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HomeMy WebLinkAboutcc min 1994/03/29 MINUTES OF A REGULAR MEETING/WORKSESSION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA Tuesday, March 29, 1994 Council Conference Room 5:08 p.m. Administration Building CALL TO ORDER 1. ROLL CALL: PRESENT: Councilmembers Fox, Moore, Rindone, and Mayor Pro Tem Hotton (left the meeting at 6:47 p.~n.) ABSENT: Mayor Nader ALSO PRESENT: John D. Goss, City Manager; Bruce M. Boogaard, City Attorney; and Vicki C. Soderquist, Deputy City Clerk BUSINESS 2. RESOLUTION 17426 APPROVING FIRST AMENDMENT TO AGREEMENT WI.'Ilt REMY AND THOMAS FOR LITIGATION REPRESENTATION SERVICES - When the City of Chula Vista and County of San Diego approved the final version of the Otay Ranch Project, part of the approval was an indemnification agreement by Otay Vista Associates indemnifying the City and the County in the event of an attack on the project approval. On 12/1/93, Chaparral Greens and Daniel Tarr sued the City, the County, and Baldwin alleging inadequacies in the final program EIR and/or violations of CEQA. On 1/4/94, Council ratified a three-party agreement whereby Remy & Thomas (Tina Thomas, Esq. ) would represent the City pursuant to that indemnification agreement, at Otay Vista's expense. Staff recommends approval of the resolution. (Assistant City Attorney Rudolf) Continued from the meeting of 3/22/94. Richard Rudolf, Assistant City Attorney, informed Council the contract limit would be increased from $75,000 to $160,000. The City's motion was to dismiss the suit because they had refizsed to ask for the administrative record and pay for it. The Court reluctantly denied the City's motion to dismiss, but ordered the petitioners to request the record and pay for it, the entire record, and that the $20,000 deposit had to be made. The hearing date had been set for April 1st. All the rulings were in the City's fhvor. Councilmember Moore felt the City received what they wanted and the attorneys had done very well. City Attorney Boogaard stated all debt would be paid fi~r prior to the hearing. The risk to the General Fund had been mitigated because Tina Thomas was still under the same contractual obligation to not get paid unless the City received the money. RESOLUTION 17426 OFFERED BY COUNCILMEMBER MOORE, reading of the text was waived, passed and approved 4-0-1 with Nader absent. 3. REPORT THE BROWN ACT AND RECENT CHANGES TO IT - During this last legislative session, several amendments were made to the Brown Act. Such changes make it appropriate to revisit the rights and obligations contained in the Brown Act, and the effect of the recent changes to it. Staff recommends Council consider and discuss the Brown Act and its recent changes. (City Attorney) City Attorney Boogaard reviewed the materials that had been distributed to Council. He reviewed the following areas of change in the Brown Act: 1) the publics right to open meetings; 2) things that would have to be done differently at meetings, i.e. Council Comments, City Manager's Report, city generated discussion documents, closed session descriptions, pre-closed session announcements, post-closed session announcements and adjournment; 3) new meeting activity, i.e. three persons present, two persons present, Seriatim meetings, and Safe Harbor procedures; Minutes March 29, 1994 Page 2 4) specific exceptions to closed session. i.e. the "big bang" theory of redevelopment; 5) standing subcommittee rules; 6) savings of recordings of meetings: 7) frivolous suits; and 8) the rule applying to council and mayor elects. Councilmember Moore questioned how a citizen would pursue the right to have a Court review the Council's determination of the propriety of a closed session item. City Attorney Booguard responded they would have to have a reasonable suspicion that a violation occurred, make an allegation in court filing a complaint, and ask for an "in-camera" hearing. The judge, outside the presence of the plaintive would review the Council's actions in closed session, and if he believed a violation occurred he would reduce it to a certification that avoided the disclosure of any sensitive materials, but described what actually occurred. That certification would then become a public document. If there was a violation the City could be responsible for: 1) paying attorneys fees and costs; 2) the plaintive could invalidate the action taken by Council; and 3) criminal misdemeanor prosecution (those Councilmembers participating in the meeting). Councilmember Moore requested clarification regarding the right to criticize council. City Attorney Booguard stated it could not be a personal attack, they could criticize the City's policies, programs, and procedures. Councilmember Fox questioned what a persistent disruption was. City Attorney Booguard responded that it was a judgement call. The clear intent of the legislation was to give latitude to recordings and criticisms as much as possible. Councilmember Fox questioned whether Council wonld be able to refer items to staff if they were not on the agenda. City Attorney Booguard responded that Council would be allowed to ask clarifying questions, make referrals to staff, or ask for a report back to Council. Councilmember Rindone questioned whether there would be new requirements or descriptions for closed session items. City Attorney Boogaard stated there were major revisions as to how the Council went into or out of closed session. There were five steps: 1) pre-meeting agenda description, at-meeting pre-closed session announcements, closed session, post-closed session announcement of final action taken, and post-closed session adjournment. Councilmember Rindone questioned if there had been an interim vote to report publicly action taken and it failed, if it could be announced that a vote had been taken. City Attorney Booguard responded that only a final vote had to be reported. The general rule was, and it had not been changed, that everything that went on in closed session was confidential and should not be discussed even if it was a vote to publicly report it. Councilmember Rindone questioned if the vote to disclose that was defeated could be reported publicly after Council had taken final action. City Attorney Booguard responded that it was a grey area and tintested. He felt there were hundreds of ambiguities in the legislation. The existing law made everything that went on in closed session confidential, the new law required that final actions had to be reported. He l~lt such a disclosure would constitute a chill on the freedom of councilmembers to have free and open discussions. Mayor Pro Tern Horton felt Councilmembers would be in violation of the new meeting definition when two or more members were in the Council offices as they were able to hear everything that was going on. Minutes March 29, 1994 Page 3 City Attorney Booguard stated that previously there had to be deliberate interdeliberation to be a meeting. The new legislation sated hearing, discussion, or deliberation constituted a meeting. Councilmember Rindone questioned whether there would be a violation by Councilmembers attending the Mayor's Breakfast. He questioned whether that would have to be posted as a meeting. City Attorney Boogaard responded there was an exception that wonld apply, i.e. a conference or seminar where the public was freely allowed to attend. Members would not be allowed to discuss business issues among themselves. If all members sat at the same table they could be at risk. City Manager Goss questioned the difference between a standing comn~ittee and an ad hoc committee. City Attorney Boogaard responded that a standing committee had regular meetings or standing subject matter jurisdiction. An ad hoc committee did not have regular meetings or subject matter jurisdiction, i.e. formed for a limited specific purpose. Councilmember Fox stated the BECZ task force had a sunset date, but they still needed to get together on an occasional basis. He questioned whether they were an ad hoc committee. City Attorney Boogaard stated if the subcommittee was ti~rn~ed at the direction of the Council and even if they did not have regular meetings, but had subject matter jurisdiction, they were a standing committee. He defined subject matter jurisdiction as a particular piece of business assigned to them by the Cooncil to review and advise the Council as a whole. He stated it was not clearly defined in the legislation. City Manager Goss questioned whether the Conncil office was of concern. If it was a concern, hours could be scheduled for use or a petition could be placed behind the door to split it into two offices. Mayor Pro Tern Hotton stated it was inconvenient as Councilmembas were not always able to schedule their time. She did not want to give the perception that there could be a violation of the Brown Act. Councilmember Moore felt if an individual Councilmember wanted an individual office he/she could direct the City Manager to do that. If that were to take place he t~lt the Council conference room area would be lost. * * * Mayor Pro Tem Horton letl the meeting at 6:47 p.m. * * * Councilmember Rindone questioned the legality of attending a fimction such as a Christmas party. City Attorney Boogaard felt if there was no general piece of City business discussed and it was social there would not be a violation. He strongly discouraged the pre-dinners before Council ineetings as it would put the Council at risk. If the dinner break was during a closed session it would be legal. · Joseph W. Garcia, 484 Fifth Avenue, Chula Vista, CA, questioned if the Council worksessions would be allowed under the new legislation. City Attorney Boogaard stated Council could meet in workshop settings and conduct City business. Those meetings were announced on prior agendas and were regular meetings as per the City Code. Mr. Garcia stated there were several matters that could not be enacted at a regular meeting as per the Charter and State Constitution if there was not a member of the public in attendance. He questioned whether staff members in attendance were considered members of the public. City Attorney Boogaard stated the meetings had tu be open to the public, but the Council could not be precluded from conducting business if the public wanted to boycott the meetings. Minutes March 29, 1994 Page 4 Councilmember Moore requested that the Clerk 's Office notify the secretaries of the boards/commissions/committees regarding the thirty day regulation for keeping the tapes of meetings. City Manager Goss stated he was concerned with the lack of communication between staff and Council in the "big bang" theory of redevelopment. It was a tool that in certain cases might be advantageous to the City, but it was discretionary on the part of the Council. Councilmember Fox stated Councilmembers Rindone and Horton would be appearing at political forums and other Councilmembers would be in attendance. He questioned whether that would be a violation as the candidates would be discussing specific City issues. City Attorney Boogaard stated if there were three or more members of Council in attendance and they "heard" subject matter information they would have to look for an exception. He felt if it was open to the public and called by an outside agency, involved general issues of interest to the public, there was an exception as long as Councilmembers did not discuss those issues among themselves at that meeting. Councilmember Moore questioned who wonld notify' the boards/commission/committees regarding the key items of the Brown Act. City Attorney Boogaard stated he had planned to have a meeting with members of the boards/commissions/corminttees in the Council Chambers. It could be posted as a special meeting of the board/commission/committee. Councilmember Moore felt that each chair should receive a copy of the information presented to Council. He felt for the initial phasing in the announcement that Council would reconvene after closed session should be announced at the beginning of the meeting and prior to going into closed session. He also felt the Clerk should have the fmal decisions announced after closed session available the next day fur public review. City Attorney Boogmard stated the City had a good record of conrpliance with the Brown Act. ORAL COMMUNICATIONS ® Petra Barajas, 231-F Third Street. Chula Vista, CA, intbn~ed Conncil that she was a write-in candidate for the 50th Congressional District. ADJOURNIMENT ADJOURNMENT AT 7:23 P.M. to the Regular City Council Meeting on April 5, 1994 at 4:00 p.m. in the City Council Chambers. Respectfully submitted, BEVERLY A. AUTHELET, CMC, City Clerk Vicki C. Soderquist, Deputy .~lerk