PD Editorial: Reviewing the city attorney’s performance

It has not been a good year for the city attorney. There’s no other way to put it. Her missteps include:

A decision in early 2013 to keep secret a Santa Rosa City Council move to settle a lawsuit filed on behalf of builders opposed to a tax targeted at new homeowners - a scheme that was legally suspect from day one City Attorney Caroline Fowler said at the time that although the council made the decision to settle for $327,000 in closed session on Feb. 12, she did not believe they needed to disclose this news because, in her view, the settlement wasn’t made final until the opposing sides exchanged legal documents. Thus, nothing was reported until late May. In addition to violating the spirit of the Brown Act, this word-parsing opens up the potential for all kinds of legal mischief - with electeds believing they only need to abide by the Brown Act once they determine the ink on all documents is dry, which, in the case of embarrassing news like this, no doubt could take a while.

A heated confrontation with City Councilman Gary Wysocky on Oct. 15 as the councilman was trying to explain why he was planning to oppose a proposed three-year labor agreement with firefighters when months earlier he had expressed support. The problem was there were major differences between what was discussed in closed session in June and what came before them in the fall. Fowler could have coached the councilman on how to express himself. Instead, she sternly warned Wysocky that he would be committing a crime if he pursued the question. “You cannot discuss any of the conversations that took place in closed session or you are committing a misdemeanor,” Fowler said, a moment later snapping that he couldn’t discuss “anything.” We noted in an editorial at the time that, “On principle and on the law, the city attorney is simply wrong.” This was underscored in a May 16 letter from state Legislative Counsel Diane Boyer-Vine in response to a request from Councilwoman Julie Combs for clarification. Boyer-Vine made clear that the only criminal penalties identified in the Brown Act are those for elected officials who seek “to deprive the public of information to which the member knows or has reason to know the public is entitled.” This is not a new interpretation. The law is written to err on the side of openness, not secrecy.

The city attorney’s attempts to control what City Council members said following the shooting of 13-year-old Andy Lopez on Oct. 22. Fowler sent a directive to council members saying it was “critical” that they not comment as the city’s Police Department would be conducting the review of the shooting. The result was a lot of unnecessary finger-pointing and tension about what should or could be said by elected officials, none of whom was in a position to disclose sensitive information concerning the investigation anyway. The impression that City Hall was ducking the issue was only compounded days later when, for reasons that have still not been made clear, City Hall was shut down and a City Council meeting was canceled moments before a large protest march through Santa Rosa to the county center. That day, Fowler sent an email to the council blaming the cancellations on “the irresponsible actions of certain persons who have now endangered our city employees.” Who those “persons” were and how employees were endangered remain a mystery.

In light of all of this, it’s appropriate that the City Council has voted to review the city attorney’s performance, at some time in the near future . But given that the council only received the minimum four votes needed to hold the review, our expectations are low that much will come from this. We also doubt much will be made public, given that the discussion will be held in closed session.

But we do hope a message will come across - that the city attorney works for the City Council and the council works for the voters, who, through the approval of such laws as the California Public Records Act and the Brown Act, have set a high standard for their conduct, one based on the principles of clarity and transparency. And they need to surround themselves with administrators who not only respect that principle but remind them of it. At this point, we’re not sure that’s happening.