Publication Date: Wednesday, June 08, 2005
The mayor's 'secret' memo
The mayor's 'secret' memo
(June 08, 2005) Burch takes full responsibility for 'lack of judgment'
by Bill D'Agostino, Jocelyn Dong and Jay Thorwaldson
A secret memo from Palo Alto Mayor Jim Burch prompted a midnight phone call Monday between the city attorney and assistant city manager to prevent the Palo Alto City Council from breaking the law.
Burch had given all nine council members copies of the memo, which was a response to an inquiry from the city's new police review board, asking for their feedback. But he refused to share the document with the public.
The withholding of the document, and the request for responses from council members, were arguably violations of the state's open-government law, known as the Brown Act. According to the rule, any document given to all or a majority of a board before or at a meeting must be considered "public." In addition, the law prohibits a discussion of issues by a majority of council members out of the public eye.
The memo was a proposed reply to the city's Human Relations Commission, which the council recently appointed to be the police oversight board. The commission had asked the mayor for further clarification about its new role.
When asked by a reporter about the memo at the end of the Monday night meeting, Burch refused to share it with the press.
"It's a work in progress," he explained.
City Attorney Gary Baum, however, overheard the discussion with the reporter and promptly called Assistant City Manager Emily Harrison just before midnight. To keep the council from deliberating on the issue away from a public meeting, Harrison immediately sent a follow up e-mail to the council that asked them to respond not to Burch but to the assistant city manager, as well as not to share their comments with one another. Baum said the council members' responses will be made public.
By the next morning Burch had changed his mind, and brought the memo to the Weekly's office. He indicated he also would be sending a copy to Jeff Blum, chair of the Human Relations Commission.
"I am totally responsible for the lack of judgment," Burch said.
Due to numerous interpretations of the Brown Act, some claim that the memo could have been kept private had Burch not asked for feedback. However, staff at the First Amendment Project in Oakland disputed that interpretation.
"It doesn't matter. (The memo) could be his shopping list. Once it's distributed at a public meeting, then it has to be made public without delay," said David Greene, executive director of the nonprofit.
The memo had been drafted by the mayor and city staff, whom Burch declined to identify.
The memo outlined three roles for the Human Relations Commission -- as a review body for police policy, a community perspective on the department's strategic plan, and as a review and recommendation board regarding citizen complaints. It stated that the commission would perform the review role on a "pilot basis" for one year and then provide an evaluation to the council.
The Human Relations Commission is planning to further discuss its proposed role on Thursday evening. The council asked the commission to take on the new responsibility to respond to concerns about the city's police department's interactions with suspects of color.
The mayor's new memo came to light at the end of the meeting when Councilman Jack Morton noted the presence of the draft response and asked if the issue was going to be placed on the council's agenda for discussion.
On Tuesday, Burch said he should have put the item on the agenda, and that he expected it would be reviewed at a future council meeting. He said the reason for handing out a memo was simply that he wanted to get his colleagues' feedback, and that it basically summarized a previous council discussion about the commission's new role.
Burch said it is the first time this snafu has happened, "as far as I know."
Staff Writer Bill D'Agostino can be e-mailed at bdagostino@paweekly.com.
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