While the city of Cypress has been under scrutiny from some citizens for the past few months regarding a perceived lack of transparency, a statewide group whose mission it is to hold government accountable has demanded change.
In an multi-paged demand letter dated April 14, 2022, Californians Aware has put the Cypress City Council on notice that they were in violation of the state’s Brown Act, demanding the Council end its governmental secrecy with a “demand for cure and correction.”
According to the CalAware website, the primary objectives and purposes of this corporation shall be: To foster the improvement of, compliance with and public understanding and use of, public forum law, which deals with people’s rights to find out what citizens need to know to be truly self-governing, and to share what they know and believe without fear or loss.
“This demand is made on behalf of Californians Aware and a group of concerned citizens alarmed by the secret and illegal discussion and action taken by the Cypress City Council (“City Council”) regarding whether to transition from at-large elections to district elections,” said Shaila Nathu, the Assistant General Counsel.
Nearly seven months after receiving a demand letter from a Malibu law firm alleging violations of the California Voting Rights Act, (CRVA), the Cypress city council has yet to hold a public discussion of the issue. They held forums that danced around the issue, but never held a public discussion on the dais since receiving the letters.
Further, they have also not released any documentation, including a purported demographic study, used to defuse and eventually reject the complaint made by the Southwest Voter Education Project
Now, the attorney for this statewide group claims the Cypress Council is breaking the very law they are using to meet in secret sessions.
The letter, written to Mayor Paulo Morales with copies to the Council and legal counsel, details specific actions which Cal Aware claims are “in violation of the Ralph M. Brown Act, Government Code section 54950, et seq. (“Brown Act”). Such discussions and action must take place in open sessions to ensure that the public has a meaningful opportunity to participate in the decision-making process.”
In short, the statewide group, and supportive citizens, believe the Cypress Council has been in violation of the public transparency laws (Brown Act) by holding all of its discussions in nonpublic executive sessions.
To ensure compliance with the Brown Act, “[a]ll meetings of the legislative body of a local agency shall be open and public, and all persons shall be permitted to attend any meeting of the legislative body of a local agency, except as otherwise provided in this chapter.”
After multiple legal citations, the letter says “with few exceptions, the Ralph M. Brown Act obligates government agencies to meet and act in public,” the attorney’s letter contends.
Further, while “The Brown Act” does allow bodies to hold closed sessions, it does so only in limited, statutorily specified situations, and only after complying with notice requirements.
The law provides that a legislative body may hold “a closed session to confer with, or receive advice from, its legal counsel regarding pending litigation.”
In addition, CalAware claims the city incorrectly uses terms to esplain topics discussed in closed session. “Litigation is considered pending only when “[l]itigation, to which the local agency is a party, has been initiated formally,” “[a] point has been reached where, in the opinion of the legislative body of the local agency on the advice of its legal counsel, based on existing facts and circumstances, there is a significant expsure to litigation against the local agency,” “based on existing facts and circumstances, the legislative body of the local agency is meeting only to decide whether a closed session is authorized due to such significant exposure,” and “based on existing facts and circumstances the legislative body of the local agency has decided to initiate or is deciding whether to initiate litigation.”
In a specific reference, the group said the city should not have used that generic moniker for a closed session item. “Here, litigation had not been initiated and City Council had neither decided nor was deciding whether to initiate litigation. Nor was City Council’s discussion limited to whether a closed session was warranted at a later date due to a significant exposure to litigation,” the group claimed. “City Council incorrectly relied on the definition of pending litigation requiring that, based on existing facts and circumstances, there is significant exposure to litigation against the local agency.” But the mere possibility that a body’s action might be challenged in court is not a sufficient threat,” it said.
“CalAware hereby demands that pursuant to law that the City Council “cure and correct its illegal actions by rescinding any action taken (meaning any “collective decision made by a majority of the members of a legislative body.”
Further, the organiztion is asking for a “collective commitment” or promise by a majority of the members of a legislative body to actually vote with regard to City Council elections.
Additionally, CalAware is demanding the City Council “must agree to refrain from similar violations in the future.”
“The City Council must notify this office of its decision to cure and correct as described, or of its refusal to do so, within 30 days. If the Board fails or refuses to cure and correct or respond as demanded, CalAware intends to seek judicial invalidation of the challenged actions pursuant as well as other relief.”
In addition, CalAware made a public records request of all of the Council’s communications, documents and related communication issues.
At Monday’s meeting, the Cypress Council discussed the demand letter in closed session. The city’s legal counsel, Fred Galante, said the CalAware letter would be available to anyone who requested it by contacting the city clerk.
Galante also announced the Council voted 3-1 in closed session on a motion by Council member Jon Peat to reject the CalAware assertions and demand. Council member Frances Marquez was the lone vote against the motion, he said, and a response will be drafted by the next meeting.
