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Kathy McKeithen leaves council seat fighting

Original post made on Nov 27, 2012

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.

Read the full story here Web Link posted Wednesday, November 28, 2012, 12:00 AM

Comments (13)

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

Peter Carpenter is a registered user.

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.

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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.

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

Peter Carpenter is a registered user.

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

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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.

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

Peter Carpenter is a registered user.

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.

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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.

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

Peter Carpenter is a registered user.

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?

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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.

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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.

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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.

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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.

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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.

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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.

Sorry, but further commenting on this topic has been closed.

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