Cypress city officials are being sued by a prominent First Amendment advocacy group for allegedly violating California’s open government meeting law, the Brown Act, when council members secretly decided against switching the city’s election system.
“City Council unlawfully met a total of eleven times in closed session to discuss and ultimately vote on whether to maintain at-large elections or transition to by-district elections for City Council—under the pretense of impending litigation,” reads a petition filed by Californians Aware (CalAware), the first amendment rights group suing Cypress, earlier this month.
“The mere possibility that a body’s action might be challenged in court is not a sufficient threat to justify a closed session.”
The group alleges that city officials have demonstrated a “pattern and practice of ignoring the state’s open meeting laws” with their closed session meetings on the issue.
Shaila Nathu, attorney for Cal Aware, said in a phone interview that council members never had a public discussion about keeping their election system.
“There was no way for a member of the public that was interested to understand how any of the city council people, including the mayor, were thinking about this issue,” she said.
Read the lawsuit filing here.
City Attorney Fred Galante and officials have disputed in the past that there were any potential Brown Act violations caused by the closed session vote.
When asked about the lawsuit on Thursday, Galante said he was unaware of it and could not comment on it.
The lawsuit stems from a March 14 closed session vote by Cypress City Council against switching to district elections.
At that meeting, Cypress City Council Members voted behind closed doors 4-1 to reject a letter they received from Malibu-based Attorney Kevin Shenkman demanding the city switch to district elections.
Galante also wrote a letter to Shenkman rejecting his demands.
In at-large elections, residents citywide can vote for as many candidates as there are council openings. So if two seats on the council are up for grabs, residents can vote for two candidates.
In by-district elections, residents can only vote for one candidate to represent the area and neighborhood they live in.
Months before that, Councilwoman Frances Marquez – who was the dissenting vote in closed session – said at a special meeting in December that council members don’t want to switch to district elections because they’re worried they’ll possibly be put in the same district.
“Someone will be forced to have to sit out the next election. Why would members comply with the law when they are benefited from a system that works for them,” she said.
The March 14 closed session vote immediately triggered questions of whether the vote was illegal and violated California’s Brown Act – the state law that governs transparency for local government bodies, like city councils.
“They can’t use the Shenkman letter as a pretense for making a very significant policy decision, like choosing to maintain at-large elections,” Nathu said.
She said talking about Shenkman’s letter in closed session isn’t a problem, but that’s not all the council did.
“The issue is that they went beyond that and made a significant policy decision for the city in closed session and used this letter as kind of a cover for that,” Nathu said.
Galante disputed those claims when asked about them on Thursday and said that every city who has received a letter from Shenkman has discussed it in closed session.
“They’re essentially saying that we can’t discuss a threat of litigation in closed session and that is absolutely wrong,” he said. “It’s not really a policy decision. It’s just rejecting a threat of litigation. The council can always make any policy decision thereafter.”
Cal Aware has sued various government bodies throughout the state for violating the Brown Act.
Prior to the lawsuit, Nathu sent officials a letter demanding city officials to redo the vote in public or get sued for violating the Brown Act and submitted a public records request of all communications about the March 14 meeting and making the switch to district elections.
“Such discussions and action must take place in open session to ensure that the public has a meaningful opportunity to participate in the decision-making process,” she wrote.
Cypress city council members met again behind closed doors on April 25 and voted to reject CalAware’s letter too.
Galante wrote a response letter to CalAware arguing that the city faces “significant exposure to litigation” and under the Brown Act, city council members are allowed to meet in closed session to address such threats.
He also argued that the city has had three public forums about Shenkman’s letter.
“Given this robust public outreach effort, any argument that the City has not been overly transparent about the Shenkman Demand and options to address the clear threat of litigation contained therein is insincere,” Galante wrote.
Both Galante’s and Nathu’s letters are attached to the lawsuit CalAware has filed.
Forcing District Elections in OC
Letters like the one Cypress officials received about their election system have been popping up all over Orange County in recent years and many of them are signed at the bottom by Shenkman.
Shenkman has developed a reputation over the years for forcing cities across California to change their election systems to district voting representing groups that sue municipalities under the California Voting Rights Act.
In a lot of cases, usually a letter from him threatening a lawsuit is enough to get cities to switch and avoid a costly court case.
That’s what happened recently in La Palma – Cypress’s neighboring city.
In March, La Palma officials received a letter from Shenkman on behalf of Southwest Voter Registration Education Project alleging that the city was disenfranchising Latinos and demanding that the city transition into district elections.
“As of the most recent data released by the United States Census Department, Latinos comprise 19.4% of the City’s population of 15,581. Yet, since 2013, the City’s governing board has been devoid of Latinos. The current and historical underrepresentation of Latinos on the city’s governing board is revealing,” reads the letter.
La Palma city council members voted unanimously and publicly at a special meeting on April 19 to start the switch.
The city plans to move to districts by 2024.
To read more about the districting process in La Palma click here.
In Orange County, cities like Garden Grove, San Juan Capistrano, Fullerton, Orange and Santa Ana switched from at-large elections to district elections after either facing threats of litigation or lawsuits themselves.
But this year officials in smaller cities like Cypress and Brea have decided to take a stand and reject demands to change how elections work in their city.
They argue that a switch would strip residents of the ability to vote for all five seats on the city council.
[Read: Could Two of OC’s Smaller Cities Buck California’s Trend Toward District Elections?]
The letters and Shenkman’s efforts are part of a larger trend – often pushed by voting rights organizations – to fix what they say is racially polarized voting.
The groups lawyers like Shenkman represent argue that at-large voting disenfranchises minority voters and candidates and therefore violates the state’s voting rights act.
In his letter to Cypress officials, Shenkman alleged that the city was violating the state’s voting rights act by disenfranchising Asian American voters.
In the city’s rejection letter of Shenkman’s demands, Galante disputed the city is violating California voting law and argued that there has been a history of Asian Americans elected to the council.
Galante gave examples of Asian Americans who have sat on the dais and he included former Councilwoman Lydia Sondhi.
Sondhi later told the Voice of OC she is white, not Asian American and that she is married to someone of Indian descent.
Hosam Elattar is a Voice of OC reporter and corps member with Report for America, a GroundTruth initiative. Contact him at helattar@voiceofoc.org or on Twitter @ElattarHosam.
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