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Public Meetings Expert: The City Council May Have Violated State Law

It was the San Juan Capistrano council majority -- not member Roy Byrnes -- which may have committed the bigger error, a leading authority on public meetings says.

Terry Francke is general counsel for CalAware. He recently called into question the San Juan Capistrano City Council's handling of the news rack ban. Patch file photo.
Terry Francke is general counsel for CalAware. He recently called into question the San Juan Capistrano City Council's handling of the news rack ban. Patch file photo.

One of the foremost experts on California’s open meetings law says it was questionable whether the San Juan Capistrano City Council could discuss banning news racks on city property behind closed doors.

Beyond the prohibition itself, the issue has become the pickaxe that severed what were usually polite if not restrained relations between the City Council majority and minority.

Earlier this week, the council majority voted to hire a retired judge to, in part, determine whether Councilman Roy Byrnes violated the Ralph M. Brown Act when he revealed at an Oct. 1 council meeting an Aug. 6 closed-session discussion about the news racks.

Byrnes had thought there was a vote which needed to be reported out to the public. City Attorney Hans Ligten said there was not.

But Terry Francke, general counsel for Californians Aware, a group that helps citizens understand the laws governing public forums, said Byrnes’ reveal really isn’t the issue.

It’s that there was a closed-door session in the first place.

“Clearly, … you can't take an issue into closed litigation session unless there are presently existing (not merely potential or hypothetical) facts and circumstances making a lawsuit by a specific party about a specific issue likely,” Francke said.

Here’s what Patch can piece together about the controversy.

On Aug. 2, Kim McCarthy, advertising coordinator for the Community Common Sense newspaper talked to City Manager Karen Brust about the controversial watchdog publication’s news rack at City Hall. The meeting was cordial and an email exchange indicated the two hugged.

Four days later, the council went behind closed doors to “conference with legal counsel to discuss anticipated litigation and/or may contemplate initiating litigation.”

But McCarthy and Common Sense Editor Kim Lefner said there was never a hint of litigation on their part.

There were ‘”no comments about litigation from anywhere,” McCarthy said emphatically.

Unless a hug can be construed as a threat of litigation,” Lefner said.

The agenda item could also mean the council was considering legal action of its own. But that “flies in the face of logic,” Lefner said. 

“Why would a city willingly take an action to sue us? For what? We hadn't even been asked to remove our news racks at the time the closed door session was called," Lefner said. "And we complied with the order [to remove them], so there was no reason to even consider suing on either end.” 

When asked to identify the threat of litigation, Ligten told Patch: “There were facts and circumstances we thought warranted closed session,” but he would not detail what those were.

Francke said the facts and circumstances – language found in the law – have to be real.

Because Councilman Derek Reeve has represented Common Sense, he recused himself from the discussion.  (The council majority also wants the retired judge to determine whether Reeve has a conflict of interest in the matter).

That left Byrnes and council majority, Mayor John Taylor, Sam Allevato and Larry Kramer, to discuss the matter. When they emerged, all newspapers were banned from City Hall and the San Juan Capistrano Community Center.

Two weeks later, the newspapers were notified of the decision, McCarthy said.

That Byrnes openly discussed the Aug. 6 closed session last month at a council meeting at best is a small infraction, Francke added.

Serious Brown Act violations occur when information is kept from the public, not wrongfully disclosed.

“Anyone present in a closed session where a discussion or action takes place in violation of the Brown Act has a right to report that fact publicly. And if it turns out they're wrong on the law, the most that could happen to them is a resolution of sanction,” Francke said. 

“The only Brown Act crime is to knowingly and deliberately violate it with the intent to keep the public in the dark about things they have a right to know."

thejellyfish November 08, 2013 at 01:55 PM
This timeline of events written here makes sense. If Dr. Byrnes had not disclosed there was a vote, we would have never known. It is interesting that the Good 'ol Boys want to tar and feather an 89 year old man who simply spoke the truth. Interesting to note that when you watch the video of that city council meeting, the city attorney does not say there was not a vote, he states no decision was made. Yet clearly, the city attorney made a decision to remove the news racks after the closed session meeting. It does not look good for the Good 'ol Boys. The chickens may have finally come home to roost.
Patch Sucks DELTE THIS ACCOUNT November 08, 2013 at 03:53 PM
San Juan is one heck of a town. I forsee that it will only get worse in the coming years. It is very sad. I hope that the neighbors can get together and get entirely new people in there. It is a hard job but it is a job of service. Only few are truly fit for these jobs. The problem occurs when service to the people is construed with power and a high paycheck. Last I checked Sociology and social workers cap off at 50K at 50 years old. There is no reason that police, firefighters, city council, etc can not be paid the same living wage. Tax payers are not here to give the few luxurious lifestyles and free M.S.I. Healthcare to illegal immigrants. Sorry but I foresee San Juan coming to a head in multiple ways. ...and to whoever tore down my ronsan ranch house where stone hill is now. You are utterly pathetic.
Clint Worthington November 08, 2013 at 04:16 PM
The three amigos, Taylor, Allevato and Kramer have now painted themselves into a corner. They were offered several ways out and chose not to take them Tuesday night. As each day goes by, it looks worse for the three amigos. Remember, these are the same three that voted to fight returning the money that is owed to the residents by the Superior Court. Same three guys.
Sunshine November 08, 2013 at 08:18 PM
After ten years of access, why are Mayor John Taylor, Sam Allevato and Larry Kramer wanting to ban all newspapers from City Hall and the San Juan Capistrano Community Center? Is it because some of these publications are reporting corruption dealing with our water rate structure, recycled water charges, and the water plant? How bad are the crimes when a bold attempt at cover up is made by muzzling the facts?
Clint Worthington November 08, 2013 at 09:45 PM
If each Council Member, (all five) is being investigated, each City Council Member should be represented by an attorney at taxpayer expense, which the City Manger will have to find that don't have conflict of interest with each other. Council Member Reeve was just about right on the money when he said this is going to cost the City about $500,000.00 after all the staff time and attorney fees are paid. Remember, Allevato, Kramer and Taylor voted for this.

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