Plans by the Lodi City Council to discuss the censure of Mayor Susan Hitchcock behind closed doors appear to be illegal, a lawyer specializing in open meeting law said.
The council agenda calls for the council members to meet in closed session Wednesday night to discuss an item listed as “People of the State of California and the City of Lodi v. M&P Investments, et al.”
But Councilman Keith Land said he plans to bring up the censure of Hitchcock under that listing.
He is moving to censure Hitchcock because he contends she has jeopardized the city’s position in a pollution-related lawsuit.
However, discussing the censure of an elected official behind closed doors is illegal under the Brown Act, California’s open meeting law that governs local public agencies and upholds the public’s right of access to records, said Jim Ewert, a lawyer with the California Newspaper Publishers Association.
It is illegal to discuss the censure without clearly indicating that intent on the agenda, he said.
“If they begin to discuss censuring that council member in the same session, that would exceed the scope of exemption,” Ewert said. “The Brown Act does not allow a legislative body to go into closed session to reprimand one of its members.”
If the topic of censure just comes up, “Legal counsel has the obligation to end that conversation to make sure the body does not violate the act,” Ewert said.
“That’s where good legal counsel comes in.”
Censure is a public statement by elected officials condemning the actions of a colleague. However, it doesn’t prescribe any penalty and has no effect on the council member’s status.
Deputy City Attorney Steve Schwabauer agreed that the censure action would have to come back as an item on the agenda, but council members can discuss how Hitchcock’s actions may be influencing the litigation.
City Attorney Randy Hays was unavailable for comment Monday.
Land said he will “most definitely” bring up censure at this week’s meeting — first privately at the closed session and publicly during public comments by council members held later in the meeting.
He said it is on the agenda under actual litigation, “People of the State of California and the City of Lodi v. M&P Investments, et al.”
The city has filed a lawsuit hoping to force local businesses and their insurance companies to pay for the cleanup of the chemicals PCE and TCE, which have leaked into the city’s groundwater.
“In closed session, we’re talking about PCE and litigation, and Susan’s actions. I will bring it up in regards to Susan’s conduct, not Susan’s opinion,” Land said. “It’s very obvious that Susan is not wanting to abide by council decision.”
Hitchcock has been researching the Brown Act and discussed the issue with attorneys. She believes the censure cannot be discussed under pending litigation or in closed session.
“We need to make sure we’re doing this legally. I’m sure no one wants to be in violation of the Brown Act,” she said Monday. “If it comes up, I’ll say that. I just don’t think it can be discussed.”
The Brown Act mandates an agenda contain a brief general description that “should be sufficient to alert interested members of the public about the subject matter of the meeting.”
Land said he has talked to Hays and is taking direction from him.
“I presented him an outline, and he has not gotten back to me. If he tells me it is not closed session material, then I won’t proceed,” he said. “I take the Brown Act seriously, and I will do nothing to violate it.”
City Manager Dixon Flynn said the discussion Wednesday is about the legal proceedings.
“That’s all I have agendized,” he said.
In general, Flynn helps to put each City Council agenda together with reports submitted by department heads. He then discusses each item with the mayor to decide where to place them.
Flynn declined to specifically discuss the topic of censure.
Hitchcock said she discussed the agenda item with Flynn and questioned whether council members would be talking about litigation or censure. But he insisted the item stay as it listed, she said.
Hays and City Clerk Susan Blackston were also present, Hitchcock said.
Land has said he is seeking the censure of the mayor because he was angered when Hitchcock, at the last council meeting June 18, announced a closed-session vote on whether the city should attend future mediation sessions relating to the lawsuit or not.
Although council members apparently voted 3-2 earlier during the June 18 meeting not to attend further hearings, Hitchcock announced openly that she would still go. She did follow through and attended the latest mediation Friday in Sacramento.
Calling for a censure of an elected official is not new to the area.
Three years ago in Galt, that City Council wanted to censure a council member.
At that time, Galt City Attorney Ruthann Ziegler told the other council members that neither a vote nor discussion on censure could take place during a closed-door meeting.
Former Galt Councilwoman Christina De La Cruz was accused of violating a City Council policy forbidding any council member from taking a copy of confidential documents discussed in closed session from City Hall. Other council members were concerned De La Cruz’ action would influence potential settlement negotiations, Galt officials said.
Land said he is afraid Hitchcock will influence the outcome of Lodi’s ongoing litigation, and clean-up costs will fall to ratepayers at a cost of $80 to $100 per month per household if insurance companies are not held responsible.
If he garners a majority in support of censure, he will ask, during the public section of the agenda where comments are made by council members, that the issue and the reorganization of council be put on the July 16 regular calendar.
He went into a closed session before the last council meeting asking for censure because of Hitchcock’s alleged conduct and a conversation Land said he overheard between Hitchcock and a mediator at the May 19 hearing the two elected officials attended.