By KEVIN McCALLUM
THE PRESS DEMOCRAT
During the Santa Rosa City Council debate last week over a new contract for firefighters, Councilmember Gary Wysocky sought to shed some light on the negotiation process that led to the new three-year deal.
But when he tried to get Human Resources Director Fran Elm to discuss whether the proposed agreement differed from one presented to the City Council back in June, something unexpected happened.
City Attorney Caroline Fowler interjected, advising Wysocky that he would be committing a crime if he pursued the line of inquiry because it involved an issue discussed with the city labor negotiator in closed session.
What followed was a tense exchange that highlights how politically charged this year’s labor negotiations with city workers have become, particularly with regard to the sensitive subject of public safety pensions and compensation levels.
Here’s the full exchange:
Wysocky to Elm: This proposal, is it substantially different than the one that was presented to council on June 25th?
Fowler: (That was) discussed in closed session.
Wysocky: So the history of the negotiation that got us to this point cannot be shared with the public?
Wysocky: Why is that?
Fowler: That’s the law. The law says that you cannot disclose the conversations between you and your labor negotiator that occur in closed session.
Wysocky: So even if the proposal that was in front of us on June 25th, theoretically …
Fowler: That’s the law, Councilmember Wysocky.
Wysocky: … doesn’t alter?
Fowler: Cannot disclose that. That’s the law.
Wysocky: Can we discuss why we approved this?
Fowler: You cannot discuss any of the conversations that took place in closed session or you are committing a misdemeanor.
Wysocky: ‘Any of the conversations.’ If the presentations that were given us in closed session were inaccurate or misleading …
Fowler: You cannot discuss anything that was discussed in closed session.
Wysocky: even if it leads to a …
Fowler: (voice raised) ANYTHING!
Mayor Scott Bartley: I think she’s trying to save you from getting yourself in trouble.
Wysocky: I appreciate that Mr. Mayor, I’m just looking for open government and make sure that the public understands how we got here. And to me right now I’m dismayed because transparency is an important concept and I think it’s for faith in government we should be able to be as transparent as possible.
The council went on to approve the new contract, 5-2, with Wysocky and Julie Combs voting against it. Both cited the city’s inability to afford the raises in the second and third years and concern about signing multi-year contracts.
City officials estimated the new contract would save taxpayers $1.8 million over the three years, but Wysocky, a CPA, questioned that accuracy of that figure. He said the calculation ignores the $560,000 per year increase in medical costs the city will see because a concession from the previous contract equal to 4.15 percent of salary was expiring.
Following the meeting, Wysocky declined to elaborate on the closed session matter he was referring to, citing Fowler’s warning.
“She said I will be committing a crime,” Wysocky said.
He said he believes that the council needs to be more transparent in how it makes decisions that have such a significant financial impact on the city.
“At a certain point, the public’s right to honest and accurate information trumps the benefit of confidential labor negotiations,” Wysocky said.
Attorneys familiar with the Brown Act offered differing opinions about the appropriateness of Fowler’s directive to Wysocky.
Patrick Whitnell, general counsel for the League of California Cities, an organization that lobbies on behalf of City Halls, agreed with her. He said it is not up to an individual council member to decide when it’s OK to publicly discuss such issues.
The group publishes a guide to the state open meeting law, known as the Brown Act, that calls the interplay between the confidentiality of closed session meetings and elected officials’ free speech rights “a matter of great sensitivity and controversy.”
Even after the contract is voted on, only the full council can decide whether to release confidential closed session information, he said.
That’s because there might be other factors that an individual council member hasn’t considered, such as impact the disclosure might have on negotiations with other employee groups, Whitnell said.
“It happens all the time and it’s a very difficult situation for everyone involved and it requires a lot of diplomacy,” Whitnell said.
But Councilwoman Julie Combs said the exchange she witnessed was anything but diplomatic.
She called the “negative attitude” of Fowler “pretty unfortunate” and the way she communicated her advice “appalling.”
“I was offended by that conduct,” Combs said. “My attorney doesn’t threaten me in public.”
Fowler did not respond to requests for comment.
Combs said she is concerned because there was a great deal of information discussed in closed sessions that would help the public understand how the salary increases for firefighters directly impact other city priorities, like the $3 million maintenance backlog in parks and the $6 million needed to fix roads.
“It has a chilling effect because we don’t know what we can and cannot say,” Combs said. “My question is who are we keeping the information from?”
Jim Ewert, general counsel of the California Newspaper Publishers Association, questioned whether Fowler’s legal advice to Wysocky is supported by the Brown Act, First, the claim that he would be committing a misdemeanor is wrong, Ewert said.
The law calls for misdemeanor penalties when an elected official takes an action in violation of the act “and where the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under this chapter.”
In this case, Wysocky appears to be trying to get more information released to the public, not less, Ewert noted.
The Brown Act does say “a person may not disclose confidential information” from a closed session unless the board votes to release it. Confidential information is defined as “a communication made in a closed session that is specifically related” to the purpose of the closed session.
The disclosure of such information “may be addressed” several ways, including: a court order to block the release, disciplinary action against an employee, or referral of an elected official to the grand jury.
Not all information obtained in closed session must remain confidential, however.
A person cannot be prosecuted or disciplined for making a “confidential inquiry” to the district attorney or grand jury about a “perceived violation of the law.” Nor can they be punished for “expressing an opinion concerning the propriety or legality of actions taken” in closed session, nor for disclosing closed session information that is not actually confidential.
Ewert said the Brown Act allows a council’s discussions with its labor negotiator to be confidential in order to protect the city’s bargaining position. Saying that “anything” from a closed session must remain confidential is simply not accurate, he said.
“She’s failing to recognize the balance between the public interest in not allowing information to become public if it prejudices the city’s position, with the public interest in knowing how its government reaches decisions and operates,” Ewert said.
Peter Scheer, executive director of the First Amendment Coalition, agreed that Fowler’s advice seems overly broad. Participants may not reveal specific details such as instructions given to negotiators, but they are free to let citizens know their opinion about what is transpiring in closed session, he said.
“The attorney, in my view, is overstating the ‘Code of Silence’ imposed on participants in a closed session,” Scheer said.
You can reach Staff Writer Kevin McCallum at 521-5207 or firstname.lastname@example.org. OnTwitter@citybeater