Residents Against Overdevelopment
How the Beverly Hills City Attorney Deceptively
(via a Brown Act Violation)
Tried to Change City Procedure to Allow
Enactment of Legislation at Study Sessions
instead of at Formal Evening Council Meetings
when Residents Are More Likely to Tune In
For years it has been the practice to only allow formal legislative action, such as the adoption of ordinances and resolutions, to take place at the formal evening council meetings, and not at the afternoon study sessions when residents are less likely to tune in. In this manner, public participation and knowledge of important changes are encouraged and supported.
However, unknown to residents, on January 29, 2008, our city attorney deceptively orchestrated a major change of that longstanding rule which had been provided for both within our Beverly Hills Municipal Code and our City of Beverly Hills City Council Policy and Operations Manual.
He placed on the consent calendar--a calendar for routine items which do not involve opposition, council discussion, or a need for public discussion--an agenda item changing council meeting times. At least that is what the agenda indicated as you can see highlighted in yellow at the top of page 4.
Although the changing of meeting times was agreeable to all, a reading of the agenda report, which would have seemed unnecessary for just a meeting time change, disclosed that the city attorney was also having the council adopt an ordinance which removed the city's prohibition against any formal or binding action being taken on ordinances or resolutions at study sessions, and added in its place, "The study session shall be a regular meeting of the City Council for all purposes."
It was a violation of the Brown Act for such a major change to be placed on the consent calendar, and not to be described within the agenda item, thereby concealing the planned major change from residents who would be unlikely to review an agenda report simply for a meeting time change.
The agenda report also indicated that the staff intended to continue to limit study sessions to items traditionally presented there. However intentions are not binding so such language was meaningless. See page 2 of the agenda report where highlighted in yellow.
Ordinances must come before the council twice, so a week later the agenda item was on the consent calendar and only disclosed an intention to change meeting times. See pages 3 to 4 on the agenda for February 5, 2008, where highlighted in yellow.
This time the agenda report mentioned only the meeting time changes, but the ordinance which was set forth within the agenda report and passed, in fact deleted the prohibition against legislative action being taken at study sessions, and instead included, "The study session shall be a regular meeting of the City Council for all purposes." See pages 1 and 2 of the February 5, 2008 agenda report where highlighted in yellow.
Such Brown Act violation went unnoticed at the time, so it could not be timely litigated.
More than 12 years later, in November of 2020, the unpopular mixed use ordinance which would result in taller buildings (due to the state density bonus program), had drawn significant opposition. Therefore the city attorney instructed the city council that the mixed used ordinance could be passed at the November 17, 2020 afternoon study session instead of at the formal city council meeting scheduled for that meeting, to help keep it under the radar.
Litigation ensued to obtain an extension of time from the court to obtain referendum petition signatures to place the mixed use ordinance on the ballot for residents to vote on. An extension was needed because of the pandemic and the fact that the council would not grant an extension to residents despite the impossibility of gathering signatures during the height of the pandemic.
The pro-city judge denied the extension, however due to city research by Steve Mayer, it was learned that the City of Beverly Hills City Council Policy and Operations Manual adopted in March of 2009, prohibited formal legislative action from being taken at study sessions. Under case law, when a city violates its own rules, its actions can be set aside. See the 2009 and present prohibition of formal action from being taken at study sessions on p. 23 of the manual at the city's website:
https://beverlyhills.org/DocumentCenter/View/264/City-Council-Policy-and-Operations-Manual-PDF?bidId= and as set forth below.
Steve Mayer's further research uncovered the above 2008 underhanded Brown Act violation by our city attorney.
The City Attorney's office's defense in this litigation was that the wording, which he had surreptitiously added to the Beverly Hills Municipal Code, "The study session shall be a regular meeting of the City Council for all purposes," meant that legislation could be passed at study sessions.
Despite the conflict between the ordinance and the later adopted City of Beverly Hills City Council Policy and Operations Manual, the pro-city judge erroneously ignored the legal authorities prohibiting the city from violating its own rules, and would not set aside the mixed use ordinance. The judge's decision was not appealed because even if the appeal were to be won, the since newly elected council would have just passed the mixed use ordinance again, properly this time at a formal evening meeting.
On February 6, 2024 the city attorney's office, assisted by the city manager, attempted in an underhanded manner, to delete from the City of Beverly Hills City Council Policy and Operations Manual, the prohibition against any formal or binding action being taken at a study session, such as the passing of ordinances and resolutions, and to add instead that the study session shall be a regular meeting of the City Council for all purposes. However nowhere was the removal of the prohibition against formal or binding action upon any resolution or ordinance indicated or explained in the agenda report found at:
https://beverlyhills.granicus.com/MetaViewer.php?view_id=49&clip_id=9569&meta_id=591231
Rather, on page 3 of that February 6, 2024 agenda report, the following proposed change was described:
-
Updated the Study Session Meeting section of the manual to include that “While the City Council may take formal action at a study session meeting, it is the aim of the City Council that the public comment on major items should generally occur at the formal session.” (page numbers 10 and 11)
On Attachment 2, unexplained redlined provisions had been added along with meaningless "it is the aim" language, and the undisclosed existing prohibition from formal or binding action being taken upon any resolution or ordinance, had been redlined out on the following page.
This issue was dealt with at the February 6, 2024 study session beginning at 1:09 on the video found at:
https://beverlyhills.granicus.com/player/clip/9569?view_id=49&redirect=true
Three public comments were made in person.
At 1:15 Mark Elliot indicated, among other things, that he would not like to see the status of a study session changed to anything like a regular council meeting where decisions could be made, and that a study session should remain a study session.
At 1:16 Myra Demeter stated, among other things, that if a study session were to be considered a regular meeting, important matters could be voted upon and decided without the public's input which should be encouraged, not thwarted, and that such major changes should be examined by the Sunshine Task Force.
At 1:18 Steve Mayer echoed Mark Elliot's and Myra Demeter's comments, and his comments also included that a study session should be a study session.
At 1:19 Peter Ostroff agreed with the former speakers on this issue.
At 1:21 and 1:23 the comments of Darian Bojeaux and Lee Pasternak, both to similar effect, were read at the meeting. Darian Bojeaux's comment included:
"This is not the first time that the city attorney’s office has tried to make this
change surreptitiously. In 2008, the city attorney’s office described an item on the
consent calendar as an ordinance adjusting city council meeting times to
encourage public participation. But the city attorney’s office snuck into the
language of the ordinance the sentence, “The study session shall be a regular
meeting of the City Council for all purposes.” Unknown to everyone, the city
attorney meant this sentence to authorize the city council to pass ordinances and
resolutions at a study session.
So even though it was a violation of our longstanding manual rules, the city
attorney advised the council that it could pass the mixed use ordinance at a study
session, which was done to avoid drawing more attention because many residents
were opposed.
And now the city attorney’s office is trying to change our manual to allow formal
action or the adoption of resolutions and ordinances to occur at study sessions,
which are presently prohibited and should be prohibited."
At 1:23 the city manager stated that the city attorney read the proposed changes but he was not responsible for the re-write of the manual which came out of the city manager's office. However, the accuracy of her statement, intended to protect the city attorney, was questionable because it was the city attorney who was aware of the 2008 ordinance he had underhandedly passed, and it was the city attorney who wanted the manual to conform to that ordinance due to the legal authorities brought out in the litigation with his office which provide that if a city action violates its own rules, its action can be set aside.
Although such change was never discussed by the council, voted upon, or adopted at the February 6, 2024 study session, over 7 months later, in an agenda for a city council study session on September 17, 2024, the city misrepresented that the change had already been adopted to read as provided below.
The entirety of the September 17, 2024 agenda report is found at https://beverlyhills.granicus.com/MetaViewer.php?view_id=49&clip_id=9941&meta_id=615813.
The misrepresented change is found on page 10 of Attachment 1, shown below under Study Session Meetings, which should have been redlined in as a suggested change to be considered.
Prior to the September 17, 2024 Study Session, Darian Bojeaux e-mailed to council members and staff concerning the deceptive presentation of a changed manual instead of a redlined version of the change sought. Also provided was evidence of the city attorney's 2008 unethical conduct in amending the Beverly Hills Municipal Code to omit the prohibition against formal action, resolutions, and ordinances being passed at study sessions, and include that study sessions were regular meetings for all purposes.
A video of the September 17, 2024 Study Session is found at
https://beverlyhills.granicus.com/player/clip/9941?view_id=49&redirect=true
At 12:57 the policy manual item was called.
Public comments were read at 20 to 30 of the video, and the subject was dealt with up to 43. E-mailed comments requesting that the city maintain the present rule and that all legislation and formal actions such as adopting ordinances and resolutions occur only at evening formal meetings, to give more residents an opportunity to participate, were sent in by 18 residents including Cathy Baker, Ronald Richards, Benjamin Thompson, Dan Hollander, Sara Willen, Cherie McDermott, Arlene Sidaris, Debra Blum, Steve Mayer, Sonia Berman, Edwin J. Vlessing, Meihong Vlessing Liu, Winston Vlessing, Robert Bird, Renée Strauss, Noga Sherman, Larry Miller, as well as Thomas White, Chairman of the Municipal League of Beverly Hills.
Lee Pasternak e-mailed the same sentiments and that he did not appreciate the underhanded efforts to pass legislation at study sessions, and the misrepresentation that the change had already been made.
The City Manager Nancy Hunt-Coffey at 30 on the video stated that staff was not acting in an underhanded or insincere way "as far as she was aware".
Mayor Lester Friedman who had been present at the previous February 6, 2024 study session when residents had opposed the subject change and no council discussions ensued, stated that he thought the change to the manual had been in effect for some time.
The city manager took responsibility for the fact that the proposed change should have been redlined as a proposed change. She continued that the change was discussed at a previous council meeting because it had become the custom for the council to occasionally make decisions and give direction at study sessions. In fact the proposed change had not been discussed by council or staff at the previous meeting on February 6, 2024—it had only been objected to by 4 in person speakers, Mark Elliot, Myra Demeter, Steve Mayer, and Peter Ostroff, and 2
e-mailed comments from Darian Bojeaux and Lee Pasternak.
The city manager continued that the city was interested in codifying the change when at 33 on the video, the city attorney interrupted her, stating,
"We had codified it. The council actually adopted an ordinance which provided
that at the study session, the council could take formal action. …"
He continued that the council adopted an ordinance in 2008 that the council could take formal action at a study session; the manual was never updated to reflect what the council did by ordinance; it was the subject of litigation 2 or 3 years ago; and that the city prevailed in that litigation because the council had adopted the ordinance. He further offered that the council could go back to the way it was prior to 2008.
Although it had not yet been brought out at the public meeting, the city attorney as well as staff and council members who had read the documents provided to them prior to the meeting, well understood that the 2008 ordinance the city attorney was referring to had been enacted in an underhanded manner via the city attorney's violation of the Brown Act, placing the matter on the consent calendar under the false description that it only involved a change of meeting times.
Mayor Lester Friedman then asked the city attorney whether since we have an ordinance which allows the city to to take formal actions at study sessions, the city is compelled to follow the ordinance even if it is inconsistent with the policy manual.
The city attorney continued to act like the 2008 ordinance had been legitimately passed and indicated that the mayor was correct and that the policy manual introduction provided that ordinances control. In fact, the policy manual introduction does not so provide.
Perhaps out of guilt, the city attorney again mentioned that the council could go back to the way it was prior to 2008.
Mayor Friedman continued that with respect to any claim of underhandedness, that this was a simple error because the ordinance is controlling, and the manual should have been redlined, but the proposed provision is consistent with the ordinance, as if the ordinance had been legitimately passed.
Although Mayor Friedman had voted to pass the mixed use ordinance during a study session on November 17, 2020, he stated that he could not remember handling anything legislatively during a study session.
The city attorney, whose office had litigated over the passing of the mixed use ordinance at a study session, stated that one time an ordinance was adopted during a study session and that although it was years ago, he did not think that there was an evening meeting set on that date. In fact the city attorney was well aware that it was the mixed use ordinance which had been passed at the study session, and in fact an evening meeting also took place on that date, November 17, 2020, but passing the unpopular mixed use ordinance at the study session kept it more under the radar.
A telephone call comment from Darian Bojeaux had inadvertently been missed by the clerk so the comment was allowed starting at 39 on the video. The comment was that the city attorney was not being honest and that the 2008 ordinance had been listed on the consent calendar to change council meeting times, but actually provided for an ordinance with deleted the prohibition against legislation at study sessions, and added a section that the study session would be a regular meeting for all purposes--a surreptitious Brown Act violation. Darian Bojeaux continued that the city attorney was acting like the council had passed such an ordinance to make a change, when the change was never considered by the council or the public and that the ordinance should be changed back to be consistent with the current wording in the 2009 manual which had been adopted a year after the city attorney changed the ordinance.
At the end of 42, Mayor Friedman was speechless over the fact that the city attorney's unethical conduct had been made public and then Mayor Freedman stated, "I'm not sure where to go," looking at the city attorney, and he asked the city attorney to respond.
The city attorney could not deny his conduct and did not address what he had done. He instead indicated that staff had recommended that the matter be sent to an ad hoc committee to discuss all of these issues.
Other issues were discussed and at later 1:06, Council Member John Mirisch indicted that all important decisions should be made in the evening session.
At 1:13, Council Member Craig Corman, despite his lack of personal knowledge, claimed that there was no duplicity involved in staff's failure to redline the proposed change. He also expressed that the Beverly Hills Municipal Code could provide that a study session is a regular meeting for all purposes and that the manual could limit this. But he was incorrect because a pro-city judge who did not care that the Brown Act had been violated in the enactment of the 2008 ordinance, found that the ordinance providing that a study session is a regular meeting for all purposes trumped the rules in the manual--a fact which all council members and staff had been made aware of prior to the meeting.
All proposed changes to the City of Beverly Hills City Council Policy and Operations manual will be reviewed by ad hoc committees which will make recommendations to the council. Hopefully the public will be given plenty of advance notice of any recommended changes so they will have an opportunity to review and comment upon them.
Also it would be a good idea to assure that not only should resolutions and ordinances and other important formal actions occur only at the evening formal council meetings, but all council discussions, voting, and directions on such matters should also only take place at the evening formal council meetings.
Unfortunately, after the city got away with passing the mixed use ordinance at an afternoon study sessions, the council started considering other very important matters at the study sessions and would indicate how they would vote and at the evening formal council meetings, they would simply go forward with the adoption of a resolution or ordinance, thereby depriving residents of an understanding of what or why the council was doing. The city attorney has wanted to change the manual rules so the council can adopt resolutions and ordinances at study sessions, under the radar, without having to be concerned about the issue coming before an unbiased judge who might enforce the city's rules.
Revised October 18, 2024