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City Settles McKee Lawsuit

Agreement calls for covering plaintiff's $70,000 in legal fees, and having staff and city boards, commissions and council participate in public records or Brown Act education.

Nearly 11 months after a lawsuit alleging that the city provided insufficient public notice of a $195,000 severance payout to then City Manager Geoff Dolan when he abruptly resigned in December 2009, the city has settled the claim and will pay the plaintiff's $70,000 legal bill and make public all documents associated with the case, including an anonymous letter that could be embarrassing to Dolan and other city staffers. The settlement also requires staff and board, commission and council members to attend training in the California Public Records Act or Brown Act.

The settlement was announced at last night's City Council meeting, seven days before a judge would have determined if the city had violated the two acts. 

In a press release, the city council acknowledged that it violated the Brown Act, which expressly prohibits a public body "to act upon compensation to the city manager in a closed session."

The press release states, "Relying on the advice of the City Attorney in late 2009, the City Council met in closed session to discuss what it believed to be anticipated litigation and, in the course of those discussions, entered into a Resignation and Release Agreement with Geoff Dolan and took action to appoint an interim city manager to fill the management gap created by the Agreement with Dolan. Although the Agreement included a release of liability relating to potential litigation, the Agreement also served as Mr. Dolan’s resignation, thus addressing a personnel matter.

"After seeking outside legal advice from a law firm specializing in public law and consulting with Mr. McKee of Californians Aware, the City Council realizes that the agenda descriptions for the closed sessions involving these matters were unintentionally inadequate to meet the requirements of the Brown Act. What began as closed session discussions to consider potential litigation, later included discussions that should have been agendized as personnel matters pursuant to the Brown Act. To the extent that the closed session discussions related to specific threats of litigation pursuant Government Code 54956.9(b), it is now clear that the City Attorney would have been required to publicly release the facts and circumstances behind this threat of litigation. This Brown Act requirement is meant to give the public the information it needs to be involved in the discussion of whether to seek a settlement or to move forward to oppose the threat.

"Because this information was not released, the City Council understands some residents felt surprised and left in the dark when the City announced Mr. Dolan’s abrupt resignation and the severance payment. The City Council will not make this mistake in the future.

"At the same time, the City was also advised that the Resignation and Release Agreement with Mr. Dolan was a confidential personnel document not to be released. Again, upon consultation with outside legal counsel, the City Council now understands the Agreement and other documents associated with this matter are public records. These are now available to the public upon request.

"The Council regrets these unintentional violations and the confusion they have caused. The City Council was acting in good faith and in reliance on the City Attorney’s advice to address a sensitive matter; however, the Council is dissatisfied with anything short of full compliance with both the spirit and the letter of the open meeting and public records laws. For this, Californians Aware has expressed its understanding and has pledged its support."

Michelle Ball March 17, 2011 at 02:52 AM
I congratulate Californians Aware and the City for resolving this matter which the Brown Act was written to address. Best, Michelle Ball Law Office of Michelle Ball California Education Attorney advocating for the rights of parents and students since 1995. Website: http://www.edlaw4students.com Blog: http://edlaw4students.blogspot.com/ Twitter: http://twitter.com/michelleaball This posting consists of the opinion of the author only and is not legal advice nor does posting form any type of legal relationship or guarantee.

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