Dean Flippo

District Attorney, Monterey County Friday, January 26, 2001

Salinas, CA

Re: Open Meeting Law Violations by Pacific Grove, Carmel

and Monterey City at Joint Meeting.

Strong, Quick Correction Needed.

Dear Mr. Flippo:

We write to respectfully request that your office please open an investigation on a clear, serious and continuing violation and mistaken reading of the Open Meeting Law (also know as the Ralph M. Brown Act - Government Code Section 54950-54962). This most recent problem occurred January 24 at 7:00 pm at the Monterey City Council chambers in a noticed Special Joint Meeting of the Monterey, Carmel and Pacific Grove City Councils. Quorums of the Carmel and Pacific Grove City Councils attended. The meeting subject was a briefing on Monterey County's General Plan update. Monterey City Councilwoman Ruth Vreeland chaired the meeting.

You know we do not take up your very valuable time with trivial matters, although many of us often personally observe local "Brown Act" violations. This Open Meeting law violation and the vicious chilling threat that accompanied it was clearly intended to prohibit public participation. It did so. This specific one was so serious, broad, and harmfully misleading to responsible public officials and in its potential harm to public participation we cannot ignore it.

The meeting opened with Ms. Vreeland describing the meeting process. She did not mention allowing public comment on the single item on the agenda. I raised my hand and asked when public comment would be allowed on the agendized item.

Ms. Vreeland stated, if my recall is accurate, that public comment on the agenda item was not required by law. I responded that this was a noticed meeting with quorums of two Councils who had separately noticed the meeting and that the public has the right to comment on any item on an agenda.

My memory of what occurred next is much clearer.
 
 

Monterey City Attorney Connors rose above the audience and declared in words to the effect -

1) "The law on public participation is 'If there is no action, public comment is not required.'"

2) "Disrupting a public meeting is a misdemeanor."

These events can be verified by the four video cameras that recorded the proceedings.

* This Open Meeting law violation and the mean-spirited threat that accompanied it was clearly intended to prohibit public participation. It did so.

It is difficult to imagine how Mr. Connors' first assertion of law opposing public comment could be more wrong.

Absolutely contrary to Mr. Connors claim - Government Code 54954.3. (a) states in part -

Secondly, Mr. Connors' misdemeanor threat, in my opinion, was specifically intended to stop and chill public comment on the process and the substance of this meeting. What he failed to mention is that Open Meeting Law violations by public officials can be criminal violations.

Mr. Connors' interpretations of law are not necessarily shared by higher legal authority as shown by his losing role in the Monterey Dunes case in our U.S. Supreme Court and the Kelp cutting case.

To illustrate 1) the persistence with which Mr. Connors used to stop free speech and squelch public comment, and 2) the Councils' reliance on his legal authority - when the meeting was opened up for questions one of the cameramen, a Monterey resident, asked a question. Mr. Connors rose, interrupted and argued that the public was not allowed to ask questions. That stopped the presenter from answering the question. No public official spoke out.

Who is Responsible?

Pacific Grove and Carmel noticed the meetings and had quorums present. By allowing this to proceed without allowing public comment they violated our Open Meeting Law. It is not as clear the city of Monterey was violating the same law. Monterey did not have a quorum present, but they failed to adjourn though lacking a quorum and their councilwoman chaired the meetings.

Independent of Monterey's culpability, it is our opinion Mr. Connors is also responsible for the violations. It cannot be ignored that the meeting took place in Monterey City Council chambers; that he is employed by Montery as their legal authority; and that Mr. Connors was clearly the legal authority all three councils relied upon in interpreting the Open Meeting law.

First, we need your office to please immediately point out to the Pacific Grove, Carmel and Monterey Councils that -

* Mr. Connors' reading of the Open Meeting law is seriously mistaken when he claimed that if an item is not up for action no public comment is required. That indeed "Every notice for a special meeting shall provide an opportunity for members of the public to directly address the legislative body concerning any item that has been described in the notice for the meeting before or during consideration of that item."

* The Open Meeting law is just a minimum requirement. City Councils may allow, and are not prohibited from, allowing public comment on a far broader basis than the bare minimum required by law. That even if Mr. Connors had been correct, the Councils could still have allowed public comment.

We also respectfully request that your office please open an investigation on these probable violations of the Open Meeting Law - Government Code Section 54950-54962 and take all necessary and just steps to remedy the harm from the violations - as well as take action to prevent recurrences.

As you know the freedom of speech clause of our California Constitution, which you have sworn to uphold, is self-executing. This means it cannot merely be used as a defense as with the U.S.Constitution. We believe this means that in California those who actively prevent free speech can be sued for such actions. We bring this to your office's attention in this instance because Mr. Connors has seriously and vigorously abused his position of high public responsibility, because the councils present may wrongfully follow his mistaken opinion and because of the potential harm that could be done to many others who are not familiar with their public participation rights.

Thank you in advance for your careful attention to this serious matter. We look forward to your written response to the request raised here within 30 days. If any of this is in the slightest way unclear please contact us ASAP by phone or mail.

With all due Respect,

David Dilworth, Acting Secretary and Trustee 831/624-6500

Copies Sent to:

Carmel, Pacific Grove and Monterey City Councils

Attorney General, William Lockyer

League of Women Voters, Monterey

Save Our Waterfront Committee

Carmel Residents Association

Pacific Grove Residents Association

Beacon, Coast Weekly, Monterey Herald

Beacon, Coast Weekly, Monterey Herald