UPDATE:
Letters: Clearing air around editorial
Deborah Mall and Don Freeman
Editor's note: Mall is the Monterey city attorney and Freeman is the city attorney for Carmel and Seaside
The Monterey County Herald, 08/07/2011
HIGHLIGHTS:
• Relative to the CDO (Cease and Desist Order, State Water Resources Control Board) mediation, outside counsel Russ McGlothlin of Brownstein Hyatt Farber and Schreck prepared a confidentiality and nondisclosure agreement for signature. Signatories were advised by city attorneys Deborah Mall and Don Freeman that the nondisclosure agreement and all pertinent documents were subject to the Public Records Act.
Note: City of Carmel-by-the-Sea July 2011 Check Register
122748 7/28/2011 BROWNSTEIN/HYATT/FARBER/SCHRECK $6,584.41
• Michael Stamp made a Public Records Act request to the cities for a copy of the nondisclosure agreement. Freeman sent a letter and copy of the nondisclosure agreement to Stamp on July 28 advising that Freeman was responding on behalf of the mayors of Carmel, Del Rey Oaks, Monterey, Pacific Grove, Seaside and Sand City.
City Council
Regular Meeting
Tuesday, August 2, 2011
4:30 p.m., Open Session
Video streaming
V. Announcements from Closed Session, from City Council Members and the City Administrator.
B. Announcements from City Council members (Council members may ask a question for clarification, make a brief announcement or report on his or her activities).
City Council Member Jason Burnett’s Queries regarding Confidentiality & Nondisclosure Agreement to City Attorney Don Freeman:
City Council Member Jason Burnett: An individual council member or mayor cannot bind the other council members to the agreement.
City Attorney Don Freeman: That's correct.
Council Member Jason Burnett: An individual council member or mayor cannot unilaterally create a liability by signing a document of that sort saying that if certain things happen, the city would be liable.
City Attorney Don Freeman: That's correct, unless authorized by the City Council to do so.
Council Member Jason Burnett: And, in this case it was not authorized by the City Council.
City Attorney Don Freeman: That's correct.
(City Council Meeting Video 15:25 – 16:15)
VI. Public Appearances
Adam Moniz’s Questions of City Attorney and City Council Members regarding Confidentiality and Nondisclosure Agreement and ended by advocating for “openness and transparency” in city government.
1. As the city attorney, did you or did you not advise Mayor McCloud to execute the Confidentiality Agreement?
2. As city council members, is it your understanding that you are bound by the Confidentiality Agreement? Why or why not?
3. As reported by The Monterey County Herald, City Attorney Don Freeman suggested mayors not take the Agreement back to their respective cities, is that true?
4. As a general law city and as city attorney, where does the mayor derive his/her authority too bind his/her city to an Agreement without city council authorization?
5. As city attorney, how did you envision the other five cities complying with the terms and conditions of the Agreement without a copy of the Confidentiality Agreement?
No Responses from City Attorney or City Council Members to Adam Moniz’s Questions.
(City Council Meeting Video 00:54:45)
Editorial: Secrecy puts desal project in deep hole
The Monterey County Herald 08/03/2011
HIGHLIGHTS:
• City officials not only gagged themselves but also mounted a poorly conceived and haplessly executed effort to keep the formal confidentiality agreement confidential.
• What makes it all even more remarkable is that the secret had already gotten out, quite publicly. Stamp made his written request for the agreement on July 22, two weeks after Dale Hekhuis, former chairman of the Monterey Peninsula Water Management District, complained about the confidentiality agreement in a letter to the editor that was published in The Herald on July 8.
• We said from the start and still believe that failure to involve the bill-paying public has been the desalination project's biggest failing. If the venture is to be saved, the cone of silence must be lifted and soon. If the cities are to play any role in advancing this project, the mayors need to tear up their agreement and ask for the public's forgiveness and assistance.
Mayors agree not to talk desal
Confidentiality deal not reviewed by city councils
By JIM JOHNSON Herald staff writer, 08/02/2011
HIGHLIGHTS:
• A 90-day confidentiality agreement banning Peninsula mayors, city officials and staff from publicly discussing the embattled regional seawater desalination project was kept largely secret itself, perhaps in violation of state public records law.
• The agreement, written by attorney Don Freeman — legal counsel to Carmel and Seaside, was introduced and signed by six Peninsula mayors, as well as city managers and city attorneys, and California American Water officials, then handed to Freeman for safekeeping, said Monterey Mayor Chuck Della Sala.
• Stamp said the mayors' actions are "particularly offensive" given the importance of the desal project and the public right to be kept apprised of developments.
"They completely shut down political debate and then played hot potato (with the agreement)," Stamp said. "This was a gag order on every city council member and every city employee. It was an official act of the city. I don't think the public should have to guess who has it."
• In releasing the agreements, Freeman wrote that the mayors were not agreeing they were public documents but were providing them in the "interest of public transparency."
• Stamp said he has yet to receive any documents, which he requested, showing how the agreement was proposed and acted on, and authorized, as well as the mayors' authority to impose the terms of the agreement on city officials and staff.
8 comments:
Public perception is the six mayors and council members from all six cities knew about the confidentiality agreement and agreed to abide by it. The reality that Carmel council members did not know of the existence of the confidentiality agreement does not alter public perception among most readers of recent news accounts. Often in politics, perceptions are more powerful than reality.
Whether or not there is an investigation by the State Attorney General’s Office, the Monterey County District Attorney or a civil lawsuit filed by attorney Michael Stamp, it appears violations of the Brown Act/Open Meeting Law and California Public Records Act occurred.
The mayor, city council members and certain city employees have an astonishing record of not taking responsibility for their actions, individually and collectively. It would be a welcome change if city officials and employees demonstrated the understanding that with power comes responsibility and any and all unethical and illegal acts by any one of them taints all of them, their positions and the City.
The Herald apparently had one of the facts wrong in its article and you have repeated it without checking with the source, i.e., Don Freeman. Apparently Don did not write the confidentiality agreement; rather the attorneys hired to represent the peninsula cities crafted it.
So, what are you saying? Guilt by association? One is guilty so all the others are guilty by default because of the public position they may hold?
Yeah, Adam Moniz asked questions during public appearances at the meeting and came off looking like a jerk who is running for election. Especially since he was repeating questions already asked by Jason Burnett and answered by Don Freeman.
While Freeman was willing to comment further on the questions, it was unfortunate that he was barred from doing so by Mayor McCloud.
Re: The Herald apparently had one of the facts wrong in its article and you have repeated it without checking with the source, i.e., Don Freeman. Apparently Don did not write the confidentiality agreement; rather the attorneys hired to represent the peninsula cities crafted it.
Comment: City Attorney Don Freeman signed off on the Agreement. Legitimate questions exist concerning the location of the Agreement and why all the cities did not have copies. Other legitimate questions:
City attorneys Deborah Mall and Don Freeman wrote that the “nondisclosure agreement and all pertinent documents were subject to the Public Records Act.” How were members of the public to know to submit a Public Records Act request for said document when the City did not inform the public of the existence of the Agreement? If the mayor cannot bind other council members to the agreement and the mayor cannot unilaterally create a liability by signing the Agreement without City Council authorization as Don Freeman stated, then what was the purpose of the Agreement? Why wasn’t the Agreement placed on a City Council agenda for authorization by the City Council and for the purpose of informing the public of the existence of said Agreement?
Re: So, what are you saying? Guilt by association? One is guilty so all the others are guilty by default because of the public position they may hold?
Comment: Your association fallacy misinterprets the idea that council members should be concerned with things beyond themselves and their personal ambitions. For example, Jason Burnett’s questions of Don Freeman had the effect of absolving him as a council member of any negative association; he did not express an interest in the more important and broader issue of explaining how it appears that violations of the Public Record Act and Brown Act occurred.
Re: Yeah, Adam Moniz asked questions during public appearances at the meeting and came off looking like a jerk who is running for election. Especially since he was repeating questions already asked by Jason Burnett and answered by Don Freeman.
While Freeman was willing to comment further on the questions, it was unfortunate that he was barred from doing so by Mayor McCloud.
Comment: Adam Moniz asked questions of a broader scope than Jason Burnett and deserved to have his questions answered, as any and all members of the public deserve to have their questions answered fully and completely.
Disparaging Adam Moniz does not make Jason Burnett a more likeable or electable candidate for any public office with citizens who have high standards for public office holders. The best candidates for Carmel should not have to put others down to prove they are good for Carmel. Disparaging others is unprofessional and reeks of arrogance and insecurity. Lastly, a deserving, upright and fair politician debates the issues and does not malign his opponent.
City Attorney Don Freeman most certainly could have answered Adam Moniz’s questions if he wanted too and he should have for the benefit of the public.
"The best candidates for Carmel should not have to put others down to prove they are good for Carmel. Disparaging others is unprofessional and reeks of arrogance and insecurity."
I guess that leaves Adam out of the running.
Nice try Anonymous. The cities' H2O attorneys are irrelevant. What is relevant is did Don Freeman advise Mayor Sue McCloud to sign the Agreement. And if he did, why isn't the city council meeting to take immediate action to fire him? Contrary to conventional widsom, Don's legal acumen is not top drawer. Along with a new city administrator let's get a new city attorney with an email.
Slamming Adam and name calling are signs of a loser mentality. Jason and his followers should not see Adam as a threat and opponent, but as a constructive force to restore Carmel’s credibility. He has shown the courage to run against Sue and if she runs again he could get rid of our main problem and should be encouraged to do so.
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