Lawyer: Burbank City Council practice illegal

For years, City Council members-elect have been invited by Burbank officials to sit in on closed-door meetings prior to being sworn in. But City Atty. Amy Albano has issued a memo saying that the practice violates state law.

Even so, the City Council next week is slated to discuss bringing Bob Frutos — who won election outright during the February primary — into the fold for closed-door meetings prior to his swearing in.

In her memo, Albano said meetings cannot be “semi-closed,” citing that “interested members of the public may not be admitted to a closed session while the remainder of the public is excluded.”

She added that people “without an official role in the meeting should not be present.”

At a council meeting last week, Councilman David Gordon — who on March 5 initially proposed inviting Frutos to a closed meeting — said Albano's opinion differed from what Burbank has done in the past, when elected council members were invited to observe the meetings before being sworn in.

In closed-door meetings, the council may discuss pending litigation, performance evaluations or labor negotiations.

When elected in 2009, Jess Talamantes, along with former council member Bob Kramer, both reportedly participated in closed-session meetings prior to being sworn in, Gordon said.

Former council member Marsha Ramos couldn't remember whether she was invited into closed meetings, but thought it was helpful for Talamantes.

“In terms of transition, it's absolutely useful,” Ramos said. “The reality is once you get there, you're going to ask for all the prior information anyway.”

The council was discussing performance evaluations and setting future goals at the time, and she was on her way out, she said.

“For me to set goals for the future doesn't make any sense,” Ramos said. “It made sense that he was there.”

But Peter Scheer, a Brown Act expert for the First Amendment Coalition, backed Albano's interpretation.

“He doesn't have an official role until he's sworn in,” he said of Frutos.

That means the city's practice has been flawed in the past, Scheer said.

“As a practical matter, it may not make any real difference if he were there in those closed sessions,” Scheer said. “But the better practice under the Brown Act … would be to exclude him until he takes office.”

While Frutos — who won more than 50% of the primary vote, ensuring his seat on the City Council — at first thought the opinion was curious, given the city's past practices, he said Monday that if he is invited into closed session next week, he likely will decline.

“I can't violate the law and put our city in jeopardy,” he said.

Mayor Dave Golonski said last week that for a long time, the council “did invite councilmen-elects into closed session.”

But those invitations apparently did not extend to council members Emily Gabel-Luddy and Councilman Gary Bric, who said they did not participate in the meetings when elected in 2011 and 2007, respectively.

“I was never allowed to come into closed session,” Bric said.

Newly elected council members are slated to be sworn in May 1. And when Frutos takes his oath, Bric said the newly elected member of the group will be brought up to speed on council affairs.

“He'll get a crash course on everything going on,” he said.

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Follow Alene Tchekmedyian on Google+ and on Twitter: @atchek.

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