One chapter in the beleaguered history of the Charmlee Wilderness Park—Malibu Bluffs Park swap closed last week when the Appellate Court upheld a decision against the Malibu Township Council (MTC), a civic group that accused Malibu City Council of violating open meeting and public records laws.
Back in late 2012, the idea of a “swap,” to trade 532-acre Charmlee for 83 acres of the Santa Monica Mountain Conservancy’s Bluffs Park, was first introduced, with then-Mayor Pro Tem Joan House approaching then-Mayor Lou La Monte with the idea.
Shortly after the first public hearing for the park swap in January 2013, MTC called into question the method council used to embark on the swap. In April 2013, the council voted to pursue a “cure-and-correct” repeat of the public hearing in an effort to appease the MTC, but by then, it was too little, too late.
The original suit, filed in Los Angeles County Superior Court in April 2013 by MTC attorney Frank Angel, alleges city officials violated the Ralph M. Brown Act by “secretly negotiating” the proposed swap, through a series of private messages and meetings.
The Brown Act—an open meetings law that protects against secret meetings—includes rules about public notices, quorums and communications outside open forums. On a five-person council, the Brown Act prohibits three or more members from discussing official business outside of a publicly noticed meeting.
In May 2015, the trial court dismissed the case, stating “there was no … communication that constituted a meeting under the Brown Act and that the city council did not discuss, deliberate or take action on the land swap prior to the [public] meeting.”
MTC launched an appeal later that summer.
According to Malibu City Attorney Christi Hogin, the City of Malibu was “completely vindicated” in the appeals court decision regarding alleged Brown Act violations.
“The bottom line is that the city prevailed in all matters involving MTC’s alleged Brown Act violations involving the swap,” Hogin wrote in an email to The Malibu Times.
“Plaintiff conducted extensive discovery,” the decision states. Hogin described the discovery as “the most aggressive discovery the city has undergone in a lawsuit,” and included “attempts to ask each council member all kinds of things about what they were thinking; it included looking at Joan [House]’s computer and phone, and ultimately there was nothing there.”
In an interview with The Malibu Times, Hogin mentioned two instances where the MTC felt the city had violated the Brown Act, including a holiday letter sent from Council Member Laura Rosenthal to La Monte and House.
“I wanted to give a special thanks to the both of you for your brilliant idea (Charmlee!) and talent for negotiation,” Rosenthal wrote in a Dec. 24, 2012 email.
“Courts found … There was no secret meeting,” Hogin explained. “I hadn’t violated the Brown Act by advising council, Laura didn’t violate the Brown Act by sending a happy holidays email, as [Angel] claimed.”
The decision out last week clarifies that La Monte and House did not reply to Rosenthal’s holiday message at all.
“Rosenthal’s Dec. 24, 2012 email was one-sided and did not solicit information regarding the land swap,” the court’s decision states.
“There is no evidence in the record demonstrating Council Members House or La Monte even responded to Rosenthal’s email.”
When it comes to an appeal of the decision up to the California Supreme Court, Angel did not say whether or not he felt one would be likely—but the attorney mentioned several recent cases where the high court has taken on “governmental transparency” cases in recent years, including a notable case about the Public Records Act.
“The California Supreme Court takes interest in these cases, and the Brown Act is the sister pillar in our transparency laws,” Angel said. The MTC has until November to decide.
On one key point, however, the court did not rule in the City of Malibu’s favor, since according to the decision, the trial court “never fully considered plaintiff’s allegations,” in one portion of the case, pertaining to another closed session item from December 2012. The matter was remanded for further proceedings.
For the MTC, that’s a strike against the city.
“We partially got the trial court’s decision reversed,” Angel said. When asked if he considered it a victory, Angel said it was “a partial victory.”
For Hogin, though, that one wrinkle is a temporary setback.
“If MTC continues to pursue this case, the city is confident that the evidence will demonstrate compliance with the Brown Act in the posting of the 2012 agenda, just as it has the conduct of the public consideration of the park swap proposal,” the city attorney wrote in an email.
