Agenda packet — Portola Valley City Council, August 1, 2022

TOWN OF PORTOLA VALLEY
Special Meeting of the Town Council
Monday, August 1, 2022
1:00 P.M.

Craig Hughes, Mayor
Sarah Wernikoff, Vice Mayor
Jeff Aalfs, Councilmember
Maryann Derwin, Councilmember
John Richards, Councilmember

VIRTUAL PARTICIPATION VIA ZOOM
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To access the meeting by phone:
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SPECIAL VIRTUAL MEETING
Remote Public Comments: Meeting participants are encouraged to submit public comments in writing in advance of the meeting. Please submit your comments using this online form by 1:00 PM on the day of the meeting. Time permitting, your correspondence will be uploaded to the website. All received questions will be forwarded to Council, Commission, or Committee members for consideration during the meeting and included in the public record.

Additionally, the public body will take questions using the Raise Hand button for those who attend the meeting online or by phone. Phone callers may provide comments by pressing *9 on your phone to "raise your hand" and *6 to mute/unmute yourself. The meeting Chair will call on people to speak by the phone number calling in.

Assistance for People with Disabilities: In compliance with the Americans with Disabilities Act, if you need special assistance to participate in this meeting, please contact the Town Clerk at (650) 851-1700 or by email at [email protected]. Notification 48 hours prior to the meeting will enable the Town to make reasonable arrangements to ensure accessibility to this meeting.

1. CALL TO ORDER

2. ORAL COMMUNICATIONS
Persons wishing to address the Town Council on any subject may do so now. Please note, however, that the Council is not able to undertake extended discussion or action tonight on items, not on the agenda. Speakers' time is limited to three minutes.

3. OPEN SESSION
a. Approve an Unconditional Commitment letter to Attorney Lawrence Jacobson in Response to His Letter of March 30, 2022.

4. ADJOURNMENT
The next Regular Town Council meeting will be held on August 10, 2022 at 7:00 p.m. ______________________________________________________________________________________ TO: Mayor and Members of the Town Council
FROM: Cara Silver, Town Attorney
DATE: August 1, 2022
RE: Authorize Mayor to Sign Unconditional Commitment in Response to a Cease and Desist Notice

RECOMMENDATION
The Town Attorney recommends that the Town Council authorize the Mayor to sign the attached letter (Attachment 1).

BACKGROUND
The COVID-19 pandemic and resulting health orders prevented local legislative bodies from meeting in person for approximately two years. To address this health emergency, the Governor and later the state legislature adopted regulations permitting agencies to meet remotely using videoconferencing platforms. This new technology provided many benefits. Remote meetings allowed local government business to continue in a transparent manner without threatening the health of residents, legislative bodies and staff. Remote meetings also permitted residents to participate in the comfort of their homes. In Portola Valley and throughout the State, public attendance at public meetings has skyrocketed under remote meeting platforms. On the other hand, remote technology has curtailed inperson interactions, an ethos common in many small towns like Portola Valley. In addition, the State sunshine law, known as the Brown Act, is not equipped to handle the myriad new issues raised by remote meetings, such as “Zoom bombers”, unstable internet connections, distinctions between “panelists” and “participants”, sharing screens, chat functions, and the like.

The Brown Act
The Ralph M. Brown Act is California's “sunshine” law for local government. In a nutshell, it requires local government business be conducted at open and public meetings, except in certain limited situations. The Brown Act applies to “legislative bodies” of local governmental agencies. The term “legislative body” is defined to include the governing body of a local agency (e.g., the town council) and any commission or committee whether

TOWN OF PORTOLA VALLEY

STAFF REPORT

TOWN OF PORTOLA VALLEY
permanent or temporary, decision-making or advisory, created by formal action of a legislative body.1 The Town has 18 Town Council created commissions and committees and they are all subject to the Brown Act. The Brown Act does not apply to ad hoc or subcommittees consisting of less than a quorum of the legislative body, provided they are composed solely of members of the legislative body and provided such ad hoc committees do not have some “continuing subject matter jurisdiction,” and do not have a meeting schedule fixed by formal action of a legislative body.

The central provision of the Brown Act requires that all “meetings” of a legislative body be open and public. The Brown Act also requires agendas be published in advance of meetings and that the public be permitted to comment on each item on the agenda. A complete guide to the Brown Act is contained in Attachment 2.

Serial Meetings
The Brown Act prohibits a majority of members of a legislative body outside of a lawful meeting from directly or indirectly using a series of meetings to discuss, deliberate or take action on any item of business within the subject matter jurisdiction of the body.2 A serial meeting is a series of meetings or communications between individuals in which ideas are exchanged among a majority of a legislative body3through either one or more persons acting as intermediaries or through use of a technological device (such as text, e-mail, phone or voice mail), even though a majority of members never gather in a room at the same time. This is not to say that a member of a legislative body is precluded from discussing items of agency business with another member of the body outside of a meeting; as long as the communication does not involve a quorum, no “meeting” has occurred.

Conduct During Remote Meetings
As remote and hybrid meetings continue to occur, many local agencies are recognizing the need to develop policies and best practices to address these types of meetings. Other than AB 361 which provides a narrow exception for remote meetings, the State legislature has not updated the Brown Act to address the widespread use of Zoom technology for public meetings. Instead, it is up to individual towns to address these issues on their own.

Town Implements Remote Meetings
Following the state of emergency orders issued by the State, County and Town, the Town was quick to pivot to a “Zoom” platform. The Town also offered this platform to its 18 Town commissions and committees permitting them to also meet remotely. Not surprisingly, while this new technology attempted to mimic in person meetings, there were notable differences. The Zoom platform was not designed with the Brown Act in mind and legislative bodies throughout the State attempted to adapt the best they could. In Portola Valley, residents raised several concerns about the Zoom Webinar and the Town Council 1 Government Code § Section 54952.
2 Government Code § 54952.2(b)(1).
3 A quorum is based on the number of committee positions, regardless of whether they are filled or not. In the case of the Town Council, a quorum is 3. Previously the Wildfire Preparedness Committee charter provided for 8 members and thus a quorum would be 5. and staff attempted to address them all. One of the most frequent complaints was the inability of residents to know the identity of fellow participants attending a remote meeting.

This issue was creatively solved by Mayor Hughes who wrote a program to permit participants to see the names and times of all public members who attend and leave the meeting. See https://pv-zooms.rungie.com/.

Town Committee Receives Cease and Desist Letter Alleging Brown Act Violation In 2019, the Town Council formed the Wildfire Preparedness Committee (WPC) to address the important issues of wildfire in the community. The WPC consists entirely of volunteer Portola Valley residents. The WPC spearheaded the Town’s progressive home hardening ordinance, issues regular wildfire preparedness tips and is working on securing a permanent funding stream for wildfire preparedness. In the past couple of years the WPC has had a string of resignations with difficulty recruiting new members.

On March 1, 2022, the WPC conducted its regularly scheduled meeting via Zoom. One of the agenda items was to discuss the goals and priorities of the WPC and its various subcommittees. At the meeting, one of the committee members shared their screen to facilitate a discussion of committee goals.

On March 30, 2022, the Town was served with a “Cease and Desist” letter relating to a March 1 meeting. The gravamen of the Cease and Desist letter was that WPC members sent three texts during the meeting as disclosed during the screenshare by one of the committee members. The substance of the texts were:
• A committee member asked another committee member to make a motion because she couldn’t. (Because the requesting committee member was a Town Council liaison she believed it would be better for the motion to come from someone else.) • A committee member asked the Town Manager to substantiate a comment from another committee member claiming that the Emergency Preparedness Committee (EPC) did not want to oversee the Evacuation Study. (This question normally would have been asked verbally at the meeting, but the Town Manager was not present at that portion of the virtual meeting when the comment was made.) • One of the committee members texted another committee member to vent that a fellow committee member had “really pushed my button.” (This appears to be a personal comment, rather than one related to the substance of the agendized matter of business before the WPC.)
The Cease and Desist letter was filed as a legal prerequisite to a formal lawsuit under a statutorily prescribed process. Prior to sending the letter, none of the plaintiffs attempted to contact the WPC members, councilmembers, the Town Attorney or the Town Manager to discuss their complaint. The letter also contained a public records act request for various documents relating to the March 1 meeting, including emails and text messages sent from the personal devices of WPC committee members.

Negotiations to Address Concerns Raised in Cease and Desist Letter Upon receiving the letter, on April 4, 2022, the Town Attorney contacted the residents’ attorney to better understand why the plaintiffs believed the conduct violated the Brown Act and to try to resolve any misunderstandings. On April 18, the Town Attorney requested a meeting with the residents’ attorney. On April 20, the Town Attorney arranged a Zoom meeting with the residents’ attorney to attempt to resolve the dispute. At the meeting, the attorneys agreed to work towards a resolution and that the Town Attorney would draft an Unconditional Commitment for review by the residents’ attorney. By letter dated April 22, the residents’ attorney confirmed the outcome of the meeting stating:

I understand that you will formulate a draft of a potential Statement of Unconditional Commitment that will make such distinctions as you consider appropriate regarding the content, scope and manner of delivery of communications that the Town considers to be within the purview of the Brown Act or not, and that you will provide that draft to me early next week for further discussion of potential resolution.

On April 26, pursuant to the agreement made at the meeting and confirmed in writing, the Town Attorney sent a draft Unconditional Commitment to the residents’ attorney. On May 13, having not received a response from the residents’ attorney, the Town Attorney again reached out to see if they had any comments on the Town’s draft. On May 23, the residents’ attorney finally responded that substantive comments would be coming separately. On May 25, 2022, a month after receiving the Town’s proposal, the residents’ attorney sent an alternative Unconditional Commitment to the Town Attorney. The Town Attorney immediately responded that she would review the new draft with her client.4 To comply with the Brown Act, the Town Attorney scheduled a closed session to discuss the Unconditional Commitment with the Town Council. The closed session was scheduled for the Town Council’s next regularly scheduled meeting of June 8. On June 2, 2022, without any notice to the Town Attorney and in the middle of good faith negotiations, the residents’ attorney filed a lawsuit.

DISCUSSION
Analysis of Lawsuit
The lawsuit was filed by eight residents: Rusty Day, Kristin Day, Ron Eastman, Bruce Roberts, Shirley Roberts, James Rooney, Jim Vernazza and Ellen Vernazza. The lawsuit contained two major claims. First, it asserted that the text exchanges between WPC committee members during the March 1 public meeting, regardless of whether a quorum was involved, constituted a Brown Act violation. Second, the lawsuit alleged that the Town did not timely produce the public records requested in the March 30 Cease and Desist letter.

As for the Brown Act claim, the recent amendments authorizing remote meetings do not address texting/emailing during meetings. The prevailing view of most city attorneys is that texting/emailing during a meeting would not constitute a Brown Act violation unless the text involved, directly or serially, a quorum of committee members. Likewise, texting a staff member during the meeting does not violate the Brown Act as staff members are not considered legislative body members. Based on the Town Attorney’s investigation, the 4 Unfortunately, following the Cease and Desist Letter, two additional WPC members had resigned from the committee and one was removed. Thus, the WPC was unable to meet to consider the Unconditional Commitment due to the lack of a quorum. Thus, the Town Attorney elected to confer with the Town Council.
exchanged texts did not involve a quorum and thus did not violate the Brown Act. That said, the Town Council may elect to implement a policy going above and beyond the minimum Brown Act requirements. The Guidebook for implementing the Brown Act recognizes that the Brown Act itself does not address texting/emailing during meetings, but notes such practice may create a negative perception:

New communication technologies present new Brown Act challenges. . . .

Communicating during meetings using electronic technology (such as laptop computers, tablets, or smart phones) may create the perception that private communications are influencing the outcome of decisions; some state legislatures have banned the practice. On the other hand, widespread cablecasting and web streaming of meetings has greatly expanded public access to the decision-making process.5
As for the Public Records Act claim, the Public Records Act does not contain timelines for producing documents. State law recognizes that public agencies have multiple, competing priorities and that government officials should not be required to stop all other business to respond to a particular document request. Despite staff’s large workload and limited resources, Town staff provided numerous documents in response to the residents’ request and the Town Attorney made repeated representations to the residents’ attorney that staff was attempting to collect records from the personal devices of the volunteer committee members. Towns throughout the State are wrestling with what types of text messages sent from personal devices should be saved and how to collect those messages in response to a Public Records Act request.

Unconditional Commitment
The Brown Act provides a statutory process for settling Brown Act lawsuits if the public agency agrees to voluntarily refrain from the conduct subject of the complaint. This agreement must be in the form of a Statement of Unconditional Commitment (Statement) letter addressed to the person making the original complaint.6 Under this statutory process, the Statement must be approved by the Town Council (or other applicable legislative body) at a public meeting. If the Town Council or other commission or committee violates the Statement, the litigants may request a court to enforce the Statement. The Statement may be withdrawn by the Town Council provided a 30 days’ notice is provided and a public meeting conducted. If the Town Council withdraws the Statement, the residents may re-activate their lawsuit.

On July 5, 2022, the Town Council met in closed session and directed the Town Attorney to settle the lawsuit. The Council’s action to settle the lawsuit was based on its view that the public interest would best be served by settling, rather than litigating, this action. The settlement was also premised on the view that restricting private communication among council members during a public meeting was a good policy, even if not required by the Brown Act. A copy of the Settlement Agreement approved by the Council is included as Attachment 3. Under the Settlement Agreement, the Town agreed to adopt a Statement restricting legislative body members from texting and emailing (1) one another and (2) third 5 See Attachment 2, p. 7.
6 Government Code Section 54960.2 (c)(3).
party consultants (other than legal counsel) during a public meeting. This policy would apply to the Town Council and all Portola Valley commissions and committees. The attached policy is in the statutory form of an Unconditional Commitment letter to the residents’ attorney. (Attachment 1.) In addition, the Council agreed to reimburse the residents $15,000, which represents approximately 50% of the attorneys’ fees and costs incurred by the residents relative to this matter. The Council also was required to incur its own attorneys’ fees in the approximate amount of $25,000 to defend the claim and negotiate a settlement and an additional $8,000 to respond to the public records act request. In exchange, the residents agreed to dismiss their lawsuit with prejudice and to withdraw their public records act request.

ENVIRONMENTAL REVIEW
The proposed ordinance is exempt from the California Environmental Quality Act (CEQA) because the activity is not a project as defined by Section 15378 of the CEQA Guidelines.

The ordinance has no potential for resulting in physical change to the environment either directly or indirectly.

ATTACHMENTS

1. Statement of Unconditional Commitment

2. Open & Public V: A Guide to the Ralph M. Brown Act (hyperlink only)

3. Settlement Agreement

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SETTLEMENT AGREEMENT AND MUTUAL LIMITED RELEASE
The parties enter into this Settlement Agreement and Mutual Limited Release (“Agreement”) for the purpose of resolving the Lawsuit without further expense or litigation.

RECITALS

1. PARTIES:

The parties to this Agreement are plaintiffs LLOYD DAY, an individual; BRUCE ROBERTS, an individual; RON EASTMAN, an individual; JOHN MUMFORD, an individual; KRISTIN DAY, an individual; SHIRLEY ROBERTS, an individual; JAMES ROONEY, an individual; JIM VERNAZZA, an individual; and ELLEN VERNAZZA, an individual; (collectively “PLAINTIFFS”), and defendants TOWN OF PORTOLA VALLEY, an incorporated town; PORTOLA VALLEY TOWN COUNCIL, a legislative body of the town; and WILDFIRE PREPAREDNESS COMMITTEE, a legislative body of the town (collectively “TOWN”). PLAINTIFFS and TOWN are referred to herein individually as “party” or collectively, as “parties.”

2. ACTION:

A. There exists between the parties a dispute concerning whether the TOWN violated the Ralph M. Brown Act (“Brown Act”) and/or the Public Records Act.

B. On or about March 30, 2022, PLAINTIFFS served a Cease and Desist Letter to the Town Clerk of the Town of Portola Valley identifying specific alleged violations of the Brown Act by members of the WILDFIRE PREPAREDNESS COMMITTEE and requesting specific actions.

DocuSign Envelope ID: 20979A0E-5C3B-4382-A946-F0D36B04EB59

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C. On April 4, 2022, the Town Attorney for the Town of Portola Valley responded to PLAINTIFFS’ letter stating that the conduct described in the Cease and Desist Letter did not appear to violate Brown Act and further requesting legal support for PLAINTIFFS’ position.

D. PLAINTIFFS disputed the assertions in the TOWN ATTORNEY’s letter of April 4, 2022, and on or about June 1, 2022, PLAINTIFFS filed a Verified Complaint for Declaratory Relief, Preliminary and Permanent Injunctive Relief, and Attorneys Fees and Costs, and Petition for Writ of Mandate and Attorneys Fees and Costs (“Complaint”) against the TOWN in connection with the dispute described above in the Superior Court of California, County of San Mateo, Case Number 22-CIV-02195 (“Lawsuit”). The Complaint is incorporated herein as though set out in full for the purpose of illustrating the nature of the claims made by Plaintiffs. The TOWN denies all of the allegations set forth in the Complaint and denies such allegations constitute either a violation of the Brown Act and/or the Public Records Act. PLAINTIFFS have also asserted by letter dated July 5, 2022, claims for destruction of public records against the TOWN and have asserted past violations of the Brown Act or Public Records Act occurring prior to the execution of this Agreement (“Additional Claims”).

The TOWN likewise denies the Additional Claims. For the purposes of this Agreement, “Subject Matter” means the claims asserted in the Complaint, the Lawsuit, and the Additional Claims. Subject Matter does not include claims unrelated to the Brown Act or the Public Records Act, including without limitation, and for illustration, claims such as those arising from torts, statutory or regulatory violations, or other claims of any sort relating to personal injury or property damage or other economic loss.

DocuSign Envelope ID: 20979A0E-5C3B-4382-A946-F0D36B04EB59

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E. The parties now mutually seek to resolve the Lawsuit and Additional Claims without the need for further legal proceedings, and believe this Agreement is fair, reasonable, and in the best interests of the parties and the public.

F. Each party agrees that this Agreement is entered into in good faith to resolve the disputes between them and shall not be construed as an admission of any fact, claim or allegation of liability or responsibility on the part of the parties, or any of them.

WHEREFORE, the parties agree as set forth below.

AGREEMENT

3. INCORPORATION OF RECITALS
The Recitals set forth above are incorporated herein as stated.

4. SETTLEMENT TERMS:

A. In order to avoid unnecessary litigation and without admitting any violation of the Brown Act and/or the Public Records Act, the TOWN agrees to conduct a public meeting in accordance with Government Code Section 54960.2(c) on or before August 1, 2022, for the purpose of adopting the Statement of Unconditional Commitment (“Statement”) attached as Exhibit A that is incorporated herein by this reference.

B. Upon obtaining the requisite number of votes of the TOWN COUNCIL, the TOWN shall adopt the Statement and on or before August 2, 2022, shall pay the PLAINTIFFS’ Fees and Costs, as specified in Paragraph 5 below (“Payment”).

C. Upon the TOWN’S adoption of the Statement and delivery of the Payment, PLAINTIFFS, on or before August 3, 2022, shall dismiss the Lawsuit, the Complaint DocuSign Envelope ID: 20979A0E-5C3B-4382-A946-F0D36B04EB59

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and the Additional Claims, and shall further withdraw the March 30, 2022, Public Records Act Request included in the Cease and Desist Letter.

D. In the event the Town fails to adopt the Statement and make the Payment as provided herein, this Agreement shall have no further force or effect and Plaintiffs shall have no obligation to dismiss the Lawsuit or withdraw the Public Records Act request.

E. The parties acknowledge that res judicata (or claim preclusion) and collateral estoppel (or issue preclusion) bar any new action arising from any claims or issues settled pursuant to this Agreement, provided however, that (1) claims that are not within the Subject Matter of this Agreement are not subject to res judicata, collateral estoppel, or preclusion by filing of a Request for Dismissal with Prejudice in the Lawsuit, and (2) claims that arise from any rescission of the Unconditional Commitment and may be prosecuted under Government Code Section 54960 as provided in Government Code Section 54960.2(c) are not barred or in any way affected by this Agreement, the Releases contained herein, or the Dismissal with Prejudice of the Lawsuit.

F. Pursuant to Government Code Section 54960.2(e), the TOWN may elect to rescind the Statement by a majority vote of the TOWN COUNCIL taken in open session at a regular meeting as a separate item of business not on its consent agenda, and publicly noticed on its posted agenda as “Rescission of Brown Act Commitment,” provided that not less than 30 days prior to such regular meeting, the TOWN provides written notice in accordance with Government Code Section 54960.2(e).

DocuSign Envelope ID: 20979A0E-5C3B-4382-A946-F0D36B04EB59

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5. FEES AND COSTS:

The TOWN shall pay PLAINTIFFS the sum of $15,000 for attorneys’ fees which amount is at least 50% of the total amount of fees and costs incurred by the PLAINTIFFS in connection with the Lawsuit. The check shall be made payable to:

COHEN AND JACOBSON, LLP and delivered to 66 Bovet Road, Suite 285, San Mateo, CA 94402, or the funds may be delivered by wire transfer. This sum shall compensate PLAINTIFFS for all damages they have allegedly sustained, including all legal costs and attorney fees regarding the Lawsuit. The TOWN shall pay its own attorneys’ fees and costs incurred herein and shall not seek any recovery of fees or costs from PLANTIFFS.

6. DISMISSAL OF CLAIMS:

The filing of the Request for Dismissal of the Lawsuit with prejudice, and the dismissal entered thereon, shall have no effect upon claims that arise from any rescission of the Statement and may be prosecuted under Government Code Section 54960 as provided in Government Code Section 54960.2(c), or upon claims that arise from acts or omissions that occur in the future or otherwise are not related to the Subject Matter.

7. LIMITED RELEASE:

Each party, and all of its predecessors, successors, and assigns, fully, finally and forever releases each other party, and all of its predecessors, successors, and assigns, from any and all known or unknown, direct or indirect, actual or potential, suspected or unsuspected claims, demands, causes of action, damages, claims for attorneys’ fees, interest, expenses, costs, contracts, orders, execution, and liabilities for claims relating to or arising out of the Subject Matter of this Agreement, provided, DocuSign Envelope ID: 20979A0E-5C3B-4382-A946-F0D36B04EB59

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however, that these releases do not affect the statutory rights of PLAINTIFFS to seek redress for future violations of the Brown Act and/or violations of the Statement or claims that are subject to prosecution upon any rescission of the Statement including claims subject to Government Code Sections 54960.2(c) and 54960.

Each party is aware that it may have claims against the other party in connection with the Subject Matter of which such party may have no present knowledge or suspicion (“Unknown/Unsuspected Subject Matter Claims”). Having taken into account such a possibility in entering into this Agreement, and subject to the obligations and limitations set forth in this Agreement, the parties agree that any releases set forth in this Agreement shall be full and final releases applying to any Unknown/Unsuspected Subject Matter Claims, as of the effective date of this Agreement. Each party expressly waives any right or claim of right to assert hereafter that any Unknown/Unsuspected Subject Matter Claim has, through oversight or error, been omitted from the terms of this Agreement.

As a matter of caution to avoid any inadvertent preclusion of the effectiveness of the waiver of Unknown/Unsuspected Subject Matter Claims, and acknowledging that the Releases herein do not constitute any “general release” of any claims unrelated to the Subject Matter, the Parties waive any potential rights or benefits under California Civil Code Section 1542 which provides:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE

CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER

FAVOR AT THE TIME OF EXECUTING THIS RELEASE, WHICH IF KNOWN

BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.

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Notwithstanding the foregoing and for avoidance of doubt, the Parties acknowledge and agree that the release and waiver contained in this Section 7 do not apply to claims not within the Subject Matter of this Agreement and that the reference to Civil Code Section 1542 does not expand or otherwise affect the scope of the release and waiver.

8. COVENANT NOT TO SUE:

PLAINTIFFS and the TOWN agree not to commence, assist, prosecute, cause or permit in any action in law or equity, any arbitration, or any other proceeding based on any claims, demands, causes of action, damages, obligations, or liabilities, whether or not now known, suspected or claimed, that arise from the Subject Matter of the Lawsuit or the facts, circumstances or incidents released herein.

9. PLEADING THIS AGREEMENT:

PLAINTIFFS and the TOWN agree that this Agreement, including the covenant not to sue, will be considered breached and a cause of action accrues on that breach immediately upon commencement of any action or proceeding contrary to this Agreement. In that action or proceeding, this Agreement may be pleaded as a defense, or may be asserted by way of a counterclaim or cross-claim.

10. ENFORCEMENT OF SETTLEMENT
The court shall retain jurisdiction to enforce this Agreement in accordance with California Code of Civil Procedure section 664.6. If PLAINTIFFS or the TOWN commence an action or proceeding to enforce this Agreement, the prevailing party in any such action shall be entitled to costs and attorneys' fees pursuant to Civil Code Section 1717. This Agreement shall specifically be admissible in any proceedings regarding any alleged default and/or breach.

DocuSign Envelope ID: 20979A0E-5C3B-4382-A946-F0D36B04EB59

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11. A CHANGE IN FACTS:

PLAINTIFFS and the TOWN agree that if the facts with respect to this Agreement are found hereafter to be different from the facts now believed to be true, PLAINTIFFS and the TOWN assume the risk of that possible difference in facts and hereby agree that this Agreement will remain effective, notwithstanding any difference in facts.

12. BINDING AGREEMENT:

This Agreement shall be binding and inure to the benefit of each party as well as their heirs, administrators, representatives, executors, assignees, agents, successors of each party.

13. MODIFICATION OF TERMS:

Each party agrees that this Agreement may not be altered, amended, modified or otherwise changed in any respect or particular, whatsoever, except in writing duly executed by the authorized representative of each party.

PLAINTIFFS and the TOWN certify that no promise, inducement or agreement not herein expressed has been made by any party hereto. This Agreement contains the entire agreement between the parties hereto, and the terms of this Agreement are contractual and not a mere recital.

14. NO ASSIGNMENT:

PLAINTIFFS and the TOWN represent and warrant that there has been no assignment or other transfer of any interest in this claim which is the subject of this Agreement.

DocuSign Envelope ID: 20979A0E-5C3B-4382-A946-F0D36B04EB59

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15. REVIEW BY COUNSEL:

PLAINTIFFS and the TOWN warrant and represent that they are executing this Agreement with full knowledge of any and all rights which they may have with respect to each other, and that they are executing this Agreement after having received independent counsel with regard to the facts involved in the controversy herein compromised and with regard to rights arising out of such facts.

16. SEVERABILITY:

Should one or more of the provisions of this Agreement be held by any court to be invalid, void or unenforceable, the remaining provisions shall nevertheless remain and continue in full force and effect, provided that the continuation of such remaining provisions does not materially change the duties or obligations of either party from those duties or obligation originally contemplated by this Agreement.

17. DRAFTING:

This Agreement is a negotiated document and shall be deemed to have been drafted jointly by the parties, and no rule of construction or interpretation shall apply against any particular party based on the contention that the Agreement was drafted by one of the parties, including, but not limited to, California Code Section 1654, the provisions of which are hereby waived. This Agreement shall be construed and interpreted in a neutral manner.

18. COUNTERPARTS:

This Agreement may be executed digitally and in counterparts.

19. COOPERATION:

Each party further agrees that he/she will execute, acknowledge, and/or deliver to the other, as appropriate, upon written request therefor, any further and DocuSign Envelope ID: 20979A0E-5C3B-4382-A946-F0D36B04EB59

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additional documents, and shall perform any other or further acts, which may be reasonably necessary for the consummation of this Agreement.

SIGNATURES:

Read and Agreed:

Dated: _________________ _____________________________
LLOYD DAY, an individual
Dated: _________________ _____________________________
BRUCE ROBERTS, an individual
Dated: _________________ _____________________________
RON EASTMAN, an individual
Dated: _________________ _____________________________
JOHN MUMFORD, an individual
Dated: _________________ _____________________________
KRISTIN DAY, an individual
Dated: _________________ _____________________________
SHIRLEY ROBERTS, an individual
Dated: _________________ _____________________________
JAMES ROONEY, an individual
Dated: _________________ _____________________________
JIM VERNAZZA, an individual
Dated: _________________ _____________________________
ELLEN VERNAZZA, an individual
DocuSign Envelope ID: 20979A0E-5C3B-4382-A946-F0D36B04EB59 7/27/2022
7/27/2022
7/28/2022
7/27/2022
7/27/2022
7/28/2022
7/28/2022
7/27/2022
7/27/2022

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Dated: ________________ TOWN OF PORTOLA VALLEY
___________________________
By: Mayor
Dated: ________________ PORTOLA VALLEY TOWN COUNCIL
___________________________
By: Mayor
Dated: ________________ WILDFIRE PREPAREDNESS COMMITTEE ___________________________
By: Mayor of the Town of Portola Valley
Approved as to Form:
_____________________________
LAWRENCE A. JACOBSON
Attorney for: PLAINTIFFS
_____________________________
CARA E. SILVER
Attorney for: TOWN
DocuSign Envelope ID: 20979A0E-5C3B-4382-A946-F0D36B04EB59 7/27/2022
7/27/2022
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Exhibit A
TOWN of PORTOLA VALLEY Town Hall: 765 Portola Road, Portola Valley, CA 94028 ~ Tel: (650) 851-1700 Fax: (650) 851-4677 August 1, 2022
Lawrence A. Jacobson
Cohen and Jacobson LLP
Attorneys at Law
60 Bovet Road, Suite 285
San Mateo, CA 94402
Dear Mr. Jacobson:

The Town of Portola Valley, and its legislative body Wildfire Preparedness Committee (WPC), have received your “Cease and Desist” letter dated March 30, 2022, alleging that the following described past action of the legislative body violates the Ralph M. Brown Act:

The WPC held a publicly noticed, video-recorded meeting on March 1, 2022, starting at approximately 4:30 pm and concluding at approximately 7:20 pm. A portion of the video time-stamped 2:26:00 through 2:26:50 of the March 1, 2022, meeting shows Town Council Liaison and Vice Mayor Sarah Wernikoff communicating via text message with Committee Member Jennifer Youstra, Committee Chairman Michael Tomars, and Town Manager Jeremy Dennis. The text communications, which were disclosed to the public during the meeting through a screenshare, include:

1. A message exchanged with Committee Member Youstra at 6:01 pm relating to Committee business;

2. A message exchanged with Committee Chairman Tomars at 6:14 pm allegedly relating to Committee business; and

3. A message exchanged with Town Manager Dennis at 6:25 pm relating to Committee business.

Representatives or agents of the Town Council alleged to be attending the meeting included (a) the Vice Mayor attending and participating in this meeting as a member of the Town Council and as the Liaison of and for the Town Council, (b) Jeremy Dennis attending and participating as Town Manager, and (c) Cara Silver attending as Town Attorney.

The Cease and Desist letter further asserts that based upon the conduct described above further alleged violations may similarly have been committed by the other legislative bodies of the Town. The Cease and Desist Letter also contains a Public Records Act request for records reflecting such other communications.

DocuSign Envelope ID: 20979A0E-5C3B-4382-A946-F0D36B04EB59 Larry Jacobson

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2 In order to avoid unnecessary litigation and without admitting any violation of the Ralph M. Brown Act, the Town of Portola Valley (the “Town”), for itself and all legislative bodies thereof (the “Legislative Bodies” or, individually, a “Legislative Body”), hereby unconditionally commits that members of all Legislative Bodies will cease and desist from the following:

1. Non-public texting or emailing, or engaging in any other non-public communications, between or among members and/or third-party consultants (not including legal counsel), during any meeting that is subject to the Brown Act relating to business of the Legislative Body.

2. For the purposes of this letter, the prohibited texting, emailing and other forms of non-public communication shall mean and include all such communication between or among members participating in a meeting collectively or by serial communications constituting a meeting within the scope of the Brown Act which are not open and shared with the public.

The Town, for itself and all Legislative Bodies, may rescind this commitment only by a majority vote of its membership taken in open session at a regular meeting and noticed on its posted agenda as “Rescission of Brown Act Commitment.” You will be provided with written notice, sent by any means or media you provide in response to this message, to whatever address or addresses you specify, of any intention to consider rescinding this commitment at least 30 days before any such regular meeting. In the event that this commitment is rescinded, you will have the right to commence legal action pursuant to subdivision (a) of Section 54960 of the Government Code. That notice will be delivered to you by the same means as this commitment, or may be mailed to an address that you have designated in writing.

Very truly yours,
________________________
Craig Hughes
Mayor
Exhibit A
TOWN of PORTOLA VALLEY
Town Hall: 765 Portola Road, Portola Valley, CA 94028 ~ Tel: (650) 851-1700 Fax: (650) 851-4677 August 1, 2022
Lawrence A. Jacobson
Cohen and Jacobson LLP
Attorneys at Law
60 Bovet Road, Suite 285
San Mateo, CA 94402
Dear Mr. Jacobson:

1. A message exchanged with Committee Member Youstra at 6:01 pm relating to Committee business;

2. A message exchanged with Committee Chairman Tomars at 6:14 pm allegedly relating to Committee business; and

3. A message exchanged with Town Manager Dennis at 6:25 pm relating to Committee business.

Larry Jacobson

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Very truly yours,
________________________
Craig Hughes
Mayor

Portola Valley City CouncilAugust 1, 2022

Portola Valley City Council
August 1, 2022