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Home My WebLink About2015-01-27 Item 12 Additional Information 1 - � � � �i(�L`l i yrFo l�m !2 �f� 1140 S. Coast Highway 101 Encinitas,CA 92024 Tel 760-942-8505 • � ' • Fax 760-942-8515 vxn.v.coasUawgroup�om January 21, 2015 Donna Norris City Clerk City of Chula Vista Via Electronic Mail 276 4`"Avenue CityClerk@chulavistaca.gov Chula Vista, CA RE: Notice of Intent to File Suit and Demand for Cure ,. � Public Records Act and Brown Act Violations � Dear Ms. Norris: Please accept this correspondence on behalf of our clients San Diegans for Open Government(SanDOG)and Mr. Chris Shilling. SanDOG is a non-profit, public-interest organization that advocates for good-governance issues, including environment-related quality-of-life issues in the County of San Diego. This letter serves as our clients' Notice of Intent to File Suit pursuant to the California Public . Records Act ("PRA")' in response to the City of Chula Vista's failure to adequately respond to our clienYs PRA Request and for violations of the Brown Actz in connection with the City's selection of candidates for interviews to fill the Council vacancy. On January 6, 2015, Mr. Shiiling requested the list of the Mayor's and each City Councilmember's nominees for the vacant City Council seat. In its January 16, 2015 response, the City relied on various exemptions to the Public Records Act to withhold the requested documents. The City's reliance on such exemptions is misplaced, and this letter constitutes Mr. Shilling's renewed request for the aforementioned lists. Should the City fail to provide the requested documents, our client intends to seek judicial enforcement of the Public Records Act.' Notably, the City relies on three different legai bases for determining the requested documents are exempt from disclosure: Gov Code Sections 6254(a), 6254(k), and 6255. On their face these exemptions are inapplicable. Elected officials' votes forcandidatesto replace a vacancy most certainly do not qualify as preliminary drafts, notes or interagency memos. Likewise there is no right to privacy afforded to these votes—indeed such votes are subject to the Brown Act, as more fully explained below. Lastly, the deliberative process privilege has no application to a purportedly public process of filling a vacancy: The key question in every case is"whetherthe disclosure of materials would expose an agency's decisionmaking process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions." [citation] Even if the content of a document is purely factual, it is nonetheless exempt from public scrutiny if it is "actually . . . related to the process ' Government Code § 6250 et. seq. � Government Code § 54950 et. seq. ' S2ction 6258 of the Public Records Act provides that"(a]ny person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter." Notice of Intent January 21, 2015 ' Page 2 by which policies are formulated" [citation] or "inextricably intertwined" with "policy-making processes." [citation� (Times MirrorCo. v. SuperiorCourt(1991)53 Cal.3d 1325, 1342). Unquestionably,there is no policy formulation involved in selecting a councilmember. Nor is there any decisionmaking process discouraged by disclosure of the current elected officials' votes for their future counterpart. FuRher, the City fails to explain — as required pursuant to ali of the aforementioned exemptions—how the public interest in withholding the requested documents clearly outweighs the pubiic interest in disclosure. (See Gov Code §6254(a) ["Preliminary drafts, notes, or interagency or intra-agency memoranda that are not retained by the public agency in the ordinary course of business, if the public interest in withholding those records clearly outweighs the public interest in disclosure."],emphasis added). Because this request concerns the appointment of an elected official to fill a vacancy, it certainly is of great public import which councilmember voted for which candidate(s). Not only do Californians — including our clients — have a constitutional right to access the records of their public agencies, but they also have the right to an open government, where actions' are taken openly and deliberations are conducted openly.(Gov Code§54950). Indeed,secret ballots are expressly prohibited by Gov Code section 54953(c)(1). The Attorney General's office has long disapproved secret ballot voting in open meetings and the casting of mail ballots: Thus, items under consideration which are not subject to a specific closed meeting exception must be conducted in a fully open forum. (68 Ops.Cal.Atty.Gen. 65 (1985)). One aspect of the public's right to scrutinize and participate in public hearings is their right to witness the decision-making process. If votes are secretly cast, the public is deprived of a portion of its right. (See also 59 Ops.Cai.Atty.Gen. 619, 621-622 (1976).) However, it is the view of this office that members of a body may cast their ballots either orally or in writing so lonq as the written ballots are marked and tallied in open session and the ballots are disclosable public records. (Attorney General Brown Act Pamphlet (2003), p. 31, emphasis added). Thus, not only do citizens have the right to access the votes withheid here, but because the votes were not made public, in open session at an agendized meeting, the City also violated the Brown Act's prohibition on secret ballots. The fact that the Mayor and Counciimembers vote may be considered "preliminary" to the selection of finalists for an interview is irreievant. "No legislative body shail take action by secret ballot, whether preliminarv or final." (Gov Code §54953(c)(1)), emphasis added. In secretly voting for candidates, the City also failed to comply with its obligation to notify the public with a "brief description" of each item to be discussed or acted upon in an agenda, and further participated in an unlawful "serial meeting," whereby the majority of the Council took action outside of the public process through a series of communications with each other and with the City Clerk. (Gov Code § 549522(b)). ° Govemment Code section 54952.6 defines "action taken" as "a collective decision made by a ma�ority of the members of a legislative body, a collective commitment or promise by a ma�ority of the members of a legislative body to make a positive or negative decision, or an actual vote by a majority of the members of a legislative body when sitting as a body or entity, upon a motion, proposal, resolution, order or ordinance.° This expansive definition includes the type of action taken by the Chula Vista City Council and Mayor in voting on "finalists" selected to be interviewed. �Jotice of Intent , January 21, 2015 � Page 3 Pursuant to Government Code Section 54960.1, this letter constitutes a demand that the City of Chula Vista, specifically the City Council and Mayor, cure and correct the illegally taken action as follows: (i) formally and explicitly withdraw the prior votes made; (2) properly agendize an open meeting for the selection of candidates for an interview process; (3) provide an opportunity for public comment by members of the public at the aforementioned meeting; (4) provide for the open and public vote by the Council and Mayor for candidates to continue onto the interview process. Notice of the meeting, a brief description of the action proposed to be taken, and the availability of public comment must be included on a posted agenda. Any and all documents in the possession of the City related to the action taken shall also be provided with the agenda. As provided by Section 54960.1, the City has 30 days from the receipt of this demand to either cure or correct the challenged action. Should the City faii to cure or correct as demanded, SanDOG and Mr. Shilling will seek a judicial invalidation of the challenged action pursuant to Section 54960.1. SanDOG and Mr. Shilling will also seek an award of costs and reasonable attorney fees in this matter. FuRher, until the City provides the responsive, requested documents, it will continue to be in violation of the Public Records Act. If the City does not promptly produce the responsive documents by Friday, January 23, 2015, we intend to file suit to compel production. We urge the City to consider the public interest and citizens' right to open government in reconsidering its initial response to the Public Records Act Request. Should you have any questions feel free to contact me directly. Sincerely, COAST LAW GROUP LLP � � Livia Borek BRIGGS LAW CORPORATION � �� _ " �f Co Bri s rY 99 Attorneys for Chris Shilling and SanDOG cc: City Attorney Glen R. Googins, cityattorney@chulavistaca.gov clients