Portola Valley reluctantly settles lawsuit alleging Brown Act violations

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.”