TO: Honorable Mayor and Members
of the City Council
FROM:
Douglas W. Stern, Mayor Pro Tem
DATE: August 6, 2002
SUBJECT: POLICY SUPPORTING PARTICIPATION
BY RESIDENTS IN GOVERNMENT
AGAINST INTIMIDATION CAUSED BY
LAWSUITS NAMING INDIVIDUALS
RECOMMEDATION
Adopt a City Policy substantially as follows
that makes it clear to residents and those who have disputes with the
City and its agencies that:
The City of Rancho Palos Verdes
depends on its residents to volunteer to provide the leadership roles
that govern our City. The City regards the inclusion as defendants
in lawsuits against the City of individual city council members, commission
members, committee members, and similar resident volunteers who participate
in the City’s decision making processes as a tactic that is designed
to intimidate and chill the participation of the City’s residents
in the democratic process, which is an infringement of rights that
are protected by the constitutions of the United States and the State
of California. As such, when determined by the City Council, on a
case-by-case basis, to be consistent with existing law, the City will
defend and indemnify city council members, commission members and
committee members, and will vigorously use all legal tools, including
Code of Civil Procedure § 425.16 (the "Anti-SLAPP" statute)
to assert the rights of such individuals to participate in government
without fear of intimidation from lawsuits filed as a result of decisions
that they make on behalf of the City. The City shall seek to obtain
the full relief afforded to it and the individuals, including the
right to attorney’s fees under C.C.P. § 425.16(c).
Upon receipt by the City Clerk
of any lawsuit naming an individual city council member, commissioner
or committee member as a defendant, the City Clerk shall mail to the
attorney for plaintiff (or to plaintiff if not represented by counsel)
a copy of this policy, alerting such person to the policy of the City.
BACKGROUND
The City has seen a recent increase in the
inclusion of individual city council members and commissioners as defendants
in lawsuits filed against the City or its agencies as a result of the
participation of those individuals in the decisions made by the City bodies
on which they serve. These include the naming of members of the planning
commission in a number of suits, as well as members of the city council.
Our City is governed by residents who willingly volunteer their time,
talent, professional skills and experiences. No person on any city council,
commission or committee receives any meaningful compensation other than
the knowledge that he or she is unselfishly volunteering for the betterment
of the community.
The unfortunate consequence of the naming
of individuals as defendants is to chill the willingness of residents
to serve their fellow residents in the City. The action of naming individuals
as defendants appears to be a tactic that is designed to intimidate those
individuals. Even when it does not intimidate, it can easily cause those
individuals and future individuals to think twice before they volunteer
in the future to participate in our City government. This has an unacceptable
consequence to our City, the residents, and the strength of our democratic
institutions. No person should fear that by participating in our government,
he or she would become the target of a lawsuit.
For example, Charles Brumbaugh, acting through
his entity, Indian Ridge Crest Gardens, L.P. recently brought suit against
the City, the Redevelopment Agency, and Councilman Gardiner and Mayor
Pro Tem Stern. He acknowledged that the reason he sued the individuals
was based on their votes in their capacity as members of the City Redevelopment
Agency, which he noted in the Claim that he filed with the Redevelopment
Agency:
"Petitioners are unsure whether
Council and Agency member McTaggert’s statements on August 21,
2001 constitute a vote or not. Petitioners reserve
their rights during the statutory period to amend this claim should
it become known that Member McTaggert’s statements constitute a vote
against the project." (Emphasis added.)
Further, Brumbaugh was quoted in a September 8,
2001 front page Palos Verdes Peninsula News article, appearing as the
lead story, stating:
"I am suing all of the council members
who voted against me, the city manger, the planning director and the
city attorney.
***
Brumbaugh said he would not name Mayor
Marilyn Lyon or Councilwoman Barbara Ferraro, who voted against Gardiner’s
motion, in the claim."
Typically, the City does defend and indemnify
the city council, commissioners, and committee members. However, I believe
it is important for the City to make a bold, clear, unequivocal statement
that whenever it is consistent with existing law, the City will vigorously
defend its resident volunteers serving on its city council, commissions
and committees, including the forceful protection of their individual
rights under our democratic principles to participate in our government,
and to do so without fear that they shall be sued.
In that regard, I would note the provisions
of Code of Civil Procedure section 425.16, (the "anti-SLAPP statute
– Strategic Lawsuits Against Public Participation) which reads, in part:
425.16.
"(a) The Legislature finds and declares that there has
been a disturbing increase in lawsuits brought primarily to chill
the valid exercise of the constitutional rights of freedom of speech
and petition for the redress of grievances. The Legislature
finds and declares that it is in the public interest to encourage
continued participation in matters of public significance, and
that this participation should not be chilled through abuse of the
judicial process. To this end, this section shall be construed
broadly.
"(b) (1) A cause of action against
a person arising from any act of that person in furtherance of the
person's right of petition or free speech under the United States
or California Constitution in connection with a public issue shall
be subject to a special motion to strike, unless the court determines
that the plaintiff has established that there is a probability that
the plaintiff will prevail on the claim.
"(c) In any action subject to subdivision
(b), a prevailing defendant on a special motion to strike shall
be entitled to recover his or her attorney's fees and costs."
This law covers those who participate in
the democratic process as government officials, such as city council members,
not just members of the public at-large. Schroeder v. City
Council of the City of Irvine, 97 Cal.App.4th 174,
183 nt. 3 (March 6, 2002). There the Court held that the Irvine City
Council was entitled to attorneys’ fees from the plaintiff where the plaintiff
sued them challenging their vote. The Court rejected the assertion that
the city and the city council members were not protected by the anti-SLAPP
statute, and instead noted that voting by council members was the exercise
of the first amendment rights protected by C.C.P. § 425.16. The Court
commented:
"Insofar as Schroeder’s lawsuit
targeted the [Irvine city] council members, the basis for their
liability was premised on their vote in favor of adopting the
Vote 2000 program, and voting is conduct qualifying for the protections
afforded by the first amendment." Schroeder, supra,
at fn. 3. (Emphasis added.) See also, Bradbury v.
Superior Court, 49 Cal.App.4th 1108 (1996); Mission
Oaks, Ltd. v. County of Santa Barbara, 65 Cal.App.4th
713 (1998).
FISCAL IMPACT
It is not anticipated that the policy would
have any fiscal impact separate or distinct from the costs of properly
and vigorously defending lawsuits. It is not possible to predict the ultimate
consequences of such a policy, as it could reduce or increase costs of
defense.
CONCLUSION
I request that the City Council adopt the
policy that provides substantially as follows:
"The City of Rancho Palos
Verdes depends on its residents to volunteer to provide the leadership
roles that govern our City. The City regards the inclusion as defendants
in lawsuits against the City of individual city council members, commission
members, committee members, and similar resident volunteers who participate
in the City’s decision making processes as a tactic that is designed
to intimidate and chill the participation of the City’s residents
in the democratic process, which is an infringement of rights that
are protected by the constitutions of the United States and the State
of California. As such, when determined by the City Council, on a
case-by-case basis, to be consistent with existing law, the City will
defend and indemnify city council members, commission members and
committee members, and will vigorously use all legal tools, including
Code of Civil Procedure § 425.16 (the "Anti-SLAPP" statute)
to assert the rights of such individuals to participate in government
without fear of intimidation from lawsuits filed as a result of decisions
that they make on behalf of the City. The City shall seek to obtain
the full relief afforded to it and the individuals, including the
right to attorney’s fees under C.C.P. § 425.16(c).
"Upon receipt by the City
Clerk of any lawsuit naming an individual city council member, commissioner
or committee member as a defendant, the City Clerk shall mail to the
attorney for plaintiff (or plaintiff if not represented by council)
a copy of this policy, alerting such person to the policy of the City."
Respectfully submitted,
Douglas W. Stern
Mayor Pro Tem
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