Closed session under question

Lolita Harper

A closed session City Council meeting last month in which legal

department troubles were first discussed was deemed illegal in a

written opinion from the city attorney’s office, city officials

announced Wednesday morning.

An opinion written last month by Assistant City Atty. Tom Wood

concluded that the Sept. 9 meeting -- during which council members

ordered an audit of the city attorney’s office, halted all city

business with an outside firm, placed the city’s top two legal

officials on paid administrative leave and created a subcommittee to

further review their performance -- was unlawful because it violated

state open meeting requirements, said Steve Hayman, the city’s

director of administrative services.

Hayman said council members met Sept. 9 alone -- without legal

counsel -- for a routine performance evaluation of the city attorney

and city manager. Council members voted unanimously to place Wood and

Jerry Scheer on leave, but according to city regulations, the

assistant city attorney is a classified employee who is reviewed by

the city manager and not under the jurisdiction of the City Council.

Hayman said Wednesday morning that the legal opinion was dated

Sept. 16 -- the very day Wood was reinstated.

Wood said Wednesday that he was unaware of Hayman’s announcement,

but confirmed he wrote an opinion regarding the Sept. 9 meeting. He

said his professional legal opinion was not meant for the public and

declined to comment about it.

Officials reported Wood’s opinion in connection with a closed

session City Council meeting held Wednesday morning to discuss a

possible lawsuit from Scheer stemming from last month’s meeting.

Wednesday morning’s closed door session included council members --

except Councilman Chris Steel, who was absent -- Hayman, Personnel

Manager Howard Perkins and outside legal counsel.

Council members continued their silence on the subject and

declined to comment.

L.A. attorney Peter Brown, who was hired to counsel the city on

its legal department quandary, said Wood’s opinion contends that the

private meeting was unlawful because proper notice was not given.

Brown was hired by the city after the allegedly illegal meeting.

Wood’s opinion argues that the Sept. 9 closed session, which city

officials claim was to conduct a general performance evaluation of

the city attorney and city manager, was in fact a meeting regarding

charges against the attorney and therefore required 24-hour notice to

Scheer, Brown said.

According to the Ralph M. Brown Act -- the state law that governs

public meetings -- notice is not required for routine performance

evaluations that are truly a neutral review of all aspects of

working, said Terry Francke, general counsel for the 1st Amendment

Coalition, a media watchdog group that monitors restrictions on

public information.

If it is an accusatory session that addresses specific complaints

or allegations and could lead to discipline, the employee is entitled

to a specific written notice and then has the right to demand an open

meeting, Francke said.

Hayman declined comment Wednesday, but had previously insisted

that paid administrative leave was not considered a disciplinary

action and was “fairly routine.” He said there were no allegations of

wrongdoing.

Petersen alleged Brown Act violations during the public comment

portion of a related special City Council meeting Sept. 30. Peterson

said the “review” had evolved into an investigation of alleged

wrongdoing and as a result, Scheer was entitled to be notified of

each and every meeting on the matter so he could exercise his right

to request an open session.

Peterson promised legal action if the council proceeded to what he

claimed was its third illicit closed session.

“You’ve made some serious mistakes,” Petersen told the council

nearly a month ago. “Gotcha! You stepped right into this one. I ask

that you abandon this endeavor and ask you to adjourn and do this

right.”

Council members ignored his threats and proceeded with the private

portion of the meeting, during which they voted 3 to 2 to reinstate

Scheer. Councilman Gary Monahan and Councilwoman Karen Robinson

dissented.

If the Sept. 9 closed session is challenged and subsequently found

to be illegal, state law says that all actions stemming from that

meeting will be void, Peter Brown said Wednesday. No legal challenges

have been received to date, he added.

Although the council has rescinded both paid administrative

leaves, the city still anticipates a lawsuit from Petersen, who has

said Scheer was “stigmatized” by the actions.

Since being reinstated, Scheer has missed two City Council

meetings and has worked only part time from behind closed doors,

sources close to City Hall said.

Scheer was out of the office Wednesday and could not be reached

for comment.

Petersen could not be reached for comment Wednesday about plans to

sue the city, either.

Council members held another special closed-door session to

“consider the dismissal of a city employee” on Oct. 16. City

officials refused to confirm or deny that Scheer was the subject of

that meeting, but documents obtained by the Daily Pilot showed

otherwise.

A letter dated Oct. 17, which was addressed to Petersen and signed

by Brown, states plainly that Scheer was the subject.

“As you know, on the evening of Oct. 16, 2002, the City Council of

the city of Costa Mesa met pursuant to closed session entitled

‘public employee release,’” the letter reads. “As you are aware, the

subject matter of the meeting was to discuss your client, Mr. Jerry

Scheer, the city attorney.”

In the letter, Scheer was given an ultimatum: return to work full

time or submit a settlement offer and resign.

Petersen confirmed he got the letter but declined to comment

further.

* LOLITA HARPER covers Costa Mesa. She may be reached at (949)

574-4275 or by e-mail at [email protected].