The Manhattan Beach City Council's efforts to conceal the circumstances and price of its city manager's abrupt departure in December 2009 has just cost it a sum probably approaching $100,000, to say nothing of the chastening of having to admit it violated the law and to undergo remedial training.
As noted in today's Beach Reporter, the council
voted unanimously in closed session Tuesday to settle with Richard McKee, who filed a lawsuit last April claiming it violated the Brown Act, the state law governing public notice of public meetings, by discussing and executing a separation agreement and a $195,000 severance payment to Geoff Dolan without giving proper public notice or allowing residents to give input.
McKee is Vice President for Open Government Compliance with Californians Aware, but brought the action in his own name. The settlement specifies among other things that the city will pay McKee's attorney fees of $70,000, and a special counsel hired by the city to evaluate the situation—who recommended the settlement—may bill another $20,000 to $30,000.
Based on news accounts and public records, the following picture emerges.
In the fall of 2009 the city council learned of allegations made against its longtime city manager Geoff Dolan. While council members considered whether to investigate, City Attorney Robert Wadden told them Dolan had threatened to sue the city. To settle the controversy, Wadden created a severance agreement, containing a buyout to get Dolan to resign.
But along the way Wadden, despite the public’s right to know the facts and be involved in the discussion of whether such a settlement, costing nearly $200,000, was appropriate, apparently advised the council that it could be quietly approved in a Saturday morning special meeting closed session—which would also include the unagendized appointment of an interim city manager—all without city residents ever learning of the accusations against Dolan or his threat. Afterward, Wadden declared the severance agreement to be a confidential personnel document that could be kept hidden from public view, and city council members merely described Dolan’s leaving as by mutual agreement.
Having been served by City Attorney Wadden for 15 years, the city council had reason to rely on his assurances. But then came the outrage from city residents as some of the realities began emerging, and a lawsuit from McKee claiming that the Brown Act required:
- announcement of the facts and circumstances posing a threat of litigation before the city council could use a closed session to consider a settlement with Dolan;
- disclosure of the proposed appointment of an interim city manager on the special meeting agenda; and
- release of the severance agreement to the public.
Wadden rejected these arguments, saying everything had been done properly. Apparently it was not until a preliminary hearing in the case, McKee v. Manhattan Beach, when Los Angeles Superior Court Judge Ann Jones ruled the severance agreement could not be kept confidential, that it dawned on members of the city council that Wadden’s assurances might not be reliable. The council quickly hired outside legal counsel, Jenkins & Hogin, a respected firm with extensive experience in open government law, to review the case. Immediately recognizing the problems, attorney Christi Hogin initiated settlement discussions with McKee attorney Kelly Aviles.
The settlement agreement acknowledges the Brown Act violations. It also:
- authorizes the release of documents containing facts related to Dolan’s threat of litigation;
- commits to payment of McKee’s attorney fees;
- recommends that the city’s fee for copies of public records be reduced from 40¢ to 10¢ per page;
- and commits staff to corrective training in the Public Records Act and all city boards and commissions in the Brown Act's requirements, (but specifies these trainings will not be conducted by Wadden).
Reacting to the settlement, McKee praised Hogin and new city manager David Carmany, whose "evident commitment to open government and the public’s access to information provided the impetus to settle this case." McKee said he understands "how a city council can be misled by bad advice, which illustrates the value of getting a second opinion when faced with sensitive or challenging matters. Trust, but verify!"
As the smoke clears, rumors surrounding the city council’s recent closed session evaluations of City Attorney Wadden suggest that his days with the city may be numbered. This is the second time his opinions on public information lawhave caused the city embarrassment. He also represented the city nine years ago when the California Supreme Court unanimously ruled that the city’s lawsuit against a citizen who had requested public records was improper as it served to discourage members of the public from exercising a fundamental right of prompt access to information. That 2002 case, Filarsky v. Superior Court (City of Manhattan Beach), 28 Cal.4th 419, ended the practice of pre-emptive “reverse public records lawsuits” brought by local government against its citizens.