The SLT City Council’s interpretation of the Brown Act
The South Lake Tahoe City Council violated basic tenets of the Brown Act, according to Councilman Bill Crawford, when a job review of City Manager Kerry Miller, specifically scheduled to happen during a Sept. 7 closed session, never took place.
Instead, Crawford said the closed session unexpectedly turned into a 20-minute apology by Miller for writing two checks to the city arts coordinator.
“The governmental code in California states that when you call a closed session, the only thing you can discuss is what’s on the agenda. Well, what we discussed was not on any agenda,” Crawford said. “The Brown Act is designed to provide public access to information, not to conceal it. If anyone violated the Brown Act, the city did.”
According to the Brown Act, while routine job evaluations, unfounded complaints and minor discipline can be discussed in closed session. “Serious misconduct” by public employees and the ensuing discipline or action taken, warrant public disclosure. Also, all discussions relating to consultants and contractors hired by the city must be handled in public session.
“There is a thin line between what you can do behind closed doors and what you can’t,” Crawford said. “I’m not very sure we’re always on the right side of that line.”
According to Mayor Judy Brown, although the City Council agenda states that the closed session was scheduled for the city manager’s job review, she said that did not preclude discussion of other matters pertaining to Miller.
“A performance review was not the purpose of the meeting. It doesn’t necessarily have to be a complete evaluation of someone,” Brown said. “In fact, in all the years I have been on the council, Mr. Miller has never received a performance review.”
Councilwoman Brooke Laine said she fully expected Miller’s evaluation to happen Sept. 7, as scheduled on the City Council agenda – especially since Miller’s evaluations were due back to Brown from councilmembers and department heads last March.
“I was certainly hoping there would be an evaluation of the city manager, but for some reason the subcommittee with regards to the city manager’s evaluation has never convened,” Laine said. “I was very hopeful there would be a report back.”
According to Councilman Tom Davis, Crawford himself became guilty of violating the Brown Act when he told the press what happened during a closed session.
The Brown Act does state that councilmembers are responsible for ensuring the law is not violated by inappropriate discussion or action during closed sessions, and that there are times when going public may be the only way to ensure that violations do not persist. However, before informing the public, the Brown Act states that the councilmember should first consult with the agency’s attorney – in this case the city attorney. According to City Attorney Catherine DiCamillo, she was not asked to review the closed session for perceived violations of the Brown Act when Crawford spoke to the press.
As to Miller’s job review, Davis said he contacts the city manager directly.
“I have always evaluated Kerry’s performance on a one-to-one basis anyway. If I have had issues, I’ve always brought them to him and we have dealt with them accordingly,” Davis said. “But, should it be in writing on a yearly basis? Yes, and we have not done that.”
Laine said she believes that if the Brown Act was indeed violated by the City Council, it was not intentional.
“This is where the city clerk and the city attorney need to know what they’re doing. They set the agendas and notify the public. The question of language used to notify the public needs to be clearly understood and carried out,” Laine said. “To the extent that anyone violated it, I believe it was unintentional. I don’t believe the burden falls on any one person, we’re all responsible ultimately.”
Each councilmember, according to assistant city clerk Suzanne Alessi, receives a copy of the Brown Act at the beginning of their terms.
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