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Former Imperial Beach Mayor Diane Rose was formally seated to the City Council last night amid anger from some community members who claimed the council had failed to follow state law in appointing her.
At least one open-government expert agrees with the IB community members’ assertion that the council violated the Brown Act when it appointed Rose to fill the vacant seat created by the May 24 death of Councilman Fred McLean.
At a special meeting May 27, the council voted to have Rose appointed despite not having placed an item on the agenda indicating explicitly that any appointment would be considered. The only item on the agenda was a presentation by City Manager Gary Brown discussing the council’s options for filling the vacancy moving forward. Those options included calling a special election or making an appointment.
That presentation included a recommendation from the city manager that the council make a temporary appointment, and that it decide when an election for a permanent member would be held.
In his recommendation, the city manager suggested the council post a public notice calling for applications to be submitted by interested candidates by June 4 and that a candidate be selected by June 23 in order to comply with state election requirements that a temporary council member be in place within 30 days.
The decision by the council to appoint Rose that same day may have violated a section of the Brown Act stipulating that “[n]o action or discussion shall be undertaken on any item not appearing on the posted agenda.”
According to the state’s open-meeting law, because consideration of an appointment was not listed on the agenda, the Council could have requested more information or taken action “to direct staff to place a matter of business on a future agenda.”
Instead, Mayor Jim Janney moved to appoint Rose, having received a phone call from the former mayor in which she “offered her services” to the council, Janney said in an interview. After discussion with the city attorney present at the meeting, the council voted to appoint Rose.
The next day, on May 28, a front page notice appeared in the Imperial Beach Eagle & Times calling for applicants to fill the seat.
The Office of the City Clerk, which issued the notice, attempted to retract it after learning of the Council’s decision, but it had already gone to print. The notice had been prepared May 26, the day before the council’s special meeting.
That raised the ire of many community members after some Imperial Beach residents attempted to apply for the position and were told it had already been filled.
Several of those members attended last night’s meeting and asked the council to rescind Rose’s appointment in the interest of due process. After conferring with City Attorney James Lough, who assured members that the council was acting on solid ground, the mayor and two of the three remaining members voted to seat Rose.
Lough said the city was not in violation of Brown Act requirements during the May 27 meeting because the agenda item, broadly titled “Filling a Vacant Council Position,” gave the council sufficient authority to appoint someone to fill the vacant seat.
But Terry Francke, general counsel for Californians Aware, a nonprofit organization that advocates for open government, disagreed.
“The subdivision of the city manager’s report (on the May 27 agenda), presented as options, clearly wouldn’t lead anyone to conclude that there would be an appointment that night,” Franke said.
“What you see on the agenda is a scenario for a discussion of options for filling the seat,” Francke said. “You do not see a scenario for the appointment of Mr. X. It really has to be that definite to give people fair warning, particularly when all the other signals are talking about a process for going forward.”
The contents of the agenda item, combined with the notice published in the Eagle & Times seeking applicants, led the public to be misdirected, he said.
Serge Dedina, an active Imperial Beach resident who organized opposition to Rose’s appointment, said he would be writing to the state attorney’s office asking that the appointment be investigated.