Closed-meeting Pandora’s Box

State advocate of open government claims the city’s use of the
closed-session statute goes against the law’s actual intent
Gilroy – The Gilroy City Council made an unprecedented decision to shut the doors on the public earlier this month, invoking a state law never used in this city before to shroud in secrecy its discussion of a potentially expensive legal settlement.

The agenda for the Nov. 7 closed session did not specify the subject matter or the individuals who would attend – the standard procedure for all prior closed meetings – but sources inside City Hall confirmed that discussions centered on a lawsuit involving Rex E. Wyatt, a former employee who sued for wrongful termination after the city dismissed him on charges of sexual harassment.

On Oct. 17, a superior court judge ordered the city to reinstate Wyatt, pay him for lost compensation plus interest, and purge his personnel file of any mention of the matters leading to his Oct. 2003 termination. The decision frees Wyatt to pursue additional damages on allegations the city violated his civil rights.

The ruling overturned decisions by four tiers of city officials, including City Council, to dismiss the former building official. Meanwhile, hundreds of pages of court records reveal a series of damaging allegations about the city’s handling of the case and the operations of the building department.

A leading state advocate of open government said that the city’s use of the closed-session statute runs foul of the law’s intent.

“The purpose of this one allowance for unusual secrecy is to allow the government agency’s attorney to, in essence, bluff the other side,” said Terry Francke, who created the nonprofit organization CalAware 18 months ago to champion open government. Francke, who helped write the law in concert with the League of California Cities in the mid-’90s, said the statute was intended to allow a city attorney, for instance, to present an “uncompromising settlement position” to an adversary, and then turn around and meet with council in secret to “check for a counter offer or report some new wrinkle” without “automatically alerting the adversary.”

But in Gilroy both sides knew the City Council would meet in closed session to discuss a possible settlement.

“I was informed there would be a closed-session meeting,” said Steven Fink, the attorney who represents Wyatt. “Ernie didn’t tell me exactly what would happen, but I guessed that he would sit down with his clients to figure out how to settle the case.” The reference is to attorney Ernest Malaspina, a personnel law expert hired by the city to handle the case.

Mayor Al Pinheiro said he accepted the added secrecy based on the recommendation of city attorneys and staff.

“I don’t think we even got a chance to talk about it because it was agendized that way and we showed up at the meeting,” he said.

City Administrator Jay Baksa said he was unaware of the statute until city attorneys suggested it. He said staff listed the item on the agenda using more secretive language based on that recommendation, given verbally rather than in written form. He said an attorney explained the law to councilmen and the rationale for using it once they were inside the closed session.

Normally, officials disclose both the topic of closed sessions as well as the individuals who will attend, as they have done in recent months for closed-door meetings on land acquisition and labor talks with the local fire union.

The Nov. 7 agenda, however, simply stated that the council would hold a closed meeting to discuss “pending litigation,” as permitted under California Government Code Section 54956.9(a). Baksa said he does not believe the city has ever before invoked the statute, which allows local governments to withhold nearly all details concerning a closed session when officials believe “disclosure would jeopardize existing settlement negotiations.”

Pinheiro defended the city’s use of the added layer of secrecy.

“We hire individuals that are professionals and we ask these individuals to give us their advice and then try and make the best decision for the city,” he said. “I don’t think we need to apologize … We’re not hiding anything from our citizens. We’re trying to protect the citizens of Gilroy.”

Francke, reflecting on the import of the city’s decision, said that people have a vital interest any time government chooses to discuss a lawsuit or other public matters in complete secrecy.

“Litigation against a government agency is often a sign, number one, that something wrong has happened, that there is a problem that’s occurred in government,” he said. “Number two – very often it’s a sign the taxpayers are going to have to pay for it. Number three – it may be a sign that, unless corrected by a termination or a transfer, (the problem) may happen again. So anyone with enough investment in terms of being a taxpayer, who wants to have a government that’s smoothly and properly and effectively and ethically operated, one of the first things you keep an eye on is what the local government is being sued about.”

Councilmen Paul Correa, Bob Dillon, Craig Gartman, Charles Morales, Russ Valiquette and Roland Velasco declined to comment on the substance of the meeting.

Gartman pointed out that the council, at the start of its term, appointed Dillon and Pinheiro as the official spokesmen “on these kinds of items.”

Dillon declined to comment when asked if he felt the decision to invoke greater secrecy was appropriate.

“There’s a collegiality issue there,” he said.

Gartman, however, said the council should think hard before relying on the statute once again.

“In the discussions that we had, it made people uncomfortable but we understood why it had to be done that way,” Gartman said. “I believe that every time we get together as we make progress along here, we need to re-evaluate the need for confidentiality … It behooves us to review the necessity of this drastic measure every step of the way. As soon as we can make it public, we should do so.”

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