Kathy McKeithen leaves council seat fighting | November 28, 2012 | Almanac | Almanac Online |



News - November 28, 2012

Kathy McKeithen leaves council seat fighting

• Atherton councilwoman unhappy with manager's confidentiality policy with weekly report.

by Renee Batti

She came in fighting, and she's going out fighting. Kathy McKeithen, whose three-term tenure as an Atherton City Council member ends next month, is challenging the new town manager's decision to put a "confidential" stamp on a weekly report to the council that he has initiated since arriving in Town Hall in October.

Ms. McKeithen and City Manager George Rodericks exchanged a series of emails earlier this month about the nature of the weekly report, which the councilwoman had requested be sent to her automatically after her term ends. In response to her request, Mr. Rodericks said that the document, which he calls a "status report," is not a public record.

"Its content is intended to contribute to the reaching of an administrative or executive determination as part of the deliberative process and it is 'pre-decisional' in nature," Mr. Rodericks wrote. "... The report is a mechanism to allow the city manager to converse with individual members of the council to explore alternatives and provide tentative suggestions for action without fear of reproach upon subsequent disclosure of a thought process."

When Ms. McKeithen argued that the reports issued thus far have had "few, if any parts I would view as deliberative or pre-decisional," the town manager noted that as he gets "up to speed" on issues, the reports are likely to contain discussion of personnel matters, which are illegal to disclose, and other sensitive matters.

Dissatisfied with Mr. Roderick's arguments, Ms. McKeithen's asked, "Why are you already creating impediments to the public's knowledge concerning what is going on in the town when we hired you to do just the opposite?"

Ms. Keithen, whose platform during her first run for council included reforming town management and creating greater government transparency, told the Almanac that during her 12 years on the council, city managers' weekly reports have never been considered confidential. The city manager's confidentiality policy regarding the report, she added, "does not bode well" for transparency in government.

But part of the conflict appears to stem from the nature of the report Mr. Rodericks is restricting: Rather than the type of report past city managers issued and made public via an email list and other strategies, the "status report" is a new form of communication with the council, Mr. Rodericks said.

The report will take the place of one-on-one conversations with council members that "I guarantee you took place" with former city managers in Atherton and virtually all other cities — discussions that don't violate the law as long as strict rules are followed.

Those rules, as outlined in the state's open meeting law, known as the Brown Act, prohibit discussions between individual council members, or a council member and the city manager, for the purpose of determining the council member's position on an issue and then trying to form a consensus by relaying that position to other council members.

That is not what Mr. Rodericks intends to do, he stated firmly, adding that he is a strong proponent of the Brown Act and has no intention of undermining it. His status report is a way to communicate important information to council members on an ongoing basis, including pending employee disciplinary actions that must legally be kept confidential, he said. "Some information is important to the council, and the minute I know about it, they're going to know about it.

"You can't keep things like (key personnel matters) from your governing body. ... And my rule is if I tell one council member, I tell all five," he said, adding that he won't favor certain members or "play politics."

The report also can be thought of as "a conversation I'm having with myself," but allowing council members to be aware of his thinking — a strategy that could lead to feedback when he's on the wrong track.

Mr. Rodericks said that eventually he'll issue weekly city manager reports like the documents that had been written in the past for public consumption, posting them on the town's website.

Council members McKeithen and Jim Dobbie said one danger of the city manager's confidential report is that it could lead to Brown Act violations by allowing council members to communicate positions back and forth in response to the emailed report. "It's almost like working behind the scenes to get a consensus, pushing at the seams of the Brown Act," Ms. McKeithen said.

But Mr. Rodericks said he is clear in his emailed reports that they should be considered one-way communications, and responses, if any, should be directed to him alone.

Mr. Dobbie said he doesn't support an emailed confidential report, noting that if information is confidential, it should be discussed in closed session. Mr. Rodericks noted, however, that some topics wouldn't qualify for closed-session discussion by the full council under the Brown Act. But if they are discussed with individual council members or in a report that clearly states it's not intended to be retained on file, no Brown Act violation occurs, he said.

Members of the public, including Ms. McKeithen after she leaves the council, can obtain a redacted copy of the status report by requesting it from the city clerk, Mr. Rodericks said.

That process doesn't satisfy Ms. McKeithen, who fought several battles during her council tenure to make documents deemed "confidential" to be made public. The need to file a public records request for the report is "not very transparent or community friendly," she wrote in her final email to Mr. Rodericks.

Mayor Bill Widmer said he spoke with Mr. Rodericks last week about the confidentiality of the report after learning of the disagreement, and suggested that a two-part report might be the solution. If the city manager wants to include confidential material, the supplemental part would be for council eyes only, he said.

Councilman Jerry Carlson said he was unaware of the disagreement over the reports, and Councilwoman Elizabeth Lewis couldn't be reached for comment.


Posted by registered user, Peter Carpenter, a resident of Atherton: Lindenwood
on Nov 27, 2012 at 11:20 am

As someone knowledgable about both the Brown Act and elected public office I commend the Town Manager for his balanced approach to keeping the council informed on a timely basis while avoiding the actions prohibited by the Brown Act.

Hopefully we will all come to realize that it is the Town Manager who is responsible for the day-to-day operation of the Town and then let him get about doing that business.

Posted by Get rid of this guy, a resident of Atherton: other
on Nov 27, 2012 at 11:29 am

Roderick is fast shaping up to be another Jerry Gruber. He didn't last long (even with the troika of Marsala, Lewis and Carlson running things), and if Roderick doesn't get the message that sunlight is the best disinfectant, he won't last too long either. These records will be given to the public one way or another. If Atherton city attorney didn't learn their lesson on the last round of records requests, new ones will be launched. Judges may have to decide. Cary Wiest getting elected doesn't disable the public records act which, if you read it, encourages the broadest possible disclosure.

Posted by registered user, Peter Carpenter, a resident of Atherton: Lindenwood
on Nov 27, 2012 at 11:38 am

Get rid of... - Please get your facts first before you post.

Here is what the League of California Cities states:

"The Brown Act creates six exceptions to the meeting definition:
Individual Contacts
The first exception involves individual contacts between a member of the legislative body and any other person. The Brown Act does not limit a legislative body member acting on his or her own. This exception recognizes the right to confer with constituents, advocates, consultants, news reporters, local agency staff or a colleague."

"On the other hand, a unilateral written communication to the legislative body, such as an informational or advisory memorandum, does not violate the Brown Act." Roberts v. City of Palmdale (1993) 5 Cal.4th 363

Posted by Get rid of this guy, a resident of Atherton: other
on Nov 27, 2012 at 11:43 am

Get your facts straight. The public records act operates here, not the Brown Act. She's not asking to attend a meeting. These are written records. They certainly fall within the disclosure mandates of the public records act. I would caution you not to go down the slippery slope the city attorney is trying to (wrongfully) set up here, since Atherton could claim ANY record is exempt under some sort of wildly broad "deliberative process" exception. Every record involves the by-product of some decision-making somewhere. Think carefully on this one, Peter.

Posted by registered user, Peter Carpenter, a resident of Atherton: Lindenwood
on Nov 27, 2012 at 11:56 am

Careful thinking and examination of the California laws on public records make it clear that the unredacted reports being provided by the Town Manager to the council are not documents which fall under the disclosure requirements of the law. The Town Manager has already indicated that he will make redacted versions of these communications available under the CPRA.

Of course, I would welcome specific legal references to the contrary.

Posted by Certainly, a resident of Atherton: West Atherton
on Nov 27, 2012 at 2:02 pm

The case that established the "deliberative process" exemption was back in 1991, and was filed by the Times Mirror Co. to obtain the governor's datebook. They lost under the newly created "deliberative process." However, the opinion cautioned that each case will be handled on a very fact-specific basis, and this "deliberative process" exemption cannot be used as a broad excuse to withhold records:

“. . . on the present record, we conclude that the public interest in nondisclosure clearly outweighs the public interest in disclosure. (§ 6255.) Lest there be any misunderstanding, however, we caution that our holding does not render inviolate the Governor’s calendars and schedules or other records of the Governor’s office. There may be cases where the public interest in certain specific information contained in one or more of the Governor’s calendars is more compelling, the specific request more focused, and the extent of the requested disclosure more limited; then, the court might properly conclude that the public interest in nondisclosure does not clearly outweigh the public interest in disclosure, whatever the incidental impact on the deliberative process.”

Thus every redaction must meet the balancing test quoted in the PRA, in which the municipality must demonstrate that the public's interests are served by withholding the records, and the "deliberative process" of Mr. Rodericks outweighes this public interest. The court system will treat each case on its own merits, with the burden on the municipality to clearly prove the exemption (as opposed to a broad category exemption already existing).

It is also important to note that:

1. There is absolutely nothing in the law that requires this exemption to be claimed. It is purely discretionary.

2. If prior similar records were made public, as Ms. McKeithen contends, that is an absolute bar to claiming any future exemptions.

3. The case law is crystal clear that the entire records cannot be withheld, merely the portions evidencing a "deliberative process," and even then for which the balancing test was applied and met. A discussion about a particular employee would most likely meet this test, but it is hard to imagine more generic discussions would. Thus, Mr. Widmer's suggestion is not just a good idea; it is the law.

4. If a lawsuit were filed, and even one word were ordered unredacted, the case law establishes Atherton needs to pay attorney's fees to the person or entity filing the lawsuit.

The bottom line is that there are very few good reasons to withhold this information, and it is discretionary, so indicative of Mr. Roderick's new management style.

Posted by registered user, Peter Carpenter, a resident of Atherton: Lindenwood
on Nov 27, 2012 at 2:16 pm

As noted the Town Manager has already indicated that redacted copies of the status reports will be made available. Until you have seen a redacted version of the Town Manager's new status reports to the council there is simply no way to know if there is any problem. For example, if a redacted version blocks out personnel matters and ongoing litigation then both the CPRA and the Brown Act have been complied with. Or the redacted version may contain no redactions!!

Crying foul before the ball is thrown is pointless. For the CPRA law to be broken something must HAVE BEEN withheld from public view that should have been disclosed WHEN it was requested.

Has Certainly made such a public records request? What did she receive in response? Was anything redacted?

Posted by She came in critical of others and leaves critical of others, a resident of Atherton: other
on Nov 27, 2012 at 2:38 pm

A year before McKeithen ran for office she was critical of the city manager and able to get the press to print her stories.

During her twelve years she was critical of City Managers and Interim City Managers Ralph Friedman, Jim Robinson, Wende Protzman, and Jerry Gruber.

A year before McKeithen ran for office she was critical of council members Chapman, Dudley, and Fisher and able to get the press to print her stories.

She goes out critical of council members Carlson, Lewis, and Wiest and able to get the press to print her stories.

George Roderick you are doing the right thing. If one council member comes into your office with an issue inform all council members in writing to document and protect yourself, that is work in progress and not public information. Create a separate report if you have to.

Good Luck and welcome to Atherton.

Posted by Brown Act Spin, a resident of Atherton: other
on Nov 27, 2012 at 7:28 pm

This a long article about very little. Second to last paragraph is the bottom line. Mayor Widmer "suggested a two-part report might be the solution."

One report is public and consists of what events, activities, and town problems the City Manager addressed that week.

The second report is private and consists items such as: met with Council Member Wiest to discuss Two Tier Retirement Plans and Compensation options for APOA offer, discussed with Council Member Carlson High Speed Rail Lawsuit update and options, reviewed private Town Center donation pledge with Council Member Lewis, received update from City Attorney on legal action against School District xxx.

However some council activities could go in the first report; such as discussed Town Party concept and expenses with Mayor Widmer.

This information is not "almost like working behind the scenes to get a consensus, pushing at the seams of the Brown Act." as Ms. McKeithen states. Rather it is the best way to equally inform and update all council members of status changes in legal and private issues.

Posted by Private issues?, a resident of Atherton: other
on Nov 28, 2012 at 8:08 am

Private issues in government are the EXCEPTION, not the rule. There is a closed session for limited "private issues" that gives public notice and ability for public comment before discussions take place and decisions are made. This is an end-run around that process. Ms. McKeithen is totally correct.

Posted by When City Managers did report discussion with Council Members , a resident of Atherton: other
on Nov 28, 2012 at 9:56 am

As a council member, McKeithen did not want others to know what she was requesting of staff. At one point it became elevated to conflicting sworn depostions between her and the interim city manager.

Atherton: McKeithen denies involvement in Johns case
by Andrea Gemmet

"Ms. McKeithen allegedly asked for the investigation to be dropped and questioned town staff about Mr. Johns, according to the former interim city manager, Wende Protzman.

Ms. McKeithen vehemently denies those charges....

Ms. Protzman said Ms. McKeithen questioned her and assistant finance director Paula Pierce about Mr. Johns' behavior, according to her sworn declaration filed in response to the lawsuit. Ms. Protzman also said that Ms. McKeithen made a statement that she took as a request to make the investigation go away.

Ms. McKeithen denied ever making such a statement, and said she doesn't know why Ms. Protzman would claim that she did.
"Never. Never," she told The Almanac, calling such a request "the most pointless thing imaginable."

As a member of the Atherton Finance Committee, Ms. McKeithen said she had been a supporter of the job Mr. Johns did as finance director....

Ms. McKeithen said she only asked Ms. Pierce about Mr. Johns after she heard that Ms. Pierce had a problem with him.
"Paula Pierce and I have known each other for years, and for years she's said, 'John is one of the best people I've ever worked with.' I asked, not to investigate, but (because) I couldn't help but wonder if I had misjudged John," Ms. McKeithen said.
Ms. McKeithen said she did not ask Ms. Pierce any other questions and that she immediately notified Ms. Protzman. Other than filing her own court declaration after receiving a subpoena from Mr. Johns' attorney, she hasn't spoken with any town employees about the situation, requested any documents or even opened the investigator's report on Mr. Johns, she said."

The City Clerk later produced a large document request from Council Member McKeithen regarding information concerning John Johns and requesting other council member not be informed of the request.

Posted by Brown Act Spin, a resident of Atherton: other
on Nov 28, 2012 at 11:07 am

While she was on the council McKeithen did not want the public nor even fellow council members to know what pressures she was putting on the City Managers.

The report she is now asking for did not exist prior to Rodericks being hired and she did not ask for it to be created.

Now that she is gone, she wants to know every discussion that every council member has with the city manager to be reported to the public.

Posted by We are all special, a resident of Atherton: other
on Nov 28, 2012 at 1:36 pm

"the councilwoman had requested be sent to her automatically after her term ends. "
Why does she need a special email? Can't she find out this information like the rest of us? Maybe she can sit in on some of the council meetings as a spectator like us common folk.