DA: South Lake Tahoe City Council committed ‘few possible’ Brown Act violations; no criminal violations found
August 25, 2018
South Lake Tahoe City Council may have committed a "few possible" violations of the state's open meeting law when it contracted an outside party to evaluate the city and former city manager, but the errors do no warrant criminal charges.
That's according to the El Dorado County District Attorney's Office, which was asked to investigate City Council's actions following the departure of former City Manager Nancy Kerry for reasons that have not been publicly disclosed.
City Councilor Brooke Laine raised concerns about Brown Act violations after the city and Kerry agreed to part ways. Laine's concerns, voiced in an open letter sent to local media outlets, sparked a rebuke from Mayor Wendy David, in which she asked the police chief to request an investigation by the district attorney.
That DA investigation concluded there "were a few possible Brown Act violations" but that the actions did not merit the filing of criminal charges.
"After conducting a review of all the evidence, at most, it appears there were a few possible Brown Act violations in late 2017 and early 2018 concerning the failure to properly agendize items discussed in closed session, improper items being discussed and reported from closed session, and failure to properly and accurately identify agenda topics in closed and open session," states the response from the DA.
The DA's response went on to say there "may have been confusion concerning what many saw as potentially personnel issues and when they should or should not have discussions in open session."
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In the fall of 2017, the city entered into an agreement with Municipal Resource Group, LLC, the Tribune first reported. The contract was with MRG partner Mary Egan. She was hired to conduct an “assessment of the City leadership effectiveness, the culture of the senior management team, succession planning status and related issues.”
Egan's hiring and the scope of her work did not occur in open session nor were they reported in meeting minutes after closed session.
In early February, Kerry was placed on indefinite paid leave. A month later she and the city came to terms on a separation agreement that included a clause preventing both parties from disparaging one another.
No information has been disclosed publicly about what led to Egan's review, which came roughly four months after Kerry received a glowing review from council. The same goes for Kerry's departure, although the Tribune reported a "toxic environment" had formed under Kerry's leadership.
City officials have not commented on who proposed the separation agreement. They also have not responded to inquiries if Kerry ever requested the closed meetings concerning her employment be made public. Kerry offered no comment in response to previous inquiries by the Tribune.
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In her letter, Laine alleged a pattern of secrecy intended to shift the balance of power at City Hall. Council appeared split on the matter.
"There appears to be a complete disregard on the part of politicians and appointed officials for state law, transparency, and honesty to the public. The interim city attorney has admitted to many that a recent contract she oversaw violated the Brown Act (think Mary Egan contract)," she wrote.
In a response, David criticized Laine for a lack of details and called the allegations "unfounded."
"Ms. Laine further accuses the council of engaging in a power struggle, one that is for personal gain and is selfish, creates hostility and purposely keeps many in the dark. I do not know who she is referring to but her statement is false and unfounded."
David did not immediately respond to a phone call and email from the Tribune just after 9 p.m. Friday.
Reached by phone Friday night, Laine said she was satisfied with the "limited investigation" by the DA.
"It substantiated what I was saying was going on," Laine said. "And whether or not there will be any kind of deeper look at other action I can't … I don't know that."
Since Laine raised the concerns, City Council has undergone steps to correct those previous violations — a point raised by the DA.
"As part of their efforts to correct past mistakes and avoid future problems, the minutes concerning the improperly agendized items were later amended to correct possible errors and the City Council has since undergone additional professional training on the Brown Act," states the response from the DA.
The issues raised by Laine have improved city leadership, she said.
"I think that once I aired those concerns publicly I think that a lot of things changed and the city attorney [Nira Doherty] got better at her job and I believe council members were paying attention in closed session … so I think that the letter airing the truth went far in helping us get better."
The Tribune emailed interim city attorney Nira Doherty just before 11 p.m. Friday asking if she would like to respond to Laine's remark and the DA's report. She has not since responded.
As for whether anything will come from the DA's response, it's uncertain. In the letter, the DA says he has no intent of pursuing criminal charges.
"Accordingly, since any potential Brown Act violations were de minimis and likely due to confusion concerning personnel issues and closed session rules, and the fact that the City Council has taken efforts to correct the minutes and to receive additional training, we do not believe filing criminal charges is necessary or appropriate. Further, aside from the issues noted above concerning the Brown Act, we did not find any evidence of criminal violations of state law or disregard for state law by the South Lake Tahoe City Council."
The DA's letter does suggest that any perceived improper conduct can be reported to the El Dorado County Grand Jury or the California Fair Political Practices Commission.
Asked if she thought the situation merited further investigation by either of those bodies, Laine — who said she had read the DA report 30 minutes prior to speaking with the Tribune shortly before 9:30 p.m. Friday — said she wasn't sure.
"I think I have to think about that."