After being called out for discussing secret negotiations about city efforts to purchase a downtown building in Mission Viejo, city council members moved late last month to craft a two-person, temporary committee — which is allowed under state law — to keep talks behind closed doors.
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The panel, called an ad hoc committee under state law, comes just over a week after Voice of OC reported about the building purchase being discussed in closed session.
The move has only raised more questions.
“It is apparent to me that this council purposely keeps the voters uninformed or limits information,” former Mission Viejo Mayor Cathy Schlicht said.
Mayor Patricia Kelley appointed council members Ed Sachs and Brian Goodell during a March 31 special city council meeting to serve on the committee.
Goodell responded to Voice of OC’s questions about the purpose of the committee, saying it’s allowed under California’s open meeting law, called the Brown Act.
“The Brown Act allows the council to conduct deliberations for real estate transactions and legal issues in closed session, so that the council may discuss aspects of the real estate transaction and negotiating strategies that are in the best interests for the city, without disclosing those deliberations to the other party,” Goodell wrote in an email to Voice of OC.
However, state law only allows city officials to privately discuss two very narrow exemptions: the price that the city is willing to pay and the terms of payment for that deal, said Kelly Aviles, an attorney who specializes in the Brown Act and Vice President of the first amendment group Californians Aware.
Aviles said that Goodell’s claim about being able to conduct “deliberations” and “negotiating strategies” in secret was “absolutely incorrect.”
“They only have permission to talk about these very specific things, not the whole negotiation strategy,” Aviles said. “I think it sounds like they are violating the Brown Act in those closed sessions… It looks like they have now pivoted on their strategy and that’s why they are trying to utilize the ad hoc committee.”
Several hours after Goodell’s email exchanges with a reporter, detailing his view of what is being discussed behind closed doors, City Attorney Bill Curley emailed a reporter that all communications about the Stein Mart building purchase should be forward to the city attorney’s office.
Curley asked that reporters not interview city council members about closed session deliberations, saying it was “inappropriate.”
Yet Aviles, who also serves as Voice of OC’s chief litigator, said the entire purpose of the Brown Act is to alert the public about what is being discussed secretly and why.
The Mission Viejo City Council has met privately four times in the past three months to discuss negotiations.
Aviles also said that one of the most misused sections of the Brown Act is when city councils discuss real estate negotiations in closed session.
When asked about that, Goodell said that the council is not discussing any other negotiation besides price and terms of payment.
However, several residents, who have been vocal at city council meetings, say they are suspicious of the closed door talks about the Stein Mart building. The move to create an ad hoc has fueled their concerns, since ad hoc committees are exempt from complying with the Brown Act since they consist of less than half of a city council.
Yet, using something like an ad hoc committee to talk about a building purchase makes residents like Schlicht wonder about the secrecy.
“An ad hoc committee only adds to the opportunity of secrecy and covert activities which will then be justified by the city attorney,” Schlicht wrote in a public comment to the council. “Again, this is just another example of this council being the least transparent council in the history of our great city.”
Curley was quick to defend the city officials’ actions.
“The city council and city staff specifically and carefully follow the law,” Curley said during the March 31 meeting in response to Schlicht’s comment. “The law allows certain rights and privileges. By following them, it is not non-transparent. It is in fact good fiduciary practice.”
Goodell told Voice of OC that the closed session meetings — the four times the city council has met in private to discuss the possible Stein Mart property acquisition — is not enough. The ad hoc committee’s purpose is to create more opportunities for private negotiation.
“The ad hoc committee allows two members of the council to represent the council in the negotiations with the owner so that the negotiations may proceed without delay of waiting for properly scheduled and agendized closed sessions of the full council as time is of the essence in any real estate transaction,” Goodell wrote in an email to Voice of OC. “The ad hoc committee will help further the timely negotiations and bring back any pending transaction terms to the council for approval.”
Additionally, city officials have not clearly stated to the public the exact purpose of acquiring the Stein Mart property, a claim Schlicht has noted in various public comments to the council.
An informational page about the city’s downtown vision on the City of Mission Viejo website notes that the purpose of the Stein Mart purchase would be “one small step toward implementing the vision for a walkable village, a paseo, and an entry that connects to the Oso Creek Trail.”
Yet, it’s not exactly clear how the city owning one property lends itself toward creating the proposed downtown renovation plans. Curley told Voice of OC that the city owning the entire shopping center isn’t necessary to begin the downtown revitalization.
In fact, only one property may be sufficient in creating a connection to Oso Creek, which runs behind the buildings on the opposite side of Marguerite Parkway, Curley said.
“What is envisioned by that plan is a public connection back to Oso Creek,” Curley wrote to Voice of OC. “No one ever suggested the whole shopping center was involved in securing a connection. Any of the buildings can be repurposed to allow a public paseo or walkway back to the creek trail… We only need one point of access, so there are no implications as to other owners.”
Yet there are still nagging questions among residents.
Larry Gilbert, a 41-year Mission Viejo resident who attended a majority community outreach events for the downtown revitalization project, emphasizes his confusion about how buying the building will help the city toward its goal of renovating the downtown, especially because of the 13 other property owners in the downtown area.
“While they may acquire the Stein Mart property, without compliance from the other owners, they will not be able to acquire the parcels needed for their master scheme,” said Gilbert, who served as the campaign manager for both Schlicht and Kelley. “As to transparency… Utilizing ad hoc committees is a great tool for keeping the public in the dark.”
The 60-day negotiation period with the Kinstler Family Trust will end April 24 or sooner if a negotiation is reached.
At the end of the day, Aviles says she cannot make a direct judgement on the Mission Viejo City Council’s actions because they refuse to release documents to prove their innocence, an action that itself creates suspicion.
“If they improperly talked about things that they weren’t supposed to talk about in closed session, then certainly it would give me more of a concern about their ad hoc committee,” Aviles said. “It would seem that they are trying to use an ad hoc committee improperly to avoid Brown Act disclosure requirements.”
Most recently, Mission Viejo city officials have failed to respond altogether to an additional public record request from Voice of OC under California’s public records law to view documents and communication between Mission Viejo city officials and the Stein Mart property owners regarding the negotiation.
That is only fueling suspicion among open government advocates.
“The fact that they’ve denied [public records] requests improperly lends concern,” Aviles said. “They are trying to keep what should have been public negotiations secret. Nothing allows you to negotiate in secret.”