Council possibly violating Brown Act;
While councilors defend closed-door meeting, some media law experts challenge their reasons


APPLE VALLEY - Despite spending thousands of taxpayer dollars on legal advice regarding Measure N - at the rate of $250 an hour - the Town Council is keeping the information secret and is holding closed meetings to review the information in possible violation of the Brown Act.

The Council has already met at least once behind closed doors to discuss advice received from the Law Firm of Rutan & Tucker. The Council plans to meet again in secret before Tuesday night's Town Council meeting before debating the issue in public.

Discussing the information in private may be a violation of the Brown Act, John Bussian, a media law expert, said. "The justification to talk about these things (in closed session) is not open ended," Bussian said. Unless the Town Council can give the public substantial proof that the threat of a lawsuit is real "then the subject should not be discussed in secret," he said.

Although the Daily Press has obtained and made public a six-page memorandum summing up the findings of Rutan & Tucker, the bulk of Rutan & Tucker's writings remain under wraps.

Town Council is withholding the information from the public claiming there is "potential litigation." Yet Town councilors say they are unaware of any pending litigation and can not say who or what might sue the town.

"It may very well be that they are going into closed session permissibly, but they are going to need to provide some more factual information to justify that," Jim Ewert, legal counsel for the California Newspaper Publishers Association, said. "There is a provision in the Brown Act that allows them to discuss anticipated litigation (in closed session and) to discuss potential defenses that ... a potential plaintiff may be unaware of."

Yet in Rutan & Tucker's own six-page synopsis the law firm states the town is immune to future litigation arising from its past actions. "Each general plan amendment is now immune from legal challenge if no lawsuit was filed within 90 days of the Town Council's adoption of the amendment," according to the memorandum.

"Then I am really having a hard time figuring out what the anticipated litigation might be," Ewert said. "Then the Council is meeting as a subterfuge using the impending litigation as a way to meet in secret as a violation of the Brown Act unless the attorney (from Rutan & Tucker) is mistaken."

Councilors say they are protecting the public's interests by keeping them in the dark.

"I am not aware of any potential litigation, but it is my duty to protect the community treasury from the possibility," Mayor Mark Shoup said. "Council would be remiss for releasing any potential litigation strategy that may not even have to be used � that is just common sense."

Councilman Scott Nassif is also unaware of any looming law suits. Yet he locks arms with the rest of council to keep the information and the discussions private.

"The position is of potential litigation," Nassif said. "We need to always look out for the community. We don't want to put information out that would enhance the ability of someone to sue Apple Valley."

Councilman Rick Roelle said that it is Town Attorney Neal M. Singer that is advising the Council not to release the information and to hold closed meetings on the subject.

"When the attorney says don't release this information until we have a chance to discuss it then to release it would be pretty foolish," Roelle said. "But to say that it will never be released I am not saying that at all, but we at least have to discuss it in closed session if that's what the attorney says to do."

Daily Press, January 23, 2006

For the homepage, click here.