TENTATIVE STATEMENT OF DECISION

This matter was tried before the court on August 7 and 8, 2000. The parties requested the court to decide the following issues:

1. Whether the discussion in closed session on April t 9, 1999 was reasonably
related to, and within the scope of, the items listed on the closed session
agenda?

No.

The two agenda items had been discussed when the Mayor requested the City Attorney and the City Manager to leave the room. This was unusual since a resolution requires the City Attorney to take minutes during closed sessions. In addition, the second item, and the only item the City alleges was relevant to the closed session proceedings, required that the City Council provide directions to the City Manager. Since the City Manager had been excused, the City's position is not reasonable.

2. Whether any "action" was taken during the closed session on April 19, 1999, as that term is defined in the Ralph M. Brown Act, Government Code Section 54952.6?

Yes.

During the closed session council members decided not to discuss Councilman Ledesma's two proposed ordinances during the public session. While there was no actual vote on this issue, the decision can be inferred from the totality of the circumstances.

The public discussion of the amendments was presented on videotape in court. When Ledesma's proposals were called on the public agenda, he asked his colleagues for their input. There was silence. A member of the public asked the other city council members to provide input to Ledesma. Again there was silence. Another member of the public severely chided the other members for their silence and told them that it would be remembered at the next election.

3. Whether the "discussion" in closed session on April 19, 1999 violated the
Ralph M. Brown Act?

Yes.

The closed session discussions included criticisms of Councilman Ledesma's reported remarks in a newspaper article, and the fiscal effects of a requirement for voter approval for redevelopment bonds and improvements in that such a process would result in a loss of sales and property tax revenues.

A videotape of the public session which immediately followed the closed session was shown in court. During the videotape, Ledesma began by praising his colleagues for their good intentions. It would likely be of interest to the public that criticisms occurred during the closed session. Included among the various interpretations, could be that Ledesma, a newcomer onto the City Council, had been intimidated by the more experienced council members, and was apologizing to other council members because he did not please them when he gave his interview abouthis proposed amendments to the press. Under such circumstances, the public might want to gauge the effects of intimidation on their elected official.

4. Whether any alleged violation of the Ralph M. Brown Act which occurred during the closed session on April 19, 1999 was "cured" by the repetition of the substance of the same discussion during the closed session on June 7, 1999?

No.

The items improperly discussed during the closed session of April 19, 1999 were not on the June 7, 1999 closed session agenda.

5. Whether any alleged violation of the Ralph M. Brown Act which occurred .during the closed session on April 19, 1999 was "cured" by the repetition of the substance of the same discussion during the open session on August 16, 1999?

No.

On July 6, 1999 a demand for cure and correction of the April 19, 1999 violation be made. No action was taken to cure and correct the violation within 30 days of July 6. Under Government Code  54960.1 (c) (3), this inaction is deemed a decision not to cure.

On August 16, 1999 Mayor Butterfield read a prepared statement about the incident at a City Council meeting. That statement denies any violation of the Brown Act. Arguments by the City to the effect that the improper discussions during the April 19, 1999 closed sessions have been cured by the Mayor's August 16, 1999 statement are not believable in light of Mayor Butterfield's statement in court under cross examination that she might do the same thing again. Government Code  549~50, states in part:

"The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created."

The public should be able to view events concerning official business, including discord among council members about interviews concerning City business with the press, as the events occur. During the trial, 16 months after the event, one council member was shaking in fury, another assumed a curt and defiant demeanor and yet another cried. Residents of Mission Viejo should not be expected to rely upon a sterile, later-reconstructed version of events, by council members who have been accused of violating the Brown Act, in order to gauge the efficiency of their local government.

Plaintiffs request the following remedies:

First Cause of Action for declaratory relief:

A declaration that defendants violated Government Code {}54950. Granted.

Second Cause of Action for declaratory relief:
A declaration that defendants violated Government Code {}54954.2 (a) and 54954.5
(e) Granted.

Third Cause of Action for declaratory relief:

Government Code 54953 (a) Granted.

Fourth Cause of Action for declaratory relief:

A declaration that the failure of the Council to have the City Attorney present at the closed session meeting of April 19, 1999 is a violation of City Council Resolution No. 89-37 and Government Code 54957.2(a). Granted.

Fifth Cause of Action for declaratory relief:

A declaration that defendants' failure to report the content of the April 19, 1999 closed session discussions in violation of Government Code 54954.2 (a) and 54954.5 (e). Granted.

Sixth Cause of Action for declaratory relief:

Plaintiffs request dismissal of the sixth cause of action. It is dismissed.

Seventh Cause of Action for declaratory relief:

Plaintiffs request dismissal of the seventh cause of action. It is dismissed.

Eighth Cause of Action for declaratory relief:

A declaration that Government ,Code  54960 was violated. Granted.

Ninth Cause of Action for injunctive relief

A court order that defendants not deny Councilman Ledesma any benefit, privilege, or perquisite of office to which he is otherwise lawfully entitled. This request is too vague. Denied.

Tenth Cause of Action for injunctive relief

From all of the evidence and from the position of the City at trial, the court must conclude that injunctive relief is necessary. The public must be able to participate in the process of government absent a statutory exception.

During trial, the City made accusations against Councilman Ledesma with regard to his proposed amendments. During trial he was accused of grandstanding, being naive, juvenile and unsophisticated, and making unrealistic proposals with regard to his proposed amendments. It is reasonable for the court to conclude that those were the kinds of criticisms which occurred during the April 19, 1999 closed session. Such accusations are of interest to the public. The public might want to know if some council members deem a proposed amendment requiring voter approval prior to the expenditure of large sums of money to be unrealistic. The public might want to know if experienced council members consider a neophyte to be unrealistic. The public might want to know if experienced council members pressure newer members to do things the way they have always been done. The public might want to view how newer members respond to other members when criticized for not following procedures. The public might want to know the level of discord among City Council members.

The evidence in this case demonstrates a violation of The Brown Act on April 19, 2000. The subsequent actions of the City Council, including the positions taken during trial, which included a statement by Mayor Butterfield that she might do the same thing again, that she admonished Councilman Ledesma in the closed session because she did not want to embarrass him in public, show a lack of appreciation of the duty of members of the City Council to conduct official business in public.

Under Government Code 54960 (a) and (b) and 54960.1 the court orders the City Council to tape record all closed sessions of City Council meetings for a period of two years. Each recording shall be labeled with the date and times of the closed sessions. This labeling shall be done immediately following the closed sessions. The tapes shall be kept in the custody of the City Clerk or City Manager.

Unless the court orders otherwise within ten days, this Tentative Statement of Decision shall be the Statement of Decision.

Judgment is to be entered in favor of the plaintiffs. Plaintiffs are awarded reasonable attorney fees under Government Code 54960.5. Plaintiffs' attorney is ordered to prepare the judgment. IT IS SO ORDERED.

August 8, 2000

Eileen C. Moore
Judge of the Superior Court