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District Attorney’s Office Issues 2nd Brown Act Warning to Lompoc City Council

Prosecutor opens new inquiry into allegations of possible violation of state open-meetings law following more public complaints

Lompoc’s City Council has received a second warning from the Santa Barbara County District Attorney’s Office about adhering to the California open-meetings law known as the Ralph M. Brown Act.

A chief deputy district attorney has confirmed another review of a possible violation is underway.

The warning, issued by Chief Deputy District Attorney Kelly Scott in mid-June, stemmed from a complaint filed by Lompoc resident Jane Behr in late 2015.

Behr claimed the council violated the  Brown Act when it met in closed session last fall to discuss real property negotiations regarding a proposed space center project on city-owned land. The council decided to issue a notice of default for an exclusive negotiating agreement, or an ENA, with California Space Center LLC, headed by Eva Blaisdell.

Scott concurred with Behr that the discussion of the ENA in closed session exceeded the legal exception provided by the Brown Act, which allows council deliberations about price and terms of payment for real estate transactions to be held out of public view.

“Based on the information our office has reviewed, it appears that the council’s closed session discussion on Sept. 15, 2015, concerning the exclusive negotiation agreement between the city and CSC, involved topics outside of the real estate exception in Government Code Sect. 54956.8, and those topics should have been discussed in a public, open meeting,” Scott wrote.

“I trust this letter and the council’s actions taken in response to a cease and desist will be sufficient to ensure that the Lompoc City Council will only use the real estate exception in the limited circumstances provided for in section 54956.8.”

Behr’s complaint to the District Attorney’s Office followed months of back and forth letters between her and City Attorney Joe Pannone about whether the council violated the Brown Act with the ENA discussion.

At the council’s Dec. 1 meeting, Pannone presented an agenda item offering possible responses to Behr to satisfy her original cease-and-desist letter dated Oct. 6. The letters included a commitment not to repeat the action, but did not acknowledge that the Sept. 15 closed-session discussion exceeded the Brown Act exception.

Behr, who has become a vocal critic of the council’s lack of transparency during public comment at council meetings and in an online blog, said she is “grateful that the assistant D.A. took a clear stand and confirmed that the council violated the Brown Act when they met in closed session on Sept. 15, 2015.”

“But what a lot of time and trouble it’s taken to get us here,” she added. “And how much money have we paid to the city attorney for the bad advice that he gave the council in this instance?”

Behr said she wants the city to hold a public workshop on how to improve transparency in general, and include training and information on the Brown Act for council members and the public.

Mayor Bob Lingl, asked about Scott’s warning letter, stressed that the council followed its legal counsel’s advice when the ENA was discussed in September.

“I still stand by the fact that we as a council had been advised by our legal counsel that this was within the realm of closed session,” he said.

“There are different opinions on this. Without admitting any wrongdoing, we have agreed twice, unconditionally, not to do that specific thing again.”

Pannone did not have a comment on Scott’s letter.

First Warning in 2014

The council’s first Brown Act warning came from Scott in November 2014 after the District Attorney’s Office received complaints from residents about a series of official actions taken by council members and city officials on behalf of a recreational sports facility that had been operating without required county permits.

The facility, owned and operated by Lompoc resident Jim Mosby — who was appointed to the City Council in December 2014 — is located outside city limits, but the then-city administrator wrote county officials in 2013 that the city supported the project and had reached agreements with Mosby for his use of city property and services.

Those agreements were never discussed or disclosed in public meetings in Lompoc.

On Feb. 11, 2014, three City Council members — then-Mayor John Linn and Councilmen DeWayne Holmdahl and Dirk Starbuck — appeared together at a county Board of Supervisors hearing to support the Mosby project. Their joint appearance led to an accusation of an illegal “serial meeting” prohibited by the Brown Act. 

At the hearing, Linn said he was speaking for the entire City Council although the Mosby project had never been discussed in a public meeting.

A review of agendas, minutes and video recordings shows the first discussion of the project in a council meeting occurred on April 1, 2014, when Linn received approval to add a last-minute item to the agenda to send a letter of declaration on behalf of Mosby’s lawsuit against the county after the supervisors had rejected the project. 

The city's video recording of the meeting shows the request to add the last-minute agenda item was not made until 9:45 p.m. and the 3-2 vote to file a letter on behalf of Mosby’s lawsuit occurred at midnight in a near-empty council chamber.

The same three council members who spoke before the Board of Supervisors — Linn, Holmdahl and Starbuck — voted to approve the declaration letter on behalf of Mosby’s lawsuit.

In her letter to the City Council, Scott wrote: “Although I cannot conclude with certainty that the Lompoc City Council violated the Brown Act on Feb. 11, 2014, or April 1, 2014, the purpose of this letter is to remind the City Council that, generally, discussions regarding matters within the City Council’s jurisdiction must be held in an ‘open meeting.’”

Scott told local media that her cautionary letter was not an exoneration of wrongdoing, but prosecutions of Brown Act violations are rare because she would have to prove the elected officials fully understood and knowingly violated the state law. 

Instead, Scott said, she hoped the letter would serve as a warning for the council to conduct the city’s business in open meetings and avoid prohibited serial meetings. 

Complaints Spur New D.A. Review

Complaints from residents about possible “serial meetings” in violation of the Brown Act at the June 7 council meeting have led to a new review by the District Attorney’s Office, Scott confirmed to Noozhawk.

The actions involved a motion by Mosby to continue city funding of environmental reviews and other work for a controversial motorsports project that had been stopped by a prior 3-2 vote  on May 12.

On June 7, Mosby read a lengthy, multipart motion that would continue funding and recommended changes to a March 2014 agreement between the project’s developer and the city.  His motion was quickly seconded by Starbuck.

Councilman Victor Vega, holding up a single sheet of paper, asked questions about Mosby’s motion, twice referring to the paper in his hand as Mosby’s “proposal.”

City Attorney Joe Pannone then said, “I see you holding a piece of paper and I see Councilman Vega holding a piece of paper, and you mentioned that it’s something that Mr. Mosby had. If that’s something that you gave Mr. Vega, what we need to do is make copies of it so the public can have it.”

As Pannone spoke, Vega folded the paper and moved it out of sight. Holmdahl then asked Vega if he was holding Mosby’s motion, but Vega, who was not speaking into his microphone, said he did not have the motion, according to Holmdahl.

“I told him I didn’t believe him,” Holmdahl said.

Noozhawk has learned that both Mosby and Vega were reading the same motion that had been written by Linn on behalf of the project developer, Lompoc Valley Parks, Recreation and Pool Foundation, for which Linn serves as chairman.

Linn confirmed to Noozhawk that he wrote the suggested motion and gave it directly to Mosby. He also confirmed that he delivered a copy of the motion to Vega, putting it through a mail slot in Vega’s downtown office the afternoon of the council meeting.

He said he provided his proposed motion only to Mosby and Vega. 

Mosby also confirmed Linn gave him the motion he later read. Mosby said he did not discuss the motorsports project with any other council member prior to the meeting. 

Vega said later that because he didn’t know what Mosby was holding in his hand, he had no way of knowing the two council members had the same document written by and given to each by Linn.

“I didn’t know what Jim’s piece of paper was,” he said.

Vega also said he didn’t know who slipped the motion through his office mail slot earlier that afternoon, though he did confirm he spoke with Linn about the motorsports project prior to being given a copy of the motion.

Starbuck told Noozhawk that he met with Linn prior to the council meeting to discuss the motorsports project, but he said Linn did not give him a copy of the motion. He said he saw the motion for the first time when it was printed in local media.

Linn gave him a copy of suggested changes to the memorandum of understanding that LVPRPF wanted included in a third amendment to the agreement, Starbuck said.

Holmdahl said he met with Linn prior to the meeting, but said Linn did not give him a copy of either his proposed motion or suggested changes to the MOU.

When asked which council members he met with, Linn said, “I have spoken to every council member many times over the year and half of time this park has gone on, advocating to move it forward.”

“It’s amazing when you don’t like a project what lengths you will go to stop it,” Linn said of the recent complaints to the district attorney.

According to Vega, Pannone met with each council member after the meeting to “vet” their communications and had determined that no Brown Act violation had occurred. 

Linn is not covered by the prohibition against serial meetings in the Brown Act because he is not an elected official. 

Additionally, the Brown Act allows constituents, advocates, agency staff and other individuals to meet with all elected officials of a governing body as long as the individual contacts do not become the basis for a “serial meeting.”

“For example, a series of individual contacts that leads to discussion, deliberation or action among a majority of the members of a legislative body is prohibited,” according to the League of California Cities’ Guide to the Brown Act. 

Although not covered by the Brown Act, Linn represents the developer of the proposed park, LVPRPF, that was on the agenda for a vote to continue city funding.

The Lompoc City Council Handbook discourages private meetings or “ex-parte” communications with representatives of projects that come before the council for approval. To ensure due process, the handbook requires council members to disclose communications or meetings with representatives of parties for projects under consideration prior to voting.

But the handbook provision — section B8.4 — applies to agenda items that are placed on the agenda as a public hearing defined by state law or city ordinance. The council handbook defines public hearings as matters concerning zoning, annexation, assessment districts, appeals of decisions made by city commissions, and employee performance reviews or disciplinary actions.

The motorsports item was placed on the agenda as a council request, not a public hearing; thus the requirement to disclose contacts with a party representing the project up for a vote would not apply.

Lingl, contacted for a comment about the district attorney’s review of new allegations of Brown Act violations, said, “I saw what everyone else saw and I’ll leave it up to the D.A. to determine whether there was a violation or not. In my opinion, this has John Linn’s fingerprints all over it.”

Adding to the controversy about the proposed motorsports project is the ethical appearance of a revolving door between the sponsoring foundation, LVPRPF, and the City Council for both Linn and Mosby.

Linn is a co-founder of the foundation and served as chairman until his election as mayor in November 2010.

Mosby served as foundation chairman from 2011 until he was appointed to the council in December 2014 to fill the unexpired term of Lingl, who defeated Linn in his bid for a third-term as mayor.

Linn replaced Mosby as foundation chairman and has himself announced plans to run again for mayor against Lingl, who is seeking re-election in November. 

Some residents at council meetings have asked Mosby to recuse himself from voting on the motorsports park, suggesting he has a conflict of interest because he was foundation chairman when the motorsports park was first proposed to the City Council in June 2012.

Neither Mosby nor the city attorney has addressed such a recusal. 

Noozhawk contributing writer Carol Benham can be reached at .(JavaScript must be enabled to view this email address). Follow Noozhawk on Twitter: @noozhawk, @NoozhawkNews and @NoozhawkBiz. Connect with Noozhawk on Facebook.

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