Teeing off on the Brown Act

Well, they’ve gone and done it again.

Only this time it was worse.

A few weeks ago, the Merry-Go-Round reported how Council and staff had used the closed-session tool to conduct the process for selecting a new city manager behind closed doors.

This was wrong as a matter of public policy.  But it was, at least arguably, legal under the Brown Act, which permits a legislative body to hold a closed session – i.e., a meeting from which the public is excluded – to “consider the . . . employment . . . of a public employee.”

This time, Council actually may have violated the state’s open-meeting law.

At issue is the operation of the restaurant at the Chuck Corica Golf Complex.  Back in 2005, the City entered into what was called a “Concession Agreement” with the current operator, Jim’s on the Course.  Having been renewed once for five years, this agreement expired on December 15, 2015.

Until Tuesday, Council never had discussed a new contract for the restaurant at a regular meeting open to the public.  Instead, the only discussions occurred in a closed session on November 17.  At that non-public meeting, “Direction [was given] to staff on lease terms to return to Council for public consideration and approval.”  (emphasis supplied).

We italicize the word “lease” for a reason:  Discussing the parameters of a deal in closed session would have been kosher if the contract was a lease.  The Brown Act requires that all city council meetings be open to the public “except as otherwise provided” by the Act. One of the exceptions is a closed session “with its negotiator prior to the purchase, sale, exchange, or lease of real property by or for the local agency to grant authority to its negotiator regarding the price and terms of payment for the purchase, sale, exchange, or lease.”

The problem is:  The City Attorney has insisted – repeatedly –that the contract between Jim’s on the Course and the City is not a lease of real property.

After the agenda for the March 1 Council meeting was posted online, Joe VanWinkle, the Alameda businessman who was one of the leaders of the “Save the Mif” campaign, asked City Clerk Lara Weisiger how the City characterized the contract for the restaurant.  If it was a lease, he noted, the City Charter required four votes from Council members to approve it.

“The item is an agreement, not lease,” Ms. Weisiger told Mr. VanWinkle in an email.  Accordingly, a supermajority vote was not required.

The same day, Recreation and Parks Director Amy Wooldridge elaborated upon Ms. Weisiger’s response.  “Per our City Attorney,” Ms. Wooldridge wrote in an email to Mr. VanWinkle, “the proposed arrangement with the owner of Jim’s on the Course is not a lease.”  She went on to list “a few reasons” for that conclusion.

A couple of days later, Lisa Cooper, a paralegal in the City Attorney’s office, reiterated the party line in response to a public records request from Mr. VanWinkle.  “The agreement with Jim’s on the Course,” she said in an email, “is not a lease.”

Tuesday night, these privately expressed opinions rose to the level of a publicly stated pronouncement.

Asked by Vice Mayor Frank Matarrese to address the lease versus “concession agreement” issue, Assistant City Attorney Andrico Penick declared, “This concession agreement that is before you differs from a lease in several legally significant respects.”  He proceeded to repeat essentially the same arguments Ms. Wooldridge made in her email.  (Indeed, Mr. Penick appeared to be reading them off a document in front of him).

As it happens, the legal analysis was suspect.  One of the reasons cited by Mr. Penick for concluding that the contract for the restaurant was not a lease was that the operator is “not responsible for possessory interest tax.”  In fact, it is – that’s what section 4.05 of the “concession agreement” says in so many words.

No matter:  This Council, three of whose members hold law degrees, never challenges the ipse dixit delivered by the City Attorney.  Yet in that case our elected officials owe the public an explanation:  If the contract for the restaurant is not a lease, as the City Attorney says, how could you justify holding a closed session to discuss it?  Didn’t that violate the Brown Act?

We won’t be holding our breath waiting for an answer.

We suppose some might regard this incident as insignificant.  We’ll resist the temptation to respond by extolling the virtues of “transparency” embodied in the Brown Act.  Or by elaborating on the cases holding that the Act’s exceptions are to be “construed narrowly.” Or even by explaining the value, in this particular case, of Council discussing acceptable contract terms publicly at a regular meeting before negotiations began.

No, our concern is a broader one:  too much of the public’s business in the City of Alameda these days appears to be getting done behind closed doors.  Maybe Council, if it wants to comply with the Brown Act (as it surely does) ought to engage outside counsel to advise its members on the use, misuse, and abuse of the closed-session exception.  The public would be invited, but attendance would be mandatory for every in-house attorney on the City’s payroll.

 

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Disclosure:  Former Golf Commission chair Jane Sullwold spoke at Tuesday’s meeting to urge Council to follow the unanimous recommendation of the Golf Commission to hold off approving the proposed “concession agreement.”  Key terms had been omitted, and the Commission believed any contract binding on the City and the operator for 25 years should include those terms.  While a final agreement was being worked out, Council could extend the existing agreement for six months.

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Sources:

March 1, 2016 staff report: 2016-03-01 staff report

“Concession agreement”: 2016-03-01 Ex. 1 to staff report – Concession Agreement