City Hall Confidential

For years, Mel Shapiro, a retired accountant who spends much of his time as a watchdog of the goings-on at San Diego's city hall, suspected that the city council was not being straight about what it discussed when it met behind closed doors. There had been rumors that the council was not abiding by the state's so-called Brown Act, which requires that, with a few exceptions, the council conduct its business in public session.

As the controversy over the Chargers ticket guarantee and the Padres ballpark grew, so did Shapiro's suspicions about the council's secret practices. So last fall Shapiro filed suit, asking Superior Court judge Judith McConnell to examine the minutes of the secret meetings and determine whether there had been any violations of the state's open-meetings act.

Two weeks ago, after a year of legal wrangling, the judge issued a ruling but left it sealed while the city council asked an appellate court to keep the judge's list of the disputed meetings under wraps.

Last week, the council lost its battle, and the ruling finally became public. Below are excerpts of McConnell's ruling, as well as a list of the city-council meetings and the judge's opinions as to whether the secrecy of each violated the Brown Act.

"This lawsuit was filed November 1, 1999, complaining that on numerous occasions in 1998 and 1999, the City of San Diego, acting through its city council, violated the Brown Act in failing to post proper agendas for closed sessions concerning negotiations with the San Diego Padres for the proposed ballpark project in the East Village district of downtown San Diego.

"The court, having reviewed the agendas and minutes for the closed sessions, concludes the City has violated both the letter and the spirit of the Brown Act and finds for plaintiff in this action.

"The Brown Act...was enacted to ensure that in doing the people's business, government should deliberate in public. The goal is to ensure that the public be informed of the governing bodies' deliberations so that the citizenry may retain control over local governing bodies.

"Beginning November 10, 1998, the city council posted an agenda for its closed session on the ballpark follows:

"'In the matter of authorizing the city manager to negotiate with a designated representative from the San Diego Padres regarding real property interests in the East Village area of downtown San Diego, and at Qualcomm Stadium in the City of San Diego.'

"This same item of business was posted before each subsequent closed session.... The Agenda description was modified after filing of this lawsuit.

"A review of the minutes of the closed sessions follows:

"November 10, 1998: No discussion.

"December 1, 1998: The minutes reflect the council was briefed on land acquisition matters, without specifying what was covered, as well as 'architect engineers related to the ballpark that would begin the more formal design and the infrastructure and parking developments.' This is beyond the scope of the narrow exception of the Brown Act and should have been publicly discussed.

"December 8, 1998: The minutes indicate the MOU [memorandum of understanding between the City and the Padres] was discussed. This does not come within the posted agenda.

"January 11, 1999: A notation on a 'Closed Session Report' indicates the council discussed authority to hire a ballpark manager. This does not appear to be within the rubric of the posted agenda or the statutory- exception and should have been discussed in open session.

"January 19, 1999: Discussion of a need to hire a project director for the ballpark project. This is not within the scope of the posted agenda. While discussion of hiring a particular person for such a job or salary negotiations with a job candidate might properly fall within the personnel exception to the Brown Act, this was not on the agenda.

"February 16, 1999: A 'Closed Session Report' indicates the topic of capping interim expenses was discussed. This is not within the scope of the posted agenda and does not fall within an exception to the Brown Act. The minutes reflect there was discussion of EIR [environmental impact report] issues including alternative sites, traffic, and parking. This was not within the posted agenda and should have been publicly discussed.

"February 26, 1999: Discussion concerning interim financing. This was not within the posted agenda. While negotiations for interim financing for the ballpark project might have been proper in closed session since it relates to the lease of real property, this discussion did not clearly come within the scope of the posted agenda.

"March 23, 1999: The council was briefed on TOT [transient occupancy tax], Qualcomm [Stadium lease] extension, interim funding. Port investment, infrastructure/land acquisition issues, use of the Redevelopment EIR for land acquisition and infrastructure. While discussion of the Qualcomm extension appears to be within the scope of the agenda, none of the remaining items are. If the city was negotiating an agreement with the Port District, that item might have been proper for closed session had it been properly docketed.

"March 30 and 31, 1999: Discussion of MOU with the Padres and financing of the project. These topics were not within the scope of the agenda. Financing of the project is not within the real estate exception to the Brown Act unless the discussion covers the specific terms of a proposed agreement.

"April 27, 1999: Discussion of specific terms of an offer. This falls within the agenda and was proper for a closed session.

"May 18, 1999: Discussion of fees for outside counsel. This does not fall within the scope of the posted agenda. While this may have been a proper topic for a closed session, it was not properly noticed.

"June 4, 1999: Discussion of Campbell Shipyard site and negotiations with Port District. This is a proper subject for closed session but could have been better described in the agenda.

"June 8, 1999: No discussion.

"June 22, 1999: Off calendar.

"June 29, 1999: Discussion of terms of Qualcomm extension. This was not posted on the agenda.

"August 3, 1999: Discussion of the EIR. While the CARE vs. City litigation was separately docketed and discussed, it was not proper to discuss the EIR within the scope of the posted agenda concerning real property negotiations. The EIR should be publicly discussed. An EIR must be discussed in open session.

"September 14, 1999: Discussion of pending lawsuits was proper and was properly docketed. However, discussion of the homeless and how redevelopment would affect the homeless was not proper for discussion under the agenda nor within any exception to the Brown Act. The discussion of the terms of the agreement with the Padres was proper.

"September 28, 1999: Discussion of obtaining procurement consultants. This is not within the scope of the agenda and does not fall within any exception of the Brown Act.

"October 5, 1999: No discussion.

"October 6, 1999: Canceled.

"October 19, 1999: Discussion of negotiations with Port District. This was within the scope of the agenda...

The minutes reflect that the city attorney briefed the council on the proposed lease with the Padres. As to the Port District the city attorney briefed the council with regard to a proposed agreement with the Port District for acquisition of property. Both items were properly docketed and discussed in closed session. The names of the negotiating parties should have been listed and announced.

"November 30, 1999: The downtown ballpark project was not discussed.

"December 7, 1999: No discussion.

"December 14 and 16, 1999: No discussion.

"January 10, 2000: Negotiations of lease agreement. This was properly within the agenda.

"January 18, 2000: No discussion.

"January 31, 2000: Discussion of lease agreement and ongoing negotiations with the Port. This was proper under the Brown Act and was appropriately noticed except that the names of the negotiating parties were not docketed or announced.

"Based on a review of the minutes, the Court finds that prior to the filing of this lawsuit the city repeatedly violated the Brown Act by failing to properly notify the public of the items under discussion in closed session, by conducting closed sessions on items that should have been discussed in public, and by failing to designate the names of the negotiating parties.

"A judgment will be issued in accordance with these findings and shall enjoin the city from discussing items in closed session that are not clearly within the letter and spirit of the Brown Act."

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