HomeMy WebLinkAboutAgenda Statement 1988/07/19 Item 06
COUNCIL AGENDA STATEMENT
iZ&,
Item ~ 7
Meeting Date 7fi2i~tr 1/1 q I {f
ITEM TITLE: Resolution !37j~- Approving a Policy on Minutes for Closed
SeSSIons
SUBMI'l'l'ED BY: City Attorney'ff:!J
,j
(4/5ths Vote: Yes No X )
This report discusses a proposal to keep minutes of closed sessions and
recorranends that we expand our current record keeping procedures to include
attendance records. A proposed policy is included if Council wishes to
require minutes of specifications and votes.
RECOMMENDATION :
That we add an attendance provision to our current record
keeping practices but not keep specific minutes of action
and votes.
BOARDS/COMMISSIONS RECOMMENDATION: N/A
DISCUSSION:
The City Council directed the City Attorney to bring back a report discussing
a proposed policy on keeping minutes of closed session items and on what
disclosure, if any, to the public would be appropriate. The City Council
specifically requested an evaluation of a procedure to maintain minutes which
would include the date, time and duration of the meeting, those in attendance,
the specific motion, the vote and a statement of the issue that was
discussed. We currently keep records of the date, time and duration of closed
session meetings. It would not harm the City in any way, nor would it be a
problem to keep a record of the attendance. In a general sense, we are
currently required by law to keep a statement of the issue, e.g., the case
name or potential litigation, personnel, property transactions, etc. vvhen we
make a decision to appoint, employ or terminate an employee, we are required
to state that openly at the next meeting. Problems may arise when we get more
specific. The proposed policy does not generally make minutes of closed
sessions available to members of the general public. However, these records
may be released to the pUblic upon a majority vote of the city Council.
The policy of the Brown Act is clearly stated. It is the intent of the Act
that a City Council's actions and deliberations be taken openly.
The people in delegating authority do not give their
public servants the right to decide what is good for
the people to know and what is not good for them
know. The people insist on remaining informed so
that they may retain control over the instruments
they have created (Government Code ~54950)*.
*Hereinafter all references shall be to the Government Code unless
otherwise stated.
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Agenda I tern No. -t6" /
Meeting Date: 71H1ffif 7//1 Jf}
Page Two
Despite this strong statement of overall policy, the Brown Act explicitly
recognizes that there are certain subjects that are properly discussed in
closed session. Those subjects include threats to security (54957), personnel
(54957), salary negotiations (54957.6), real property transactions (54956.8),
and litigation (54956.9). If we adopt a general policy on minutes/disclosure
of closed sessions, we should do so with an understanding of its effect on
each one of these subjects.
The keeping of minutes or even tape recordings would be desirable if we could
be assured of the absolute confidentiality of the record. Unfortunately, this
is not the case. The Brown Act currently states that the minute book or tape
recording is not SUbject to the Public Records Act and is confidential.
(54957.2) However, this record is available to members of the legislative
body or, if a violation of the Act is alleged to have occurred at a closed
session, to the courts. Plaintiff's lawyers are very creative and will have
no problem corning up with alleged violations of the Brown Act to require
disclosure. There is also the open question of whether, once a councilmember
reveals what went on in closed session, the confidentiality is abrogated.
There is no appellate case law on this issue. Assuming minutes or recordings
will be disclosed, this could be very harmful to the City.
I
To give examples, in a typical excessive force case filed against one of our
police officers, Council may want to have a frank and critical discussion of
the conduct and integrity of our own police officer and of our witnesses and
adversaries. While this is totally justified, it could be offensive and
embarrassing to these individuals if this discussion is later disclosed. It's
typical in a case to have some evaluation of the judge. It's very unlikely
that any attorney is going to criticize a judge if he knows that that
criticism will later be disclosed. In Worker's Compensation cases, the first
question is often whether the employee is genuinely injured or whether the
claim is a fraud. At the very least, these discussions would have to be much
more guarded than they are currently. In cases involving an alleged dangerous
condition of public property, the key work in the case is often done by an
expert witness. Sometimes that witness is never called to testify and is
therefore never disclosed to our adversaries. If this information is now
routinely disclosed, it could put us at a disadvantage in our litigation. In
salary negotiations, the City Council often sets a range for salary
increases. If our negotiators manage to corne in under the ceiling approved
and we later disclose our action, it could make future negotiations more
difficult. Similarly, disclosures about settlement discussions for litigation
and property transactions would allow future adversaries to get an insight
into the City's strategies. In discussing this problem with regard to
settlement advice on litigation, the court stated in Sacramento Newspaper
Guild v. Sacramento County Board of Supervisors 263 Cal.App.2d 57, 69
Cal.Rptr. 480 that:
/37()(o
Agenda Item No. 16 ~I alf f
Meeting Date: ~ '7 If
Page Three
If the public's 'right to know' compelled admission
of an audience, the ringside seats would be occupied
by the government's adversary delighted to
capitalize on every revelation of weakness. A
lawyer worth his salt would feel a sense of
treachery in disclosing that kind of appraisal. To
him, its conduct in public would be shocking,
unprofessional, unthinkable.
This problem would be exacerbated if we routinely released all of this
information at the time each issue is resolved.
There is no question that there would be some value in keeping a record of all
actions taken in closed session. Many of the issues we are involved with
stretch out over a period of years and recollections can be dimmed. There is
an advantage in being able to go back to the record of a particular meeting
and in being able to state with certainty, the exact action taken. This
advantage has to be weighed against the harm that may be caused. Disclosures
which reveal city strategies will put the city at a disadvantage in future
litigation. Disclosure of statements critical about individuals could even be
the cause of future litigation. The potential for disclosure could have a
chilling effect on the participants to the discussion in that they may be
unwilling to raise questions or divulge useful information because of
potential future repercussions. Instead of a full, free and uninhibited
discussion of these sensitive issues, we may end up with participants
posturing to look good on the record. It is for these reasons that I
recommend that we continue in our current practice, which results in records
of the date, time, duration and general statement of the issue with regard to
closed sessions. In addition, I would recommend that we add an attendance
note to our current record keeping procedures. I would recommend against
keeping records of specific motions or votes. If it is Council's desire to
keep a record of specific motions, I would recommend that we do so in the
manner which does not reveal any information that would be disadvantageous to
us in future litigation or negotiation.
Despite my recommendation, I have prepared a proposed policy that would call
for further disclosure of specific actions and votes. The policy calls for
the taking of minutes, but directs that the actions be stated in such a way as
to protect information the disclosure of which could be harmful to the City.
FISCAL IMPACT: N/A
4358a
the City Council of
Chula Vi tn, C2!ifornia
by the City Council of
Chula Vis a, California
Dated /; Liar
Dated
13 7~0
COUNCIL AGENDA STATEMENT
Item 6
Meeting Date 7/19/88
ITEM TITLE: a) Resolution Entering into an agreement with Centre
Ci ty Associ ates Limited-Commerci a 1 (CCAL-C) for the rebati ng
of possessory interest taxes payable to the County for use of
the Town Centre Parking Structure and the filing of an appeal
with the County
b) Resolution Approving an amendment to Reciprocal
Grant of Easements and Declaration Establishing Restrictions
and Covenants relative to payments for the parking structure
SUBMITTED BY: Community Development Directo~
REVIEWED BY: City Manager~ (4/5ths Vote: Yes___No~)
It was recently learned that the County Assessor's office has determined that
possessory interest taxes are due from the owners of property in Park P1 aza
for use of the parking structure. Although the owner CCAL-C (Centre City
Associates Limited-Commercial), as well as City representatives, have
__ conferred wi th the County Assessor IS offi ce, the County has proceeded to bi 11
CCAL-C for possessory interest taxes for 1984. Both owner's counsel and the
City Attorney feel that the imposition of possessory interest taxes are
questionable and recommend the filing of an appeal. In the interim, CCAL-C
has requested that the Agency agree to rebate any possessory interest taxes
which they or their successors may be required to pay to the County.
The Council and Agency are also requested to approve an amendment to the CC&Rs
for Park P1 aza whi ch c 1 arifi es the amendment approved by the Council and
Agency on May 18,1988. This amendment allows CCAL-C or their successors to
pay the City $150,000 in lieu of any further rental payments for Parcel #4 for
use of the parking structure.
RECOMMENDATION: That the Council adopt the following resolutions:
a) Approving an agreement with CCAL-C to rebate any possessory interest taxes
paid by them or their successors to the County for use of the Town Centre
Parking Structure and the filing of an appeal to the County.
b) Approving an amendment to Reciprocal Grant of Easements and Declaration
Establishing Restrictions and Covenants.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
CCAL-C and the Ci ty /Agency di sagree on whether the issue of a possessory
interest was specifically considered at the time the Disposition and
Development Agreement was entered into with Mr. Zogob and his associates, or
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Page 2, Item 6
Meeting Date~
at the time of the preparation of financing documents for the parking
structure. The structure was fi nanced by the issuance of certifi cates of
participation whereby Imperial Municipal Services, Inc. leased the land from
the City to construct the parking facility and then lease the parking facility
to the Redevelopment Agency. Subsequently, CCAL -C, Uni ted Arti s ts and Mari e
Callenders agreed to make payments to the City totalling $97,000 a year
towards the repayment of the bonds for the parking structure. These payments
were never specifically indicated to be lease payments. They go the Cityls
General Fund while the Agency pays approximately $460,000 per year to retire
the bonds. CCAL-C also pays for the maintenance and security of the parking
structure. The agreement is not entirely clear, and generates plausible
arguments by both sides.
As part of the Town Centre II shoppi ng center project, the City recently
refinanced the parking structure and replaced Imperial Municipal Services
Corporation as the owner of the structure with the Redevelopment Agency. The
refi nanci ng documents were revi ewed by the County I s Assessor IS office whose
staff recently had experience with the financing of the Police building in
downtown San Diego which was similarly accomplished with the issuance of
Certificates of Participation. The County has apparently determined there is
a possessory interest arising out of the relationship between the City,
Agency, CCAL-C, Mari e Call enders, Uni ted Arti sts, and/or Imperi a 1 Muni ci pa 1
~ Services, Inc. The County pre-sent tax bills in an attempt to preserve
whatever ri ghts it has to taxes for the years in questi on (but may have not
done that correctly). Legal counsel for CCAL-C and the Agency contend that
the issue of possessory interest is questionable since the parking structure
is open to the general pub 1 i c. If there is a possessory interest, there are
questions as to who it would be charged against, valuation, and for which
years taxes are due.
CCAL-Cls counsel and the Agency's counsel have reviewed these issues and feel
there are 1 egi timate grounds for an appeal to the County. In the interim,
CCAL-C has asked that the Agency essentially hold them harmless for any
possessory interest taxes which may be charged. The possessory interest issue
is the last major obstruction in the current plans to sell the center. Since
the parking structure is located within the redevelopment project area, all
possessory interest taxes accrui ng to the County waul d be passed through to
the Redevelopment Agency. CCAL-C is asking that the Agency credit them for
payment of these taxes by either rebating them or giving them a credit against
the yearly payments for the parking structure. Since the Agency never
anticipated receipt of possessory interest taxes, there will be no loss or
gain to the Agency. Assuring the rebatement to CCAL-C or their successor will
resolve the last major obstacle in the pending sale of the center. In return
for the rebate guarantee, CCAL-C will pay the full cost of filing an appeal to
the County Assessment Appeals Board, excluding the possible cost of an expert
witness on value (whose services might not be required).
/3&q-j
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Page 3, Item 6
Meeting Date 7/19/88
Staff is in the process of contacting United Artists and Marie Callenders who
are al so owners of property at the center and, consequently, impacted by the
possessory interest issues. If a policy is established with CCAL-C, a similar
policy should be established with the other owners at the center. The results
of discussions with United Artists and Marie Callenders will be reported
directly to the Agency at this afternoon's meeting.
The Council and Agency are also requested to re-approve a resolution amending
the CC&Rs for Park Plaza. This amendment is essentially the same as the
amendment approved on May 18 by both the Counei 1 and Agency. Severa 1 mi nor
changes in 1 anguage have been incorporated at the request of CCAL-C and the
perspective purchasers of the center in order to cl arify that, subsequent to
the payment of $150,000, no further rental payments will be due for Parcel
#4. The most notable change is the insertion of the words "...its
enti rety. .. II on page 2, second paragraph to i ndi cate that there woul d be no
further rental payments after years 7 and 17 as stipulated in the original
agreement. There are no changes in terms or conditions of the Amendment.
FISCAL IMPACT: The County Assessor has issued a bill to CCAL-C and, Marie
Call enders, and presumably, to United Artists for possessory interest taxes.
In determi ni ng possessory interest taxes, the County Assessor apparently has
used the construction cost of the parking structure. The construction cost of
~_ approximately $3.5 million produced a possessory interest tax of approximately
$35,000 for the tax year. CCAL-C has been billed $25,633.50 for their four
parcels.
Total parking fee payments from Park Plaza are $97,197. CCAL-C are requesting
relief from payments for Parcel #4 which total $21,560 per year. In return,
the City will receive a lump sum payment of $150,000.
WPC 3675H
/~gf
COUNCIL AGENDA STATEMENT
Item 6
Meeting Date 7/19/88
ITEM TITLE: a) Resolution Entering into an agreement with Centre
City Associates limited-Commercial (CCAl-C) for the rebating
of possessory interest taxes payable to the County for use of
the Town Centre Parking Structure and the filing of an appeal
with the County
b) Resolution Approving an amendment to Reciprocal
Grant of Easements and Declaration Estab1 ishing Restrictions
and Covenants relative to payments for the parking structure
SUBMITTED BY: Community Development Directo~
REVIEWED BY: City Manager~ (4/5ths Vote: Yes___No~)
It was recently learned that the County Assessor's office has determined that
possessory interest taxes are due from the owners of property in Park P1 aza
for use of the parking structure. Although the owner CCAl-C (Centre City
Associates Limited-Commercial), as well as City representatives, have
_ conferred wi th the County Assessor IS offi ce, the County has proceeded to bi 11
CCAL -C for possessory i nteres t taxes for 1984. Both owner I s counsel and the
City Attorney feel that the imposition of possessory interest taxes are
questionable and recommend the fi1 ing of an appeal. In the interim, CCAl-C
has requested that the Agency agree to rebate any possessory interest taxes
which they or their successors may be required to pay to the County.
The Council and Agency are also requested to approve an amendment to the CC&Rs
for Park Plaza which clarifies the amendment approved by the Council and
Agency on May 18,1988. This amendment allows CCAL-C or their successors to
pay the City $150,000 in lieu of any further rental payments for Parcel #4 for
use of the parking structure.
RECOMMENDATION: That the Council adopt the following resolutions:
a) Approving an agreement with CCAL-C to rebate any possessory interest taxes
pai d by them or thei r successors to the County for use of the Town Centre
Parking Structure and the filing of an appeal to the County.
b) Approving an amendment to Reciprocal Grant of Easements and Declaration
Establishing Restrictions and Covenants.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
CCAl-C and the City/Agency di sagree on whether the issue of a possessory
interest was specifically considered at the time the Disposition and
Development Agreement was entered into with Mr. Zogob and his associates, or
J~. /"'1.':, .
1'-./-0"'/ ,
-"
Page 2, Item 6
Meeting Date-,yrg]88
at the time of the preparation of financing documents for the parking
structure. The structure was financed by the issuance of certificates of
parti ci pati on whereby Imperi a 1 Muni ci pal Servi ces, Inc. 1 eased the 1 and from
the City to construct the parking facility and then lease the parking facility
to the Redevelopment Agency. Subsequently, CCAL-C, United Artists and Marie
Callenders agreed to make payments to the City totalling $97,000 a year
towards the repayment of the bonds for the parking structure. These payments
were never specifically indicated to be lease payments. They go the City.s
General Fund while the Agency pays approximately $460,000 per year to retire
the bonds. CCAL-C also pays for the mai ntenance and securi ty of the parki ng
structure. The agreement is not entirely clear, and generates plausible
arguments by both sides.
As part of the Town Centre II shopping center project, the City recently
refinanced the parking structure and replaced Imperial Municipal Services
Corporation as the owner of the structure with the Redevelopment Agency. The
refi nanci ng documents were revi ewed by the County I s Assessor I s offi ce whose
staff recently had experience with the financing of the Police building in
downtown San Diego which was similarly accomplished with the issuance of
Certificates of Participation. The County has apparently determined there is
a possessory interest arising out of the relationship between the City,
Agency, CCAL-C, Mari e Call enders, Uni ted Arti sts, and/or Imperi a 1 Muni ci pa 1
_ Services, Inc. The County pre-sent tax bills in an attempt to preserve
whatever ri ghts it has to taxes for the years in questi on (but may have not
done that correctly). Legal counsel for CCAL-C and the Agency contend that
the issue of possessory interest is questionable since the parking structure
is open to the general public. If there is a possessory interest, there are
questions as to who it would be charged against, valuation, and for which
years taxes are due.
CCAL-C's counsel and the Agency's counsel have reviewed these issues and feel
there are 1 egi timate grounds for an appeal to the County. In the interim,
CCAL-C has asked that the Agency essentially hold them harmless for any
possessory interest taxes which may be charged. The possessory interest issue
is the last major obstruction in the current plans to sell the center. Since
the parking structure is located within the redevelopment project area, all
possessory ; nterest taxes accrui ng to the County woul d be passed through to
the Redevelopment Agency. CCAL-C is asking that the Agency credit them for
payment of these taxes by either rebating them or giving them a credit against
the yearly payments for the parking structure. Since the Agency never
anti ci pated recei pt of possessory interest taxes, there wi 11 be no loss or
gain to the Agency. Assuring the rebatement to CCAL-C or their successor will
resolve the last major obstacle in the pending sale of the center. In return
for the rebate guarantee, CCAL-C will pay the full cost of filing an appeal to
the County Assessment Appeals Board, excluding the possible cost of an expert
witness on value (whose services might not be required).
/3Jf1O
Page 3, Item 6
Meeting Date 7/19/88
Staff is in the process of contacting United Artists and Marie Ca11enders who
are a1 so owners of property at the center and, consequently, impacted by the
possessory interest issues. If a policy is established with CCAL-C, a similar
policy should be established with the other owners at the center. The results
of discussions with United Artists and Marie Ca11enders will be reported
directly to the Agency at this afternoon's meeting.
The Council and Agency are also requested to re-approve a resolution amending
the CC&Rs for Park Plaza. This amendment is essentially the same as the
amendment approved on May 18 by both the Counc i 1 and Agency . Several mi nor
changes in 1 anguage have been incorporated at the request of CCAL-C and the
perspective purchasers of the center in order to clarify that, subsequent to
the payment of $150,000, no further rental payments will be due for Parcel
#4. The most notable change is the insertion of the words "...its
entirety..." on page 2, second paragraph to indicate that there would be no
further rental payments after years 7 and 17 as stipulated in the original
agreement. There are no changes in terms or conditions of the Amendment.
FISCAL IMPACT: The County Assessor has issued a bill to CCAL-C and, Marie
Call enders, and presumably, to Uni ted Arti sts for possessory interest taxes.
In determining possessory interest taxes, the County Assessor apparently has
used the construction cost of the parking structure. The construction cost of
_ approximately $3.5 million produced a possessory interest tax of approximately
$35,000 for the tax year. CCAL-C has been billed $25,633.50 for their four
parcels.
Total parking fee payments from Park Plaza are $97,197. CCAL-C are requesting
relief from payments for Parcel #4 which total $21,560 per year. In return,
the City will receive a lump sum payment of $150,000.
WPC 3675H
J 3/tCIo