City hit with lawsuit over park swap

The City of Malibu is considering a proposal to trade Charmlee Wilderness Park for 83 acres of state-owned land at Bluffs Park. Above, locals attend an event at Bluffs Park in 2011.

After hinting at legal action for several weeks, the civic group Malibu Township Council (MTC) filed suit last week the City of Malibu and the Malibu City Council for alleged violations of state open meeting and public record laws.

The civil suit, filed in Los Angeles County Superior Court on Wednesday by MTC attorney Frank Angel, alleges city officials violated the Ralph M. Brown Act by “secretly negotiating” a proposal to swap 532 acres of city-owned Charmlee Wilderness Park in western Malibu in exchange for 83 acres of Malibu Bluffs Park controlled by the Santa Monica Mountains Conservancy (SMMC).

The Brown Act is an open meetings law that guarantees the public’s access to government meetings and prohibits secret meetings of government bodies. Regarding the five-person Malibu City Council specifically, the act theoretically prohibits more than two council members from discussing public business before it is debated at a public forum.

The MTC lawsuit alleges multiple violations of the Brown Act, including that Malibu City Attorney Christi Hogin shared an email informing all five council members of the proposed swap after Mayor Lou La Monte and Joan House met with SMMC representatives in mid- December.

The proposal was not discussed in public until the Jan. 14 City Council meeting.

Another alleged violation regards an email sent by Councilwoman Laura Rosenthal to Mayor Lou La Monte and Mayor Pro Tem Joan House on Dec. 24, obtained by MTC through a Freedom of Information Act request from the City of Malibu.

The email was sent from Rosenthal’s private email account to House’s and La Monte’s private emails, rather than their public accounts. It included a passing reference to the park swap during a brief note wishing them Happy Holidays on Christmas Eve.

“I wanted to give a special thanks to the both of you for your brilliant idea (Charmlee!) and talent for negotiation,” Rosenthal wrote.

Jim Ewert, general counsel for the California Newspaper Publishers Association and a statewide authority on the Brown Act, said the email appears to violate the Brown Act.

“[Rosenthal] has obviously become aware of Charmlee and that it’s being negotiated, those two things are indicated in this email, and it strongly suggests that there’s been a discussion about this item,” Ewert said in a telephone interview Monday. “This email here is dated Dec. 24, well before the [Jan. 14] discussion took place. Had that discussion taken place out in the open then I don’t think this email would have been problematic.”

Any communications about a Charmlee-Bluffs Park swap should have taken place in public, Ewert said.

“It’s either gotta be an open meeting or it has to be one lawfully done by the one of the exemptions [in the Brown Act], but [the council members] shall not outside a meeting use a series of communications of any kind directly or through intermediaries to discuss, deliberate or take action.”

Rosenthal said she doesn’t believe the email constituted a violation.

“Obviously I did not think I was discussing it at all, so I didn’t feel like I needed to avoid it,” Rosenthal said. “I wasn’t discussing, deliberating or taking action. I received Christi’s email, so I knew about [the proposed swap]. So all was saying was that during this time of thanks and the holidays that I was thankful that the people I was working with were actually doing things and working and being part of the city.”

“I would never do a Brown Act violation,” she added. “I take that very, very seriously.”

Rosenthal said she sent the email from her private account because she cannot send emails from her official account from her home.

“I can’t use my City of Malibu email at home. I send everything out from my personal email,” she said.

Malibu City Attorney Christi Hogin also disagreed with Ewert’s analysis that a violation occurred.

“[Rosenthal] just reacted to having been briefed by staff that the agenda item was coming,” Hogin wrote in a text message to The Malibu Times. “Neither Lou or Joan communicated to her. She was apparently in a seasonal mood. Look, the councilmembers are volunteers. They are trained, multiple times. They know they cannot discuss items outside a meeting.”

Hogin said the lawsuit was simply a distraction by MTC, which she argues opposes even the possibility of the swap.

“[MTC attorney Frank] Angel is playing GOTCHA with one email that I would not have advised [Rosenthal] send but which was a lone communication that was followed by a full open and public meeting,” Hogin wrote. “The city has been open. What happened on January 14 was truly the first discussion by the Council. This is a sideshow.”