City Beat

July 25, 2014

City Beat: Council's closed session raises questions

City Beat

George Hostetter has his feet on the ground and his eyes on City Hall

The Fresno City Council went into closed session on Thursday. Something didn’t add up. I asked the council about it.

The council said I was nuts.

Here’s how things unfolded.

The council had a light agenda. There were a few council member reports, a couple of items on the consent calendar and a routine hearing on a maintenance district.

The only big deal was the closed session. The council faced two topics.

First, there was to be a conference with negotiators on labor contracts. The council is constantly going behind closed doors to discuss union deals. There are 11 bargaining units. All 11 are always listed.

The negotiators are Ken Phillips and Jeff Cardell.

Second, there was to be a conference with “labor negotiators” (the agenda’s words) on Unit 2. Unit 2 contains the non-represented management and confidential classes.

The negotiators are Cardell, Council President Steve Brandau, Mayor Ashley Swearengin and City Manager Bruce Rudd.

The agenda under the second topic listed 56 job titles. These ranged from police chief and fire chief to city manager and city attorney.

The closed session was actually on a separate agenda. The original council agenda, released publicly on Friday, had nothing for closed session.

A notice of a special closed session with these two topics was released publicly on Tuesday morning.

Like I said, it was a tepid council meeting until the council went into closed session. I didn’t doze in the audience, but I wanted to.

Then the council went behind closed doors. They were there for about 90 minutes. I read.

Then the council returned to the dais. City Attorney Doug Sloan said there was nothing to report publicly from the closed session. Brandau called for the last order of business, the maintenance district hearing.

There were four people in the audience — three city employees connected to the hearing and me.

Then a thought hit me: That second item on the closed-session agenda is odd.

Here was my thinking:

* Fresno has a legislative branch (the council) and an executive branch (mayor) with specific and non-transferable powers outlined in the city charter.

* The council is in charge of the city attorney and the city clerk. The council hires and fires these two. The council decides their compensation.

* The mayor is in charge of the chief administrative officer — the city manager. The mayor hires and fires the city manager. The mayor decides the city manager’s compensation.

* The city manager is in charge of at-will managers such as the police and fire chiefs. The city manager hires and fires them. The city manager decides their compensation. The city manager does all this with both eyes firmly planted on the mayor’s wishes.

* The council and the administration had just spent 90 minutes behind closed doors chatting together about compensation for at-will employees who belonged to either the legislative sphere of influence or the executive sphere of influence but not to a joint sphere of influence.

* I smell a possible Brown Act violation.

The maintenance district hearing ended and Council President Brandau adjourned the meeting. I raised my hand and hustled to the public microphone before too many of the council members could reach the exits.

Brandau was kind enough to acknowledge me and listen to my concerns.

In essence, I said: The council was talking with the administration in closed session about things that are strictly the administration’s business. And the administration was talking with the council in closed session about things that are strictly the council’s business. That doesn’t seem right to me.

Brandau and City Attorney Sloan were polite. I didn’t understand when they explained why I was wrong. The dais was full of council members and staff rushing to lunch.

I thanked Brandau and turned to leave. Brandau and Sloan joined me in the council chamber aisle for a talk.

Sloan said the state Ralph M. Brown Open Meeting Act gives the city authority to go into closed session in the way that the council and administration had just done.

Sloan pointed to the closed session agenda, which identified Government Code Section 54957.6. We’ll get to the words of that part of the Brown Act in a minute. It’s sufficient at this point to add that Sloan gave me a summary of the section — the Brown Act allows a legislative body to discuss compensation for unrepresented employees in closed session.

I said I didn’t care. I said the city charter expressly states that the city clerk and the city attorney belong to the council, while the city manager belongs to the mayor. What the council pays the city clerk and the city attorney is of no business to the mayor, I said. What the mayor pays the city manager (and, by extension, to folks like the police chief and the fire chief) is of no business to the council, I said.

Sloan returned to the Brown Act. I returned to the city charter. Sloan’s a lawyer with a City Hall behind him. I’m a newspaper reporter. I turned to nurse my defeat on the walk back to the newsroom.

Then Sloan mentioned the salary resolution. This annual document, approved by the council and signed by the mayor, lists salary/benefit ranges for city employees. “Widget-maker: $100 to $120 per week.” Something like that. What the widget-maker actually earns within that range is up to the boss.

Sloan said the council and administration weren’t behind closed doors discussing what the other should pay its at-will employees, Sloan said. Rather, he added, they were discussing the ranges of compensation of the salary resolution.

You’re making my point, I said. A new salary resolution should be discussed in open session.

We’re not talking about a new salary resolution, Sloan said. We’re talking about the old salary resolution, he said. He reminded me that the council in June decided the Fiscal Year 2013-2014 salary resolution should stay in place for the new fiscal year (beginning July 1) until a new salary resolution is approved.

You’re making my point, I said. If the old salary resolution is on the books, then there’s no reason to go behind closed doors for a joint council-administration debate on compensation in areas of responsibility that belong exclusively to one branch or the other. The old salary resolution is marching orders for the council for at-will employees the council controls, I said. The old salary resolution is marching orders for the administration for at-will employees the administration controls.

But, Sloan said, the Brown Act authorizes the council to go into closed session to discuss compensation for non-represented employees. Brandau nodded in agreement.

We had circled back to where they wanted me: You don’t get it, George, so let’s go to lunch.

Here’s the portion of the Brown Act cited in the closed-session agenda:

“54957.6. (a) Notwithstanding any other provision of law, a legislative body of a local agency may hold closed sessions with the local agency’s designated representatives regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits of its represented and unrepresented employees, and, for represented employees, any other matter within the statutorily provided scope of representation.

“However, prior to the closed session, the legislative body of the local agency shall hold an open and public session in which it identifies its designated representatives.

“Closed sessions of a legislative body of a local agency, as permitted in this section, shall be for the purpose of reviewing its position and instructing the local agency’s designated representatives.

“Closed sessions, as permitted in this section, may take place prior to and during consultations and discussions with representatives of employee organizations and unrepresented employees.

“Closed sessions with the local agency’s designated representative regarding the salaries, salary schedules, or compensation paid in the form of fringe benefits may include discussion of an agency’s available funds and funding priorities, but only insofar as these discussions relate to providing instructions to the local agency’s designated representative.

“Closed sessions held pursuant to this section shall not include final action on the proposed compensation of one or more unrepresented employees.

“For the purposes enumerated in this section, a legislative body of a local agency may also meet with a state conciliator who has intervened in the proceedings.

“(b) For the purposes of this section, the term “employee” shall include an officer or an independent contractor who functions as an officer or an employee, but shall not include any elected official, member of a legislative body, or other independent contractors.”

It seems to me this section of the Brown Act proves my point.

The act allows the City Council to go into closed session to discuss the compensation for “its ... unrepresented employees.” The city manager isn’t the council’s unrepresented employee. The city manager, per the city charter, is the mayor’s unrepresented employee.

The act allows closed sessions “of a legislative body of a local agency ... for the purpose of reviewing its position and instructing the local agency’s designated representatives.”

The City Council can’t meet behind closed doors for the purpose of instructing the executive branch on compensation of unrepresented employees who belong to the executive branch. The mayor can’t be the council’s “designated representative” on issues — what to specifically pay the city manager — that belong exclusively to the mayor. Either the council has no authority in this arena, or the city charter is worthless. And the Brown Act loses all value if it permits a legislative body to go behind closed doors to discuss a topic over which it has no legal authority to act.

The act says closed door council debate “may include discussion of an agency’s available funds and funding priorities, but only insofar as these discussions relate to providing instructions to the local agency’s designated representative”

There’s a salary resolution in place. There’s a budget in place. If City Hall wanted to know more about City Hall’s available funds and funding priorities, everyone should have stayed on the dais and passed around copies of the budget and the salary resolution. All questions were settled in June when the council passed the budget and decided to keep the same salary resolution.

Brown Act violation on Thursday? We'll never know. But the closed door session still seems odd to me.

 

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About George Hostetter

@georgehostetter

George Hostetter, a Fresno Bee reporter since 1987, knows Fresno and the trappings of its government from the top of his hat to the tip of his shoes, which he wears out with round trips between the office and City Hall. Twitter: @georgehostetter. Email George at ghostetter@fresnobee.com or call him at 559-441-6272.

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