During a special meeting of the Colusa City Council, preceding an unconventionally scheduled regular meeting, the Colusa City Council voted in a 4-1 decision to agree to a severance settlement with former interim City Manager Randy Dunn in the amount of $13,600, in exchange for Dunn waiving all claims against the city.
The decision was announced at 10:45 a.m. yesterday, during the announcement of closed session action at the beginning of the rescheduled regular meeting.
Typically, the council meets at 6:00 p.m. It isn’t the first time that the council has heard an item pertaining to Dunn’s employment during a meeting scheduled for an irregular date or time: Dunn’s contract as the interim city manager was terminated at a special, closed session meeting on Friday, Feb. 24 at 10 a.m.
Asked about the reasoning behind rescheduling the meetings to the mornings, Mayor Kirk Kellher said that he couldn’t recall the precise reason.
“I don’t remember why they decided to do that. (In the case of the latter meeting) We decided a couple weeks ago, it seems like I remember that there was just a very short amount of stuff on the meeting and we wouldn’t have to come back at night. We’re all for that,” Kelleher said.
When asked whether the rescheduling of the two closed session meetings to morning hours – when many members of the public are working – might create an appearance that the council is intentionally obfuscating the actions they take in closed session, Kelleher disagreed.
“It might seem like that at times, but mainly it’s a convenience thing. It’s never an intentional thing to hide stuff from the public… I respectfully disagree with this in mind: The reporting out (of closed session), whether the public is there or not, it doesn’t change what happened in the meeting, and it doesn’t change the reporting out in the meetings,” Kelleher said. “To me, it doesn’t matter when we have closed sessions, because the public doesn’t have the same level of input,” on reports out from closed session as with items discussed in open session.
In regards to the meeting, California Newspaper Publishers Association Legal Counsel Jim Ewert said that there were a number of potential violations under the Ralph M. Brown Act – California’s open meeting law – beginning with the way the item pertaining to Dunn’s settlement was noticed on the agenda. The item was placed on the agenda for the closed session special meeting under the Brown Act exemption for conference with legal counsel: anticipated litigation. The exemption is listed specifically under California Government Code Section 54956.9(d)(2)
“They can go into closed session and talk about pending litigation, and that includes anticipated litigation, if litigation has been initiated formally, or a point has been reached wherein the opinion of the council, at the advice of its legal counsel and based on the facts and circumstances, there is significant exposure to litigation against the agency – that’s possible,” Ewert said. “For purposes of paragraph two and three, existing facts and circumstances consists of one of the following: facts and circumstances that might result in litigation against the agency, but which the local agency believes are not known to a potential plaintiff or plaintiffs, which facts and circumstances need not be disclosed. That is not the case here, because the potential plaintiff does indeed know what the facts and circumstances are. Facts and circumstances including but not limited to an accident, disaster, etc. that are known to a potential plaintiff or plaintiffs, which facts and circumstances shall be stated on the agenda or announced.”
Ewert said, because the agenda did not notice the actual settlement of potential litigation with the former city manager, the notice may be deficient “for what it was that they intended to do in closed session, because facts and circumstances as defined in the law might result in litigation, but they’re known to the potential plaintiff.”
“Because of that, they were required to publicly state on the agenda, or announce what they were doing. Otherwise you have to be clairvoyant to know that they were going into closed session to do this.”
Also a matter of concern, Ewert said, is the council’s decision to reschedule the regularly scheduled meeting outside of an open and public meeting.
“The second potential violation of the Brown Act is a violation of the requirement that they meet openly and publicly to discuss items that follow in their subject matter jurisdiction, which can include changing meeting times,” he said. “Where are the minutes that reflect that? If they discussed it, it had to be in an open meeting. There’s a potential violation there as well. They can do what they did, without any question. I mean, if they want to meet at 3 a.m., they can certainly do that, but it certainly raises the question as to whether they are doing it for their own convenience or the convenience of the public.”
After reviewing the Pioneer Review’s recordings of the past two city council meetings, it appears as if there was no discussion related to rescheduling the regular meeting. The minutes from the March 7 meeting do not reflect any such discussion, either, and the minutes for the March 21 meeting are not yet available.
According to councilmember David Womble, current interim City Manager Jesse Cain called to inform him that there would be a special meeting on Tuesday, and because some of the councilmembers had commitments on Tuesday night, and the fact that the agenda was so short, the regular meeting would be rescheduled to the morning, after the special meeting.
“He said that there wasn’t much on there, and a couple of council members had something to do tonight,” Womble said.
Councilmember Greg Ponciano at first declined to comment on the closed session item, calling the settlement as a personnel issue. When pressed, Ponciano said that he understood the money for the settlement did in fact belong to the public, and indicated he would contact Ryan Jones, the city attorney, immediately to see if there was a statement the city could legally make. Neither Ponciano nor Jones had called back at the time of publication.
According to Ewert, the public is actually (and explicitly) entitled to know the terms of the settlement, according to the law.
“At a minimum, under the Public Records Act, the public is entitled to see not only the settlement agreement, but any documents that are relevant, or pertain to that agreement,” Ewert said. “…the law clearly states that if a party to a settlement is a public agency, that agency is prevented by law from entering into secret settlements.”■