Meeting leaves council hovering in a gray area

Lolita Harper

COSTA MESA -- The City Council’s decision to call an emergency action

and close discussions about the proposed police contract Monday may have

violated the Brown Act, lawyers said.

Citing concerns with the economy due to the terrorists acts of last

week, Councilwoman Linda Dixon asked for what she termed an “urgency

action” to discuss a contract on the table with the Costa Mesa Police

Assn. in closed session.

A proposed Memorandum of Understanding -- more commonly known as a

contract -- had been on the budget for approval for the last two

meetings. During the Sept. 4 meeting, Councilwoman Karen Robinson asked

that the item be moved from routine business and onto the regular agenda.

The item was continued to Monday’s meeting where it was listed on the

agenda as old business. When the time came to discuss it, Dixon said she

did not want the public to be privy to salary negotiations because of the

future economic uncertainty after the attack on the World Trade Center.

Without discussing it, council members voted unanimously to close the

discussion and moved the item to the end of the night.

Before retiring to close session, however, the council allowed for

public comment.

About 3 a.m., council members returned from the closed session to an

empty chamber and unanimously approved the Memorandum of Understanding,

giving police officials an 8.4% raise.

All prior discussions about the contract were done in closed session

because it directly related to personnel issues. Details of the contract

had been previously negotiated and agreed upon and were merely up for

final approval.

“There were things I needed further explanation on that I couldn’t

discuss in public because they revolved around a personnel issue,” Dixon

explained Thursday.

According to the Brown Act, the council may use a closed session to

discuss contract negotiations underway with an employee organization if

the discussion is with its own bargaining agent and “for the purpose of

reviewing its position and instructing the local agency’s designated

representatives,” said Terry Francke, general counsel for the California

First Amendment Coalition.

“One point is fairly clear, and that is the law does not permit a

local body to hold a secret session not involving instructions to the

bargaining agent, but instead [centered] on some concern about the

economic effects of terrorism,” Francke said.

City officials defended the action saying new information was

presented after the agenda had been set and the only way to address it

was to hold an urgency action. It was also important to take action

because the existing contract expired Aug. 31, said Jerry Scheer, city

attorney.

Scheer said Dixon was concerned about a $1-million adjustment to the

budget -- required on approval of the contract -- given the stock market

plunge reported Monday.

“Aside from predictions, we had actual evidence that the country was

in a recession,” said Tom Wood, assistant city attorney.

Dixon would not comment on the details she wanted to discuss, but said

it was prompted by the entire terrorist attack, not just one aspect of

it.

Unless there was a crippling disaster or the threat of a work

stoppage, the council should hold a special meeting to discuss it, giving

the public the proper notice, said Tom Newton, general counsel for the

California Newspaper Publishers’ Assn.

A plunge in the stock market does not constitute a crippling disaster,

Newton said. It also does not mandate an emergency action since it was

apparent last week the economy would take a turn for the worse, he said.

“Sounds to me like there was every opportunity to give 24 hours notice

and have a special meeting to discuss it,” Newton said.

Mayor Libby Cowan said neither she nor any of her colleagues were

aware of any possible violation to the law.

“I believe it was well within the spirit of the Brown Act,” Cowan

said.

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

574-4275 or by e-mail at o7 [email protected] .