She came in fighting, and she's going out fighting. Kathy McKeithen, whose three-term tenure as an Atherton City Council member ends next month, is challenging the new town manager's decision to put a "confidential" stamp on a weekly report to the council that he has initiated since arriving in Town Hall in October.
Ms. McKeithen and City Manager George Rodericks exchanged a series of emails earlier this month about the nature of the weekly report, which the councilwoman had requested be sent to her automatically after her term ends. In response to her request, Mr. Rodericks said that the document, which he calls a "status report," is not a public record.
"Its content is intended to contribute to the reaching of an administrative or executive determination as part of the deliberative process and it is 'pre-decisional' in nature," Mr. Rodericks wrote. "... The report is a mechanism to allow the city manager to converse with individual members of the council to explore alternatives and provide tentative suggestions for action without fear of reproach upon subsequent disclosure of a thought process."
When Ms. McKeithen argued that the reports issued thus far have had "few, if any parts I would view as deliberative or pre-decisional," the town manager noted that as he gets "up to speed" on issues, the reports are likely to contain discussion of personnel matters, which are illegal to disclose, and other sensitive matters.
Dissatisfied with Mr. Roderick's arguments, Ms. McKeithen's asked, "Why are you already creating impediments to the public's knowledge concerning what is going on in the town when we hired you to do just the opposite?"
Ms. Keithen, whose platform during her first run for council included reforming town management and creating greater government transparency, told the Almanac that during her 12 years on the council, city managers' weekly reports have never been considered confidential. The city manager's confidentiality policy regarding the report, she added, "does not bode well" for transparency in government.
But part of the conflict appears to stem from the nature of the report Mr. Rodericks is restricting: Rather than the type of report past city managers issued and made public via an email list and other strategies, the "status report" is a new form of communication with the council, Mr. Rodericks said.
The report will take the place of one-on-one conversations with council members that "I guarantee you took place" with former city managers in Atherton and virtually all other cities -- discussions that don't violate the law as long as strict rules are followed.
Those rules, as outlined in the state's open meeting law, known as the Brown Act, prohibit discussions between individual council members, or a council member and the city manager, for the purpose of determining the council member's position on an issue and then trying to form a consensus by relaying that position to other council members.
That is not what Mr. Rodericks intends to do, he stated firmly, adding that he is a strong proponent of the Brown Act and has no intention of undermining it. His status report is a way to communicate important information to council members on an ongoing basis, including pending employee disciplinary actions that must legally be kept confidential, he said. "Some information is important to the council, and the minute I know about it, they're going to know about it.
"You can't keep things like (key personnel matters) from your governing body. ... And my rule is if I tell one council member, I tell all five," he said, adding that he won't favor certain members or "play politics."
The report also can be thought of as "a conversation I'm having with myself," but allowing council members to be aware of his thinking -- a strategy that could lead to helpful feedback when he's on the wrong track.
Mr. Rodericks said that eventually he'll issue weekly city manager reports like the documents that had been written in the past for public consumption, posting them on the town's website.
Council members McKeithen and Jim Dobbie said one danger of the city manager's confidential report is that it could lead to Brown Act violations by allowing council members to communicate positions back and forth in response to the emailed report. "It's almost like working behind the scenes to get a consensus, pushing at the seams of the Brown Act," Ms. McKeithen said.
But Mr. Rodericks said he is clear in his emailed reports that they should be considered one-way communications, and responses, if any, should be directed to him alone.
Mr. Dobbie said he doesn't support an emailed confidential report, noting that if information is confidential, it should be discussed in closed session. Mr. Rodericks noted, however, that some topics wouldn't qualify for closed-session discussion by the full council under the Brown Act. But if they are discussed with individual council members or in a report that clearly states it's not intended to be retained on file, no Brown Act violation occurs, he said.
Members of the public, including Ms. McKeithen after she leaves the council, can obtain a redacted copy of the status report by requesting it from the city clerk, Mr. Rodericks said.
That process doesn't satisfy Ms. McKeithen, who fought several battles during her council tenure to make documents deemed "confidential" to be made public. The need to file a public records request for the report is "not very transparent or community friendly," she wrote in her final email to Mr. Rodericks.
Mayor Bill Widmer said he spoke with Mr. Rodericks last week about the confidentiality of the report after learning of the disagreement, and suggested that a two-part report might be the solution. If the city manager wants to include confidential material, the supplemental part would be for council eyes only, he said.
Councilman Jerry Carlson said he was unaware of the disagreement over the reports, and Councilwoman Elizabeth Lewis couldn't be reached for comment.