Napa County's District Attorney Gary Lieberstein has upbraided the St. Helena City Council for several apparent violations of the Ralph M. Brown Act in connection with its handling of the March 30 closed session in which it terminated the city manager and approved a substantial severance payment—all cloaked under the agenda heading of "evaluation of performance."  CalAware has called this maneuver "a bald lie" in its demand for a cure and correction, but has received no response to date. As reported by Jesse Duarte in the St.Helena Star,

“Although we have determined the evidence developed is insufficient to support criminal charges against any individual member of the council, we have concluded that the council did violate numerous sections of the Brown Act,” Lieberstein wrote in a letter sent to the council on Tuesday.

“These violations apparently were undertaken as a result of incorrect legal advice provided to the council. However, incorrect legal advice does not justify or excuse violations of the law.”

On Tuesday, Mayor Del Britton said he had reviewed the letter and talked to Lieberstein. Britton said the city tried to schedule a special council meeting to discuss the letter, but couldn’t find a time that would work for all the councilmembers.

Britton is leaving town next week for a month, and won’t be back until August, when he expects the council will discuss the letter in open session. In the meantime, City Attorney John Truxaw will draft a written response to Lieberstein, Britton said.

Truxaw said the letter warrants “the broadest community-wide conversation about this as possible. That would be my goal.”

The letter expresses the DA’s opinion, “and I respect that,” Truxaw said. “Obviously I don’t agree with it.”

Lieberstein said his office launched an investigation after receiving “numerous complaints” about the council’s conduct in April.

Agenda ‘misleading’

Echoing similar accusations by Star Publisher Doug Ernst and the nonprofit watchdog group Californians Aware, Lieberstein called the council’s March 30 closed session agenda “misleading.”

The agenda for the now-infamous closed session meeting at City Hall said the council would be discussing the city manager’s “performance evaluation.”

“But, rather than limiting the closed-door discussion to the city manager’s ‘performance evaluation,’ the council went on to dismiss the city manager and to decide her compensation, totaling $115,000 in cash and benefits,” Lieberstein’s letter said.

The discussion violated the Brown Act because it “certainly went well beyond the scope of the posted agenda,” Lieberstein said.

“The public would have had to have been clairvoyant to anticipate that removal of the city manager was part of the closed session discussion,” Lieberstein said, suggesting the agenda should have used the stock phrase “Public Employee Discipline/Dismissal/Release.”

The closed session discussion also violated the law because it involved Neilan’s severance package. The Brown Act “does not allow for discussions in closed session regarding money issues except for reduction resulting from discipline,” Lieberstein’s letter states.

The council further violated the Brown Act on March 30 by failing to reconvene in open session and fully disclose the actions it had taken.

At the council’s April 5 meeting, City Clerk Delia Guijosa revealed that the council had taken two votes on March 30: one was 4-1 and the other was 5-0.

City Attorney Truxaw said the process that led to the council’s final action was confidential because it involved personnel negotiations, but he confirmed that the 5-0 vote was to terminate Neilan’s employment.

According to the DA’s letter, the council should have reported both votes immediately following the closed session, including how each councilmember voted.

The council violated the Brown Act again on April 5 by meeting at Stonebridge Apartments instead of City Hall, where the agenda said the meeting would take place, Lieberstein said. The correct location wasn’t posted at City Hall until five minutes before the meeting started at Stonebridge.

In April, Mayor Britton apologized for the mix-up, which he attributed to a clerical error.

Emails violated law

Independent of the Neilan firing, the council violated the Brown Act in late March and early April when councilmembers conducted a “serial meeting” via email, Lieberstein said.

The emails involved the council’s directives to the Housing Subcommittee. Lieberstein’s letter said the emails “clearly show that council members were requesting a collective concurrence on a specific issue,” which amounts to an illegal meeting under the Brown Act.

In a Star article reporting the emails, Truxaw pointed out that the emails were exchanged after “the council had a fairly lengthy conversation in open session” about its directives to the subcommittee on March 22. The emails and the memo they produced did not include substantially different information from the direction the council gave in open session, Truxaw said.

No prosecution

Criminal prosecutions under the Brown Act require that elected officials knowingly violate the law, and do so with the “specific intent” to deprive the public of information.

“Our presumption is that elected officials seldom have a conscious desire to violate the state’s open meetings laws,” Lieberstein’s letter said. “Therefore, absent proof beyond a reasonable doubt to the contrary, we have concluded that there is insufficient evidence to support a criminal case at this time.”

Lieberstein added that a “strong and detailed advisory letter, under the present circumstances, is preferable to, and will serve the same purpose as, a formal civil proceeding.”

“We expect the council to fully comply with the Brown Act in the future,” the letter states.