D.A. investigating possible Brown Act violation

Lolita Harper

COSTA MESA -- The Orange County district attorney’s office has opened

a preliminary investigation into a possible violation of the Brown Act by

the City Council and Planning Commission, officials said this week.

Deputy Dist. Atty. Pete Pierce, of a special unit designed to

investigate government officials, confirmed he is looking into a possible

violation of the Brown Act, the state law that governs public meetings.

Part of that law mandates that the public must be notified in advance

if an issue is going to be discussed by a formal committee set up by the

City Council.

The investigation was prompted by a letter from Costa Mesa resident

Paul Flanagan, who claimed the city violated the Brown Act during the

early subcommittee negotiations of the development agreement for the Home

Ranch project. Flanagan is a member of the Costa Mesa Citizens for

Responsible Growth and a vocal opponent of the proposed development.

“We are satisfied that there haven’t been any violations,” said

Assistant City Atty. Tom Woods, in the only comment the office was

willing to give.

Flanagan declined to comment about his complaint.

Terry Francke, general counsel for the California First Amendment

Coalition, said the city may have violated the law by allowing a formal

steering committee to discuss the development agreement behind closed

doors.

During the Feb. 20 City Council meeting, council members voted to

authorize the formation of a steering committee -- consisting of two

members from the council and two members from the Planning Commission, as

well as staff -- to directly negotiate the Home Ranch development

agreement. Mayor Libby Cowan and Councilwoman Karen Robinson were

selected to represent the City Council, and Planning Commission

Chairwoman Katrina Foley and Commissioner Bill Perkins were later chosen

to represent the Planning Commission.

Members of the committees, staff and representatives from C.J.

Segerstrom & Sons had conference sessions to weigh the proposed

mitigations and public benefits that may have been included in the

development agreement, Cowan said.

“I knew we were in unique territory, but we had rulings from the city

attorney before we proceeded with the discussions,” Cowan said. “It was

merely a sharing of information.’

Regardless of what was discussed, the meetings should have open to the

public, complete with agendas and proper public notification, Francke

said.

Because the steering committee was formally created by the City

Council, it is subject to the Brown Act and all the open meeting rules

that come along with it, Francke said.

Cowan said the public was not notified of the meetings but added that

there was never a voting bloc present, which in Costa Mesa consists of

three members of the council. The session were stopped after increased

public scrutiny.

“I was really disappointed when we abandoned it. I thought we had a

really unique process that was very informative and beneficial,” Cowan

said.

Councilman Gary Monahan said the allegation is just an attempt to

thwart the Home Ranch project.

“Costa Mesa Citizens for Responsible Growth is shooting arrows at

anything that moves and hoping one will stick,” Monahan said.

If the district attorney determines a violation of the Brown Act has

been committed, a civil suit may be filed against the city, asking the

court to void the development agreement, said Assistant Dist. Atty. Doug

Woodsmall.

Criminal penalties could also include up to six months in jail or

$1,000 fine for the misdemeanor of violating the act, Woodsmall said.

“But no one will get anywhere near that,” Woodsmall said.

Robinson and Foley -- both attorneys -- also could face further

punishment from the California State Bar. If the case went to criminal

court, they could be subject to possible suspension or ethic exams by the

State Bar Court, said California State Bar spokesman Marlon Villa.

Disbarment is only considered in the most egregious cases, Villa said,

and is not a likely outcome.

The investigation marks the second time in recent weeks that lawyers

have questioned whether the city violated the Brown Act.

After the Sept. 11 terrorist attacks, the council went into an

emergency session to discuss a contract with the Police Department.

Lawyers with the California First Amendment Coalition said it was

questionable whether the attacks were enough for the council to go into a

closed emergency session.

-- Lolita Harper covers Costa Mesa. She may be reached at (949)

574-4275 or by e-mail at o7 lolita.harper@latimes.comf7 .