City Council closed sessions laid bare | News | #citycouncil

That agreement applies to a 67-unit housing development project, which includes 40 market-rate and 27 deed-restricted affordable units on four properties in the city.

The City Council voted 3-2 at the Jan. 24 meeting to place a referendum on the Development Agreement on the March 2024 primary election ballot. Stix and Councilmember Andrew Whitman (District 3) voted no, both saying they wanted the referendum to be on the November 2024 general election ballot, citing greater voter turnout.

Summers attempted to prevent Rule from making statements he said could not be disclosed because they were regarding closed-session items.

Minutes before the City Council meeting started, attorney Jon Drucker, who had been retained by Rule, presented a 12-page letter to Summers and members of the public, listing reasons why Summers’ interpretation of the state’s open meeting laws, called the Brown Act, was “incorrect.”

Drucker served as an observer for the vote recount requested by Anthony Otto in the Nov. 8 mayor’s race. Drucker told the Ojai Valley News on Jan. 26 that he was never retained as legal counsel to Otto or mayoral candidate Anson Williams.

Drucker wrote in the letter he later also presented to the City Council: “There are numerous circumstances under which a city councilmember may disclose information obtained in a closed session of a city council, and Councilmember Rule’s disclosure fulfills all of them.”

Those circumstances, he wrote, include the closed-session items not being properly agendized; that they related to potential “improprieties”; and that there is a “public policy” argument in favor of their disclosure.

“It’s the Constitution that gives me that right,” said Robin Gerber of Ojai later in the meeting, during a second heated exchange involving Summers when Gerber attempted to speak about closed-session items.

All elected bodies in California are subject to the state’s open-meeting law, the Brown Act. It governs what can and cannot be discussed in open and closed session, and includes requirements for how those items to be discussed in closed session are listed on the agenda. The act defines pending litigation as, (a) litigation formally initiated to which the body is a party; (b) a situation where based on the advice of counsel taking into account “existing facts and circumstances” there exists a “significant exposure” to litigation; or (c) when the agency itself has decided or is deciding whether to “initiate litigation.”

The Brown Act also requires the body “must publicly report action taken in closed session,” including, “Approval given to counsel to defend or otherwise participate in litigation,” and other instances. (Government section 54957.1)

Complaints regarding the Brown Act can be directed to the district attorney.

Rule said that the particular closed-session items she was referring to were agendized by the city under a provision of the Brown Act for “existing” litigation. She said the closed-session discussion on “potential” litigation was not properly cited on the agenda.

Immediately after the flag salute, Rule made a motion to move the Ojai Bungalow/Green Hawk Development Agreement Referendum item up in the meeting’s agenda.

She said: “And here’s why, in the previous council session, you heard me talk about ethics and the duty of care this council has to you, the public. Your City Council, my colleagues and I have failed you in this regard.” She referred to the Dec. 13 City Council meeting when a member of the public “called on Mayor Stix to recuse herself on all matters concerning Simply Ojai due to concerns over conflicts of interest with that organization and its principals.”

Simply Ojai, an Ojai-based doing-business-as entity under the nonprofit organization Mindful Citizen, filed a lawsuit Dec. 1, challenging the council’s Oct. 25 4-1 approval of the Development Agreement. Since that vote took place, three new councilmembers have been elected.

After Rule mentioned Simply Ojai, Stix hit the gavel.

“Mr. City Attorney, we’ve already addressed this,” said Stix. Voices from the crowd in chambers called for Rule to be allowed to speak.

“Could we please have quiet?” shouted Stix over the voices.

“As I understand it, Councilmember Rule is in the process of making a motion to adjust the agenda,” said Summers.

“That is correct,” said Rule.

“But I assume that motion will not disclose any closed-session information,” said Summers.

“It will not disclose anything that should not be disclosed,” said Rule.

“That is not what I said. It will not disclose any closed-session information,” said Summers.

“It will not disclose anything that should not, that is illegal to disclose, that is correct,” said Rule.

“It will not disclose any information discussed in closed session,” said Summers.

“It will not discuss any information that is illegal for me to discuss publicly. It will not. That is correct,” said Rule.

“All right, okay. Continue,” Summers said.

Referring to the Dec. 13 meeting, Rule said the council went into closed session. Rule said, “Almost immediately, the mayor requested that council hire an outside law firm to get a new set of eyes to review” —

At which point, Sumers interrupted.

“All right, Councilmember Rule, that is closed-session discussion,” said Summers.

“I have three relevant statutory exceptions that permit their disclosure,” said Rule.

“One is confidentially reporting information of perceived violations of the law to the district attorney,” said Rule.

Summers interrupted her and said, “Councilmember Rule, yes, that exception allows for confidential (disclosure) to the district attorney.”

“I’m not finished. I’m not finished with the other two,” said Rule. “The next disclosure expresses an opinion regarding the improprieties or illegalities in a closed session.”

Summers said, “That opinion however cannot disclose the information that is the basis” —

She said: “Or disclosure is justified on the basis that this information is not confidential. Last, just as attorney-client privilege may not generally be used to further a crime, neither can closed session. Because of that, my disclosures are not only permissible, they fulfill a public-policy interest in exposing and punishing elected officials who engage in improprieties and criminal and potential criminal activity.”

Summers said: “Councilmember Rule, you are not the district attorney, you are not the jury or the judge. You are not empowered to make those decisions.”

“Neither are you,” said Rule.

“No one in this room has the power to disclose closed-session information,” said Summers.

“I disagree with you,” said Rule.

Summers continued to state why the exceptions Rule cited did not allow her to disclose closed-session information at that time. Rule continued to say, “I disagree with you.”

Stix said: “As the chair of this, umm, I would like to defer to our city attorney. And then we can decide this later.”

Rule said, “I will make a motion to overrule that decision by council vote.”

Summers recapped the situation and said: “So the chair has ruled you out of order. You’ve made a motion to overrule that. That is in order. Is there a second for that motion?”

Mayor Pro Tem Suza Francina (District 4) asked for clarity on the motion, as she was in support of the original motion to move up the referendum on the agenda.

“As I understand the motion on the table, it is by Councilmember Rule to override the mayor’s directive that Councilmember Rule cease speaking,” said Summers.

“Correct,” said Rule. “The mayor has made a motion to have me cease speaking.”

Summers said: “Or ruled you out of order, as is the proper phrase…to rule you out of order regarding your attempted disclosure of closed-session information.”

Francina asked: “Is what Councilmember Rule is asking legal?”

Summers answered, “In my opinion it is not.”

Rule said: “There is a legal disagreement. …This is how silence is kept — closed session, illegal, can’t talk about it, not true. Our sessions were not legally noticed. They were noticed under the wrong government code.”

Summers said: “The city’s position is very plain. That all of the closed sessions it has held since the new council took office have been lawful.”

Francina and Councilmember Rachel Lang (District 2) said they could not support a motion that could be illegal. Lang made a motion, seconded by Francina, to discuss in closed session whether to waive privilege and allow Rule to publicly disclose the items she wanted to discuss. Summers told the council that Rule could not be present in that session. The motion passed.

Lang said: “I think we all want to have transparency. …Where my concern is, is that if there are legalities about the things that we’ve said in closed session that could put the city in jeopardy, I would want to do everything I can to protect us.”

Rule said: “I am telling my councilmembers that I feel I am on strong legal grounds here. It is the nature of closed session to shut you up and to keep things out of the public’s ear.”

The 12-page letter by attorney Drucker, on behalf of Rule, and a written statement Rule had intended to read at the meeting, describe conversations alleging that Stix contacted attorney Sabrina Venskus for a referral of legal counsel for the city to review the Ojai Bungalows/Green Hawk Development Agreement. Venskus is representing the entity Simply Ojai in legal action filed Dec. 1 against the city, challenging the Development Agreement.

Rule states that the city hired attorney Heather Minner of the San Francisco-based firm, Shute, Mihaly & Weinberger, based on that referral.

“The city has hired Shute, Mihaly & Weinberger LLP to provide confidential legal advice regarding the Ojai Bungalows L.P./Green Hawk LLC Development Agreement project, the Simply Ojai v. City of Ojai lawsuit challenging the project, and related matters,” wrote Kiara Nowlin, public information coordinator for the city of Ojai, responding by email to the Ojai Valley News on Jan. 26. The city declined to provide information about the cost of hiring the firm, or when and on what authority the firm was retained. “The City has no further public information at this time regarding these costs or other details regarding this engagement.”

However, Rule in her written comments stated that Minner “had flown in from San Francisco, on our dime, to present her memo” regarding, not the Simply Ojai “existing litigation” but instead regarding “her take on the best defense of a potential lawsuit by the Becker group.” 

Because, according to Rule, Minner “started her assumption that the Council would rescind its approval of the development agreement” the entire conversation did not pertain to “existing” litigation but the potential litigation that rescinding the approval could invoke from property owners Ojai Bungalows L.P. and Green Hawk LLC.

Further, Rule stated: “We concluded this closed session with an informal agreement to move the referendum to ballot at the next open session to give time for us to work on acquiring the properties. But that’s not what happened. Instead on January 10, the mayor made a successful motion to continue the referendum question.”

According to emails obtained by the Ojai Valley News from the city of Ojai through a Public Records Act request, Stix, on multiple occasions, forwarded emails related to the Ojai Bungalows/Green Hawk Development Agreement she’d received in her capacity as mayor to Leslie Hess, Tom Francis and their attorney, Venskus. Hess serves on the board of Simply Ojai, according to documents filed with the state. Venskus is the attorney for Simply Ojai in its litigation against the city.

Francis has, on multiple occasions at public meetings, stated he is a spokesperson for Simply Ojai. According to budgets the entity filed with the state, he is paid with CalFire grant funds the entity received.

Emails Stix forwarded to Francis and Hess include emails from community members, fellow councilmembers and City Manager James Vega and City Attorney Summers.

On July 14, Stix was copied on an email from Francis, reading: “The Ojai City Council was warned that if they approve the Becker Plan, Simply Ojai will take it to the voters. Simply Ojai informed the council that if the Becker development plan is approved by a council majority, we will file a referendum, gather signatures and take this to Ojai voters who can reverse this decision.”

On Oct. 27, Stix forwarded an email with the subject line: “Question about tenant protection at Cottages and Mallory Way Bungalows,” to Hess, Francis and Venskus. 

Stix had received the email from Francina. 

The email included an exchange between Francina and Summers. The contents were redacted in the Public Records Act response received by the Ojai Valley News. The city said the redaction was due to the contents of the email being “privileged.”

Between Jan. 18, 2022, and Nov. 22, 2022, there were 19 instances of Stix receiving and/or forwarding emails from representatives of Simply Ojai or their legal counsel. 

Responding to the Ojai Valley News by email to questions about Rule’s statements, Drucker’s letter and the forwarded emails on Jan. 26, Stix wrote, “I stand behind my actions to protect our community and defend our city.”