The governmental watchdog Californians Aware has jumped into the controversy over whether the city violated — at least the spirit of — the state’s open meeting law.

In an e-mail sent Friday, Terry McKee of Californians Aware asked the city to send him a copy of the city’s agreement with the Tule River Indian Tribe that was approved by the city council in closed session on March 16. He also requested minutes from that meeting.

The Coalition of Retailers, a group of local business owners, raised the issue several months ago. They are concerned the city is paving the way for the tribe to develop property near the airport, and they fear because the tribe does not have to collect sales taxes, it would have an unfair advantage over the local retailers.

At issue is the memorandum of understanding reached on March 16 between the city and the tribe. The action was taken in a closed session and the retailers, as well as Californians Aware, contend it was not properly placed on the agenda.

City officials contend they did not violate the Brown Act and the MOU is simply to begin a process to study how the tribe might be able to develop some land at the airport.

Last week, the Tulare County District Attorney’s office ruled that the city did not violate the Brown Act — the state’s open meeting law designed to make government transparent.
However. McKee said the DA’s standard and his group’s standard are different.

“DA only looks at it from a criminal perspective. We look at it from a civil perspective,” he said. McKee is the person who filed the suit against the Tulare County Board of Supervisors for alleged violations of the Brown Act because of board lunches in which county business may have been conducted. A Tulare County Superior Court judged ruled against McKee in that case.

In his ruling last week, Assistant District Attorney Don Gallian stated:

“After careful review of all the documents provided, it is my opinion that both sides are correct in their allegations. It appears that the people of Porterville were not given an opportunity to voice their support or opposition to the Cooperation Agreement prior to it being acted on by the Porterville Council and the Tule Indian Council. However, it is my responsibility to determine only whether there has been an intentional violation of the Brown Act. Based upon the material that has been provided, I agree with the City Attorney that there was not a violation.”

McKee, and Aware general counsel Terry Francke said they feel the city did violate the public’s trust.

“They kept from the public information they should have had,” said McKee of the March 16 meeting. He is asking the city correct the infraction by acknowledging its closed session “was improper” because it was not a closed session item and it was not properly agendized as required. He is also asking the city council commit to holding only expressly authorized and properly agendized closed sessions in the future, and that all agendas will identify the location of its meetings.”

City Manager John Lollis, citing the DA’s ruling, said the city still does not feel it violated the law.

“We don’t believe it was a Brown Act violation. The DA doesn’t think it was a Brown act violation,” he said.

Lollis did say the city would respond to Californians Aware, but will “absolutely not” acknowledge it was a violation.

McKee said his group will watch the city closely and if not satisfied, then would file a civil suit seeking a judge to rule the city did violate the law. However, that ruling would carry little weight since the 90-day period where an action could be overturned has passed.
“It simply declares to the world they broke the law when entering into this agreement,” said Francke.

Both Francke and McKee said they became aware of the city’s possible violation through the media and that no one contacted them. “We have Goggle Alert for Brown Act violations,” said McKee.

He said they will monitor the city council agendas for the next several months, but he feels the community will be keeping a close look as well.

“I think the public up there has its eyes wide open,” he said.