City prepares to defend appointing councilman

Chula Vista resident Chris Shilling followed through with his demand letter and is suing the city of Chula Vista for alleged Brown Act violations during meetings regarding the appointment of a council member.

In a lawsuit filed Feb. 23, Shilling and the nonprofit organization San Diegans For Open Government contend that the mayor and City Council violated the Brown Act by hosting serial meetings, and holding secret meetings with regards to an appointment to fill a vacant City Council seat.

“The process was not open and transparent,” Shilling said. “It was secret and took legal action just to find out what was done illegally behind closed doors.”

According to the lawsuit, a serial meeting occurred when the mayor and council members participated in “one-on-one private meetings with the city clerk for the purpose of developing a collective concurrence or of sharing information that could be used to develop a collective concurrence. Such meetings constitute ‘serial meetings.’”

The mayor and council emailed the city clerk their nominations from a list of 44 candidates to move into the interview round of the appointment process. The lawsuit contends that the vote sent to the city clerk for an interview was not made during a public meeting, which constitutes a violation of the Brown Act by secret ballot.

Councilwoman Pat Aguilar said the council’s use of the appointment process is in fact legal.

“I strongly disagree,” Aguilar said about the alleged illegality of the process. “I strongly support the city attorney defending us on this one because I think we handled that process right.”

The grounds for the lawsuit occured when Shilling’s records request seeking a list of the mayor’s and each council member’s nominees for the vacant city council seat was denied.

City Attorney Glen Googins cited the deliberative process exemption to the Public Records Act as the basis for the denial. Googins previously said that the mayor and council can publicly state who they nominated if they wanted to, or they can cite the deliberative process and not reveal their nominations.

Once Shilling’s request was denied, he contacted Cory Briggs, a prominent environmental and open government attorney.

Briggs and the Coast Law Group LLP represent Shilling.

“We filed a lawsuit to send a message to the citizens and the city of Chula Vista that following the law matters,” said Livia Borak with Coast Law Group LLP. “We feel the only way to get the city to change its ways is to file the lawsuit.”

Attorneys for Shilling sent the city a demand letter on Jan. 21 asking the city to release the nominations of each council member and mayor.

Another demand from the letter was to “cure and correct” the appointment process.

The letter stated that if the process wasn’t cured or corrected, the city of Chula Vista faced the threat of a lawsuit.

The city of Chula Vista eventually adhered to the first demand and released the list of nominees by the mayor and each council member.

Aguilar admits that the city shouldn’t have withheld the list of nominations

“On that one, in my opinion, Chris (Shilling) was right,” she said. “I think it was a mistake for us to have refused to release it. And on that one I think we were wrong. And I think that we turned it over, and I think that was the right thing to do.”

The city of Chula Vista, however, didn’t comply with the second demand to “cure and correct” the appointment process.

Mayor Mary Casillas Salas issued a statement explaining the city stands by their decision.

“The City Council and I believe that the process we used to fill the recent city council vacancy was open and fair,” the statement says in part. “Accordingly, we, including the city attorney, are prepared to defend it. This is the process we have been using for at least 10 years to fill vacancies both on the City Council and the Planning Commission. We not only developed and approved the process in public, we had public input at every stage.”

Googins said he is standing by Casillas Salas’s statement.

“I agree completely with the mayor’s statement,” he said.

Googins did not offer additional comment.

Shilling said the process has been illegal for as long as the city has been using it.

“The fact that the city has been breaking the law for at least 10 years only shows why this action is so necessary,” he said. “The fact that you made a very expensive mistake is not a defense for breaking the law. I do not believe it is unreasonable to expect our legislative bodies to follow the law.”

The City Council also followed the same process in 2009 with the appointment of Mitch Thompson to the City Council.

When asked for comment, Councilwoman Pamela Bensoussan referred to the mayor’s statement.

Borak said she was “disappointed” with the mayor’s statement.