The Cypress City Council on Monday voted to authorize an investigation of some sort into themselves over a closed-session leak, even taking all decision-making authority over the process away from its city manager and city attorney, who are now also subjects of the purported investigation.
The move came in response to an article in the Sept. 13 edition of the ENE which cited sources indicating the City Council had voted in closed session to pause the trial and move to mediation on Nov. 1.
City documents indicate the Council was most recently scheduled to discuss the lawsuit in a closed session on Aug. 28. Moreover, in the video of that meeting, there are no mentions or announcements made during the public meeting that followed the closed session.
In fact, according to video records of the meeting, Mayor Anne Hertz-Mallari only told the public that the Council had met twice that same evening.
“This is our third meeting of the evening,” she said to begin the meeting, but neither she nor legal counsel Fred Galante made any mention of the closed session discussion or decisions which presumably had been one of the two other meetings referenced by the mayor.
Earlier this year, after months and months of closed session discussions, the plaintiff alleging the city was in violation of the California Voting Rights Act finally took the city to Superior Court.
On Sept. 13, the ENE reported that at some point in a recent closed session meeting, the council voted to pause the lawsuit and agreed to meet with a court-approved mediator in Encino.
“It is our responsibility in those closed sessions to keep those private and it’s just a matter of trust,” said Hertz-Mallari in opening the discussion of the leak. “We are working to represent the city’s best interest,” she said. “If that information got out, it shouldn’t (have) and I want to know why,” the mayor said.
While the Council seemed intent on using the leak to further punish a favorite target on the council, Kevin Shenkman, the plaintiff’s attorney in the case, took the unusual step of calling into Monday’s meeting to personally inform the Council no City Council members were involved in the leak.
“In this particular instance, I happen to know how the Event News Enterprise came across that information,” said Shenkman.
“And that puts me in somewhat of a difficult position because on the one hand, I am not a snitch, and I will not snitch, and on the other hand, I’ve also seen and heard the insinuation this week that the leak was from a particular Council member, and I do not want to allow innocent parties to face accusations whey they shouldn’t,” the attorney said.
“And so, I am telling you now that none of the council, and I know this as a fact, that none of the Council members had anything to do with the ENE receiving that information,” he told the Council.
Given Shenkman’s statement, Council member David Burke attempted to derail what appeared to be a locomotive effort toward an internal investigation, saying the Council was told by the plaintiff’s attorney that no member of the Council was involved in leaking the info.
“Regarding the proposed investigation, I do not support that idea,” said Burke.
“At this time. I think we are getting way ahead of ourselves. And then my colleagues have jumped to conclusions that are not supported by what we know,” he said. “Based on the letters that were recently published by Mayor Hertz-Mallari and the respective attorneys in the CVRA case, I believe my colleagues have misunderstood some things pertaining to the article in the Event News-Enterprise,” said Burke.
“As a result, some of the things written in those two letters, which are related to the investigation don’t make sense,” he said.
“I say that, so residents understand that we are not talking about a massive leak of highly important information. We are talking about vote totals, and vote totals have sometimes been reported out of closed-session meetings in the past,” said Burke, also an attorney, told the Council.
“In fact, they have sometimes been reported out of closed session in connection with this very case. So this is not the type of information that is particularly sensitive. And has not been made publicly before. Nonetheless, people are portraying this disclosure of the vote totals as, quote, putting politics before the law by brazenly violating the sanctity of closed-session proceedings. I disagree.”
Burke reminded the Council that they could have informed residents of the decision themselves, but did not, and said whatever happened, “it’s so inconsequential. It seems clear that vote totals getting out was a mistake or an accident and it doesn’t sound like a Council member trying to undermine our case.”
Burke said the council’s new “Civility, Governance and Conduct” code prevents “prejudging others.”
But Council member Bonnie Peat disagreed with Burke that vote totals don’t matter.
“They do matter. As I said earlier, when you do a vote, and especially in a closed session, there are discussions that surround that vote,” said Peat.
“And so, you know, the decisions that we make or the votes or the discussions we must take lightly, are holding everything and saying gosh, you know, why am I making this decision, to do yes or no, right in terms of providing further direction. Without that context,
I think the votes can be very damaging, and can lead to conclusions that aren’t correct,” she added.
Mayor Pro-tem Scott Minikus was also unmoved by Shenkman’s admission and thought a crime had been committed.
“I just want to echo a couple of things that Councilmember Peat just mentioned. I too want to thank and acknowledge attorney Kevin Shenkman for calling in. In my 25 years of law enforcement experience. I’ve never known an attorney to do that,” he said.
“However,” said Minikus, “a crime occurred here, and I think it is not only our obligation, but the majority of the city would expect us to conduct an investigation on this.”
“And I hope that everybody will be transparent, as we’ve been talking about so much here lately. Everybody wants transparency in what everybody thinks. But more importantly, is that this is yet another way that we exercise transparency here in the city. I am in full support of this investigation. And I look forward to seeing it conducted,” said the mayor pro-tem.
Marquez, who also denied having any role in leaking the information, said “my question is about the investigation. If the city hired an investigator, how would the individual be chosen and supervised? How would the information be shared? How would the process be fair, so it does not bias or politicize again, and do we want money wasted on a political deflection to buy time,” she asked?
“We cannot have decision-making carried out by one person,” said Marquez, directing it at the city manager. “I do not have confidence in anyone up here except for council member Burke.”
However, when it became clear that a majority of the Council was insistent on moving forward with an internal investigation, Burke again stepped back in.
“I was optimistic or hopeful that we could rethink things because clearly there’s some confusion about what happens here,” said Burke.
“I mean, the question I have for my colleagues is in light of the points I’ve raised, why shouldn’t we pause and try and gain a better understanding of the facts before taking drastic steps, like launching a divisive investigation are openly accusing the council members of breaking the law,” asked Burke?
In essence, he said the agenda item which, verbatim from the agenda read as follows, “direct the city manager and city attorney to investigate the disclosure of information from the closed session” was unworkable.
That’s impossible, suggested Burke, because they were in the room and should become suspects like the rest of the council and everyone in the room when the matter was discussed.
“We’ve already said that a limited number of people could have been the source of this information. And the plaintiff’s attorney just said that the council members were not
involved, yet we’re going to propose that the city manager and the city attorney are the ones who investigate this issue,” asked Burke?
“We can’t have a neutral investigation. If people who are subjects of the investigation are overseeing it,” he added.
“It’s my understanding that in Anaheim when the city conducted an investigation of the corruption scandal, they had to do two things. First, they had to send out an RFP to get an independent investigator. Second, they had to send out an additional RFP to get a neutral person to oversee the investigation. I believe it was a retired judge,” he said.
“As it’s become apparent, I am not as disturbed or alarmed by this information getting out as my colleagues. I think it shouldn’t have gotten out, but I don’t see mal intent I see a likely mistake. But if they are really serious about this, then we need both a neutral investigator and a neutral third party to oversee the investigation,” said Burke.
“If the city manager and the city attorney are the two people who could be a source of the information, we can’t allow them to oversee the investigation. So without a neutral third party, the investigation won’t have any integrity. I wouldn’t have been inclined to cooperate with such an investigation,” said Burke.
“So, I hope you will reconsider in general, but at the very least I’m asking we have to change the item so that it’s a neutral person overseeing the investigation, not one of the subjects of the investigation.”
Therefore, the Council agreed to strip both City Manager and City Attorney of any authority in dealing with the investigation and instructed staff to develop two (2) independent Requests for Proposals to develop the scope and nature of the investigation and then independently who will conduct the investigation.
In addition, the Council agreed that all information developed as part of the investigation be delivered directly to the Council, not the city manager or the city attorney.
The Council then voted 4-1 to authorize the investigation, with Burke voting against authorizing a loosely defined investigation that he suggested could become an exercise in futility that ironically results in exposing other information the city intended to keep secret.