Rob Berry alleges Chico council violated Brown Act

CHICO — Local attorney Rob Berry has served the Chico City Council with a cease and desist letter claiming the council has violated the Brown Act on numerous occasions.

According to the paperwork filed Wednesday, Berry accuses the City Council of taking up items previously not on the published agenda without notice, unlawfully holding private deliberations to confer and seek counsel, acting on matters of public interest as a collective outside the laws of litigation procedure and failing to inform the public on actions taken in closed session.

Instances Berry includes are:

• A minute order passed at an April 6 council meeting regarding the BMX site.
• Closed session on June 8 during a special meeting before public session.
• A July 2 declaration by City Manager Mark Orme that said during the June 8 closed session, plans were initiated for the airport site.
• A Sept. 7 closed session regarding Warren v. Chico followed by City Clerk Debbie Presson saying, “No reportable action taken; direction was provided.”
• The Sept. 10 radio appearance of Councilor Sean Morgan during which he said the airport site would be closed and resources would be moved to Comanche Creek.
• An announcement on Sept. 13 that the airport site would be closed down.

Berry alleged the actions taken by the City Council violate the Brown Act which states business regarding the local government must be conducted at open and public meetings (except in certain situations).

Referenced in Berry’s cease and desist is the majority of the matters the City Council has held in closed session regard the ongoing litigation the city faces in the Warren v. Chico case which began April 11.

Berry said Thursday he believes the City Council has continued to violate the Brown Act by not informing the public of actions taken, specifically around its ongoing litigation.

“The Brown Act is pretty explicit about (existing litigation),” Rob Berry said. “Council can seek counsel or advice from their city attorney regarding existing litigation but deliberations doesn’t mean you can talk about anything and certainly you’re not allowed to take action. If you do take action, you’re required to report that you took an action.”

The actions taken by the council have to stop at some point, Berry said. He gave the example that the council can go into closed session and discuss the ongoing case with the city attorney under the Brown Act.

The council coming to the decision to open the airport shelter as a way to satisfy the court is also within the bounds of the law, Berry said.

“But that is the end of the exceptional deliberations that are allowed in total session,” Berry said. “What needs to happen after that is the council needs to put the airport project on the agenda and they need to discuss it in the normal way which you’re very familiar with.”

Berry alleges that under litigation, the city has begun relying heavily on the work of the city staff and city attorney. Without councilors having knowledge of the law, Berry said he questions if the stipulations have been properly explained.

“None of the council members are attorneys and we shouldn’t expect them to be able and capable to challenge, question and sort of go toe-to-toe with the city attorney’s opinion,” Berry said. “The City Council are people asking for legal advice which is being delivered in closed session which no one can question. I’ll bet there are probably council members just as confused as I am about the extent of what is permissible to discuss in closed session versus what must be discussed and handled in public.”

The city will have 30 days to agree or disagree with Berry’s letter. If the city agrees, a letter of commitment will have to be produced detailing the City Council’s errors and how the errors will be avoided in the future. If this action is taken, Berry said he can’t sue regarding the Brown Act. However, Berry said a lawsuit from the Chico Stewards for Parks and Waterways will soon be filed.

“In our complaint we refer to the fact that there’s this pattern of practice of doing things in secret and taking action that are inappropriate for a closed session,” Berry said. “There’s some big decisions that Chico is facing and there’s more than one option.”

The soon to be filed motion is called an intervention, Berry said. If granted, Berry and the Chico Stewards for Parks and Waterways will become “plaintiff interveners” in the Warren v. Chico case.

When reached for comment, City Manager Mark Orme said “City staff cannot respond to matters of potential litigation.”