No Transparency Rules Violated with Blair Park Agreements, City Attorney Says
Tom Curry says City Council's actions were in keeping with Brown Act requirements.
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Although they had been signed weeks earlier, two agreements related to the proposed development of Blair Park were released by the city only last month. The disclosure prompted the Piedmont Civic Association to ask how the agreements could have been made without a public hearing or city council vote, or even notice of a closed session discussion in an itemized agenda.
City Attorney Tom Curry says the answer is simple: both agreements have to do with anticipated litigation.
While the council is required to specify an existing lawsuit being discussed in closed session, that Brown Act rule doesn't apply to litigation that has yet to be filed.
Opponents of the proposed sports field have repeatedly submitted comments in writing and at public forums threatening to sue should the development of Blair Park be approved. Friends of Moraga Canyon has even sought legal advice and solicited donations to support potential legal action.
"There have consistently been a number of threats made," Curry said. "I take these threats—as does the council, as does Geoff [Grote, City Administrator]—very seriously."
Discussion of potential litigation was listed on the council's closed session agenda for half a dozen meetings between March 21, when the council held its last public hearing on the proposed development of Blair Park, and Sept. 19, by which time both agreements had been signed.
On July 25, City Administrator Geoff Grote, acting as the city's representative, signed a retainer agreement with Craigie, McCarthy & Clow, LLP for help in the preparation and review of additional study of the final plans for the project with respect to the requirements of the California Environment Quality Act. On Aug. 12 Grote signed a reimbursement and indemnification agreement with the Piedmont Recreational Facilities Organization (PRFO) in which the backers of the development promise to foot the legal bill for the city's defense and cover any damages should such lawsuits be filed.
Had the council finalized the retainer and reimbursement and idemnification agreements in a closed session, under Brown Act rules the council would have had to reconvene in open session to report those actions and provide copies to anyone requesting the documents within 24 hours. But instead the council directed Grote to sign the agreements later, once the other parties involved had done so, Curry explained.
The council's closed session discussions of those agreements, according to Curry, also dealt with what the strengths and weaknesses of the city's position would be in potential lawsuits and what kind of settlements the city would be willing to make.
"That's something that clearly goes to the heart of the city's interests," Curry said.
Though he hadn't considered whether detailing in a meeting agenda what anticipated litigation was being discussed could have compromised the city's position, Curry said that airing the discussions publicly certainly would have put the city at a disadvantage.
"I am satisfied that we have done things consistent with what the [Brown] act requires," he said.
Do you think the city should have been more transparent about the discussions of the agreements relating to the proposed development of Blair Park? Take the poll.
Susan D. Martin
4:06 pm on Monday, October 24, 2011
"Potential legal action"? People whose homes are on the clifftop above Blair Park are understandably concerned about damage to said homes--and when (not if, in my opinion) this damage occurs, you bet your bippy they're going to sue, especially after being repeatedly assured that there is no risk associated with the sports field construction. Not to mention the very real possibility of a child (or adult) being hit by a car on Moraga Avenue. The proponents of the sports field don't like the "negative feelings of potential lawsuits clouding this project"--well, get real, people. To ignore all the possible contingencies, stick your heads in the sand and hope that everything will work out just fine is unrealistic.
Rick Schiller
5:55 pm on Monday, October 24, 2011
The issue is not about the work of the PRFO attorneys, that is protected by attorney/work product privilege when litigation is likely. The issue is one of the culture of silence from City Administrator Grote concerning the PRFO Blair Park proposal. Mr. Grote may legally negotiate and sign these agreements, but considering the divisive nature of Blair Park an open process that did not eliminate public input would have been in harmony with the sunshine intent of the Brown Act. Residents learned of these documents weeks after the fact. This continues the City's opaque process, including residents filing Public Records Requests just to see the plans.
Mr. Curry is indeed correct, litigation looks probable and appears to be the result of the disturbing manner in which the City has allowed PRFO to drive the project. The City of Oakland stated on 12/6/10: "In conclusion, the FEIR wholly fails to meet with CEQA's requirements." The FOMC attorney letter and traffic report can be read at: http://www.moragacanyon.org/ An equitable and legal process would preclude any lawsuit possibility. No reasonable, sane person litigates knowing the cost, stress and risks involved. If CEQA was adhered to there would be little chance of prevailing in court, and therefore no one would take legal action. Not so here.
I do not understand why City Attorney Curry signed the PRFO legal agreements "approved as to form," when the usual City Attorney signature approves both form and legality.
Ryan Gilbert
8:33 pm on Monday, October 24, 2011
Regardless of where one stands on the question of Blair Park, Piedmonters should be very concerned that the City Council and Staff continue to cut private deal with private parties behind closed doors. This sets a bad precedent for future controversies in Piedmont - the Council will likely block out any sunshine and disclosure on the basis of "threatened" litigation, a very different standard than "pending" litigation.
The Council could just as easily have discussed the items in "closed session" and then presented the contracts on the public agenda, accepted public comment, and voted in public. Instead we have no idea how each Council member voted on one of the most important items of the current term.
Did Council and Staff not learn anything from their recent Undergrounding misadventures?
With two tax measures due to come before voters next year (the Sewer Tax in February and a Parcel Tax later in 2012) shouldn't the Council be trying to show us all that they are running a clean, open and transparent government?
Rick Schiller
10:13 am on Tuesday, October 25, 2011
Ryan makes a good point about manipulation of future issues.
With the Blair Park Proposal the many residents who may be grossly affected have been left with no choice but to seek legal assistance. Because the City has let PRFO drive the process, litigation has become a strategic weapon of the PRFO. Rather then practicing a fully transparent process, Piedmont has used the Brown Act as a shield to mask closed door activities.
Concerning staff, Council evidently learned nothing from the recent Undergrounding Debacle and does not wish to. With the exception of Mr. Keating, Council has openly ignored troubling direct information.