South Lake Tahoe City Council divided over alleged Brown Act violations; DA investigation underway
April 18, 2018
In response to an open letter from a member of South Lake Tahoe City Council alleging violations of the state's open meeting law, an investigation by the El Dorado County District Attorney's office is underway.
The accusations came from Councilmember Brooke Laine in the form of an open letter to the community that was sent to local media outlets Sunday morning.
"I am providing the following information because I can no longer be a party to the violations of law, secrecy, manipulation, lies and power struggles that are rampant at the city today," Laine wrote.
Without specifically mentioning it, much of Laine's letter appears to focus on the city's handling of former City Manager Nancy Kerry's departure.
Kerry was placed on leave in early February for reasons that have not been made public. The two parties struck a separation agreement a month later. That agreement included a clause preventing both parties from disparaging one another.
In the letter, Laine referenced a contract with Mary Egan, a partner with the consulting firm Municipal Resource Group (MRG), who was hired in the fall of 2017 to conduct an "assessment of the City leadership effectiveness, the culture of the senior management team, succession planning status and related issues."
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City Council has not addressed the contract with Egan in open session, a point Laine raised in her letter.
"To this day, that contract has never been addressed, corrected, or publicly acknowledged," wrote Laine. "Multiple violations of law have occurred in closed session, often relating to discussions involving personal attacks on non-agenda issues."
While local governments are generally required to hold meetings in open forum, the Brown Act recognizes specific circumstances where councils can meet in private to carry out certain business. Discussions on litigation or personnel matters are examples of topics that can be exempt from the open meeting law.
In her letter, Laine also pointed to an error in minutes from the March 20 meeting — which was corrected prior to adoption by council — as a "violation of law" and "an absolute failure at the top." The minutes incorrectly stated that council directed Acting City Manager Jeff Meston to "conduct a request for qualification for a recruiting firm" for a permanent city manager. While Council discussed this, they did not give direction at the time.
In a press release sent Monday morning, Mayor Wendy David said Laine's comments are "serious accusations and allegations." David instructed South Lake Tahoe Police Department Chief Brian Uhler to contact the El Dorado Country District Attorney's Office about initiating an investigation immediately.
"I believe that a thorough and independent investigation will provide the community, the City Council, city staff and other elected and appointed officials facts and truth as opposed to opinion and biased conjecture," David wrote. "I am saddened and disappointed that Ms. Laine holds these damaging opinions. I have no doubt that the results of this investigation will plainly show that Ms. Laine's accusations are misguided and untruthful."
On Monday afternoon, Uhler sent a letter to El Dorado County District Attorney Vern Pierson requesting an investigation into Laine's claims of Brown Act violations.
"In my experience, those with a sense of civic responsibility routinely report violations of the law to proper authorities as opposed to publicly 'reporting' on the internet," wrote Uhler, referring to Laine's decision to send her open letter to media outlets. "Since this does not appear to be the case here, I ask you to initiate an investigation into any/all aspect you deem best."
Uhler provided his analysis of Laine's "op-ed" in his letter to Pierson.
"Ironically, while Ms. Laine claims she is shining a light on improper or illegal actions, she conceals any specific descriptions of actual incidents or the identity of the involved individuals," continued Uhler, who confirmed Tuesday morning that the investigation is already underway.
The DA's office did not return a call and email from the Tribune inquiring about the investigation.
On Monday afternoon, Laine told the Tribune she could not provide details on the instances when she believed the Brown Act was broken in closed session.
"I can't because that in and of itself would be a violation [of the Brown Act], but I think with a grand jury investigation we would be able to uncover all of that," said Laine.
She would not elaborate on who specifically on City Council was engaged in "power struggles" for "personal gain."
Laine noted that while the handling of Kerry's evaluation was part of the motivation behind writing the letter, it wasn't the whole reason.
"At this point, it's only a part of it," said Laine. "I think we routinely make mistakes because we're also not getting the best legal advice."
Councilmember Tom Davis agreed.
"My personal feeling is that the city clerk, the city attorney and the city manager are the ones to let us know when the Brown Act is violated and they need to stop whatever the issue is immediately and not let it happen," said Davis. "I don't know all the nuances of the Brown Act. It's very complex."
Davis requested a two-hour educational meeting on April 30 for council to get educated on the Brown Act.
"I've known Brooke for years. She is very ethical," said Davis. "So when she says there's a problem and when I read her letter, I said 'you bet.'"
Davis also said he had never sat on a council with "this much backstabbing." He said there are issues of "power" and "ego."
Councilmember Austin Sass, like Mayor David, took exception to Laine's allegations.
"At no time have I sat in a meeting with council or had a conversation with Ms. Laine where she ever used the words corruption, personal gain, power struggle or many of the comments she stated in her opinion piece," said Sass. "She has never abstained from a vote, protested a vote, or raised the issue that a particular vote was illegal."
Sass said he wishes he could share everything that happened in closed session with the public, but the Brown Act prohibits it.
"I believe that doing such would clear this entire matter up and truly show who had the city's best interests at heart and who impeded the process because of a lack of objectivity," said Sass. "I look forward to an outside investigation and sincerely hope that all matters discussed in closed session can legally become public through such process."
Councilmember Jason Collin declined to comment on Laine's accusations.
While Laine's letter only alludes to multiple "violations of law," she does name one specific incident she believes went against the Brown Act: the decision to enter into a contract with MRG consultant Mary Egan to evaluate city leadership in closed session.
"The interim city attorney has admitted to many that a recent contract she oversaw violated the Brown Act (think Mary Egan contract)," wrote Laine.
Interim City Attorney Nira Doherty said this is not true and defended the City Council's decision to hire MRG in closed session, noting that it was a "confidential personnel decision."
Doherty said that City Council is allowed to provide direction to employees in both open and closed session to hire outside services or consultants.
"Ms. Laine is aware that I did not direct the hiring of Municipal Resources Group, LLC, nor did I negotiate a contract without council direction to do so," said Doherty. "I am concerned that Ms. Laine may have made allegations which seemingly waive the City Council's and City staff's attorney-client privilege without authority to do so."
Doherty said that it is permissible to address the contract in open session or for the acting city manager to sign off and pay the contract.
"In the past, the city has approved contracts for leadership evaluations under the city manager's spending authority," said Doherty.
Acting City Manager Jeff Meston said as of now the city has not paid its bill to MRG.
"Obviously this contract is pretty highly charged," said Meston, who confirmed that either he could pay the bill or it could go before council in a public meeting. "I am going to recommend that they ask the consultant to give us a written summary of the work she has done so that we can be transparent."
At Tuesday's meeting, City Council took steps to hire a new city manager and city attorney.
Meston announced on April 5 that he would be stepping down from the acting city manager role after 30 days. Taking on the role was interfering with his ability to perform as South Lake Tahoe Fire and Rescue chief, he said.
City Council is moving forward with hiring an interim city manager through the city's human resources department, but will use the services of Washington-based recruiting firm Prothman to find a permanent executive.
At the end of March, Interim City Attorney Nira Doherty also announced she would be stepping away from her role, but said her firm would continue to work for the city as needed. She noted that while her firm would be more cost-efficient, the culture of the city would likely be better suited for an in-house attorney.
On Tuesday, City Council also opted to engage Prothman in the search for an in-house city attorney.