Rancho Palos Verdes City Council
   

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