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Cure and Correct does not trump criminal complaint

From: Peter Carpenter <peterfcarpenter_at_(domain_name_was_removed)>
Date: Fri, 10 Dec 2010 09:40:48 -0800


Mr. McClure,
 You are quoted as saying "if the city council takes action to cure and correct any action that resulted from a Brown Act violation, there is nothing for the D.A. to do."

  It is not for you, as an employee of the council, to speak for the D.A.

 The Brown Act provides for both criminal and civil remedies and criminal penalties. I would note that the section on criminal penalties precedes and is separate from the two sections se on civil remedies. The Cure and Correct one of two sections on the civil remedies for the legislative body to undue the damage done by a Brown Act violation and it contains no provision for censure or punishment of the individual who violated the act.

   Given that Ms. Ferguson has admitted "I was lobbying or stating my position to inform members of the council, and to gain their support" and given that she is a long time public officer holder who has received numerous Brown Act and ethics trainings, and who has been repeatedly been questioned and warned about her potential Brown Act violations, and given that the Act specifically states "any use of direct communication, personal intermediaries, or technological devices that is employed by a majority of the members of the legislative body to develop a collective concurrence as to action to be taken on an item by the members of the legislative body is prohibited" then I believe that Ms. Ferguson is a habitual offender whose continued service in public office must be subjected to judicial review and, if deemed necessary, punishment and or judicial oversight.

Sincerely,

Peter Carpenter

54959. Violation of Act; Criminal penalty Each member of a legislative body who attends a meeting of that legislative body where action is taken in violation of any provision of this chapter, and where the member intends to deprive the 80
public of information to which the member knows or has reason to know the public is entitled under this chapter, is guilty of a misdemeanor. 54960. Violation of Act; Civil remedies
(a) The district attorney or any interested person may commence an action by mandamus,
injunction or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to actions or threatened future action of the legislative body, or to determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid or invalid under the laws of this state or of the United States, or to compel the legislative body to tape record its closed sessions as hereinafter provided.
(b) The court in its discretion may, upon a judgment of a violation of Section 54956.7,
54956.8, 54956.9, 54956.95, 54957, or 54957.6, order the legislative body to tape record its closed sessions and preserve the tape recordings for the period and under the terms of security and confidentiality the court deems appropriate.
(c) (1) Each recording so kept shall be immediately labeled with the date of the closed
session recorded and the title of the clerk or other officer who shall be custodian of the recording.
(2) The tapes shall be subject to the following discovery procedures:
(A) In any case in which discovery or disclosure of the tape is sought by
either the district attorney or the plaintiff in a civil action pursuant to Section 54959, 54960, or 54960.1 alleging that a violation of this chapter has occurred in a closed session which has been recorded pursuant to this section, the party seeking discovery or disclosure shall file a written notice of motion with the appropriate court with notice to the governmental agency which has custody and control of the tape recording. The notice shall be given pursuant to subdivision (b) of Section 1005 of the Code of Civil Procedure.
(B) The notice shall include, in addition to the items required by Section
1010 of the Code of Civil Procedure, all of the following:
(i) Identification of the proceeding in which discovery or disclosure
is sought, the party seeking discovery or disclosure, the date and time of the meeting recorded, and the governmental agency which has custody and control of the recording.
(ii) An affidavit which contains specific facts indicating that a
violation of the act occurred in the closed session. 81
(3) If the court, following a review of the motion, finds that there is good cause to
believe that a violation has occurred, the court may review, in camera, the recording of that portion of the closed session alleged to have violated the act.
(4) If, following the in camera review, the court concludes that disclosure of a
portion of the recording would be likely to materially assist in the resolution of the litigation alleging violation of this chapter, the court shall, in its discretion, make a certified transcript of the portion of the recording a public exhibit in the proceeding.
(5) Nothing in this section shall permit discovery of communications which are
protected by the attorney-client privilege. 54960.1. Violation of Act; Actions declared null and void
(a) The district attorney or any interested person may commence an action by mandamus
or injunction for the purpose of obtaining a judicial determination that an action taken by a legislative body of a local agency in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956, or 54956.5 is null and void under this section. Nothing in this chapter shall be construed to prevent a legislative body from curing or correcting an action challenged pursuant to this section.
(b) Prior to any action being commenced pursuant to subdivision (a), the district attorney
or interested person shall make a demand of the legislative body to cure or correct the action alleged to have been taken in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956, or 54956.5. The demand shall be in writing and clearly describe the challenged action of the legislative body and nature of the alleged violation.
(c) (1) The written demand shall be made within 90 days from the date the action was
taken unless the action was taken in an open session but in violation of Section 54954.2, in which case the written demand shall be made within 30 days from the date the action was taken.
(2) Within 30 days of receipt of the demand, the legislative body shall cure or
correct the challenged action and inform the demanding party in writing of its actions to cure or correct or inform the demanding party in writing of its decision not to cure or correct the challenged action.
(3) If the legislative body takes no action within the 30-day period, the inaction
shall be deemed a decision not to cure or correct the challenged action, and the 15-day period to commence the action described in subdivision (a) shall commence to run the day after the 30-day period to cure or correct expires.
(4) Within 15 days of receipt of the written notice of the legislative body's decision
to cure or correct, or not to cure or correct, or within 15 days of the expiration of the 30-day period to cure or correct, whichever is earlier, the demanding party shall be required to commence the action pursuant to subdivision (a) or thereafter be barred from commencing the action. Received on Fri Dec 10 2010 - 09:41:18 PST


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