CC SR 20191015 03 - City Attorney Final Report on Brown Act Investigation01203.0001/605983.1
RANCHO PALOS VERDES CITY COUNCIL MEETING DATE: 10/15/2019
AGENDA REPORT AGENDA HEADING: Regular Business
AGENDA DESCRIPTION:
Consider the joint report of the Council Ad Hoc Sub-committee and the Office of the City
Attorney on the efforts to obtain compliance with Public Records Act requests, codified in
Government Code §§ 6250 et seq., from Mr. Brian Campbell; and
Consider the joint report of the Council Ad Hoc Sub-committee and the Office of the City
Attorney on the investigation into possible violations of the “Closed Session Privilege,”
codified in Government Code §§ 54950 et seq.
RECOMMENDED ACTION:
Receive and file these joint reports, consider the recommendations of the Council Ad Hoc
Sub-committee included herein, consider the options and recommendation of the City
Attorney included herein, and provide such direction to City Staff and the City Attorney as
the City Council deems appropriate consistent with the requirements of law.
FISCAL IMPACT: N/A
Amount Budgeted: N/A
Additional Appropriation: N/A
Account Number(s): N/A
ORIGINATED BY: William W. Wynder, City Attorney
REVIEWED BY: Council Ad Hoc Sub-Committee Members, Mayor Duhovic &
Councilmember Alegria
APPROVED BY: Doug Willmore, City Manager
I. INTRODUCTION & SUMMARY OF JOINT REPORTS
A. COMPELLING MR. BRIAN CAMPBELL TO COMPLY WITH THE
CALIFORNIA PUBLIC RECORDS ACT (“CPRA”).
Former Councilmember Brian Campbell repeatedly failed or refused to produce emails
and other communications regarding city business stored on his private email
accounts/servers. The efforts of the Council Ad Hoc Sub-committee and City Attorney to
secure Mr. Campbell’s compliance with the CPRA are detailed in the first of two joint
reports to the community of Rancho Palos Verdes.
The difficulty in obtaining public records from Mr. Campbell has prompted the Council Ad
Hoc Sub-committee, with the concurrence of the City Attorney, to recommend policies,
procedures, and amendment to the penalty provisions of the City’s Municipal Code so as
to mandate the use of City email accounts for all City business and to prohibit the use
of private email accounts or servers while engaging in public duties.
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The City Attorney further recommends that the City Council authorize the filing of a legal
action against Mr. Campbell, in his individual capacity, to recover the substantial costs and
legal fees incurred in compelling his belated compliance with the CPRA.
B. INVESTIGATING “LEAKS” OF PRIVILEGED CLOSED SESSION
DISCUSSIONS IN VIOLATION OF THE RALPH M. BROWN ACT
Confidential litigation settlement negotiations between the City and Green Hills were
unlawfully “leaked” outside of privileged closed session discussions. Further, individuals
engaging in unlawful short-term property rentals were “cautioned” about the City’s code
enforcement strategies when privileged discussions of the same were “leaked” outside of
closed session discussions.
While the source of these “leaks” cannot be confirmed, the Council Ad Hoc Sub-
committee, with the concurrence of the City Attorney, make recommendations to further
protect privileged and confidential communications. The results of our investigation and
these recommendations are set forth in the second joint report to the community of Rancho
Palos Verdes.
C. SCOPE OF THE EFFORT OF THE COUNCIL AD HOC SUB-COMMITTEE,
CITY STAFF & CITY ATTORNEY
These joint reports are the product of ten (10) legislative subpoenas, twelve (12) in-person
interviews (five (5) of which were under oath and recorded by a certified court reporter)
and deposition testimony obtained from Mr. Eric Mark in a code enforcement action. Legal
fees and costs incurred from April 2018 to date approach $45,000, not including the time
of the Council Ad Hoc Sub-Committee, the time of City staff, and not including fees and
costs incurred in the City’s earliest efforts in obtaining Mr. Campbell’s voluntary
compliance with various CPRA requests (see, also, footnote 9, infra).
II. JOINT REPORT ON OBTAINING COMPLIANCE WITH PUBLIC RECORDS ACT
REQUESTS FROM MR. BRIAN CAMPBELL AS REQUIRED BY THE PUBLIC
RECORDS ACT, GOVERNMENT CODE §§ 6250 ET SEQ.
A. BACKGROUND FACTS
Until 2017, elected and appointed officials of the City were permitted to use private email
accounts (and servers) for City business. Under the policy, City business emails solely in
the possession of City officials were deemed to fall outside the scope of the California
Public Records Act (“CPRA”). (Gov’t Code §§ 6250 et seq.) This policy was impacted by
the Supreme Court’s unanimous ruling in San Jose v. Superior Court (2017) 2 Cal.5th 608,
which held that when a city official uses a personal email account/server or other personal
device to communicate about public business, such writings/texts/emails would be subject
to disclosure under the CPRA.
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The City then found itself in a difficult position, namely that multiple CPRA requests had
been made for the City business emails of former Councilmember Brian Campbell, that
were solely in his possession as they were located on his multiple private email accounts.
Specifically, the City received requests from Mr. Huang on November 10, 2017 (and
clarified on November 14, 2017), from Attorney Ellen Berkowitz on December 4, 2017 (a
renewal of a May 20, 2017 request) on behalf of Green Hills Memorial Park, and from Ms.
Tracy Burns (dated April 5 and 6, 2018, and again on October 4, 2018 ).1 Mr. Campbell
had failed to respond to all of these requests.
In fact, the Green Hills request was originally made in May 2017.2 At that time, then-City
Attorney Dave Aleshire assigned then-Assistant City Attorney Christina Burrows to work
directly with Mr. Campbell to review responsive emails and other public records he might
have in his private email account(s). Attorney Burrows made repeated attempts to obtain
Mr. Campbell’s cooperation, all to no avail.
Attorney Aleshire also communicated with Mr. Campbell about Mr. Huang’s and Green
Hills’ requests several times by email, including on December 20, 2017, then again on
January 2, 2018, and by letter on December 18, 2017 and again on January 25, 2018,
respectively. On February 20, 2018, Mr. Campbell advised that he would have the emails
responsive to Mr. Huang’s request ready for review by March 6, 2018, and the records
responsive to Green Hills’ request by March 7, 2018.
Attorney Aleshire then assigned Attorney Juliette Tran to set up a date and time with Mr.
Campbell for a review of emails and other documents potentially responsive to multiple
outstanding CPRA requests directed to Mr. Campbell. Attorney Tran emailed Mr. Campbell
almost daily between February 26 and March 9, 2018. The only time Mr. Campbell
responded to Attorney Tran personally was on March 5, 2018 , when he said he was
traveling and the best way to reach him was by phone.
1 The October 4, 2018, CPRA request from Ms. Burns sought disclosure of “all emails relating to city
business Brian Campbell received or sent using any and all private email accounts from January 1, 2015 to
December 31, 2015.” (Emphasis in original.) This CPRA request was forwarded to Mr. Campbell on October
15, 2018 with a request that Mr. Campbell, “kindly respond to [the City Clerk] no later than Monday, October
22, 2018 with a response whether you do or do not have any responsive documents.” (Emphasis in original.)
When the City Clerk received no response from Mr. Campbell, she sent a letter to Ms. Burns advising that:
“[t]he City has reached out to Mr. Campbell twice with your request for records and to date he
has not responded. You may want to consult with legal counsel as to the remedies (if any) you
may have with respect to Mr. Campbell’s non-compliance. You may be aware that Mr. Campbell
has engaged in a pattern and practice of failing or refusing to comply with his obligation to comply
with the Public Records Act. Our office will also consult with the City Attorney’s office to consider
possible action(s) to compel Mr. Campbell to comply with his obligations under that law. If and
when a determination on ‘next steps’ is reached, we will notify you of any actions.”
2 Notably, these are not the only CPRA requests to which Mr. Campbell had failed to respond, despite
attempts by the City Attorney’s Office and the City Clerk to obtain compliance. There were several from
2016: (a) a request from Barry Yudess, dated May 19, 2016, for emails reg arding Green Hills and Ladera
Linda; (b) a request from Barry Hildebrand, dated May 20, 2016, for emails regarding the Palos Verdes
Peninsula Unified School District; and (c) a request from Ed Pilolla, dated May 27, 2016, for emails regarding
Ladera Linda.
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On March 7, 2018, Attorney Tran left a message at Mr. Campbell’s office and on his cell
phone, and followed up with an email. On March 8, 2018 , Ms. Pat McKinsey from Mr.
Campbell’s office called Attorney Tran and relayed that Mr. Campbell wanted to talk to Mr.
Aleshire. On March 9, 2018, Attorney Tran responded by email to Mr. Campbell that she
had relayed his message, but that she was the attorney who has been assigned to review
Mr. Campbell’s emails and he should be dealing directly with her. Further, Attorney Tran
informed him that she had no choice but to report back to the City Council that Mr.
Campbell was being uncooperative.
Ms. McKinsey called back and told Attorney Tran that Mr. Campbell wanted to know when
the City Attorney would call him as requested. Mr. Campbell never offered to meet with
Attorney Tran. At this point, the City Attorney’s Office determined that further attempts at
voluntary compliance by Mr. Campbell would be futile. During this same time period, the
City Clerk also personally made repeated requests to Mr. Campbell for his City business
emails, again to no avail.
B. THE CITY COUNCIL’S DUTY TO COMPEL COMPLIANCE WITH THE
PUBLIC RECORDS ACT
On April 17, 2018, the City Council unanimously authorized the City Attorney to issue such
“necessary [legislative] subpoena(s) as may be appropriate for the production to the City
of all public records responsive” to the multiple CPRA requests for City business emails
that were located on Mr. Campbell’s multiple private email accounts/servers.3 In addition,
the City Council created an Ad Hoc Subcommittee comprised of then-Mayor Pro Tem Jerry
Duhovic and Councilmember Eric Alegria, for the purpose of reviewing, in conjunction with
the City Attorney’s Office, Mr. Campbell’s City-related emails to determine whether any
were exempt from disclosure.
The City Council felt compelled to take the foregoing actions because, as reported in a
February 6, 2018, Staff Report, the repeated and on-going failure of Mr. Campbell to
produce public records in his possession could “subject the City to litigation.” In the
considered opinion of the City Attorney, the City Council would have been derelict in its
duty to assure full compliance with Council policy, state law, and making full and complete
productions in response to the various requestors of public records had i t not undertaken
these efforts. It should be noted that these efforts were undertaken at considerable cost to
the City.4
Commencing on April 19, 2018, two legislative subpoenas were issued to Mr. Campbell
requiring his production of City business emails that were located on his multiple private
email accounts/servers. Mr. Campbell, through his legal counsel, provided documents and
declarations in response to these legislative subpoenas on April 30, May 4, May 8, May
21, 2018, and February 5, 2019. Mr. Campbell produced a total of 2,502 pages of City
3 The statutory authority to issue legislative subpoenas is set forth in Government Code §§ 37104 et
seq. Section 37104, in particular, provides: “The legislative body may issue subpoenas requiring attendance
of witnesses or production of books or other documents for evidence or testimony in any action or proceeding
pending before it.”
4 See, also, note 9, infra.
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business emails that were located on his multiple private email accounts/servers on May
21, 2018.
The City Attorney’s Office and the Council Ad Hoc Subcommittee then reviewed these City
business emails to determine whether any were exempt from production. When that
process was completed, the City Clerk forwarded all responsive public records to various
requestors.
Accompanying Mr. Campbell’s production of City business emails was a declaration,
required by state law, signed by Mr. Campbell under penalty of perjury. However, the
production was deemed partially non-responsive, as described in letters sent to Mr.
Campbell’s legal counsel by the City Attorney dated June 20 and December 6, 2018, and
February 12, 2019. Two “supplemental declarations” were provided by Mr. Campbell in
response to these notices which were, themselves, non-responsive to the legislative
subpoenas.
In the December 6, 2018 letter to Mr. Campbell’s counsel, the City Attorney noted:
“We write to put your client . . . on notice that, in his supplemental
declaration . . . he has made [] material misstatement(s) of fact, under oath.
. . . . [I]n our June 20, 2018 letter to you, we made clear that your client had
failed to provide:
‘[a] list of all e-mail addresses to which Mr. Campbell, acting
in his capacity as Mayor, sent any comments to or about Mr.
Huang and a copy of each of such e -mail must be identified
and produced. The sharing of e-mails comments about Mr.
Huang with residents of the City of Rancho Palos Verdes are
clearly public records and must be identified and produced by
your client.’
In response to our letter, your client submitted a supplemental declaration,
under penalty of perjury, in which he stated that:
‘[a]ll e-mails sent about Mr. Huang (and incorporated into the
legislative subpoena) were sent in my personal capacity
outside the course and scope of my duties as Mayor of the
City.’
However, among the public records your client has produced in response
to the [first] legislative subpoena was a communication, dated Wednesday,
October 5, 2017, in which your client sent out an email blast to an unknown
group of addresses/addressees from his ‘campbell.rpv@gmail.com’
address (one of the email addresses used by Mr. Campbell to conduct City
business) making what Mr. Huang has characterized as “defamatory
statements” about him and which is signed ‘Thanks for reading, Brian
Campbell, Mayor – Rancho Palos Verdes Campbell.rpv@gmail.com.’
(Emphasis added; Your Bates Stamped Document No. 318-19.)
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When his Council colleagues ‘called him out’ for making what they
characterized as statements not reflecting the views of the City or of its City
Council, your client agreed to sign a ‘clarification’ letter to be sent to Mr.
Huang. However, your client refused to sign such a letter because . . . ‘I was
acting in my capacity as an individual member of the city council with that
email message [the October 5, 2017 allegedly defamatory email[,]’ saying
later . . . [that what he had] sent out ‘is part of the job’ (thereby making all
such communications public records which he was obligated to produce in
response to the legislative subpoena). (Your Bates Stamped Document
Nos. 320-21.) . . . .
Accordingly, the October 5, 2017 e-mail blast from your client[] to “the world”
and the following e-mail string discussion of the same (which your client
produced through your office), flatly contradicts your client’s sworn
testimony noted above. In light of this plain contradiction, we write to afford
your client one last opportunity to produce any and all ‘e-mail addresses to
which Mr. Campbell, acting in his capacity as Mayor, sent any comments to
or about Mr. Huang and a copy of each of such e -mail must be identified
and produced.’”
C. REMEDIAL ACTIONS RECOMMENDED BY THE COUNCIL AD HOC SUB-
COMMITTEE & CITY ATTORNEY
The City Council, acting on the recommendation from its Rules and Procedures Sub-
committee (consisting of now-Mayor Duhovic and Councilmember Dyda), adopted rules
of procedure (City Council Rules of Procedure, Resolution No. 2018-04) that included
Chapter 11.0 – “Public Records and Use of Email,” and specifically Rule 11.2, which
currently mandates that, “[a]ll Councilmembers are provided with an @rpvca.gov email
account, and shall only use this accou nt for City business. Personal accounts should not
be used for City business and if they are, in the event of a public records request, the
personal account will be subject to review and disclosure of City -related emails.” All
commissioners and committee members are also subject to the same email rules as the
Council. (Rules of Procedure Rule No. 10.4.)
Given the extraordinary difficulty in attempting to obtain compliance from Mr. Campbell to
multiple Public Records Act requests for production of City business emails that were
located on his private email accounts/servers, the Council Ad Hoc Sub-committee now
recommends, with the concurrence of the City Attorney, that the Rules of Procedure be
strengthened as follows:
“10.4 Use of Email
All members of commissions, and committees, and boards are subject to
the same rules regarding use of email as are Councilmembers. Mandatory
use of the @rpvca.gov email accounts will be effective 3 months after the
adoption of these rules.“
“11.0 PUBLIC RECORDS AND USE OF EMAIL
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11.1 General. The City’s policies at one time segregated city and/or
personal emails on the basis of whether they are/were generated through
the City email domain/account (@rpvca.gov) or personal accounts, but
recent legal decisions (City of San Jose v. Superior Court, 389 P.3d 848
(2017)) distinguish only by whether the content of the email relates to City
business. While emails sent to Councilmembers, commissioners,
committeemembers, and boardmembers (collectively, “City Officials”)
through their City email accounts are clearly p ublic records, as are replies
or subsequent email exchanges related to those “@rpvca.gov” emails,
Councilmembers City Officials should be aware that irrespective of what
server the email is on, whether the City email account or a personal
account, if the email is related to City business, it is a public record subject
to disclosure unless an exception applies.
11.2 Must Use City Email Account. All Councilmembers City Officials are
provided with an @rpvca.gov email account, and shall only use this account
for City business. Personal accounts should not be used for City business
and if they are, in the event of a public records request, the personal account
will be subject to review and disclosure of City-related emails. Use of email
accounts in violation of this policy, or failure by a City Official to
cooperate fully in turning over any City business emails maintained
solely on a personal email account, shall be grounds for removal from
any City boards, commissions, or committees and, in the event of a
violation by a member of the City Council, shall be grounds for
censure. All costs incurred by the City to obtain compliance by the
City Official shall be subject cost recovery by the City.
11.3 Use of Private Email Accounts Prior to the Adoption of These Rules.
Councilmembers City Officials shall segregate all City business emails that
predate the adoption of these rules into a separate folder so as to preserve
the emails. All emails must be preserved in compliance with the Cit y’s
Records Retention Policy.
11.4 Public Records Requests. Pursuant to the California Public Records
Act (the “PRA” Govt. Code §§ 6250 et. seq.) individual Councilmembers
City Officials shall produce to the City Attorney’s office for review any
records that are responsive to a public records request, and where the City
did not retain a copy.
The City Attorney’s office will review any such records or communications
to confirm that they relate to the City’s business, are not exempt from
disclosure under the PRA, and are responsive to the request.
11.5 Staff to Review City Accounts. In the event the City receives a PRA
request seeking Councilmembers City Officials communications, staff will
research the City’s email server for responsive emails that went through an
“@rpvca.gov” email address.
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11.6 Emails in Possession of Councilmembers City Officials. Further,
any emails exclusively in the possession of individual Councilmembers City
Officials shall be produced by each Councilmember City Official for review
by the City Attorney’s office, if the emails are responsive to a public records
request. […]
11.9 Exceptions
In the event the City’s email server is down and the Councilmember City
Official needs to use email to conduct City business, the Councilmember
City Official may use a personal email account until the City’s email is fully
functional. Any such emails must be segregated into a separate folder within
the email account and must be turned over to the Information Technology
Manager within 30 days.”
The City Attorney further recommends that Rancho Palos Verdes Municipal Code be
amended to incorporate the above provisions, so as to make any violation of the City email
policies a misdemeanor.
III. JOINT REPORT ON THE INDEPENDENT INVESTIGATION INTO POSSIBLE
VIOLATIONS OF THE “CLOSED SESSION” PRIVILEGE, CODIFIED IN THE
RALPH M. BROWN ACT, GOVERNMENT CODE §§ 54950 ET SEQ.
A. BACKGROUND FACTS
On May 5, 2018, the City Council considered a Staff Report, which observed that
“Members of the City Council have . . . shared with the Office of the City Attorney . . .
specific articulable facts and circumstances to suspect that, over a substantial period of
time, . . . confidential information (know[n] only in t he context of a closed session) has
been willfully and unlawfully shared outside of a privileged closed session.”
After public consideration of this Staff Report, a unanimous City Council took formal action
to “ (1) . . . initiate a City proceeding to inv estigate possible violation(s) of the ‘closed
session privilege’ . . . and (2) direct staff and the Office of the City attorney to conduct such
investigation; and (3) task the recently created [A]d [H]oc [ ] [Sub-]committee to oversee
such investigation and to report the results of the same to the full City Council as and when
appropriate; and (4) authorize the issuance of legislative subpoenas, if and as needed, to
aid in such investigation.”
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B. THE CITY COUNCIL’S DUTY TO PROTECT THE INTEGRITY OF THE
“CLOSED SESSION” PRIVILEGE CODIFIED IN THE RALPH M. BROWN
ACT
This Council-directed investigation was essential to protect the integrity and confidentiality
of Closed Session discussions between the City Attorney, key City Staff, and the full City
Council. Government Code §§ 54950 et seq. explicitly prohibits the unauthorized
disclosure of “confidential information” acquired in a Closed Session by any person
present, and offers various remedies to address breaches of confidentiality. (Government
Code § 54963.) As directed, City Staff and the City Attorney interviewed a number of
individuals, and the City Council issued additional legislative subpoenas where the
examination of individuals was under oath and therefore under penalty of perjury.
1. INVESTIGATION INTO POSSIBLE DISCLOSURE OF CLOSED
SESSION SETTLEMENT NEGOTIATIONS BETWEEN THE CITY
AND GREEN HILLS
In an October 24, 2017 grading permit appeal (received by the City on October 26, 2017
for Case No. ZON2017-00324) filed with the Planning Commission, Ms. Sharon Loveys
stated: “The City of Rancho Palos Verdes has demanded that Green Hills pay the
City $700,000 . . . . Green Hills has refused the City’s payment demand.” Ms. Loveys
further stated: “Green Hills continued failure to honor its obligation to r eimburse the City
$700,000 spent by the City in connection with [] litigation . . . .”
These claims in the Loveys appeal reflected statements only made during City Council
closed session discussions and are, in substance, the words used to explain the initial
demand made on Green Hills and the initial response from counsel for Green Hills. These
striking similarities are more than mere coincidence and were then repeated in Ms. Lovey’s
December 13, 2017 City Council appeal. In her appeal to the full City Council, Ms. Loveys
stated “Green Hills is in violation of its obligation to Indemnity[sic] the City of Rancho Palos
Verdes in the sum of $700,000 . . .,” and she reiterated that “[t]he City of Rancho Palos
Verdes has demanded that Green Hills pay the City $700,000 . . . . Green Hills has refused
the City’s payment demand.”5
When later asked, during her examination under oath, where she obtained this confidential
information, Ms. Loveys stated that she did not remember. As her examination progressed,
her attorney passed her a note telling Ms. Loveys to state that she got the $700,000
number from then-City Attorney Dave Aleshire.6 Still later in her examination, Ms. Loveys
testified that she had relied on an email with an attachment sent to her by Mr. Aleshire
(which she provided) in calculating the $700,000 number included in her appeals.
5 The video recording of the January 16, 2018, City Council appeal indicates that the Mayor and City
Manager repeatedly pressed Ms. Loveys for the source of her claim that the City had demanded that Green Hills
pay $700,000 and that Green Hills had refused. She responded only that the “number” came from “somewhere”
and that “different numbers [were] rounded it [sic] off.” Ms. Loveys never explained the source of her statements
that the City made specific demands on Green Hills that were refused.
6 The note handed to Ms. Loveys reads: “Tell Him [meaning the questioner] Dave told yu [sic] abt. $700K.”
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However, the email to which Ms. Loveys made reference, and its attachment, was not sent
to her until October 31, 2017, after she had already filed her October 24, 2017 Planning
Commission appeal. As such, neither this email, nor its attachment, could have provided
the basis for the $700,000 “demand” amount which Ms. Loveys would twice state had been
made by the City to Green Hills in her appeal(s), nor did this email even hint at the fact the
City had demanded that Green Hills pay $700,000 and that Green Hills had refused.
Ms. Loveys further testified that both of her appeals were written for her by her attorney,
Mr. Noel Weiss. Attorney Weiss, during his examination, stated he received the $700,000
number from Ms. Loveys who, in turn had received that number “orally” from Attorney
Aleshire during a City Council meeting pre-dating her October appeal. Ms. Loveys also
testified that, except for her attorney, she discussed the amount of the City’s $700,000
demand made to Green Hills only with her sister and her daughter.
Ms. Landes, during her examination, adopted under oath a written statement that she had
previously submitted to the City Council, dated December 17, 2018. In that statement Ms.
Loveys is reported to have relayed to Ms. Landes, during an October 2017 conversation
between the two of them, that it was Attorney Aleshire who disclosed the amount of
attorneys’ fees from which Ms. Loveys was able to calculate the $700,000 settlement
demand made by the City on Green Hills. This disclosure was made, according to Ms.
Landes, during a conversation between Attorney Aleshire and Ms. Loveys “during a break”
at an October 3, 2017 City Council meeting.7
However, Mr. Aleshire was not in attendance at either the October 2 or 3, 2017 City
Council meetings because he was in London on vacation. This is confirmed by his
personal calendar, the video recording of the October 2 and 3, 2017 City Council meetings,
and by the approved minutes of the City Council meetings, which indicate that the
Assistant City Attorney was in attendance at both of these meetings in place of Mr.
Aleshire.
Accordingly, we are of the considered opinion that confidential settlement negotiations
between the City and Green Hills were unlawfully “leaked .” To date, the Office of the City
Attorney has been unable to determine the identity of the person who is the direct source
of such leak(s).
2. INVESTIGATION INTO POSSIBLE DISCLOSURE OF CLOSED
SESSION DISCUSSIONS OF THE CITY’S SHORT TERM RENTAL
ORDINANCE ENFORCEMENT STRATEGY
From October 2015 until the adoption of the City’s “Short Term Rentals Ordinance”
(“STRs”) in January 2017, the City Council and Planning Commission discussed STRs
and determined to prohibit them.8 The City Attorney researched enforcement strategies,
7 The statement of Ms. Landes reads: “I am advised by Sharon Loveys that during a break at the October
3, 2017 City Council Meeting, Dave Aleshire orally advised Sharon Loveys in response to her oral request . .
. [of] the amount of attorney’s fees the City had expended in defense of the Vista Verde litigation . . . .”
(Emphasis added.)
8 The constitutionality of the City’s short term rentals ordinance has been assured by a very recent federal
Ninth Circuit Court of Appeals decision involving the City of Santa Monica’s on short term rental ordinance. (See,
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and then briefed the City Council in Closed Session about enforcement options during the
September 2017 time period.
On February 19, 2018, City Staff learned from its outside investigator that, as early as
February 1, 2018, Mr. Eric Mark had been informed about the City’s confidential
enforcement strategy because he told the investigator that “the City hires companies to
investigate short term vacation rentals such as himself.” Mr. Mark reported that he had
been “cautioned” about how he offered his property as a short-term rental because the
City could be using an undercover investigator to make such bookings.
On July 20, 2018, Mr. Mark was deposed regarding the unauthorized disclosure of the
City’s STR enforcement strategy. During Mr. Mark’s examination, the City Prosecutor
learned for the first time that residents had been meeting to discuss the City’s ordinance
and ways to oppose the City’s STR ordinance and its enforcement efforts as early as
February 2017. Mr. Mark further testified that he remembered that other individuals
present at such meeting(s) seemed to know who at the City opposed the City’s
enforcement efforts. One of the other individuals who were deposed , Ms. Mizuguchi,
testified that she recalls attendees of at least one such meeting expressing support for
allowing STRs in the City.
Notwithstanding the foregoing, none of the individuals we either interviewed or examined
who attended the meeting(s) to discuss the City’s STR ordinance had any meaningful
recollection of the numbers of such meetings, the identity of any attendees at such
meetings, and who opposed the City STRs enforcement strategy, or what was said on that
subject. Accordingly, we cannot opine as to the source of the leaks of Closed Session STR
ordinance enforcement strategies, which interfered with and/or disclosed litigation strategy
approved by the City Council to enforce the City’s ordinance prohibiting the use of
residential property as “short term rentals.”
C. REMEDIAL ACTIONS RECOMMENDED BY THE COUNCIL AD HOC SUB-
COMMITTEE & CITY ATTORNEY
It is the considered opinion of the Office of the City Attorney that confidential litigation and
code enforcement strategy, discussed only in Closed Session(s), has been shared outside
the scope of the privilege of the Closed S ession. While the City Council could, should it
wish to do so, in its sound discretion, take specific enforcement actions against various
individuals, it is the recommendation of the Council Ad Hoc Sub-committee that the City
Council not focus on the past illegal acts, but act proactively to implement measures to
prevent future breaches of the privilege of the Closed Session.
Rosenblatt v. City of Santa Monica (9th Cir., October 12, 2019) Case No. 17-55879, Slip Op. at 4 [“This case
involves the perennial clash between a city’s exercise of traditional police powers in regulating land use and the
rights of property owners to use their property as they see fit. But this familiar problem has a not-so-familiar
backdrop: online marketplaces—such as Airbnb and HomeAway—where travelers can rent privately-owned
residential properties as vacation rentals. . . . The district court dismissed the amended complaint without leave to
amend . . . we affirm”].)
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Specifically, it is the recommendation of the Council Ad Hoc Sub-committee, with the
concurrence of the City Attorney, that additional steps need to be taken to assure that
confidential communications, oral or written, shared in lawfully convened Closed Sessions
are not disclosed to non-entitled persons or entities. The actions recommended are as
follows, and staff has included these as a separate agenda item on today’s agenda so that
the Council may take immediate action if it chooses to do so :
(a) Closed Session memoranda should be numbered and distribute d to
the City Council, and key City Staff, only by the City Attorney; and
(b) The City Attorney should collect all Closed Session memoranda at the
conclusion of every Closed Session and account for each numbered memoranda to
ensure that all copies of confidential communications are returned to and retained by the
City Attorney (with a single copy retained by the City Clerk); and
(c) An “admonition” should be added to every City Council agenda noting
the privilege of the Closed Session and warning of the legal consequences of violating the
same. The text would appear right after the Closed Session heading and before the listing
of the Closed Session item(s) and would read as follows:
“Please be advised that, pursuant to the Ralph M. Brown Act, ‘a person may
not disclose confidential information that has been acquired by being
present in a Closed Session . . . to a person not entitled to receive it, unless
the legislative body authorizes disclosure of that confidential information.’
(Gov. Code § 54963(a).) ‘“[C]onfidential information’ means a
communication made in a Closed Session that is specifically related to the
basis for the legislative body of a local agency to meet[] lawfully in Closed
Session . . . “ (Gov. Code § 54963(a).)
Please be further advised that any ‘[v]iolation of [Government Code
§ 54963] may be addressed by the use of such remedies as are currently
available by law, including, but not limited to: (1) injunctive relief to prevent
the disclosure of confidential information prohibited by this section; (2)
disciplinary action against an employee who has willfully disclosed
confidential information in violation of this section; (3) referral of a member
of a legislative body who has willfully disclosed confidential information in
violation of this section to a grand jury.’ (Gov. Code § 54963(c).)”
IV. OPTIONS AVAILABLE TO THE CITY COUNCIL IN LIGHT OF THESE REPORTS
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1. REFERRAL TO THE SUPERIOR COURT
The City Council may wish refer Mr. Campbell and Messers Loveys and Landes to the
Superior Court for being in contempt of the legislative subpoenas issued to them and for
making material misstatements of fact under oath. Any violation of a legislative subpoena
can be reported to the superior court to determine whether the subpoena has been
violated. Government Code §§ 37105 through 37109 define the City’s remedy for failure
to comply with a subpoena.
Upon the failure of a person to obey a subpoena, the mayor of a city notifies the superior
court. (Government Code § 37105.) The superior court then issues an attachment directed
to the sheriff of the county where the witness was required to appear or produce
documents commanding the appearance of the person to the court. (Government Code §
37107.) On the return of the attachment and production of the witness, the judge has
jurisdiction to issue a contempt order. (Government Code §§ 37108, 37 109.)
2. REFERRAL TO THE PUBLIC INTEGRITY DIVISION OF THE LOS
ANGELES COUNTY DISTRICT ATTORNEY’S OFFICE
The City Council may wish to refer the actions of Mr. Campbell to the Los Angeles County
District Attorney’s Public Integrity Division for criminal investigation and possible action.
This division within the Los Angeles County District Attorney’s Office is charged with
investigating and, where appropriate, prosecuting acts of corruption by public officials.
Making material misstatements of fact in a declaration given under penalty of perjury by a
former City elected official, and/or failure to comply with the mandates of the CPRA by a
former City elected official may merit further investigation by this Division.
3. AUTHORIZE LITIGATION TO RECOVER CITY “DAMAGES” FROM MR.
CAMPBELL
Mr. Campbell had a mandatory duty to provide all City-related emails on his private
server(s)/email(s) in order to enable the City to respond to multiple and repeated CPRA
requests for public records directed to Mr. Campbell from a variety of City residents and
other stakeholders. His failure to comply with this mandatory duty until compelled to do so
gives rise to a cause of action for damages in favor of the City. The Office of the City
Attorney recommends that the City Council authorize the filing of litigation against Mr.
Campbell, in his personal capacity, to recover costs and legal fees incurred in compelling
his compliance with the CPRA.
Mr. Campbell had an obligation under the CPRA to disclose all City-related emails stored
on his private server(s) so that the City could then discharge its statutory duty to review
and produce all non-exempt public records to these multiple requestors (Gov. Code, §
6250 et seq.) (City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 629.)
Public officials owe their agencies and the public a fiduciary duty to discharge their duties
in the public’s best interest. (Lexin v. Superior Ct. (2010) 47 Cal.4th 1050, 1073 (noting
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fiduciary duty of public officials to act with undivided loyalty and allegiance to public entities
they serve in the context of sales and purchases); United States v. Sorich (7th Cir. 2008)
523 F.3d 702, 712 (observing “[i]t may well be that merely by virtue of being public officials
the defendants inherently owed the public a fiduciary duty to discharge their offices in the
public’s best interest.”)
Mr. Campbell breached his fiduciary duty to the City and the public by failing to comply
with his obligations under the CPRA when he delayed producing the City-related emails
(or other City-related communications stored on any private device )) far beyond the
statutory deadlines and failed to fully comply with valid CPRA reque sts as discussed in
detail above thereby exposing the City to litigation to compel such disclosure.
“Where a breach of fiduciary duty occurs, a variety of equitable remedies are available,
including imposition of a constructive trust, and restitution, as well as incidental damages.”
(Hicks v. Clayton (1977) 67 Cal.App.3d 251, 264.) “‘Damages’ are monetary compensation
awarded to parties who suffer detriment for the unlawful act or omission of another; they
are assessed by a court against wrongdoers for the commission of a legal wrong of a
private nature.”9 (Meister v. Mensinger (2014) 230 Cal.App.4th 381, 396.) Mr. Campbell’s
breach caused the City significant harm in the form of economic damages ; staff time and
attorney time spent in compelling his partial compliance with multiple public records
requests, not to mention exposed the City to third-party claims for damages.
Moreover, Mr. Campbell’s sworn declarations, which are in conflict with the very
documents he produced, further demonstrate the potential for litigation by third -party
requesters against the City.10 Public officials in California are liable to the same extent as
private persons “for injuries caused by their acts or omissions, sub ject to the same
defenses available to private persons.” (Hayes v. City of San Diego (2013) 57 Cal.4th 622,
628-29 [citing Gov. Code § 820].)11
9 If authorized to do so by the City Council, our office can quantify the monetary value of any “damages”
sustained by the City in its efforts to compel Mr. Campbell to comply with the CPRA. It bears noting that, in our last
report to the Council on the expenses incurred by our office in complying with multiple CRPA requests from or
CPRA requests directed to Mr. Campbell, dated December 14, 2018, we advised the City Council that the “total
cost as of July, 2018, was $130,000” (which would require apportioning).
10 If the Huang email(s) were sent out in his “official capacity” as Mr. Campbell claimed to his Council
colleagues, litigation by Mr. Huang for libel or defamation could expose the City to litigation costs and money
damages. If as Mr. Campbell now claims the Huang email(s) were sent out as a private person, then Mr. Campbell,
alone, would face a litigation exposure. Even in that circumstance, the City may be sued to determine in what
capacity Mr. Campbell was acting. In the event of such litigation, the City would have viable cross-claims against
Mr. Campbell.
11 The most conservative Statute of Limitations that would govern any action that may be filed against Mr.
Campbell for damages would be Code of Civil Procedure § 338(a) (a three-year limitations period for a liability
created by statute), with the most conservative (and earliest) likely date of “accrual” being May 2017.
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