Opinion: City Staff Misled Council, Public on Brown Act


By Howard Hills

I have no involvement in the current Hotel Laguna developer’s renovation project or the city’s code enforcement in that case. Also, I’ve never met or spoken with Councilmember George Weiss, and did not vote for him. For me this matter is about transparency and justice in my hometown.

What can be confirmed at this time is that in response to a request by Weiss to investigate the Board’s conduct on June 29, the Orange County District Attorney has determined that from June 29 to the present, including on Aug, 10 when the Council censured Weiss, there has been more serious and actionable evidence the Council majority violated the Brown Act than there is that Weiss did so. Indeed, under the Brown Act exception to closed meeting requirements in CA Gov. Code Sec. 54963(e)(2), it is lawful for a Council member to disclose the factual and legal basis for challenging the legality and propriety of Council action purporting to lawfully close a meeting to the public.

In a letter of Sept. 21, 2021, the Special Prosecution Unit of the DA’s office rejects the finding of the Council that the closed meeting was lawfully convened. What this means is that the Agenda Item Report and hearing on Item 12 failed to provide adequate legal substantiation for the censure of Weiss.

It now appears that in defending the unlawful meeting closure of June 29 in his signed background paper in the Agenda Item Report on Aug. 10, the City Attorney intentionally and for purposes of improper undue influence on the Council misstated the factual and legal grounds for closing the June 29 meeting. It also seems clear that false narrative of that background document was known by the City Attorney and City Manager to be untrue.

It was only after Weiss outed the Council and City Hall for unlawfully closing a meeting that the narrative about the threat of a lawsuit by the developer of the Hotel Laguna project was then trafficked by City Hall insiders to the press and influencers. That attempt to bake into the record of the Aug. 10 meeting a retroactive notice of a litigation threat that was not properly and lawfully noticed for the June 29 meeting was clever to a fault. Worse has been Phil Kohn’s flip flop now telling the DA our Council was considering a lawsuit against that developer, even though not mentioned in the closed meeting.

That abuse of authority by Kohn is now imputed to the Council by the DA’s office because it ratified his actions and the assertions he made to cover up his actions on June 29 in the Agenda Item Report memo he signed for the August 10 meeting. If Mr. Kohn claimed threat of litigation was purpose for closed meeting knowing that was not stated in the closed meeting agenda notice, wouldn’t this fit the dictionary definition of “lying” to the Council and the public?

It is reasonable to conclude the members were aware meeting was closed improperly to deprive the public of its right to open meetings, which is potentially a misdemeanor under Brown Act.

The Council should rescind the censure resolution, make an official apology to both accused members, and determine if Kohn or City Manager should be fired for cause. The members of the Council may have protection from slander liability, but that does not change the nature of what was done to George Weiss, which was political slander.

Howard is a third-generation Laguna native active in City Council and School Board affairs since 1967.

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  1. As I wrote in an LTE published last week, it is time that the City of Laguna Beach find new legal representation. This latest episode confirms that the citizens of Laguna will be better served if our external legal firm of more than 40 years, Rutan & Tucker and specifically, Phil Kohn are replaced. Even if, upon the City’s follow-on meeting with the ADA, the ADA sees fit to modify their condemnation of the City’s conduct. Furthermore, barring a reversal by the ADA, Mr Hill’s in-depth and thoughtful legal analysis of the issue surrounding the Council’s Brown Act violations during the 29June21 closed-door meeting and the subsequent 10Aug21 Censure of Councilperson Weiss (urged on by Councilperson Blake), points to the need to a) undo the censure of Councilperson Weiss and b) the firing for cause by Mr. Kohn

  2. On 12Oct21 the City met with the DA to tell its side of the story in the case regarding the events mentioned in Howard Hill’s article and to defend its handling of the fall-out and the censure of George Weiss. On 14Oct21 the ADA responded by re-asserting its demand that the City implement several remedial steps to avoid future violations of the Brown Act, and to avoid future steps by the DA against the City.
    In short, the City (and of course City Attorney Kohn) were not vindicated, indeed their missteps were re-affirmed and serious. The City Council’s censure of George Weiss on the basis of his disclosure of “confidential” information that was improperly made to be confidential was again called into question as having been baseless.
    The need for the Council to a) undo the censure of Councilperson Weiss and b) the firing for cause of Mr. Kohn now becomes more crucial to future fair and open operations of city government.


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