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Portola Valley reluctantly settles lawsuit alleging Brown Act violations

Town Council members denounce legal action, say it amounts to bullying at taxpayers' expense

The town of Portola Valley has settled a Brown Act lawsuit with new rules prohibiting private council and committee communications during meetings. Almanac file photo.

The Portola Valley Town Council approved a settlement Monday to resolve a lawsuit against the town claiming its committee members violated the Brown Act, calling the decision an unfortunate but necessary move to stave off expensive litigation.

At issue are multiple messages between committee members and town staff sent during a public meeting.

The council voted 4-0 on Aug. 1 to approve the settlement agreement, with council member Jeff Aalfs absent. Under the agreement, the town had to adopt new rules governing how Portola Valley runs public meetings, with members of the council and all town committees now prohibited from texting or emailing one another during public meetings.

Town officials maintain that there was no violation of the Brown Act, California's open meeting law, but said the policy is a compromise that will prevent a long, drawn-out legal battle.

Town council members said the lawsuit was a waste of taxpayer money -- the town is on the hook for $15,000 in plaintiffs' legal fees on top of $25,000 to defend the claim -- and lamented that the community's history of collegiality in solving problems has been waylaid by a small group of people engaging in political harassment.

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"If we want to continue to be a volunteer-run community, we need to be able to communication and collaborate with one another directly, not through attorneys and lawsuits," said Council member Sarah Wernikoff at the Aug. 1 meeting. "I feel this lawsuit has been an unprecedented disruption to the culture of our community and an absolute waste of taxpayer's time and resources."

The lawsuit, filed in June by eight Portola Valley residents, alleges that members of the town's Wildfire Protection Committee had engaged in secret communications, specifically text messages to one another, during a meeting on March 1. The exchanges were revealed during the virtual meeting when one of the committee members did a screenshare. The messages themselves involved a committee member asking another to make a motion, a committee member asking the town manager a question, and a personal comment venting about a fellow committee member, according to a town staff report.

The committee is responsible for overseeing Portola Valley's policies for preparing for wildfires, which includes the town's home hardening ordinance and identifying funds needed to pay for wildfire preparedness. The committee's work overlaps with hot-button housing issues as towns across the Midpeninsula are required to zone for additional growth.

Over time, the committee has suffered a string of resignations and struggled to fill vacancies, getting to the point where it could no longer reach a quorum.

Town Attorney Cara Silver said her office concluded that there was no Brown Act violation, as the state's open meeting law does not prohibit council and committee members from texting to one another on an individual basis. Legislative bodies only run afoul with the Brown Act if a quorum of its members communicate via text or email, either directly or serially. Texting between committee members and staff is permitted under the law.

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But faced with the lawsuit, Silver said the town has to be pragmatic and act in the public interest. While Portola Valley could fight the legal challenge -- a battle that could cost an estimated $200,000 and would drag staff and volunteer committee members into the dispute -- it would be better to settle, pay the necessary legal fees and adopt the new policy prohibiting texting between council and committee members. Silver said such a policy goes above and beyond the Brown Act, and could be seen as a best practice as meetings are increasingly conducted online instead of in-person.

"When you enter into a settlement under the Brown Act, they typically come down to just a cost-benefit analysis," Silver said. "And the question is, is it worth spending taxpayer dollars on unnecessary litigation when everyone agrees on the substance of a local policy."

The history of the lawsuit is marked by poor communication and signs that the plaintiffs were uncooperative. Town staffers told the council on Monday that they had contacted the plaintiffs' attorney Lawrence A. Jacobson, of Cohen and Jacobson LLP, in early April to work toward a resolution and avoid a lawsuit. The town drafted a settlement document, known as an unconditional commitment, and sent it to Jacobson for review on April 26, followed by a month without a response, according to the town.

When Jacobson responded with alternative terms of the agreement on May 25, the town set a closed-session date for the council to meet and discuss the revised proposal on June 8. Prior to the meeting and without warning, the plaintiffs' attorney filed a lawsuit on June 2.

The suit was filed on behalf of eight residents: Rusty Day, Kristin Day, Ron Eastman, Bruce Roberts, Shirley Roberts, James Rooney, Jim Vernazza and Ellen Vernazza.

One resident at the Aug. 1 meeting, Bob Turcott, said he applauded the ban on "secret communications" and the residents who pursued the legal action, and that deliberations in public meetings must take place publicly under the Brown Act. "The residents of Portola Valley owe the plaintiffs a debt of gratitude," he said.

But for all four council members at the meeting, it was a reluctant and frustrating vote in favor of the settlement. Council member John Richards said he could see how what took place in the committee may have the appearance of impropriety, it was clearly not a Brown Act violation. He said he was fine with a policy that restricts text and email communications between council and committee members during meetings, but was "disgusted" by the way it came about.

"It makes sense to make sure that such appearances (of impropriety) don't occur regularly, and I'm confident, though, that we would've reached this point without going through this nonsense of the lawsuit and the unnecessary expenditure of public funds, our tax dollars," he said.

Wernikoff, who was at the center of the text-messaging controversy, said none of the exchanges amounted to a Brown Act violation and would have never even been relayed via text if it was an in-person meeting. She said the suggestion that something unethical was going on is "ridiculous."

"The lawsuit has been frustrating, divisive and frivolous, and I worry about its longer-term impact in how it can discourage good people from stepping up to volunteer and get involved at all levels going forward," she said.

Council member Maryann Derwin said she sees the settlement as the town cutting its losses, and that it's "very sad" that Portola Valley has been forced to adopt a policy that is going to make things more difficult for its committee members.

Mayor Craig Hughes said he believes the lawsuit amounts to deliberate political harassment of town volunteers who had invested numerous hours serving, and that the residents behind the lawsuit avoided the easy solution in order to bully the town and threaten it with huge expenses -- all for a policy that, as written, still has some serious flaws. The settlement agreement prohibits council and committee members from texting or emailing "third-party consultants" during a Brown Act meeting, which Town Attorney Silver interpreted to mean consultants hired by the city.

What's more, Hughes said that Jacobson specializes in corporate bankruptcy law and doesn't appear to understand the basic tenets of the Brown Act -- specifically, he didn't know that public noticing is required before special council meetings can be held.

The group of residents behind the lawsuit has a significant overlap with the membership of a recently formed political action group aimed at ousting council incumbents and taking a harder stance against housing growth, Hughes said, and it's this group that has now cost the taxpayers close to $50,000 on top of inordinate amounts of staff time and attention.

"Filing lawsuits to bully each other into doing what a small minority of people want is not how we do things," he said. "We do things by discussion, we do it by consensus and we do it by all agreeing on how to proceed. And this is the complete opposite of that, and it really upsets me."

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Kevin Forestieri
Kevin Forestieri is an assistant editor with the Mountain View Voice and The Almanac. He joined the Voice in 2014 and has reported on schools, housing, crime and health. Read more >>

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Portola Valley reluctantly settles lawsuit alleging Brown Act violations

Town Council members denounce legal action, say it amounts to bullying at taxpayers' expense

by / Almanac

Uploaded: Wed, Aug 3, 2022, 11:36 am

The Portola Valley Town Council approved a settlement Monday to resolve a lawsuit against the town claiming its committee members violated the Brown Act, calling the decision an unfortunate but necessary move to stave off expensive litigation.

At issue are multiple messages between committee members and town staff sent during a public meeting.

The council voted 4-0 on Aug. 1 to approve the settlement agreement, with council member Jeff Aalfs absent. Under the agreement, the town had to adopt new rules governing how Portola Valley runs public meetings, with members of the council and all town committees now prohibited from texting or emailing one another during public meetings.

Town officials maintain that there was no violation of the Brown Act, California's open meeting law, but said the policy is a compromise that will prevent a long, drawn-out legal battle.

Town council members said the lawsuit was a waste of taxpayer money -- the town is on the hook for $15,000 in plaintiffs' legal fees on top of $25,000 to defend the claim -- and lamented that the community's history of collegiality in solving problems has been waylaid by a small group of people engaging in political harassment.

"If we want to continue to be a volunteer-run community, we need to be able to communication and collaborate with one another directly, not through attorneys and lawsuits," said Council member Sarah Wernikoff at the Aug. 1 meeting. "I feel this lawsuit has been an unprecedented disruption to the culture of our community and an absolute waste of taxpayer's time and resources."

The lawsuit, filed in June by eight Portola Valley residents, alleges that members of the town's Wildfire Protection Committee had engaged in secret communications, specifically text messages to one another, during a meeting on March 1. The exchanges were revealed during the virtual meeting when one of the committee members did a screenshare. The messages themselves involved a committee member asking another to make a motion, a committee member asking the town manager a question, and a personal comment venting about a fellow committee member, according to a town staff report.

The committee is responsible for overseeing Portola Valley's policies for preparing for wildfires, which includes the town's home hardening ordinance and identifying funds needed to pay for wildfire preparedness. The committee's work overlaps with hot-button housing issues as towns across the Midpeninsula are required to zone for additional growth.

Over time, the committee has suffered a string of resignations and struggled to fill vacancies, getting to the point where it could no longer reach a quorum.

Town Attorney Cara Silver said her office concluded that there was no Brown Act violation, as the state's open meeting law does not prohibit council and committee members from texting to one another on an individual basis. Legislative bodies only run afoul with the Brown Act if a quorum of its members communicate via text or email, either directly or serially. Texting between committee members and staff is permitted under the law.

But faced with the lawsuit, Silver said the town has to be pragmatic and act in the public interest. While Portola Valley could fight the legal challenge -- a battle that could cost an estimated $200,000 and would drag staff and volunteer committee members into the dispute -- it would be better to settle, pay the necessary legal fees and adopt the new policy prohibiting texting between council and committee members. Silver said such a policy goes above and beyond the Brown Act, and could be seen as a best practice as meetings are increasingly conducted online instead of in-person.

"When you enter into a settlement under the Brown Act, they typically come down to just a cost-benefit analysis," Silver said. "And the question is, is it worth spending taxpayer dollars on unnecessary litigation when everyone agrees on the substance of a local policy."

The history of the lawsuit is marked by poor communication and signs that the plaintiffs were uncooperative. Town staffers told the council on Monday that they had contacted the plaintiffs' attorney Lawrence A. Jacobson, of Cohen and Jacobson LLP, in early April to work toward a resolution and avoid a lawsuit. The town drafted a settlement document, known as an unconditional commitment, and sent it to Jacobson for review on April 26, followed by a month without a response, according to the town.

When Jacobson responded with alternative terms of the agreement on May 25, the town set a closed-session date for the council to meet and discuss the revised proposal on June 8. Prior to the meeting and without warning, the plaintiffs' attorney filed a lawsuit on June 2.

The suit was filed on behalf of eight residents: Rusty Day, Kristin Day, Ron Eastman, Bruce Roberts, Shirley Roberts, James Rooney, Jim Vernazza and Ellen Vernazza.

One resident at the Aug. 1 meeting, Bob Turcott, said he applauded the ban on "secret communications" and the residents who pursued the legal action, and that deliberations in public meetings must take place publicly under the Brown Act. "The residents of Portola Valley owe the plaintiffs a debt of gratitude," he said.

But for all four council members at the meeting, it was a reluctant and frustrating vote in favor of the settlement. Council member John Richards said he could see how what took place in the committee may have the appearance of impropriety, it was clearly not a Brown Act violation. He said he was fine with a policy that restricts text and email communications between council and committee members during meetings, but was "disgusted" by the way it came about.

"It makes sense to make sure that such appearances (of impropriety) don't occur regularly, and I'm confident, though, that we would've reached this point without going through this nonsense of the lawsuit and the unnecessary expenditure of public funds, our tax dollars," he said.

Wernikoff, who was at the center of the text-messaging controversy, said none of the exchanges amounted to a Brown Act violation and would have never even been relayed via text if it was an in-person meeting. She said the suggestion that something unethical was going on is "ridiculous."

"The lawsuit has been frustrating, divisive and frivolous, and I worry about its longer-term impact in how it can discourage good people from stepping up to volunteer and get involved at all levels going forward," she said.

Council member Maryann Derwin said she sees the settlement as the town cutting its losses, and that it's "very sad" that Portola Valley has been forced to adopt a policy that is going to make things more difficult for its committee members.

Mayor Craig Hughes said he believes the lawsuit amounts to deliberate political harassment of town volunteers who had invested numerous hours serving, and that the residents behind the lawsuit avoided the easy solution in order to bully the town and threaten it with huge expenses -- all for a policy that, as written, still has some serious flaws. The settlement agreement prohibits council and committee members from texting or emailing "third-party consultants" during a Brown Act meeting, which Town Attorney Silver interpreted to mean consultants hired by the city.

What's more, Hughes said that Jacobson specializes in corporate bankruptcy law and doesn't appear to understand the basic tenets of the Brown Act -- specifically, he didn't know that public noticing is required before special council meetings can be held.

The group of residents behind the lawsuit has a significant overlap with the membership of a recently formed political action group aimed at ousting council incumbents and taking a harder stance against housing growth, Hughes said, and it's this group that has now cost the taxpayers close to $50,000 on top of inordinate amounts of staff time and attention.

"Filing lawsuits to bully each other into doing what a small minority of people want is not how we do things," he said. "We do things by discussion, we do it by consensus and we do it by all agreeing on how to proceed. And this is the complete opposite of that, and it really upsets me."

Comments

Jimboreno
Registered user
Portola Valley: other
on Aug 3, 2022 at 12:38 pm
Jimboreno, Portola Valley: other
Registered user
on Aug 3, 2022 at 12:38 pm

I doubt that naysayers of the proposed demolition of Ford Field in favor of a dense "affordable housing" project be considered an insignificant portion of the community--I would it's more like a majority.


stevlevin
Registered user
Portola Valley: Portola Valley Ranch
on Aug 3, 2022 at 1:18 pm
stevlevin, Portola Valley: Portola Valley Ranch
Registered user
on Aug 3, 2022 at 1:18 pm

This is a sad moment. Collegiality is a precious resource, and the harassment of our volunteer leaders by a small group of residents is a real setback. I can only imagine that this legal action reflects a strong polarization that has arisen between the residents and the Town Council regarding housing and growth, and it makes me especially alert and cautious regarding the new PAC that aims to unseat the current slate of leaders. I do not have personal relationships with any of the Town Council members, but I have the deepest respect and appreciation for their service. I hope we will collectively let them know that they have our full support.

Steve Levin


Bob Turcott
Registered user
Portola Valley: Central Portola Valley
on Aug 3, 2022 at 5:06 pm
Bob Turcott, Portola Valley: Central Portola Valley
Registered user
on Aug 3, 2022 at 5:06 pm

(1 of 2)

According to Mayor Hughes, the lawsuit was meritless and is simply a manifestation of bullying by a small group of selfish residents.

But is it possible that the suit reflects a deeper pathology in Portola Valley? One that is rooted not in an alleged sociopathy of its residents, but rather in a dysfunction of its government?

I’m personally aware of 5 different attorneys who have been retained by residents for issues related to town governance. I know of multiple independent clusters of residents who are alarmed by changes in the way the town is governed. I know of multiple residents who have reached out to Council members but had their concerns trivialized or worse.

Instead of blaming residents, the Mayor could immediately form a committee of neutral, respected members of the community to interview the plaintiffs and others in order to compile a list of suggested changes to process that would mitigate resident concerns and reverse the trend toward litigation.

The article quoted a portion of my comments at the TC meeting. For those that are curious my full comments follow:

"I applaud the Town Council for adopting this reasonable policy of prohibiting secret communication among committee members about an item under deliberation during a public meeting.

The demoralizing effect of such secret communication is obvious, and was documented by one resident in a poignant resignation letter, in which he described his great disappointment when he learned that colleagues on a committee were secretly maneuvering during the meeting for an outcome that was contrary to what he, in good faith, had been advocating publicly.
...
(continues)


Bob Turcott
Registered user
Portola Valley: Central Portola Valley
on Aug 3, 2022 at 5:07 pm
Bob Turcott, Portola Valley: Central Portola Valley
Registered user
on Aug 3, 2022 at 5:07 pm

(2 of 2)

I especially want to applaud the residents who pursued this. Who at significant personal expense risked their reputations and standing in the community in order to insist that our town conduct its business legally.

That takes a lot of courage, and the residents of Portola Valley owe the plaintiffs a debt of gratitude.

It’s unfortunate that the policy prohibiting secret communication was not adopted at the beginning of this process. It would have saved a lot of time and expense.

But we can have some faith restored that deliberations in public meetings will take place publicly, as the Brown Act requires.

And we can also be encouraged that residents will insist on compliance with state law, even if that means resolving differences of opinion in the courts."

For the record, after I spoke Mayor Hughes indicated that the Town had offered the settlement at the beginning of the process.


PV Resident/ex volunteer
Registered user
Portola Valley: other
on Aug 3, 2022 at 5:55 pm
PV Resident/ex volunteer, Portola Valley: other
Registered user
on Aug 3, 2022 at 5:55 pm

So sick and tired of certain residents in Portola Valley bullying neighbors and volunteers into submission with their conspiracy theories and misinterpreted information ad infinitum. Shouting louder or more often than others, does not make you right - Civility 101. Grateful that PV Forum allows users to block PVNU/PAC members et al, so we don't need to read their lies or witness their inability to read, think and then ask a question. The plaintiffs in this case deserve no thanks or praise, but I hope they are ready to PAY people to 'volunteer' in this town, when all the volunteers who were prepared to listen/be fair/consider the views of others have resigned their positions and left the bullies to simmer in their own vitriolic juices and spite. Disgusted that eight people did this to the Town, and that even though no malfeasance was found, the Town had to settle to prevent tax payers paying out even more in legal fees. 'Gratitude' is the last word I would use to convey my thoughts on this group of plaintiffs. I think they should be ashamed of themselves.


Brian
Registered user
Menlo Park: The Willows
on Aug 3, 2022 at 8:53 pm
Brian, Menlo Park: The Willows
Registered user
on Aug 3, 2022 at 8:53 pm

The Brown Act is pretty simple and if Portola Valley is like Menlo Park all members of City Committees and Commissions go through some form of Brown Act training, even the volunteers. Having a "Back Channel" communications that incused a majority of the committee or commission is a pretty clear violation. If one or two (or more depending on the size of the committee/commission) talk about topics in private that is OK (called Brown Act buddies) but a quorum is a violation. So if this chat was seen by the majority of the commission/Council it seems to me that it is a clear violation. Having volunteers for city committees and commissions is great, but they are also bound by the laws of California.


Craig Hughes
Registered user
Portola Valley: Woodside Highlands
on Aug 4, 2022 at 5:25 pm
Craig Hughes, Portola Valley: Woodside Highlands
Registered user
on Aug 4, 2022 at 5:25 pm

@Brian - there was no allegation that a quorum was involved in any conversation, nor indeed any evidence of such communications. The allegation was that ANY communication by text or email involving committee members during a meeting is a violation of the Brown Act - that no quorum need be involved.


Brian
Registered user
Menlo Park: The Willows
on Aug 6, 2022 at 12:13 pm
Brian, Menlo Park: The Willows
Registered user
on Aug 6, 2022 at 12:13 pm

Craig,

I was not there and based my comments off the article above. I believe the evidence of the discussion was the screen shared by the committee member what showed the chat. Since there is not image of the chat in the article it is impossible to say if it included a quorum or not. It must have contained at least 2 members and a city employee. As I said above the Brown Act does allow a member to discuss committee/Commission or council information privately with another member as long as it does not constitute a majority of the committee/commission. The rules as I was informed are pretty simple and straight forward.


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