in California since 1953 and the goal of is vision statement has never been challenged.
But when it comes to stadiums, it’s always stretched.
That was my experience when I covered the Charger stadium negotiations in San Diego – a place where resident activists like Mel Shapiro and Mike Aguirre really fought public officials on their penchant for secrecy.
Shapiro filed a landmark lawsuit around 2001 that challenged city council usage of the real property exemption to talk deals in secret.
When city officials went to later resume stadium negotiations, while I was on the Chargers beat at the San Diego Union Tribune, they dealt with the complexity of negotiations by letting them go public – having a publicly-appointed task force examine the stadium issue and potential deal points.
It was a good process for taxpayers that allowed all sides to present a case, have a voice in the debate.
Yet it didn’t net a deal for the Chargers.
San Diego taxpayers would never ultimately agree to any of the land grant, development proposals sought by the NFL at various sites, prompting the team’s eventual move to Los Angeles.
The Orange County Register later recruited me, partly because of my stadium coverage, to come up north in 2004.
Some years later, Californians Aware – a group where I now serve as a board member – joined the LA Times in 2012 in successfully suing the LA Coliseum Commission for attempting to negotiate the future of that historic stadium in private.
They lost, big.
Kelly Aviles, chief litigator for Californians Aware and the most aware lawyer I know of when it comes to public records issues as well as abuse of this particular property negotiation exemption, strongly disagreed with Councilman O’Neil’s comments – noting that kind of approach will likely leave the city vulnerable to a legal challenge.
Aviles – who is also chief litigator for Voice of OC – was the chief attorney on the successful lawsuit against the Coliseum commission, ultimately forcing them to archive audiotape recordings of their closed session deliberations.
She also notes that successful Brown Act challenges to public land negotiations like stadium deals void out the terms of any deal – forcing a redo.
It has always been my sense that there’s virtually no way for city officials to do these deals privately and not violate state law.
The exemption is much tighter than people think.
And much tougher to defend in court once challenged.
I would be very interested to hear Anaheim City Attorney Robert Fabela give a presentation on what’s allowed under state law on stadium negotiations as well as his views on closed session deliberations.
Note that despite whatever city officials say in public, very few of them would likely last five minutes in depositions under oath when asked about the details of their private stadium discussions between themselves and with team officials.
They always go way beyond price and terms.
Now, City Manager Zapata – who is a solid city administrator – has publicly said that with the city still awaiting an appraisal on the stadium land, the best approach now is to sit back and wait.
Zapata has said there won’t likely be any public city manager updates to offer any time soon.
Really?
To me, that continues to signify that Anaheim city officials are leaving the Angels in the drivers seat in these negotiations.
So far, it’s the most generous form of tenant rent control I’ve ever seen.
City officials have gotten notice a major tenant wants to move. That tenant is even talking to another lease site in Long Beach.
A lease window in Anaheim is ticking.
Yet Anaheim taxpayers should just wait until the tenant figures out their options and brings forward an idea for city land?
That’s one generous landlord.
Now, if you’re a working class mobile home owner and you want some help from city officials, you’ll get a mouthful about Milton Friedman and the free market.
But the Angels get a softer, some might even say slightly socialistic, approach.
It’s almost as if city officials don’t know how to negotiate any other way when it comes to stadiums.
State law is written to help taxpayers.
That’s why it calls for all talks to be out in the open.
The big question for the folks with big public paychecks in Anaheim is figuring out how to do that – a public deal that is still a fair deal.
So how does Zapata figure out city council goals, desires for a negotiation on such a complex public-private sector partnership without a public session? He is, after all, new to town and his council is even younger than him.
Now, given all these challenges many reasonable people would conclude that it’s nearly impossible to negotiate stadium deals in California under the limitations required by state open meeting laws.
Get the hint?
State law sets a very high standard for transparency, again to protect taxpayers.
Unfortunately, Anaheim city council members have abandoned that advantage with the speed of Angel’s All-Star Centerfielder, Mike Trout – who just recently signed a new 10-year contract with the Angels worth more than $426 million (nearly half a stadium deal in some cities).
So much for the financial tough times faced by the Angels – who will surely argue in these upcoming negotiations that they need financial help to stay in Anaheim.
Indeed, that will be the biggest challenge in the upcoming negotiations, figuring out fact from fiction.
Is Long Beach a real option?
Is the stadium condition that bad?
How much is the name, Anaheim, worth to the city and is it even on the table?
What are Anaheim’s options beyond the Angels?
Since elected officials like O’Neill and Mayor Sidhu are comfortable with giving up the public’s right to know, Voice of OC will take up the challenge of providing the public update they canceled last month.
I’ll be filing a Public Records request every Monday morning with the Anaheim city clerk for any and all communications between the Angels and among city officials about the stadium negotiations.
I’ll expect to get full compliance or will be ready to head to court.