Did Modesto Council violate the law in its meeting to discipline city clerk?
Did the Modesto City Council violate the state law governing how local elected officials conduct their business when it recently disciplined its longtime city clerk?
The attorney for the city clerk and the attorney for The Modesto Bee believe the City Council did when it met Nov. 30 in a special closed session meeting to consider the discipline, dismissal or release of City Clerk Stephanie Lopez over an investigation of her emails.
Council members voted 4-3 in private to reduce Lopez’s $141,024 salary by 5 percent. Mayor Ted Brandvold announced the vote and action in open session after the council had met in private for more than an hour.
A state law known as the Brown Act governs how city councils, school boards, and other local elected bodies conduct their meetings.
Because the council was considering the discipline, dismissal or release of Lopez, she had the right under the Brown Act to have the charges and complaints against her heard in open session. The city acknowledged that in a Nov. 23 letter to Lopez.
“Since this topic could contain charges or complaints about your conduct as an employee of the City, I am notifying you in accordance with Government Code section 54957 of your right to have this matter considered in open session ... ,” Deputy City Manager Caluha Barnes wrote in the letter to Lopez.
Lopez’s attorney, Mike Dyer, notified the city that he and his client wanted the matter heard in public, though they would not be at the meeting. (Lopez was on medical leave at the time.) But that is not what the City Council did, which raised objections from Dyer and Karl Olson, The Bee’s attorney.
“It seems to me that you have to take the city’s letter to the city clerk, saying that they were going to hear complaints or charges and the clerk had a right to an open session, at face value,” Olson said in an email.
“That means they were obligated to hear whatever complaints or charges gave rise to the pay cut in the open, whether or not the city clerk and her attorney showed up, after they demanded an open session,” Olson continued. “They skipped that open session step and went directly into closed session, which I think is a violation of the Brown Act.”
Modesto ‘ignored our request’
Dyer said in text messages that the city “ignored our request without explanation,” and the city’s action “is a clear violation of the Brown Act for which we intend to hold them responsible.”
Lopez, who is on medical leave, and her attorney can ask the City Council to “cure and correct” the violation by redoing the meeting in accordance with the Brown Act. Lopez and her attorney can seek court action if the council refuses to do that.
City spokesman Thomas Reeves in an email said Modesto’s position is that it did not violate the Brown Act because Lopez and her attorney did not attend the meeting. But there is nothing in the Brown Act that requires that, and The Bee’s attorney said it is not required. The city’s letter to Lopez did not state she had to attend the meeting to have the matter conducted in public.
“The city met the requirements of the Brown Act,” Reeves said in his email. “The city clerk asked for the matter to be heard in open session but then neither she nor her attorney appeared to discuss the matter. Thereafter, the City Council, in full compliance with the Brown Act, properly went into closed session to deliberate.”
It was not a violation for council members to deliberate in private regarding the potential discipline, dismissal or release of Lopez.
But Dyer contends the City Council should not have met because the special meeting violated the city charter, which states the council cannot consider dismissing a charter officer, which includes the city clerk, in the 90 days after a council election. Three new council members were elected Nov. 3 and were sworn into office Dec. 1, the day after the special meeting.
Modesto has said it was reviewing when the 90 days starts, and that is no longer an issue because the council did not dismiss the city clerk, though the meeting agenda listed it as a potential action.
This story was originally published December 8, 2020 at 6:34 AM.
