City of Laguna Beach Ralph M. Brown Act Violation (2021)

For several months since June 29, 2021 the Laguna Beach City Council has been wrapped in controversy over whether or not they and city staff violated the Ralph M. Brown Act: https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?division=2.&chapter=9.&part=1.&lawCode=GOV&title=5.

The controversy ended with an investigation by the Orange County District Attorney’s office (DA) and the issuance of a formal letter confirming a violation and the assignment of closed session protocols as a mediation measure. The City of Laguna Beach agreed to these measures. See Orange County District Attorney’s Office and City of Laguna Beach Brown Act Documents: (Rutan & Tucker “Are we well-served” story to update R&T legal counsel concerns)

In addition to the LB City Council closed session Brown Act violation review the DA also provided a statement regarding a potential Brown Act violation by Council Member George Weiss. No confirmed violation was determined.

Council Member Weiss was formally “censured” by Council Members Mayor Bob Whalen, Mayor Pro-Ten Sue Kempf and Council Member Peter Blake for sharing a “closed session discussion” with the public prior to the DA investigation. Council Member Weiss holds that he could not have violated the Brown Act during the closed session meeting because the closed session topic under discussion was not properly noticed and therefore illegal. Council Member Weiss and several members of the public have requested that the censure be rescinded. To date there has been no acknowledgement of the public requests by Mayor Bob Whalen nor reminding action taken. (Click here for Council Member Weiss public newsletter addressing the Brown Act violation and censure)

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LB City Council meeting related agendas/videos:

JUNE 29, 2021 Closed Session: Laguna Hotel discussion/action occurred proposed as violating Brown Act.

JULY 13, 2021: Public comment by resident Mark Fudge regarding his letter to Mayor Whalen requesting specifics on the June 29th Closed Session Laguna Hotel potential litigation discussion.
https://lagunabeachcity.granicus.com/player/clip/1434?view_id=3&redirect=true

AUGUST 10, 2021: Council Agenda #12. REQUEST OF MAYOR WHALEN FOR CENSURE OF COUNCILMEMBER WEISS AND COUNCILMEMBER ISEMAN FOR UNAUTHORIZED DISCLOSURE OF CLOSED SESSION CONFIDENTIAL INFORMATION (WHALEN) https://lagunabeachcity.granicus.com/player/clip/1451?view_id=3&redirect=true

SEPTEMBER 28,2021: Council Special Meeting on potential litigation – District Attorney Letter Aledged Brown Act violation and City Response (Closed Session)
https://lagunabeachcity.granicus.com/player/clip/1481?view_id=3&redirect=true

OCTOBER 5, 2021: Multiple Closed Session and Brown Act references in minutes.
https://lagunabeachcity.granicus.com/player/clip/1497?view_id=3&redirect=true

NOVEMBER 2, 2021: Mayor Bob Whalen acknowledges the City Council Brown Act Violation and apologizes (video too long ask Stef!?) to constituents and adoption of Closed Session Meeting Protocols – Consent # 9
https://lagunabeachcity.granicus.com/player/clip/1507?view_id=3&redirect=true

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MEDIA Coverage

https://patch.com/california/lagunabeach/lb-council-accused-violating-public-access-laws-meetings

OC District Attorney Says Laguna Beach City Council Violated Brown Act

https://www.latimes.com/socal/daily-pilot/news/story/2021-09-25/district-attorney-finds-brown-act-violations-surrounding-laguna-beach-city-council-closed-session

Laguna Beach council’s closed session and leaks violated Brown Act, district attorney says

Letter: District attorney takes remedial action on Brown Act violation

https://www.theepochtimes.com/orange-county-da-alleges-laguna-beach-officials-violated-brown-act_4019805.html

https://newstral.com/en/article/en/1206612525/district-attorney-finds-brown-act-violations-surrounding-laguna-beach-city-council-closed-session

https://www.latimes.com/socal/daily-pilot/news/story/2021-10-01/laguna-beach-responds-to-district-attorneys-closed-session-review

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PUBLIC FEEDBACK – Letters to Editors/ Council Member Communications.

Opinion: Bob Whalen we thought we knew ‘ya – By Alan Boinus

Opinion: Bob Whalen we thought we knew ‘ya

Letter: A Sorry Spectacle of Local Government – Kurt Wiese

Letter: A Sorry Spectacle of Local Government

Letter: District Attorney Takes Remedial Action on Brown Act Violation – Howard Hills

Letter: District attorney takes remedial action on Brown Act violation

Letter on Councilmember Weiss Censure By Howard Hills

I have no involvement in the current Hotel Laguna developer’s renovation project or the city’s code enforcement in that case. Also, I’ve never met or spoken with Councilmember George Weiss, and did not vote for him. For me this matter is about transparency and justice in my hometown.

What can be confirmed at this time is that in response to a request by Weiss to investigate the Board’s conduct on June 29, the Orange County District Attorney has determined that from June 29 to the present, including on Aug, 10 when the Council censured Weiss, there has been more serious and actionable evidence the Council majority violated the Brown Act than there is that Weiss did so. Indeed, under the Brown Act exception to closed meeting requirements in CA Gov. Code Sec. 54963(e)(2), it is lawful for a Council member to disclose the factual and legal basis for challenging the legality and propriety of Council action purporting to lawfully close a meeting to the public.

In a letter of Sept. 21, 2021, the Special Prosecution Unit of the DA’s office rejects the finding of the Council that the closed meeting was lawfully convened. What this means is that the Agenda Item Report and hearing on Item 12 failed to provide adequate legal substantiation for the censure of Weiss.

It now appears that in defending the unlawful meeting closure of June 29 in his signed background paper in the Agenda Item Report on Aug. 10, the City Attorney intentionally and for purposes of improper undue influence on the Council misstated the factual and legal grounds for closing the June 29 meeting. It also seems clear that false narrative of that background document was known by the City Attorney and City Manager to be untrue.

It was only after Weiss outed the Council and City Hall for unlawfully closing a meeting that the narrative about the threat of a lawsuit by the developer of the Hotel Laguna project was then trafficked by City Hall insiders to the press and influencers. That attempt to bake into the record of the Aug. 10 meeting a retroactive notice of a litigation threat that was not properly and lawfully noticed for the June 29 meeting was clever to a fault. Worse has been Phil Kohn’s flip flop now telling the DA our Council was considering a lawsuit against that developer, even though not mentioned in the closed meeting.

That abuse of authority by Kohn is now imputed to the Council by the DA’s office because it ratified his actions and the assertions he made to cover up his actions on June 29 in the Agenda Item Report memo he signed for the August 10 meeting. If Mr. Kohn claimed threat of litigation was purpose for closed meeting knowing that was not stated in the closed meeting agenda notice, wouldn’t this fit the dictionary definition of “lying” to the Council and the public?

It is reasonable to conclude the members were aware meeting was closed improperly to deprive the public of its right to open meetings, which is potentially a misdemeanor under Brown Act.

The Council should rescind the censure resolution, make an official apology to both accused members, and determine if Kohn or City Manager should be fired for cause. The members of the Council may have protection from slander liability, but that does not change the nature of what was done to George Weiss, which was political slander.

Howard is a third-generation Laguna native active in City Council and School Board affairs since 1967.

Letter to Mayor Bob Whalen from MJ Abraham,LBCHAT Publisher – November 5,2021:

Dear Mayor Whalen,
Thank you for the personal “public apology” regarding the City Council’s role in violating the Ralph M. Brown Act. Respectfully, I agree with you; with your legal expertise and time served in public office, it should not have happened. And there’s no question that our City Attorney Phil Kohn shouldn’t have known better; although it’s clear from his state-of-confusion that City closed session meetings may have been illegally conducted for years. In fact, further concern was offered by Council Member Weiss in the November 2nd public meeting with the mention of another closed session meeting last January where improper discussion, behavior and action by Council Member Peter Blake related to the hiring of Shohreh Dupuis as City Manager took place with both you and Mr. Kohn present. This suggests that more instances of improper closed session protocol by officials and staff who supposedly have been trained, as boldly stated by Council member Sue Kempf, on the Brown Act and other government body responsibilities while performing their duties under the guidance of our legal counsel existed. IMO, this latest serious mishap is cause for Mr. Kohn to resign or be removed immediately and this Council should implement this action asap to begin restoring public trust.

Sadly, this stain is forever part of our City, its leadership history and your Mayoral legacy. While you cannot remove it or the public trust issues it has created, your apology was a start and now that the public knows that the Laguna Hotel project work-status was not a litigation matter and therefore not confidential nor appropriate to discuss in closed session and steps have been taken to not repeat it, I ask that you also offer a public apology to Council Member George Weiss and rescind the censure action initiated by you and Councilmembers Sue Kempf and Peter Blake based upon this meeting. Ignoring this issue won’t make it go away and it can and should be corrected.

Mayor, if you truly want to reset and try to move us in a more positive community direction – this would be a good step in that direction. Thank you for your time and consideration.

Regards,

MJ Abraham
Laguna Beach Resident and Proud Community Activist
Founder: LBCHAT

Note: No response to this request received from Mayor Bob Whalen.