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Another Brown Brown Act violation?

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At the tale end of a largely somnolent City Council meeting Nov. 18, during which notable moments were the announcement that City Clerk Gay Johan has been elevated to the position of Assistant City Manager (and City Clerk), that the Valley of the Moon Nursery School is living on borrowed time (the lease on its city-owned building was, however, extended to 2015), that Jack London State Historic Park, under the guidance of its public-private management team, is doing spectacularly well and should be a model for the state, and during which a recap of the Redwood Empire Municipal Insurance Fund gave a number of audience members the opportunity to catch up on missed sleep, an end-of-the-meeting bombshell was dropped by Councilmember Steve Barbose in the lap of Mayor Ken Brown.

The Barbose bombshell had to do with a comment Brown made during grand opening ceremonies for the new ER and surgical wing at Sonoma Valley Hospital on Nov. 16. Stepping to the microphone for the obligatory mayoral missive, Brown made a point of recognizing the City Council members present (they were all there except Barbose) and in so doing made the off-the-cuff pronouncement that Tom Rouse would be the next mayor and that David Cook would thereby become the next mayor pro tem.

It was not clear to those present, who listened, just what Brown meant by that declaration, but it was clear to Barbose when he heard about it afterwards that Brown had stepped across a boundary and said things that shouldn’t, and perhaps legally couldn’t, be said.

To Barbose, for Brown to say unequivocally whop the next mayor and mayor pro tem would be, “He would have to have a basis for saying so, which would lead me to believe that he must have talked with other members of the council.”

To which Brown later protested, “My memory is that I did not talk to David Cook or Tom Rouse in advance. I have no knowledge of any other council members’ viewpoints on who would be the next mayor or mayor pro tem.”

But he added, “I can state from the highest mountain who I want to be the next mayor and mayor pro tem. I can campaign for who I want to be the next mayor or mayor pro tem. The FPPC (Fair Political Practices Commission) has no ability to rule on this.”

Brown also confessed that his comments were “more of an impulse than an intention. I was in a very positive mood. It was a very beautiful day. I was celebrating the hospital opening, and I just felt good. So I said what I said.”

Barbose nevertheless saw the cloud of a violation of the Brown Act, the open meeting law that prohibits members of elective bodies from meeting in private in numbers that would constitute a quorum to discuss how they will vote on an issue. And he therefore told Brown point-blank at the end of the City Council meeting that what he said was “wrong, inappropriate, in the worst case a Brown Act violation … (that was) totally wrong … disrespectful of the process … (and) I request you recuse yourself from voting on the next mayor and mayor pro tem.”

Conventional protocol is that the person with the title of mayor pro tem is in line to be the next mayor, although numerous council debates have established that is not a foregone conclusion. Traditionally, the sitting mayor places a name in nomination and if a majority does not support the nomination, another candidate is proposed until a majority decision is reached. The same process than ensues for the mayor pro tem.

City Attorney Jeff Walter, meanwhile, after pondering the problem from both sides, observed that, “The Brown Act is only violated if a majority of the council meet together and make a decision. I don’t see any Brown Act violation.”

Asked if Brown should nevertheless recuse himself, Walter said, “Not in my opinion, according to what I’ve been told about what he said.”

Barbose wasn’t mollified. “I don’t think he’s going to do so (recuse himself), but he was way out of bounds when he did that … He communicated to three other council members present how he wanted the upcoming vote by the council to go. Implicit in that remark, at the very least, is that this is the way he would like it to turn out.”

Brown later confirmed he has no intention of recusing himself when the council meets again on Dec. 2.