Opinion: Replace City Attorney Phil Kohn

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By Gene Felder

On Sept. 21, 2021, the Orange County District Attorney’s Office wrote that they conducted a review of the City Council’s Jun. 29, 2021 closed session regarding Hotel Laguna. 

“Based on this review, there is substantial evidence that the City Council Members violated the Brown Act with respect to the public notice of the closed session and/or the scope of the matters considered during the meeting.” The letter emphasized that “any violation of the Brown Act is extremely concerning, as it undermines not only transparency in government, but faith in the legislative process. Recognizing the importance of public access to government proceedings, the Brown Act allows closed sessions only in specific limited circumstances and requires particularized advance notice.”

Recently, I listened to the Aug. 24, 2021 City Council meeting. In it, City Attorney Phil Kohn maintained that his opinion continued to be that the Council’s Jun. 29 closed session was convened and conducted in compliance with the Brown Act. However, he went on to say that Rutan and Tucker had a somewhat different opinion. That is, regarding rehearing the matter in an open public meeting to cure or correct the Brown Act violation, Mr. Kohn said “it is the recommendation of our office that you seriously consider doing so.” And so, the Council did just that.

The Brown Act is a law requiring transparency. Most City business is required to occur at meetings. Decisions are made on the basis of evidence and testimony that is presented at such meetings, which are open to the public and involve decision-makers who must be impartial and unbiased and have not prejudged or made a precommitment to the issues. The City Attorney has failed the City of Laguna Beach and the City Council in guiding in complying with the Brown Act. For this, he should be replaced.

Also, at the Aug. 24, 2021 City Council meeting, Mr. Kohn maintained the closed session was justified agendized as “Anticipated Litigation” due to a Village Laguna letter claiming the City had violated the Brown Act, and the next step Mr. Kohn imagined might well be litigation. If this is the standard, it would seem in this litigious society to justify the discussion of any matter at a City Council closed session so agendized.

That was a year or a year and a half ago. What City Attorney Kohn has done recently is more egregious.

He has written a private citizen warning that his efforts to communicate with City Council members might be a violation of the Brown Act. Mr. Kohn wrote “I would like to point out the potential such communiques as you sent have created for [sic] a violation of the Brown Act”. Adding that “Your recent messages to members of the City Council carry the danger of resulting in a serial meeting when the “reply all” button is employed. This is another reason why it would be appreciated if future messages can be send [sic] to staff, who, … will include such communications in staff reports to decision-making bodies.”

This is outrageous and clear evidence that Mr. Kohn should not be the one the City relies upon to comply with the Brown Act. The City website under City Council prominently has a link reading “CONTACT US, Email all five members of the Laguna Beach City Council”; perhaps, Mr. Kohn is unaware of this and our desire to encourage citizen input.

Gene is treasurer of Laguna Residents First PAC.

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