Formal Demand Calls for Do-Over Vote to Select Santa Monica Mayor and Mayor Pro Tem
December 23, 2020
A Demand to Cure and Correct alleges a Brown Act violation regarding the selection of Council leadership, calls for Council to conduct new vote without participation of Councilmember McCowan.
Letter sent on December 18, 2020 to Mayor Himmelrich, City Councilmembers, Interim City Attorney Cardona, Interim City Manager Dilg and City Clerk Anderson-Warren reads:
Dear Mayor Himmelrich and Santa Monica Councilmembers,
Pursuant to California Government Code Section 54960.1, I am writing to call your attention to what I understand was a substantial violation of a central provision of the Ralph M. Brown Act which may jeopardize the legality of all actions taken by the Santa Monica City Council since December 8, 2020.
During its meeting of December 8, 2020, the Council selected the Mayor and Mayor Pro Tem by a formal vote.
Prior to this public meeting and vote, Councilmember McCowan communicated her position on the pending matter of selection of Mayor and Mayor Pro Tem to a majority of Councilmembers in a series of individual conversations, known as "hub-and-spoke" serial meetings.
During those serial meetings, Councilmember McCowan had individual separate conversations with three Councilmembers where she communicated her interest in serving as Mayor Pro Tem, and her support for Councilmember Sue Himmelrich for Mayor.
The Ralph M. Brown Act states, in pertinent part:
54952.2. (b) (1) A majority of the members of a legislative body shall not, outside a meeting authorized by this chapter, use a series of communications of any kind, directly or through intermediaries, to discuss, deliberate, or take action on any item of business that is within the subject matter jurisdiction of the legislative body.
Councilmember McCowan's public statement about her "hub-and-spoke" serial meetings does not cure the violation of the Brown Act because there is no reason to believe that the effect of the serial meetings on the majority of the Council was erased by her public statement.
During the selection of the Mayor and Mayor Pro Tem on December 8, 2020, after Councilmember McCowan issued a statement about her "hub-and-spoke" serial meetings, not a word of comment or discussion was uttered by the Interim City Attorney Cardona, the other six Councilmembers, Interim City Manager Dilg or City Clerk Anderson-Warren - all of whom are expected to be well acquainted with the Brown Act and the City of Santa Monica Code of Ethics.
It is not known if Interim City Attorney Cardona had conducted any investigation of the serial meetings. Furthermore, it is not known if Interim City Attorney Cardona advised Councilmember McCowan to recuse herself from the vote or to refrain from accepting a nomination.
Councilmember McCowan participated in the vote and accepted a nomination for Mayor Pro Tem.
The outcome of the Council's December 8, 2020 vote mirrored Councilmember McCowan's wishes as stated in her "hub-and-spoke" serial meetings, i.e. Councilmember McCowan was selected as Mayor Pro Tem and Councilmember Himmelrich was selected as Mayor.
In order to cure and correct what I understand was an illegally taken action, pursuant to California Government Code Section 54960.1, I demand that the Santa Monica City Council commit to the following:
1. Conduct a new vote to select Mayor and Mayor Pro Tem;
2. Councilmember McCowan refrain from participating in the new selection of Mayor and Mayor Pro Tem;
3. Councilmember McCowan not be nominated or accept a nomination for Mayor or Mayor Pro Tem during her current term;
4. Obtain a legal opinion from Interim City Attorney Cardona by the next Council meeting on whether the Brown Act violation discussed herein affects the validity of the actions taken by the Mayor, Mayor Pro Tem and City Council since December 8, 2020;
5. All current Councilmembers complete the League of California Cities New Mayors and Councilmembers Academy within 90 days of this letter;
6. Direct staff to revise and update the training policy in regard to all aspects of the Brown Act within 90 days of the date of this letter.
As provided by Government Code Section 54960.1, you have 30 days from the receipt of this demand to either cure or correct the challenged action or inform me of your decision not to do so. If you fail to cure or correct as demanded, such inaction may leave me no recourse but to seek a judicial invalidation of the challenged action pursuant to Section 54960.1, in which case I would also ask the court to order you to pay my court costs and reasonable attorney fees in this matter, pursuant to Section 54960.5.
When reviewing this demand, please take into consideration the Legislature's intent as stated in the initial section of The Ralph M. Brown Act:
"In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's business. It is the intent of the law that their actions be taken openly and that their deliberations be conducted openly."
"The people of this State do not yield their sovereignty to the agencies which serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may retain control over the instruments they have created."
As you know, during the recent election, Santa Monicans sent a clear message to the City Hall: no more business as usual.
The people expect the new City Council to first and foremost serve the residents, and conduct itself lawfully, ethically and with transparency. Not addressing a Brown Act violation during the very first meeting of the new Council is not the new start Santa Monicans had been hoping for. This issue must be cured by the Council to demonstrate the Council's respect for the law and the value the Council places on public trust.
1. Los Angeles County District Attorney's Office, Public Integrity Division
2. League of California Cities