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."