Airport Talks in Two Cities Questionable

Elected officials in two of the cities engaged in Orange County’s airport wars have met behind their respective closed doors to discuss critical projects and hire consultants without public review, saying exemptions in their city charters and the state’s open-meeting law allow it.

According to records obtained by The Times, the Newport Beach City Council in recent months agreed during closed sessions--under the heading of pending litigation--to spend a total of $55,000 a month for two lobbyists to push locally and in Washington, D.C., for a renewal of John Wayne Airport’s limits on flights and noise. The lobbying contracts total $455,000 and end Dec. 31, according to copies of the agreements. Neither contract vote, nor the earlier hiring of another lobbyist, was noted in public records.

And in Irvine last week, the City Council held a closed-door session under the heading of real estate negotiations to discuss the Navy’s plans to sell to private developers 3,700 acres of the closed El Toro Marine air base. City officials, who want to annex the land, have hired design and engineering consultants to work on an evolving plan for parkland and other public uses at El Toro, but they haven’t yet made it public.

The actions come as each city scrambles to sort out strategies relating to airports: in the case of Newport Beach, to renew noise and flight limitations at John Wayne Airport, which expire in 2005; for Irvine, to make sure airplanes never land again at the former El Toro base.

Under the state’s open-meeting law, the public’s business must be conducted in public. There are some exceptions, which the city officials invoked in conducting their closed meetings. The desire for secrecy reflects the high stakes in the airport battles, with officials fearing that involvement by even their own constituents could compromise their efforts.

Terry Francke, an attorney with the California First Amendment Coalition, questioned such justifications. He said the state’s open-meeting law is specific about which items can be discussed and voted on in private. It doesn’t allow a city council to meet in closed session to approve the hiring of lobbyists, he said, or discuss issues involving property that it isn’t planning to buy, sell, lease or exchange.

“The fact their attorney may have approved or suggested [the closed sessions] may insulate them against personal liability, but that’s all,” Francke said.

And the sensitivity of any issue makes it even more worthy of public input, he said.

Maintaining restrictions at John Wayne Airport has been a battle in Newport Beach for 30 years. In March, the City Council agreed in closed session to hire California Strategies, headed by Gary H. Hunt, a former Irvine Co. executive. The firm, hired as a consultant to the city’s longtime aviation attorney Steve Pflaum, was paid $20,000 a month for March and April. That amount was increased to $30,000 a month in May.

Also in May, the Newport Beach council--again behind closed doors--agreed to hire the Washington lobbying firm of William D. Lowery for $25,000 a month. Lowery also represents a 10-city South County coalition that for years fought Newport Beach over a proposed airport at El Toro. Newport’s contract specifies that Lowery cannot do any work related to El Toro on behalf of the city. The firm also gets $25,000 a month from the South County coalition, which hired the Lowery group during a public meeting.

The city has also been paying former Assembly Speaker Curt Pringle $5,000 a month since September 2000 to lobby local officials for renewal of noise and flight limits at John Wayne. There was no public notice of that contract being signed either.

Newport Beach City Atty. Robert Burnham said he approved the contracts through a city policy that allows him to hire consultants, with no cost limit, to help with issues related to litigation. He said he approved the contracts without council votes. Councilwoman Norma Glover also said no votes were taken; but Councilman John Heffernan said the council did vote during closed sessions on the lobbying contracts.

“I can’t talk about what happened, but I can tell you I voted with the majority” in approving the contracts, Heffernan said.

Another Newport Beach councilman, Steve Bromberg, said it was his understanding that when the council votes on contracts during closed sessions, it is to give staff direction and the vote doesn’t need to be reported publicly. The vote essentially is a straw vote that doesn’t actually authorize the contract, he said. He conceded, however, that if the council voted against a contract, it wouldn’t be signed.

Newport Beach’s city policy has no provision authorizing the city attorney to hire consultants without cost limits, according to a Times review of the policy. Department heads are allowed to approve consultant contracts that total less than $30,000 if the expenditure already was approved by the City Council as part of the annual budget. Contracts greater than $30,000 total must be submitted to the City Council for approval before the contract is awarded.

Under the state’s open-meeting law, a city council can meet privately to discuss actual or possible litigation and to hire attorneys to handle lawsuits. Any votes or action taken must be reported afterward, including the vote or abstention of every member present.

With real estate negotiations, the criteria are equally specific for closed sessions: They can be held with official negotiators to discuss the purchase, sale, lease or exchange of property, and then are limited to discussing price and terms.

In a letter dated May 23, Assistant Secretary of the Navy H.T. Johnson told county and Irvine officials that the Navy has no plans to make Irvine a party to the Navy’s disposal of El Toro property. “Irvine will not benefit directly from property sales nor will it determine public uses of the property other than through its land-use authorities,” Johnson wrote.

Irvine City Atty. Joel Kuperberg said the closed session on El Toro last week was appropriate because, even though the city doesn’t intend to buy or lease any of the base property, it hopes to get future parkland at El Toro from whoever does buy land there. Irvine is negotiating concessions through the Navy that could help the city acquire the property, he said, through conditions of escrow or property rights conveyed to the city.

“Technically, the chain of title may not be to the city,” he said. “This is a variant to saying you want to buy a piece of property. It is a legitimate basis for going into closed session.”

Kuperberg said negotiations ultimately could lead to a transaction that would need formal approval by the City Council and the Navy.

“The council is not taking any action to preclude review or input from the residents of Irvine and an ability to change or suspend the process if the City Council believes, based upon input, that that’s the best thing to do,” he said.

In a state appellate court decision from March, a court ruled that the San Diego City Council violated California’s open-meeting law when it met several times in closed session to discuss negotiations for a new stadium.

The court wrote that the council used the Brown Act as a “shield against public disclosure of its consideration of important public policy issues of the type that are inevitably raised whenever such a large public redevelopment real estate-based transaction is contemplated.”

The court added: “The important policy considerations of the Brown Act must be enforced, even where particular transactions do not fit neatly within its statutory categories.”