The Brown Act may allow a city council to evaluate the performance of its contract city attorney in closed session, but it doesn't permit the council to go behind closed doors on its own to discuss disputed billings by the attorney, says CalAware's Richard McKee.
As reported by Sandra Emerson in the Inland Valley Daily Bulletin,
An open-government advocate is accusing the city of violating the Ralph M. Brown Act by discussing the city attorney's contract in closed session Monday at City Hall.
Richard McKee, president of Californians Aware, said he would file a demand for cure and correction today, giving the city two weeks to respond or face possible litigation.
The council would be required to publicly discuss what was said during the closed-session item at its next public meeting, McKee said.
The council is scheduled to reconvene Jan. 10.
"It will ask two things: one, for them to reveal their illegally held closed-session discussion, and two, it will demand that they assure the public they will not hold such a closed session," McKee said.
City officials have expressed concerns over the billing practices of the city attorney, William Curley, and the law firm the council hired in 1993 to provide legal counsel.
No action was taken during closed session. Curley was not in the closed-session meeting.
Curley said the closed-session item was appropriate under the Brown Act, California's open-meeting law.
"Any final decision would have to be publicly announced," he said. "They can discuss personnel matters in private."
Because the city attorney is considered an employee under the Brown Act, the city has two options, McKee said.
"They can go into closed session under Code 54957 to do an evaluation," he said. "The reason this doesn't fit this situation is the agenda doesn't say that. It says they are considering their contract."
The second option is that Curley, a nonunion employee, would have a negotiator to act on his behalf in the closed session. No negotiator was listed on the agenda.
To discuss complaints and charges against Curley, the city would have had to send him a written notice 24 hours in advance of the closed session, giving him the opportunity to request an open discussion, McKee said.
"It's not uncommon in Upland. These are the typical dirty tricks that go on there all the time," McKee said. "This is certainly not the first closed session held illegally."
McKee accused the city of violating the Brown Act several times in 2005 during the hiring of City Manager Robb Quincey and former Assistant City Manager Rod Foster, who is now Colton's city manager.