District Attorney's Office receives complaints about Ventura council's secret vote to sue

Marianne Ratcliff, Ojai Valley News editor

When 10,500 certified letters containing summonses and legal notices were mailed to Ojai Valley and Ventura residents starting Jan. 8, people wanted to know who on the Ventura City Council made the decision to sue so many property owners, companies, organizations and public agencies.

The public still does not know when the decision was made, what exactly the decision was, and who voted for or against it.

As a result of the city of Ventura attorney and mayor refusing to provide that information to the public, the Ojai Valley News and at least one other Ventura County news organization have filed formal complaints to the Ventura County District Attorney’s Office to investigate the withholding of that information as a violation of the state’s open-meeting laws. The district attorney regularly responds to such complaints.

The preamble to California’s 66-year-old landmark open-meeting law — the Ralph M. Brown Act, named for its author — states: “The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created.”

When asked by the Ojai Valley News, at a Ventura Democratic Club meeting, how he voted on suing Ojai Valley residents, Ventura’s mayor, Matt LaVere — also a candidate to represent Ventura County on the Board of Supervisors in the March 3 election — said, “I can’t talk about the votes in closed session.”

Ventura City Attorney Greg Diaz also declined to say who on the Ventura City Council voted for what and when, writing to the Ojai Valley News on Jan. 14: “Because the Ventura River litigation was already filed, this report out obligation did not exist because the City was not ‘initiating’ litigation. If the City had been ‘initiating’ litigation, the report out obligation would have existed. Because the Ventura River litigation was existing litigation, adding parties was not ‘initiating’ litigation pursuant to the Brown Act.”

Kelly Aviles, an attorney with the Sacramento-based nonprofit Californians Aware, for open-government compliance, said the city of Ventura is required to release information on how the Ventura City Council voted. “This is a fairly easy call,” she said Thursday. “Because when you file a cross-complaint, it is a new action that you are filing. … All of the characteristics of a cross-complaint make it the initiation of new litigation. It is not proper not to report that out of closed session.”

In an email to the Ojai Valley News, Aviles wrote:

"Under Government Code section 54957.1(a)(2), the agency must report out of closed session:

“Approval given to its legal counsel to defend, or seek or refrain from seeking appellate review or relief, or to enter as an amicus curiae in any form of litigation as the result of a consultation under Section 54956.9 shall be reported in open session at the public meeting during which the closed session is held. The report shall identify, if known, the adverse party or parties and the substance of the litigation. In the case of approval given to initiate or intervene in an action, the announcement need not identify the action, the defendants, or other particulars, but shall specify that the direction to initiate or intervene in an action has been given and that the action, the defendants, and the other particulars shall, once formally commenced, be disclosed to any person upon inquiry, unless to do so would jeopardize the agency’s ability to effectuate service of process on one or more unserved parties, or that to do so would jeopardize its ability to conclude existing settlement negotiations to its advantage.”

Aviles continued: “Thus, the Brown Act specifically provides that they must release the vote to initiate litigation, even if they don’t have to report details. If it has been formally commenced, information about the action, including the details about who voted in favor and who did not, should be released.

“Additionally, Government Code section 54953(c)(1)-(2) states that ‘No legislative body shall take action by secret ballot, whether preliminary or final’ and ‘The legislative body of a local agency shall publicly report any action taken and the vote or abstention on that action of each member present for the action.’

“Filing a cross-complaint is an initiation of litigation, and hence, a new action. For example, if the other party dismissed the complaint, the cross-complaint would remain as its own case.

“Moreover, the California Constitution must be interpreted broadly in favor of public access. The City’s position improperly narrowly construes the public’s rights and broadly construes the agency’s right to keep information secret.
“Finally, the City’s position only considers the closed session reporting language, but ignores the mandate from Government Code section 54953(c), I referenced.”

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