CITY OF HEALDSBURG
CITY COUNCIL
SPECIAL MEETING AGENDA
City Hall Conference Room One
401 Grove Street
Healdsburg, CA 95448
707-431-3317
Meeting Date:
Time:
Date Posted:
January 6, 2025
4:30 P.M.
January 2, 2025
1. CALL TO ORDER/ROLL CALL
A. Approval of January 6, 2025 Special Meeting Agenda
2. PUBLIC COMMENTS
Members of the public will have an opportunity to address the City Council concerning any items listed on this Special Meeting Agenda at the time that the item is considered.
No other items may be discussed at this Special Meeting. (Government Code Section 54954.3). For Closed Session Items, public comments may be made at this time.
3. CLOSED SESSION
A. Conference with Legal Counsel regarding Exposure to Litigation pursuant to Government Code Section 54956.9(d)(2): Two (2) cases.
4. ADJOURN SPECIAL CITY COUNCIL MEETING
1 JON B. EISENBERG
Healdsburg, CA 95448
December 26, 2024
Via U.S. mail
City of Healdsburg
401 Grove Street
Healdsburg, CA 95448
Via email
City of Healdsburg—[email protected]
David Hagele—[email protected]
Ariel Kelley—[email protected]
Evelyn Mitchell—[email protected]
Chris Herrod—[email protected]
Ron Edwards—[email protected]
Jeff Kay—[email protected]
Samantha Zutler—[email protected]
To all:
I write to give notice that I am preparing to commence litigation against the City of Healdsburg, its City Council members, its City Manager, and its City Attorney. Before filing a Complaint, I wish to propose a settlement.
The potential litigation arises from the City’s unsuccessful campaign for passage of Measure O, a hotly contested local ballot measure in the November 5, 2024, general election.
Measure O would have led to zoning changes authorizing a substantial increase in high density housing construction throughout targeted portions of Healdsburg—most controversially, in the city’s downtown, whose quaint character is why Condé Nast Traveler calls Healdsburg “Sonoma County’s most charming town.” Measure O failed by a margin of 56% to 44%.
The City Council put Measure O on the ballot and pushed heavily for its passage. In the process, the City, the City Council members, the City Manager, and the City Attorney violated multiple rules regulating local government:
• City Council members Ariel Kelley, Evelyn Mitchell, and Chris Herrod violated the Ralph M. Brown Act (Gov. Code, § 54950 et seq. (“Brown Act”)) by secretly meeting—along with persons affiliated with the “Yes on O” ballot measure campaign committee—to discuss Measure O outside the public meeting format. (Gov. Code, § 54952.2.) Kelley secretly circulated internal City documents— which were not available to the public—for the Yes on O committee’s use in its campaign for Measure O.
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 2 • All five City Council members committed multiple violations of the Brown Act by using serial communications—via email and in-person meetings, both directly and through intermediary Jonathan Pearlman—to discuss Measure O outside the public meeting format. (Gov. Code, § 54952.2(b)(1).) During a City Council meeting, Kelley candidly admitted such violations, calling them “Brown Act-ing.” • The City Council unlawfully expended public funds on a multifaceted campaign for Measure O’s passage. (Vargas v. City of Salinas (2009) 46 Cal.4th 1.) The councilmembers spent some $100,000 of the City’s money on partisan campaign materials that featured false and misleading statements about Measure O.
Kelley’s secret circulation of internal City documents to the Yes on O committee also constituted an unlawful expenditure of public funds because those documents had been generated at City expense.
• City Manager Jeff Kay and City Attorney Samantha Zutler violated the California Public Records Act (Gov. Code, § 7920.000 et seq. (“PRA”)) by failing to disclose email messages sent to and from councilmembers’ personal accounts.
Some of those email messages show clear violations of the Brown Act. • The City Council and Zutler failed to ensure that minutes of regular City Council meetings are taken and approved as required by state law (Gov. Code, §§ 36814 & 40801) and by the City’s own policies and procedures. As of this writing, the City Council has accumulated a 15-month backlog of missing or unapproved minutes.
Plainly this misbehavior is deeply embedded in the culture of our city government. It continues to this day as the City Council addresses a controversial forthcoming switch from atlarge to district election of its members. The purpose of this letter is to help set the City Council on a law-abiding path.
BACKGROUND
Measure O would have amended the City’s Land Use Code to lift existing restrictions on construction of multi-family housing in portions of Healdsburg—including part of its downtown core—by creating zones of exclusion from the City’s Growth Management Ordinance (“GMO”).
The GMO limits new residential construction throughout Healdsburg to allocations of 30 units per year.
In early 2024, the City Council began crafting the ballot measure that became Measure O.
It would have amended the GMO by creating three geographic zones of exclusion from the GMO’s provisions, allowing construction of multi-family housing in those zones:
• The Healdsburg Avenue North exclusion zone encompassed a narrow, mile-anda-half-long corridor along a portion of Healdsburg Avenue north of Healdsburg Plaza.
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 3 • The Central Healdsburg Avenue Plan exclusion zone surrounded Healdsburg’s defunct railroad depot south of downtown.
• The South Entry exclusion zone was an undeveloped swath of land at Healdsburg’s southeast corner, east of the Russian River.
A City-commissioned poll indicated that 54% of the electorate would vote against Measure O if the Healdsburg Avenue North exclusion zone were to extend into any part of the CD zoning district in Healdsburg’s downtown core. Nevertheless, the City Council disregarded the poll and crafted the Healdsburg Avenue North exclusion zone to extend one block into the CD district, between North and Piper Streets.
The City Council intended to substantially increase housing density limits in Measure O’s exclusion zones if Measure O were to pass. A City-commissioned “Downtown Housing Capacity Study” recommended, among other things, a fourfold density limit increase—from 16 to 65 dwelling units per acre—in the portion of the Healdsburg Avenue North exclusion zone that reached into the downtown core. During the City Council meeting of April 15, 2024, the councilmembers agreed that once Measure O passed, they would promptly amend the Land Use Code to raise density limits in accordance with the Downtown Housing Capacity Study’s recommendations.
On May 5, Pearlman—who, three weeks earlier, had applied for appointment to the Healdsburg Planning Commission—sent an email to all five City Council members, warning: “I do not think that the CD Downtown zone should be considered for a geographic exclusion. This would open a can of worms that, I believe, would stoke the ire of most citizens.” In a follow-up email Pearlman sent to all five City Council members on May 21, he repeated his May 5 warning verbatim and added: “For the general public considering the ballot measure, this could very well be its death knell.”
During the May 20 City Council meeting, however, councilmember David Hagele indicated that Pearlman’s support for Measure O as drafted would be essential to his appointment to the Planning Commission. Hagele said: “[W]e are very intentional in what we’re looking to do with the growth management ordinance. And we’re trying to … really set the tone for when the ballot measure [Measure O] passes, then we need a Planning Commission that is ready to go and be prepared to really implement some of these things that we’ve been working on.” (Emphasis added.)
Pearlman’s May 21 email precipitated a two-week flurry of emails and in-person meetings between Pearlman and all five City Council members. At the next City Council meeting, on June 3, Pearlman did a complete turnabout and proposed that the City Council enlarge the southernmost part of the Healdsburg Avenue North exclusion zone—an area bounded by Healdsburg Avenue, Piper Street, Center Street, and North Street—to extend a block further east from Center Street to East Street. The City Council quickly adopted the proposal, with little discussion. This enlargement meant that if Measure O passed, the City Council’s subsequent quadrupling of density limits in the downtown core would authorize construction of some 400 new multi-family dwelling units in two square blocks straddling Center Street, a block from Healdsburg Plaza.
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 4 On June 17, the councilmembers voted to put Measure O on the ballot—after which they promptly appointed Pearlman to the Planning Commission. There appears to be a causal connection between Pearlman’s appointment and his change of position on Measure O—which will be thoroughly explored through discovery if litigation ensues.
Pearlman’s warning proved to be prescient. Measure O indeed failed, with 56% of the electorate voting against it—remarkably close to the City-commissioned poll’s 54% prediction.
VIOLATIONS OF STATE LAW
I. BROWN ACT VIOLATIONS
A. Unlawful Congregation of City Council Members
On August 14, 2024, Planning Commission member Pearlman forwarded an email thread to City Council members Kelley, Mitchell, and Herrod, and to two persons affiliated with the Yes on O ballot measure campaign committee—its assistant treasurer Alex Wood (who is also a Planning Commission member) and its campaign consultant Leo Buc—in which Pearlman, Herrod, and members of the public had previously discussed Measure O’s application to “middle income” residents.
Pearlman’s forwarding of the prior email thread triggered “reply all” emails from Kelley and Herrod to everyone on Pearlman’s distribution list, in which Kelley and Herrod addressed Measure O’s application to “middle income” residents. One of Kelley’s “reply all” emails included an attachment of what Kelley called a “city-generated report,” which included three internal City documents—a chart entitled “Income Distribution & Job Wages in Healdsburg,” a bullet-point list of “Median Wages by Job Category,” and a list of “Healdsburg Healthcare Worker Salary Ranges.” Those three documents were and remain unavailable to the general public.
The email exchanges among Kelley, Mitchell, and Herrod violated the Brown Act’s prohibition against meetings of City Council members outside the public meeting format. A “meeting” subject to the Brown Act includes “any congregation of a majority of the members of a legislative body at the same time and location … to hear, discuss, deliberate, or take action on any item that is within the subject matter jurisdiction of the legislative body.” (Gov. Code, § 54952.2(a).) Such a “meeting” includes an email exchange.
Pearlman’s forwarding email also stated: “Let’s discuss in our meeting today.” Assuming Kelley, Mitchell, and Herrod met in person later that same day with Pearlman, Wood, and/or Buc, that too violated the Brown Act’s prohibition against unlawful congregation.
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 5 B. Serial Communications Among City Council Members
1. The serial communications
Government Code section 54952.2(b)(1) provides: “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.” (Emphasis added.) The phrase “directly or through intermediaries” refers to the two types of serial communications that can violate the Brown Act—“daisy-chain” communications, and “hub-and-spoke” communications. (See League of Calif. Cities, Open & Public VI: A Guide to the Ralph M. Brown Act (rev. Jan. 2024), p. 22 [“The serial meeting may occur by either a ‘daisy-chain’ or a ‘hub-and-spoke’ sequence.”].) Direct communication between two legislators, and then between one of them and a third legislator, comprise a daisy-chain scenario.
Communications through intermediaries comprise a hub-and-spoke scenario.
A series of collectively unlawful communications among Pearlman and the City Council members commenced the day after Pearlman’s May 21 email opposing inclusion of the downtown core in the Healdsburg Avenue North exclusion zone. In this email, Pearlman also offered a suggestion about how Measure O’s wording should be pitched to the electorate, saying that “in framing arguments for” Measure O, the term “‘middle-class’ housing” would be “relatively easy for most people to understand.”
Earlier on May 21, City Clerk Raina Allan had scheduled Pearlman to be interviewed for appointment to the Planning Commission—by Kelley and Mitchell, on May 29 at 1:20 p.m.
Pearlman’s May 21 email triggered multiple emails and in-person meetings that constituted both daisy-chain and hub-and-spoke violations of the Brown Act:
• On May 22, Herrod emailed Pearlman and Hagele to suggest that “the three of us meet to discuss” Measure O. Herrod’s email also addressed, among other things, Measure O’s wording, suggesting that it include the words “‘workforce housing’ in addition to ‘middle-class.’”
• On May 23, Kelley emailed Pearlman and several other Healdsburg residents to propose an in-person meeting with her and City Manager Kay to discuss Measure O.
• On May 27, Mitchell emailed Pearlman and proposed an in-person meeting between the two of them to discuss Measure O. Two days later, Mitchell emailed Pearlman to propose that City Council member Ron Edwards join the meeting. • On May 28, Kelley met with Pearlman, several of the other invited Healdsburg residents, and Kay to discuss Measure O.
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 6 • On May 29 at 1:20 p.m., Mitchell and Kelley interviewed Pearlman for the Planning Commission position, using a written list of questions. One of the questions put to Pearlman was about Measure O’s wording. • On May 29 around 4:00 p.m., Pearlman met with Herrod and Hagele at local bar Elephant in the Room to discuss Measure O, including its wording. • On May 30, Pearlman met with Mitchell and (presumably) Edwards at local wine tasting room Portalupi to discuss Measure O.
• On June 3, a few hours before that evening’s City Council meeting, where Measure O was the main agenda item, Pearlman emailed all five City Council members, discussing several points regarding Measure O that he intended to address at the meeting. Notably, Pearlman did his complete turnabout from his previous position against the downtown exclusion, now saying “I am warming to the idea of” Measure O excluding some of downtown from the GMO and proposing to expand the exclusion zone even further into downtown. • At the June 3 City Council meeting, Pearlman voiced his proposal to expand the exclusion zone further into downtown, which the councilmembers promptly adopted.
• On June 16, the day before the City Council meeting when the councilmembers were scheduled to put Measure O on the ballot and fill the Planning Commission position for which Pearlman had applied, Pearlman again emailed all five councilmembers, saying: “I am in support of the GMO exclusion as it has been shaped over the past few months.” Pearlman’s email also said: “I would consider adding the term ‘middle-class’ to the ballot text.”
• During the June 17 City Council meeting, Kelley mentioned that when she and Mitchell had interviewed the Planning Commission applicants on May 29, “one of our questions was … about” Measure O’s wording. She then opined that “language like middle class housing would be something that would encompass a little bit more” than “workforce housing.”
• A few minutes further into the June 17 meeting, Kelley made a startling admission, saying to her colleagues: “I would love to have talked to you about this prior to now, but we didn’t see this language until tonight, and I know that other people were Brown Act-ing with other people, so I didn’t want to talk about it before we got here, or wasn’t allowed to…. But it sounds like there is a majority who would be interested in having both two [sic] words.” (Emphasis added.) • Ultimately, at the June 17 meeting, the City Council voted to place Measure O on the upcoming ballot and include both “middle class” and “workforce” housing in Measure O’s ballot text.
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 7 2. The daisy-chain violation
The May 29 Kelley/Mitchell in-person interview of Pearlman, followed by the May 30 Mitchell/Edwards meeting with Pearlman at Portalupi, constituted a daisy-chain violation of the Brown Act by a majority of the City Council—Kelley, Mitchell, and Edwards—by which the three of them used serial communications for Kelley to discuss Measure O directly with Mitchell and then for Mitchell to discuss Measure O directly with Edwards.
Kelley and Mitchell planned and initiated these two meetings, and all three City Council members—Kelley, Mitchell, and Edwards—were collectively aware of them. As Kelley put it, they were “Brown Act-ing” Measure O. This scenario is on all fours with a California Attorney General opinion stating that serial meetings planned by or held with the collective awareness of a quorum of city council members violate the Brown Act. (65 Ops. Cal. Atty. Gen. 63 (1982) 1982 WL 156031, at *2.)
3. The hub-and-spoke violations
Additionally, the email and in-person communications among Pearlman and all five councilmembers regarding Measure O constituted multiple hub-and-spoke violations of the Brown Act, in which councilmembers acting as spokes used Pearlman acting as a hub to conduct intermediated discussions of (1) Measure O’s wording, and (2) enlarging the Healdsburg Avenue North exclusion zone.
a. Measure O’s wording
The discussion of Measure O’s wording involved the question whether to use the phrase “middle class” in Measure O’s ballot question, the initial draft of which referred to “workforce” housing:
• In his May 21 email to all five councilmembers, Pearlman commented that “in framing arguments for” Measure O, the term “‘middle-class’ housing” would be “relatively easy for most people to understand.”
• On May 22, Herrod responded to Pearlman—copying Hagele—suggesting “‘workforce housing’ in addition to ‘middle-class’” and proposing that the three of them meet to discuss this and other Measure O issues. • On May 29, Pearlman discussed this wording issue with Kelley and Mitchell at 1:20 p.m. when they interviewed Pearlman for appointment to the Planning Commission, and Pearlman then discussed the same issue with Herrod and Hagele later that same day when they met at Elephant in the Room. • Next, in his June 16 email to all council members, Pearlman proposed “adding the term ‘middle-class’” to the draft ballot question.
• Finally, during the June 17 City Council meeting, Kelley likewise proposed adding “middle-class” to the draft ballot question and admitted that the
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 8 councilmembers had been knowingly “Brown Act-ing” this issue. The City Council then voted to make the change.
The result was that Measure O’s ballot question read: “To encourage creation of middle class and workforce housing on underutilized parcels, should the City of Healdsburg exempt multi-family housing along certain portions of the Healdsburg Avenue corridor from the Growth Management Ordinance?” (Emphasis added.)
In this manner, Pearlman intermediated discussions of the ballot question’s wording among Herrod, Hagele, Kelley, and Mitchell through serial emails and in-person meetings on May 21, May 22, May 29, and June 16. Kelley knew that at the same time she and Mitchell were “Brown Act-ing” with Pearlman, Herrod and Hagele were likewise “Brown Act-ing” with Pearlman, thus bridging the gap between her and Mitchell on the one hand, and Herrod and Hagele on the other hand—using Pearlman as intermediary. b. Enlargement of the Healdsburg Avenue North exclusion zone On May 5 and May 21, Pearlman adamantly opposed any downtown exclusion from the GMO. On June 3, however, after his four successive in-person meetings with all five councilmembers on May 28 (Kelley), May 29 (Kelley/Mitchell and Herrod/Hagele), and May 30 (Mitchell/Edwards), Pearlman emailed all of them and proposed for the first time that the Healdsburg Avenue North exclusion zone be enlarged further into downtown.
The councilmembers appear to have used their in-person meetings with Pearlman to discuss this enlargement among themselves and collectively convince or pressure Pearlman to embrace it—potentially with his Planning Commission appointment hanging in the balance.
C. Failure to Make Document Available for Public Inspection The Brown Act provides that if a public record related to a City Council regular session agenda item is distributed to a majority of councilmembers less than 72 hours before the meeting, the writing must be made available for public inspection at an open city office at the time the writing is distributed. (Gov. Code, § 54957.5, subds. (b)(1) & (b)(2)(A); Sierra Watch v. Placer County (2021) 69 Cal.App.5th 1, 9-10.) This requirement is subject to an exception— added by amendment effective January 1, 2023—that the writing may instead be immediately posted to the city’s website if the writing is also made available at an open city office commencing at least 24 hours before the meeting. (Gov. Code, § 54957.5, subd. (b)(2)(B).) The City’s handling of Pearlman’s June 16 email did not meet this requirement or its exception. Pearlman sent this email on the Sunday afternoon preceding the June 17 City Council meeting, when City offices were closed until the next morning. It was not made available for inspection at an open City office at the time of distribution; it was not posted to the City’s website; and it was not made available for inspection at an open City office at least 24 hours before the meeting. It was, in effect, information available to the councilmembers but not the public—one of the very evils the Brown Act seeks to guard against.
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 9 II. UNLAWFUL EXPENDITURE OF PUBLIC FUNDS ON CAMPAIGN
ACTIVITY
A. Campaign Materials Prepared by CliffordMoss at City Expense
1. The $100,000 funding for the City’s Measure O campaign It is unlawful for a city to spend public funds on campaign materials in connection with a ballot measure. (Vargas v. City of Salinas, supra, 46 Cal.4th at pp. 7, 34-35.) In contrast, the law permits the city to spend public funds on informational materials pertaining to a ballot measure, so long as they provide “a ‘fair representation of facts’ relevant to” the measure and are “objective and nonpartisan.” (Id. at pp. 7, 30, 34-35, 39.) The city may not spend public funds “to mount a campaign on the measure.” (Id. at p. 36.) In its zeal for Measure O to pass, the City Council crossed the line between lawfully funding informational materials and unlawfully funding campaign materials, mounting a high-priced campaign for Measure O’s passage.
Early in 2024, the City Council committed $100,000 of funding in the City’s fiscal year 2024-2025 budget for a professional services agreement to support “housing education” for the November 2024 election. On June 3, 2024, City Manager Kay signed a $62,000 professional services agreement with “political strategy” specialist CliffordMoss LLC, for “Strategic Communication Services.” The contract promised that CliffordMoss would “deliver winning results” for Measure O by “building the right strategy” to “ensure the community is properly informed”—including “a listening strategy for opinion leader engagement,” a “message platform” and “early talking points,” and creation of “two mailers” for sending “to all voter households” and “digital graphics for City online social media use.”
2. The City Council members’ intent
“Winning results” for Measure O was precisely what the City Council hoped to get from CliffordMoss:
• During the June 3 City Council meeting, when Mitchell expressed concern about Measure O’s chance of success if it excluded some of downtown from the GMO, Hagele summarily dismissed her concern, saying: “I think now that we have kind of decided on this one, then it’s really the education piece … that comes in.” (Emphasis added.)
• On June 6, when Pearlman emailed Herrod about an article Herrod had written on Measure O for the Healdsburg Tribune, Pearlman praised Herrod for having “clearly presented the positive arguments for passage,” saying Herrod had “managed to avoid any ‘planning-ese.’” (Emphasis added.) • Later that day, Herrod responded to Pearlman: “I do think that we need to avoid the jargon if we want this to win.” (Emphasis added.)
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 10 • On June 7, Pearlman responded to Herrod’s June 6 email: “Your words offer us some guidance as we plan to ‘sell’ the ballot measure this Fall.” (Emphasis added.)
Going forward, Herrod and Pearlman—along with the other City Council members and City Manager Kay—endeavored to “sell” Measure O to Healdsburg’s voters.
3. The website FAQs
Initially, CliffordMoss and City staff drafted frequently asked questions (FAQs) on Measure O for posting on the City’s website. On July 18, an initial version of the FAQs, appeared on the website. Kay advised the councilmembers that the FAQs “reflect[] guidance from Clifford Moss, LLC, our communications consultant.” This initial version of the FAQs included the following false or misleading statements:
• “The downtown core, including the area around the plaza and two blocks in each direction, is excluded from the proposed exemption [from the GMO]…. [T]he downtown core will continue to be subject to the GMO if Measure O passes.” This statement was false because the proposed exemption included a portion of the downtown core.
• “Measure O does not change zoning regulations (such as the number of units per acre or maximum building heights).”
This statement was misleading because it did not disclose that, on April 15, the councilmembers had agreed that once Measure O passed, they would promptly revise those zoning regulations to substantially increase the permitted number of units per acre—including a quadrupling of density limits in the downtown core.
On July 30, City staff added more misleading statements to the FAQs web page, as follows: “Healdsburg’s zoning code limits the number of residential units allowed per acre….With these controls in place, Measure O will not lead to uncontrolled new building (growth).” These statements were misleading because, again, they did not disclose that on April 15 the City Council had agreed that once Measure O passed, density limits in the downtown core would be quadrupled—which would authorize construction of some 400 dwelling units in a small portion of the downtown core just a block from Healdsburg Plaza.
On August 26, I emailed Herrod, stating my objections to these false or misleading statements in the FAQs and asking him to “see to it that this problem is corrected.” On September 3, I emailed all five City Council members to explain why the statements were false or misleading. Evidently in response to my objections, the City made two more changes to the website:
• The FAQ addressing the downtown core was revised to read: “The downtown core, defined as the area around the plaza and one block in each direction, is excluded from the proposed exemption [from the GMO].” (Emphasis added.)
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 11 This change had the downtown core extending north one block from the plaza to North Street, instead of north two blocks from the plaza to Piper Street.
But Healdsburg’s Citywide Design Guidelines, which were adopted by the City Council in 2018 and incorporated into the Land Use Code, state that the downtown core is defined by “Piper Street to the north”—that is, north two blocks from the plaza to Piper Street (not one block from the plaza to North Street). Any definition of the downtown core that varies from the Citywide Design Guidelines is inconsistent with the City’s general plan, with which the City must act consistently. (Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 570.) The general plan provides: “The downtown shall be defined by identifiable boundaries.” (Healdsburg 2030 General Plan Policy Document (Dec. 2023), Policy LU-D-1, p. 2-17.) According to the Citywide Design Guidelines, the downtown core’s “identifiable” northern boundary is Piper Street. That boundary is unlawfully blurred by any other definition. • The following sentence was added to the portions of the FAQs addressing density regulations: “The City Council has discussed potential changes to zoning regulations as an additional means of encouraging new workforce housing development. Any future changes to zoning regulations impacting housing development would take anywhere from 1-2 years to implement and would include substantial community outreach and engagement.” (Emphasis added.) This addition failed to disclose that the City Council hadn’t merely “discussed potential changes” to zoning regulations but had agreed on April 15 to revise those regulations to substantially increase density limits once Measure O passed.
4. The City “roadshow”
In late August, CliffordMoss prepared slides with talking points for a Measure O “roadshow”—entitled “Moving Our City Forward”—for City use in community presentations.
Two of the slides included the following false or misleading statements:
• “The downtown core … is excluded from the proposed exemption in Measure O.” (Original emphasis.)
• “Measure O does not change zoning regulations (such as the number of units per acre …).”
5. The “palm cards”
CliffordMoss worked with City staff to prepare and print 6-by-11-inch, double-sided handouts—called “palm cards”—entitled “Information About Measure O.” The palm cards were edited throughout August and were completed on September 5.
The text of the palm cards described Measure O similarly to text in the website FAQs and added a new misleading statement: “All development in the entire city must continue to comply
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 12 with City zoning rules and design guidelines, which require projects to align with the existing community character of Healdsburg.” This statement was misleading because, again, it did not disclose that the City Council had already agreed to revise those zoning rules to increase density limits once Measure O passed.
6. The September 27 CliffordMoss email blast
On September 18, CliffordMoss asked the City to provide “a City email that we can link to our software” so that CliffordMoss could directly send Healdsburg residents a Measure O “email blast” prepared by CliffordMoss. City staff provided a shared inbox email address for CliffordMoss to use.
On September 27, CliffordMoss dispatched the email blast. Like the palm cards, it misleadingly stated: “All development in the entire city must continue to comply with City zoning rules and design guidelines, which require projects to align with the community character of Healdsburg.”
7. The October 21 CliffordMoss mailer
On October 8, I emailed all five City Council members and City Manager Kay to explain why City spending on the website FAQs, the September 27 email blast, and the palm cards violated the law against spending public funds on campaign activities. My email stated: “I ask that, going forward, city officials and staff refrain from distributing or posting any materials in which CliffordMoss has played a production role and that are not fair, objective, and nonpartisan.”
On October 21, Healdsburg residents received, by U.S. mail, the first of the two mailers created by CliffordMoss—an 8½-by-11-inch, four-page, so-called “Election Guide.” This mailer repeated the following false or misleading statements:
• “The downtown core, defined as the area around the plaza and one block in each direction, is excluded from the proposed exemption.”
• “Measure O does not change any zoning regulations (such as the number of units per acre or maximum building heights).”
• “All development in the entire city must continue to comply with City zoning rules and design guidelines, which require projects align with the existing community character of Healdsburg.”
8. The November 1 CliffordMoss mailer
Finally, on November 1, Healdsburg residents received, by U.S. mail, the second of the two mailers created by CliffordMoss. This second mailer was identical to the misleading palm cards.
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 13 B. Campaign Activity by City Council Members and the City Manager
1. Campaign activity by City Council member Kelley
Kelley’s August 14 emailing of internal City documents to Yes on O’s Wood and Buc— in which Kelley said “[f]eel free to use this city-generated report as a basis for your talking points” (emphasis added)—also constituted an unlawful expenditure of public funds on campaign activity. As an admitted “city-generated report,” it was produced by an expenditure of public funds, and thus its use for campaign activity violated Vargas v. City of Salinas.
Additionally, its use for the Yes on O committee’s express advocacy of Measure O violated Government Code section 54964(b)(3).
2. Campaign activity by City Council member Herrod
On June 4, Herrod emailed Healdsburg residents a newsletter—bearing the City of Healdsburg logo and identifying Herrod as a member of the “Healdsburg City Council”—in which he advocated for Measure O, stating “I am in support of this thoughtful and hopeful ballot measure,” and called Measure O’s opponents “disingenuous” (original emphasis) and a “‘nimby element.’” City Manager Kay emailed Herrod’s June 4 newsletter to CliffordMoss, calling the newsletter “an example of GMO outreach coming from our council.” On September 3, Herrod emailed Healdsburg residents another City-branded newsletter, in which he touted Measure O and disparaged its opponents as “NIMBYs” who were perpetuating “weird doomsday prophecies” and “absurd exaggerations!” (Original emphasis.)
On September 11, at a public event, Herrod distributed handouts bearing the email address for the Yes on O committee’s website. The handout touted Measure O as “creat[ing] opportunities for our long-term future” and disparaged Measure O opponents as having “outspoken NIMBY, xenophobic, and anti-immigrant opinions.” (Original emphasis.) (See Stanson v. Mott (1976) 17 Cal.3d 206, 221 [unlawful expenditure of public funds by “dissemination, at public expense, of campaign literature prepared by private proponents or opponents of a ballot measure”].)
On September 22, Herrod emailed Healdsburg residents a campaign document which stated it was prepared “[b]y Chris Herrod, with assistance from others from the Yes on O campaign.” It included a talking point that appears to have been based on data in the internal City documents Kelley had given to Wood and Buc, which describe various types of moderate income and middle income occupations that pay salaries sufficient to purchase a multi-family unit for $600,000 to $700,000. This talking point stated: “Measure O would build multi-family units (apartments and condos) that are selling for … $600-$700k. A number of middle-class occupations in a family with two wage earners can achieve ownership under this scenario.” On September 30, Herrod spoke at a “Yes on O Housing Advocates Forum” held by the Yes on O committee at a local restaurant. Advertising for the forum identified Herrod as a member of the Healdsburg City Council, extolled “the benefits of Measure O and why it’s so
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 14 important for Healdsburg,” urged residents to “find out how you can help pass Measure O,” and included two photographs (of a firefighter and a happy homeowner holding a housekey) that had previously appeared in Herrod’s September 3 City-branded newsletter. Herrod brought some of the City’s recently printed palm cards (produced at public expense) to the forum, where they were distributed to attendees.
3. Campaign activity by City Manager Kay
City Manager Kay made misleading statements to reporter Marc Albert for local public radio station KRCB. On September 11, Albert had emailed Kay asking, among other things:
“Assuming Measure O succeeds, what tools would the city have to regulate/shape new developments within the exclusion zones?” Later that day, Kay responded to Albert, in part:
• “If Measure O passes, all zoning regulations, including the number of units that can be built per acre would remain in effect and would serve to limit how much housing can be built.” (Emphasis added.)
• “[T]he zoning code will not change regardless of the outcome of Measure O in November.” (Emphasis added.)
These statements were misleading because the City Council members had agreed on April 15 to increase density limits if Measure O passed.
C. Personal Liability of City Council Members
The City Council members may be held personally liable for the unlawful expenditure of the $62,000 paid to CliffordMoss, as well as the concomitant cost of printing and postage, because they failed to “use ‘due care,’ i.e., reasonable diligence, in authorizing the expenditure of public funds.” (Stanson v. Mott (1976) 17 Cal.3d 206, 226-227.) In determining personal liability, “a court may consider … whether the official was alerted to the possible invalidity of the expenditure.” (Id. at p. 227.) Here, the City Council members were repeatedly alerted—on August 26, September 3, and October 8—to the false or misleading statements in the campaign materials prepared by CliffordMoss.
Additionally, City Council member Kelley may be held personally liable for the expenditure of public funds on the “city-generated report” she gave Wood and Buc to help create Yes on O’s talking points, because “the expenditure’s impropriety was obvious.” (Stanson v.
Mott, supra, 17 Cal.3d at p. 227.)
III. PUBLIC RECORD ACT VIOLATION BY FAILURE TO PRODUCE EMAIL
AND TEXT MESSAGES IN PERSONAL ACCOUNTS
The PRA requires production of email and text messages—including those sent to or from personal accounts—that are responsive to a PRA request. (City of San Jose v. Superior Court (2017) 2 Cal.5th 608.) “[R]ecords related to public business are subject to disclosure if they are in an agency’s actual or constructive possession.” (Id. at p. 623 (original emphasis).)
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 15 “A writing retained by a public employee conducting agency business has been retained by the agency within the meaning of [the PRA], even if the writing is retained in the employee’s personal account.” (Ibid.) Agency officials and employees must conduct a diligent search of their personal accounts for any such requested records, and the agency must properly train them in how to do so; and if they withhold a potentially responsive document, they must produce an affidavit stating facts sufficient to show that it is not a public record. (Ibid.) On November 25, 2024, I made a PRA request for text messages between City Council members pertaining to the GMO, Measure O, density zoning, or Pearlman’s application for appointment to the Planning Commission. The City responded only that “it” does not possess responsive text messages. City Attorney Zutler refused, however, to disclose whether any of the City Council members possess responsive text messages. Zutler’s refusal suggests that one or more of the City Council members do possess responsive text messages. Given that any such text messages are in the City’s constructive possession, the City has violated the PRA by failing to produce them.
On December 4, 2024, I made a PRA request for email messages sent to or from personal accounts of City Council and Planning Commission members. Again, the City responded only that “it” does not possess responsive email messages, without disclosing whether any of the City Council or Planning Commission members possess responsive email messages. Zutler told me “we have … requested that officials and staff search their personal accounts and devices for responsive, public records.” Yet the City has not produced a single responsive personal-account message; nor has it produced any evidence that city officials or staff diligently conducted searches.
It is undeniable that Kelley, Mitchell, Herrod, Pearlman, and Wood possess such documents—and thus the City constructively possesses them—because (1) several personalaccount messages comprise the August 14 email thread that included Kelley, Mitchell, Herrod, Pearlman, Wood, and Buc, all on personal email accounts, and (2) on October 26, I sent an email message discussing Measure O to Kelley’s personal email account, and she likewise texted me from her personal telephone number. Yet the City violated the PRA by failing to produce these and others records like them. On December 20, I advised Zutler of the personal-account email and text messages between Kelley and me, but Zutler still refuses to take an active role in searching for and producing responsive personal email and text messages.
City of San Jose says “an agency’s first step” in searching for personal-account email and text messages “should be to communicate the request to the employees in question,” after which “[t]he agency may then reasonably rely on these employees to search their own personal files, accounts, and devices for responsive material.” (City of San Jose v. Superior Court, supra, 2 Cal.5th at p. 628 (original emphasis).) City of San Jose does not, however, address the agency’s subsequent search obligation where, as here, an employee has wrongfully withheld responsive documents after purportedly conducting the requisite self-search. City of San Jose leaves that question open for future appellate review. I am prepared to litigate this question of first impression on appeal.
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 16 If, however, any City Council or Planning Commission member has destroyed responsive text or email messages, such destruction violated the City’s policy to retain correspondence for two years. Such destruction would also seem to implicate Penal Code section 135, which makes it a misdemeanor to destroy material for the purpose of impairing its availability in a proceeding whose commencement is foreseeable. If litigation ensues here, the question whether responsive email or text messages have been destroyed will be explored through discovery.
IV. FAILURE TO KEEP MINUTES OF REGULAR CITY COUNCIL MEETINGS On November 1, 2024, I asked City Clerk Allan for a copy of the minutes for the regular City Council meeting of April 15, 2024, so that I could see the written record of the councilmembers’ agreement to increase density limits once Measure O passed. On November 5, she responded: “We are in the process of approving and uploading minutes, so if you don’t see them on the City website, then they have not been approved yet.” I researched the website and discovered that the City has a massive backlog of unapproved minutes for regular City Council meetings. In 2022, the backlog of unapproved minutes averaged one to three months. In 2023, the backlog averaged about six months. This year, the backlog has exploded. As of this writing, the backlog has reached 15 months. On November 12, I notified Zutler of the backlog, but no minutes have been approved since then.
The City Council Manual of Procedures and Protocols (2018) provides in pertinent part:
• “The City Clerk shall prepare an agenda for each Council meeting containing the time of commencement, the specific items of business to be transacted and the order thereof. The City Clerk shall arrange the matters to be brought before the Council according to the order of business outlined in Section II.E.” (Manual section II.A.)
• “The Agenda shall contain the title headings and shall be conducted in the order and manner as set forth below:
▪ “1. Call to Order and Roll Call…
▪ “2. Report on Study Session(s) and Closed Session(s)… ▪ “3. Approval of Agenda…
▪ “4: Approval of Minutes….” (Manual section II.E (original emphasis).) • “The City Clerk or designee will take summary minutes at each council meeting.” (Manual section VII.A.)
Accordingly, the Manual requires: (1) the City Clerk or designee must be present and take minutes at each City Council meeting; (2) for each City Council meeting, the City Clerk must prepare an agenda; and (3) each agenda must include approval of minutes as the fourth item
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 17 of business on the agenda. Thus, at most regular City Council meetings over the past three years, and with increasing frequency, the City has violated its own policies and procedures by failing to approve minutes for the previous meeting.
The ongoing backlog of approved minutes also violates Government Code section 36814 (city council “shall cause the clerk to keep a correct record of its proceedings”) and Government Code section 40801 (city clerk “shall keep an accurate record of the proceeding of the legislative body … in books bearing appropriate titles”). The City Attorney also bears responsibility for this violation under Government Code section 41801 (city attorney “shall advise the city officials in all legal matters pertaining to city business”).
THE LIKELIHOOD OF RECURRENCE
On the morning of November 6, 2024—just hours after it became clear that Measure O was going down to defeat—Herrod circulated another one of his newsletters. Under the heading “What’s Next for Housing in Healdsburg,” Herrod stated:
• “Measure O failed at the polls, still [sic] nearly everyone agrees that Healdsburg has a serious housing problem.”
• “[T]here are citizens who have signaled commitment to drafting a new housing ordinance and funding its appearance for the next election. I applaud this effort. [¶] I’m happy to support it…” (Original emphasis.) • “What comes next should set the stage for housing for decades to come.” Herrod’s most recent newsletter, circulated on December 24, states: “I reiterate my wish to see a community-led and funded housing initiative be presented in an upcoming election … I’m anxious to hear proposals and move forward.”
These statements indicate the likelihood of a future effort to amend the GMO. Thus, the City’s unlawful conduct in connection with Measure O is a proper subject of declaratory and injunctive relief because it is likely to recur if left unchecked. (See, e.g., E.G. v. M.L. (2024) 105 Cal.App.5th 688, 707-708; Shapiro v. San Diego City Council (2002) 98 Cal.App.4th 904, 914- 915.)
Additionally, the City Council is currently grappling with the switch from at-large to district election of its members. This will require a considerable amount of discussion and deliberation among the councilmembers, who have already demonstrated an institutional propensity for violating the Brown Act. During the City Council meeting of December 16, 2024, the councilmembers again violated the Brown Act in adopting a five-district scheme for district elections. There is a pressing need to set the councilmembers on a path of Brown Act compliance to ensure “that their actions be taken openly and that their deliberations be conducted openly.” (Gov. Code, § 54950.)
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 18 SETTLEMENT PROPOSAL
My preference is to negotiate a settlement. I propose that the City and I enter into a written settlement agreement that includes the following terms:
• The City admits each violation of law described in this letter. • The City Council members, the City Manager, and the City Attorney agree not to commit any such violation in the future.
• The City agrees to (1) adopt policies to reduce the likelihood of public records being held in private email and telephone accounts, and (2) conduct yearly training of City officials and staff on how to distinguish between public records and personal records. (City of San Jose v. Superior Court, supra, 2 Cal.5th at p. 628.)
• The City establishes a timeline to produce and approve all backlogged regular City Council meeting minutes before the end of 2025.
• Each of the agreement’s terms will be judicially enforceable under the law of contracts.
• If any such violation occurs in the future and I prevail in litigation to enforce the settlement agreement, the defendants will pay all reasonable attorney’s fees that I incur in prosecuting the litigation.
Absent a negotiated settlement, I will sue the City of Healdsburg, the City Council members, the City Manager, and the City Attorney for:
• A declaration that the defendants committed each violation of law described in this letter—including the Brown Act violations, the unlawful expenditures of public funds, the PRA violations, and the failure to keep minutes of regular City Council meetings—and an injunction prohibiting the defendants from committing such violations in the future.
• An order requiring the councilmembers to pay restitution to the City for the expenditure of public funds on the $62,000 CliffordMoss contract and the concomitant cost of printing and postage, and requiring Kelley to pay restitution to the City for the expenditure of public funds on the City-generated report she gave to the Yes on O campaign committee.
• An order requiring the City Manager and the City Attorney to produce, pursuant to the PRA requests of November 2 and December 4, 2024, all responsive text and email messages sent to or from City Council and Planning Commission members’ personal accounts.
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation) 19 • An order requiring the City to (1) adopt policies to reduce the likelihood of public records being held in private email and telephone accounts, and (2) conduct yearly training of City officials and staff on how to distinguish between public records and personal records. (City of San Jose v. Superior Court, supra, 2 Cal.5th at p. 628.)
• An order requiring the City Council and City Attorney to ensure that minutes for each regular City Council meeting are taken at that meeting and are approved at the next regular City Council meeting.
• An order establishing a timeline for the City to expeditiously produce and approve the backlogged regular City Council meeting minutes.
• An order requiring the defendants to pay reasonable attorney’s fees I incur in prosecuting the litigation.
• Any additional relief as the court deems just and proper.
I seek no personal gain here. If litigation ensues, I will retain counsel and pursue reimbursement only for attorney’s fees I pay to my counsel and will not seek compensation for my personal expenditure of time. My only goal here is to help improve the quality of local government in Healdsburg.
I look forward to your timely response to this letter. I have retained the law firm of Manatt, Phelps & Phillips, LLP to represent me in this matter, so please direct your response and all further communications to Christian E. Baker in the firm’s San Francisco office. Mr.
Baker’s email address is [email protected], and his telephone number is 415-291-7463.
Very truly yours,
Jon B. Eisenberg
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Attachment: 12.26.24 Eisenberg letter to City of Healdsburg (4712 : Threatened litigation)
Christian Baker
Manatt, Phelps & Phillips, LLP
Direct Dial: (415) 291-7463
[email protected]
Manatt, Phelps & Phillips, LLP 2049 Century Park East, Suite 1700, Los Angeles, California 90067 Tel: 310.312.4000 Fax: 310.312.4224 December 27, 2024
VIA EMAIL
Samantha Zutler
City Attorney,
City of Healdsburg
401 Grove Street
Healdsburg, CA 95448
[email protected]
Dear Ms. Zutler:
I am counsel for Healdsburg resident Jon B. Eisenberg. This is a demand, pursuant to Government Code section 54960.1(b), for the Healdsburg City Council to cure or correct action taken at its regular meeting on December 16, 2024, in violation of the Ralph M. Brown Act. (Gov. Code, § 54950 et seq. (“Brown Act”).) I. BACKGROUND
The December 16 City Council meeting included the first public hearing on the City of Healdsburg’s (“City’s”) forthcoming switch from at-large to district election of City Council members. Legislative bodies making this switch must decide whether to have (1) five, seven, or nine council districts and a rotating oneyear mayor, or (2) four, six, or eight council districts and a mayor elected at large. (Gov. Code, §§ 34871, 34886.)
The Brown Act provides: “At least 72 hours before a regular meeting, the legislative body of the local agency, or its designee, shall post an agenda containing a brief general description of each item of business to be transacted or discussed at the meeting…” (Gov. Code, § 54954.2(a)(1) (emphasis added).) “No action or discussion shall be undertaken on any item not appearing on the posted agenda …” (Gov. Code, § 54954.2(a)(3).)
For the December 16 hearing on the switch to district elections, the City Council’s published agenda described the item of business to be transacted or discussed as follows: “Conduct the first public hearing to receive community feedback and provide direction to staff regarding the composition of voting districts and number of districts.” (December 16, 2024 City Council agenda, available at https://healdsburgca.iqm2.com/Citizens/FileOpen.aspx?Type=14&ID=2383&Inline= True, item 7.)
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Attachment: Eisenberg Cure letter - Healdsburg (4712 : Threatened litigation) Samantha Zutler
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During the December 16 hearing, the councilmembers decided to proceed with five City Council districts and a rotating one-year mayor. Excerpts from video of the December 16 meeting show how the councilmembers arrived at this decision:
• Hagele: “I’ll kick things off in terms of going four or five districts, elect a mayor or rotating. I like the system we have now…” (December 16, 2024 City Council meeting video, 2:20.05.)
• Edwards: “I agree with you on the rotation … The five with the rotating is a very good, collegial system …” (Id., 2: 21.20.) • Herrod: “I agree… Five is fine… The status quo is where I’d like to keep it, with five members and rotating mayor.” (Id., 2:22.15.) • Mitchell: “[F]ive seats and rotating mayor… that would be my vote.” (Id., 2:31.30.)
• Hagele: “All right, so there’s some direction on that, looks like we’ve got four councilmembers that want to go to [sic], so we’ll proceed at five districts.” (Id., 2:32.45.)
• Kelley: “City Manager Kay, for residents who didn’t know we would be making this kind of threshold decision tonight, is this kind of the final decision on the number of districts and the at-large mayor, or is that still something that people can weigh in on?” (Id., 2:35.15.) • Kay: “[T]hat’s really up to the council… [A]t some point it would be problematic to begin the mapping process without some resolution on that, so our recommendation was and remains no later than the second public hearing, but as soon as possible… [I]f the council’s comfortable, and it appears that it is, then we’ll take that as our marching orders.” (Id., 2:35.30.)
• Edwards: “Going with what we’ve heard tonight, I think that I can support the five.” (Id., 2:37.05.)
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• Kelley: “I don’t think folks knew we were making this decision tonight… I think I will be lodging my vote to support the at-large, directly elected mayor, and four councilmember seat districts.” (Id., 2:37.30.)
• Herrod: “I’m hearing from staff pretty clearly that the whole process would benefit from us making a decision on the composition of the council sooner [rather] than later… I think the whole process … is …difficultly [sic] crunched, it would benefit from us making the decision tonight.” (Id., 2:38.00)
• Mitchell: “I concur.” (Id., 2:39.19.)
• Hagele: “All right, so I think there’s the direction … So we’ll move forward with five districts.”(Id., 2:39:23)
II. BROWN ACT VIOLATIONS
A. Government Code section 54954.2—Inadequate Description of Agenda Item
An agenda description “‘must give the public a fair chance to participate in matters of particular or general concern by providing the public with more than mere clues from which they must then guess or surmise the essential nature of the business to be considered by a local agency.’” (Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 519 (emphasis added).) A description is inadequate if it “provided no clue” that a particular action would be taken. (Moreno v. City of King (2005) 127 Cal.App.4th 17, 27.) It must include “the whole scope” of the intended plans for the meeting. (Carlson v. Paradise Unified Sch. Dist. (1971) 18 Cal.App.3d 196, 200.)
The agenda for the December 16 City Council meeting stated only that the councilmembers would “receive community feedback and provide direction to staff” on the composition and number of districts. It did not describe what types of “direction to staff” were being considered. It did not even provide the public with “mere clues” (Olson, supra, 33 Cal.App.5th at p. 519) that the City Council would be deciding the number of districts and whether the mayor will be elected at large. It “provided no clue” at all (Moreno, supra, 18 Cal.App.3d at p. 200) that the City Council would be making those final decisions at the December 16, 2024 meeting, as
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opposed to at a later date as suggested by the agenda. It failed to show “the whole scope” (Carlson, supra, 18 Cal.App.3d at p. 200) of the City Council’s plans for this first public meeting on the switch to district elections.
Councilmember Kelley was right when she said Healdsburg residents “didn’t know we would be making this kind of threshold decision tonight.” But the councilmembers made that decision anyway—by a vote of four to one. As Hagele concluded: “So we’ll move forward with five districts.” With this decision, the councilmembers acted in violation of Government Code section 54954.2 on an item that was outside the agenda’s scope. According to Government Code section 54960.1, any “interested person” may, within 30 days of such unlawful action, issue a written demand to “cure or correct” the improper action, and if the City Council fails to do so within 30 more days, the person may sue to obtain a judicial determination that the action “is null and void.” (See, e.g., Boyle v. City of Redondo Beach (1999) 70 Cal.App.4th 1109, 1118 [cure by rescinding improper action within 30 days].) Hence this letter.
The City Council must (1) rescind its December 16 decision on the number of districts and whether the mayor will be elected at large, and (2) proceed to make that decision on a properly noticed agenda.
B. Government Code section 54952.2—Communications Outside Public Meeting Format
The Brown Act also prohibits direct or serial communications, outside the public meeting format, between a majority of City Council members regarding an item of public business. (Gov. Code, § 54952.2.) It is evident that in the lead-up to the December 16 City Council meeting, this prohibition was violated. Three documents show that by the time of the December 16 meeting, a majority of councilmembers had already—collectively—made their decision.
The first document is the staff report that City Clerk Raina Allan prepared prior to the meeting. It presented just two districting options for the City Council to consider: “Option I: Implement five districts and continue to have the Mayor selected by the City Council for one year terms… [¶] Option 2: Implement four districts and a mayor elected at-large by the entire community for a term of either two or four years.” (Original emphasis.) The report excluded the other four options available to the councilmembers under Government Code sections 34871 and 34886—six council districts and a mayor elected at large, seven council districts and a rotating one3.1.b Packet Pg. 24
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year mayor, eight council districts and a mayor elected at large, or nine council districts and a rotating one-year mayor.
The decision to exclude those other four options was not for the City Clerk to make. It was for the City Council to make. Ms. Allan must have been acting at either (1) the City Council’s direction, or (2) the direction of the City Manager, who was acting at the City Council’s direction. Either of these scenarios required secret action by a quorum of councilmembers in violation of Government Code section 54952.2.
The second document is the PowerPoint presentation by the City’s retained demographer, Redistricting Partners, during the December 16 meeting. Like the City Clerk’s staff report, it presented just two districting options for the City Council to consider, stating the issue as follows: “Does the City Council want to move forward with a total of five districts or consider four districts and a directly elected Mayor?”
Again, the decision to exclude the other four options was not for Redistricting Partners to make. Redistricting Partners must have been acting at the direction of (1) the City Council, or (2) the City Manager, who was acting at the direction of the City Council—either of which required secret action by a quorum of councilmembers in violation of Government Code section 54952.2.
The third document, entitled “Transition to District Elections,” is posted to the City’s website. (https://healdsburg.gov/1152/Transition-to-District-Elections.) It appeared there prior to the December 16 meeting. It includes the following question and answer: “ONCE DISTRICT ELECTIONS ARE ADOPTED, WILL ALL FIVE COUNCIL MEMBERS BE ELECTED AT THE SAME TIME?” [¶] No. Two council members will be elected in one cycle, and the remaining three will be elected in the next cycle two years later.” (Original emphasis.) This indicates that, before the December 16 meeting, a quorum of councilmembers had already decided to proceed with five councilmembers and a rotating one-year mayor. In stating that “[t]wo council members will be elected in one cycle, and the remaining three will be elected in the next cycle two years later,” the document is necessarily rooted in a prior decision to proceed that way—again, a decision that required secret action in violation of Government Code section 54952.2.
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Attachment: Eisenberg Cure letter - Healdsburg (4712 : Threatened litigation) Samantha Zutler
December 27, 2024
The only City Council meeting on district elections held prior to December 16 was the councilmembers’ “Special Meeting – Closed Session” with the City Attorney on October 21, 2024, to discuss the threat of litigation regarding district elections.
If the decision to proceed with five councilmembers and a rotating one-year mayor was made at that closed session, then that was a Brown Act violation, of Government Code section 54956.9. The only legitimate, properly-noticed purpose of the closed session was for the City Council to “confer with, or receive advice from, its legal counsel” regarding the threatened litigation. (Gov. Code, § 54956.9(a).) It was not a legitimate forum for decision-making on the composition and number of districts.
These Brown Act violations are just the latest in a series. Mr. Eisenberg’s letter of December 26, 2024, exposes multiple previous Brown Act violations arising from the City’s unsuccessful campaign for passage of Measure O. This serial flouting of the Brown Act must cease.
Absent City Council action by January 15, 2025, to cure or correct the Brown Act violations listed above, Mr. Eisenberg will commence litigation seeking determinations that (1) the City Council’s decision to proceed with five councilmembers and a rotating one-year mayor is null and void under Government Code section 54960.1, and (2) the City Council violated Government Code sections 54952.2 and/or 54956.9 in making that decision.
Very truly yours,
Christian Baker
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