An alleged leak from the Pismo Beach City Council about a supposed violation of the Brown Act put city officials on the San Luis Obispo County District Attorney’s Office’s radar.
Over a heated exchange of emails spanning May 22 to July 21, City Attorney David Fleishman and Deputy DA Ken Jorgensen debated the reported presence of a draft employment contract in a closed session City Council meeting on May 10.
That draft document pertained to interim City Manager Jorge Garcia who was serving as the assistant city manager at the time. Garcia took the interim city manager position after City Manager Jim Lewis vacated the position to be Atascadero’s city manager.
Jorgensen’s Aug. 3 letter to Pismo Beach Mayor Ed Waage said that the DA’s Office received a complaint accusing the council of violating the Brown Act.
“The complaint alleged the council was provided a copy of a draft of Mr. Garcia’s employment contract and that council was instructed that while the contract contained a proposed salary, members were not to discuss salary as that would violate the Brown Act,” Jorgensen’s letter read.
The Ralph M. Brown Act is a California law that upholds the public’s right to attend and participate in local legislative body meetings. The agencies must deliberate issues—like employees’ salaries—openly with posted agendas and room for public comment.
However, under the Brown Act, some issues can be discussed in a members-only meeting—like when a city council negotiates terms to buy or sell property—if the government’s interest in confidentiality outweighs public interest.
The DA’s efforts to start an investigation into what took place during the May 10 closed City Council meeting sparked deliberation over the need for transparency in government and breaking rules of confidentiality.
Los Osos resident Julie Tacker filed the complaint against the council, stating that the draft contract integrated a 10 percent salary increase for Garcia for councilmembers to consider. Fleishman rebutted that claim in an email to Jorgensen, saying that Tacker either speculated about what happened in closed session or someone present at the meeting unlawfully informed her about what happened, which in turn violated a government code about confidentiality.
Tacker told New Times that she had “an idea” that the City Council would be talking about appointing a new city manager, which prompted her to advise a Pismo Beach City Council member.
“I spoke to a council member in text messages, and said, ‘Hey, be careful! Don’t talk about salaries in closed session,'” Tacker told New Times. “I don’t want to say which council member it was, but afterward they let me know that there has been a contract in closed session, and they were told not to discuss it.”
Tacker said she disclosed the same information to Jorgensen. The deputy DA pushed back on Fleishman’s claim about the confidentiality breach. In an email dated July 20, Jorgensen wrote that any person present at a closed meeting would be protected from reprisal if they believed that a law was broken and they reported the incident to the proper authorities.
“Therefore, it would be in the interest of the agency and its legal counsel to act in accordance with the law and cooperate in good faith rather than ‘stonewall’ a legitimate informal investigative inquiry by the DA,” Jorgensen wrote in that email.
Yet, Fleishman refused to provide details about what took place. He claimed he couldn’t do so unless the City Council authorized the information release, which it didn’t. Further, he said that the City Council ratified Garcia’s contract in an open session meeting on May 16.
The result: Jorgensen’s Aug. 3 official letter that detailed three recommendations for City Council to adopt.
The list details that city officials and employees who regularly attend closed session meetings must undertake Brown Act training to address Fleishman’s concern that information was “impermissibly shared.” City staff and council members should also take procedural planning steps to ensure that discussion items and documents brought up in closed session are permitted under the Brown Act. The final recommendation advises City Council members to publish Jorgensen’s letter as a public business item to be discussed at the next open meeting.
Agendas for the Aug. 15 and Sept. 5 council meetings didn’t show the letter listed as public business items up for dialogue. The DA’s Office and Fleishman didn’t respond to New Times‘ requests for comment by press time. Δ
This article appears in Sep 7-17, 2023.