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					Dorothy Englund



December 23, 2013

Hand-Delivered

Mayor Flaherty, and Council members Carlson, Durant, Harris, and Weir
Pleasant Hill City Council
c/o City of Pleasant Hill City Clerk Kimberly Lehmkuhl
City of Pleasant Hill
100 Gregory Lane
Pleasant Hill, CA 94523

Re:       Complaint Concerning the December 2, 2013 Council meeting and Election of Mayor

Dear Mayor Flaherty and Council members Carlson, Durant, Harris, and Weir:

This letter is to call your attention to what I believe was a substantial violation of a central provision
of the Ralph M. Brown Act and Article I, Section 3 of the California Constitution, which jeopardizes
the finality of the action taken by the City Council of Pleasant Hill on December 2, 2013.

Please be advised that I am aware at least one other citizen, Mary Fouts, has already filed a Brown
Act Complaint dated December 5, 2013. I agree with Ms. Fouts’ allegations and I am incorporating
that her December 5, 2013 Complaint herein by reference, together with any violations she may have
identified in her Complaint that are not specifically described or referenced in my Complaint.

Violation:

The nature of the violation is as follows. In its meeting of December 2, 2013, the City Council took
action to elect a new Mayor by formal vote. The action taken was not in compliance with the Brown
Act and Article I, Section 3 of the California Constitution because:

         Dr. Harris, Mr. Carlson, and Mr. Flaherty singlehandedly and in collaboration with each
          other, directly, and/or indirectly through intermediaries, conspired to “rig the election” and
          deny Mr. Weir and the public the honor of Mr. Weir serving as Mayor of Pleasant Hill; and
          furthermore conspired to elect Mr. Flaherty to the office of Mayor,

         These actions occurred as the culmination of communications between Dr. Harris, Mr.
          Carlson, and Mr. Flaherty, directly, and/or indirectly through intermediaries, thereby
          enabling the three Council members to reach a consensus, and to know, in advance, how each
          of the three Council members intended to vote,

         These “serial meetings,” occurred outside of an official and properly-noticed Council
          meeting in violation of the Brown Act, and Article 1, Section 3, of the California
          Constitution,

                                                Page 1 of 8
       Dr. Harris, Mr. Carlson, and Mr. Flaherty withheld information regarding their actions from
        the public. They deprived the public of the right to view the deliberative process, which
        includes the acquisition of information on any matter that is on a Council agenda or that falls
        within Council’s jurisdiction and is likely to come before Council in the future, and

       Dr. Harris, Mr. Carlson, and Mr. Flaherty deprived the public of informed comment. They
        deprived the public of informed comment because they withheld information they obtained
        regarding the actions each intended to take and the votes each intended to cast in the election
        of Mayor; and they failed to disclose the direct or indirect communications with each other,
        and intermediaries which occurred in advance of the December 2, 2013 Council meeting.

        They also deprived the public of informed comment because they did not engage in any
        deliberation – open, candid, or otherwise – before casting their votes. Dr. Harris did not
        reopen public comment so the public could react to an unexpected, extraordinary and highly
        irregular turn of events. And, Dr. Harris did not call for discussion by Council before he
        called for the vote.

As you are aware, a serial meeting can occur even if the three Council members (a quorum) do not
physically meet or communicate directly. The meeting can occur through any combination of
discussions, written communications, and/or messages, at any time since the date(s) Mr. Carlson and
Mr. Flaherty were first elected to Council right up until Council members Harris, Carlson, and
Flaherty cast their votes on December 2, 2013. Serial meetings can also occur through intermediaries;
including city staff, the interim city attorney, or third parties who are not employed or under contract
with the City.

I have submitted multiple records requests pursuant to the California Public Records Act. I am also
following up on leads and gathering additional evidence to further corroborate the allegations of
misconduct by Dr. Harris, Mr. Carlson, and Mr. Flaherty. And, I will share my additional findings or
observations with you as soon as I complete my investigation. However, I am prepared at this time to
share the persuasive evidence and information that has already come to my attention.

Based on the preponderance of evidence, I believe a reasonable person must conclude that Dr. Harris,
Mr. Carlson, and Mr. Flaherty, individually and collectively, directly and/or indirectly through
intermediaries, conspired to deny Mr. Weir the position of Mayor of Pleasant Hill and to elect Mr.
Flaherty to the office of Mayor.

Evidence:

    1. Dr. Harris reportedly told Contra Costa Times Reporter, Lisa White, that “he asked Carlson if
       he would be willing to nominate someone for mayor…”1

    2. On December 12, 2013, just one day before Ms. White published her article relaying that Dr.
       Harris had “asked Carlson if he would be willing to nominate someone for mayor,” Mr.
       Carlson appeared as Guest Speaker at a Pleasant Hill Rotary meeting.

1
 See “Skepticism as to whether Pleasant Hill council’s mayoral vote was spontaneous,” by Lisa White, Contra
Costa Times, December 13, 2013.

                                                Page 2 of 8
       Reportedly, after Mr. Carlson finished delivering his speech, having avoided any mention of
       the recent Mayor election, a Rotarian asked Mr. Carlson “what happened” in the mayoral
       selection on December 2nd. Mr. Carlson reportedly insisted that he had no discussion with
       any other Council member about the Mayor election before the December 2nd meeting.

       Mr. Carlson’s statements at the December 12, 2013 Rotary meeting are entirely inconsistent
       with (and contradicted by) Dr. Harris’ contemporaneous statements to Contra Costa Times
       Reporter, Lisa White.

    3. If Dr. Harris did, in fact, approach Mr. Carlson and ask “if he would be willing to nominate
       someone for mayor,” we know at least two Council members met outside of an open meeting
       and conspired to nominate and elect someone Mayor, other than Mr. Weir.

       This effectively narrows the focus of the investigation to whether anyone discussed, or
       otherwise communicated, Dr. Harris’ and Mr. Carlson’s plans with, or to, Mr. Flaherty at any
       time before the December 2, 2013 Council meeting.2

    4. Mr. Flaherty showed no reaction when Mr. Carlson, Dr. Harris, and he sat motionless and
       silent and refused to second Mr. Durant’s nomination of Mr. Weir to be Mayor of Pleasant
       Hill.3

    5. Mr. Flaherty showed no reaction when Mr. Weir (after a long pause and after Dr. Harris
       began to say, “hearing no second…”) had to second his own nomination.4

    6. Mr. Flaherty showed no reaction when Mr. Carlson, Dr. Harris, and he voted “no” to the
       motion to elect Mr. Weir as Mayor.5

    7. Mr. Flaherty’s expression and body language indicate he knew exactly what was going to
       transpire and he knew he would be elected Mayor. He didn’t even pretend to be surprised, in
       spite of the following inconsistencies or anomalies6:

           a) He had only been on Council for one year,
           b) He was the most junior member on Council,
           c) He was nominated by Mr. Carlson, the second-most junior member on Council,
           d) He was nominated and then elected Mayor over the expected recipient of that honor
              (then Vice Mayor Jack Weir), and
           e) He had never previously served as Vice Mayor
2
  Mr. Flaherty potentially could have discussed, or otherwise learned about Dr. Harris’ and/or Mr. Carlson’s
anathema re Mr. Weir (or re Mr. Weir becoming Mayor), and/or the plan for Mr. Flaherty to be elected Mayor
at any time from the moment Mr. Flaherty was elected to Council in 2012 (just one year ago) right up to the
start of the December 2, 2013 Council meeting. Those discussions, or communications, no matter how general
or casual and no matter when they occurred in relation to the December 2, 2013 Council meeting, would
constitute a violation of the Brown Act and Article 1, Section 3 of the California Constitution.
3
  See video of the December 2, 2013 Council meeting – Reorganization and Election of Mayor.
4
  Ibid.
5
  Ibid.
6
  Ibid.

                                                Page 3 of 8
            I am not aware of a single instance, in the sixty-year history of Pleasant Hill (other than the
            very first year Pleasant Hill became a city), when Council has elected a Mayor who has not
            previously, at any time, first served as Vice Mayor of the City.

            Additionally, for the better part of the last quarter of a century, the Vice Mayor has always
            been nominated and elected Mayor unless he or she is unable or unwilling to serve as Mayor
            the following year.

            Therefore, what transpired at the December 2, 2013 Council meeting was extraordinary and
            highly irregular.

            Anyone who didn’t already know exactly what was about to transpire at the December 2,
            2013 Council meeting would have shown a reaction, such as “surprise,” “shock,” or
            “disbelief” when Vice Mayor Weir was not elected Mayor and when Mr. Carlson, Dr. Harris,
            and Mr. Flaherty nominated, seconded the nomination, and then elected Mr. Flaherty to the
            office of Mayor.

       8. Dr. Harris and Mr. Carlson, like Mr. Flaherty, failed to show any reaction to the chain of
          events at the December 2, 2013 Council meeting. Of course, their failure to react would not be
          unusual if Dr. Harris did, in fact, approach Mr. Carlson and ask him to nominate Mr. Flaherty
          for Mayor, and if each of them knew Mr. Flaherty was “on board” – willing to be nominated
          Mayor and perfectly willing to vote for himself.7

       9. Dr. Harris, Mr. Carlson, and Mr. Flaherty appeared very serious, tense and uncomfortable –
          especially once it was time for Council to move to Item 11 and 11.1, City Council
          Reorganization and Election of Mayor, respectively.

            This behavior is entirely inconsistent with Council members’ typical behavior at the annual
            City Council Reorganization Meeting, and in particular during Council’s consideration of the
            “City Council Reorganization and Election of Mayor” agenda item. The annual
            Reorganization meeting is supposed to be a festive occasion – right before the winter holidays
            with a reception following the meeting. In every meeting over the past six years, the mood has
            been jovial and light, Council members joked, teased, and bantered back and forth.

            Dr. Harris, Mr. Carlson, and Mr. Flaherty behaved just the opposite at the December 2, 2013
            meeting, suggesting they understood and felt the gravity of the situation because they knew
            exactly what was about to transpire.8

       10. There was absolutely no discussion or deliberation on the part of Council in spite of such an
           extraordinary and highly irregular move by Council members Harris, Carlson, and Flaherty.9

7
    Ibid.
8
  See City of Pleasant Hill online videos for the following City Council Reorganization meetings: December
17, 2012, December 5, 2011, December 6, 2010, December 7, 2009, December 15, 2008, November 19, 2007
9
  See video of the December 2, 2013 Council meeting – Reorganization and Election of Mayor.

                                                   Page 4 of 8
        All council members have, at one time or another, assured the public that he or she is
        committed to open government and transparency. In fact, I personally met with Dr. Harris
        about three years ago and he assured me that he agrees that members of the public are entitled
        to know why council members make the decisions they make.

        I can’t imagine any other action by Council that could possibly create as much controversy,
        disagreement, or dissention than the actions Dr. Harris, Mr. Carlson, and Mr. Flaherty took on
        December 2, 2013.

        And yet, Dr. Harris, Mr. Carlson, and Mr. Flaherty appeared “programmed” and “robotic,” as
        they moved through the motions, the seconds, and the votes. Their silence, their stony-faced
        expressions, and their unresponsiveness demonstrate premeditation and advance knowledge
        of the outcome of the December 2, 2013 election of Mayor – an outcome which was, by any
        reasonable standard, most certainly a “fait accompli.”

     11. Council’s election of Mayor was completely devoid of spontaneity. There was no jockeying
         for position, no counter-motions, and, again, no deliberation. The lack of spontaneity,
         counter-motions, and deliberation would not appear out of the ordinary in an election where
         the Vice Mayor becomes Mayor – where Council follows established tradition.

        However, the public expects and deserves to see spontaneity and open deliberation when
        Council suddenly rejects the Vice Mayor for the Mayor position, and thus departs from the
        traditional rotation the City has followed for the past twenty-three (23) years – almost a
        quarter of a century.10

        The public also expects and deserves to see spontaneity and open deliberation when Council
        suddenly moves to elect someone as Mayor who has never previously served as Vice Mayor.
        This may be the first time, in more than sixty years, that Council has taken such an
        extraordinary and highly irregular action.

        To be sure, the fact that a one-year, junior, inexperienced member of Council made the
        motion to elect Mr. Flaherty to the office of Mayor, underscores the extraordinary and highly
        irregular nature of Council’s action. In fact, I am not aware of a single time in the sixty-year
        history of Pleasant Hill when a Council member with only one year under his belt made the
        motion to elect someone to the office of Mayor – and, in this case, it was an exceptionally
        unusual, challenging, and controversial motion to say the least.




10
  In addition to a quarter-century (or more) tradition of promoting the Vice Mayor to Mayor, several Councils
have discussed and affirmed the rotation process. Since 2007 alone, at least three Councils have openly
discussed or described the normal rotation and/or someone’s “turn” to be Vice Mayor or Mayor. Therefore,
Council has established the normal rotation as standard and accepted practice and the public has a reasonable
expectation that the Vice Mayor will become Mayor. In unusual cases or circumstances, Council may elect
someone other than the Vice Mayor to become Mayor. However, Council cannot do so without open and
candid discussion and deliberation, and without explaining and justifying its actions, without running afoul of
the State’s open meeting laws.

                                                  Page 5 of 8
        In fact, this may be the first time Mr. Carlson has ever made a motion on any agenda item
        since he joined Council – with the possible exception of items contained within the Consent
        Calendar. And, in this particular instance, he appeared tense, nervous, overly eager, and in a
        hurry to make that controversial motion – a motion which Dr. Harris, for some as-yet-
        unknown reason, reportedly asked Mr. Carlson to make for him.

     12. Dr. Harris failed to call for discussion at any time before he called for a vote on Mr. Durant’s
         motion to elect Mr. Weir Mayor. Dr. Harris again failed to call for discussion at any time
         before he called for a vote on Mr. Carlson’s subsequent motion to elect Mr. Flaherty to the
         office of Mayor.

     13. Staff who attended the meeting, and the Interim City Attorney, failed to show any reaction to
         the chain of events at the December 2, 2013 Council meeting. They appeared to know, in
         advance, exactly what the final outcome of the Mayoral election would be.

     14. The City Parking Lot and the Council Chamber were unusually empty for an annual
         Reorganization meeting and Reception.

     15. Only two groups were notably in attendance at the December 2, 2013 Reorganization meeting
         (other than the usual staff, Planning Commissioners, etc.). Those two groups included:

               Mr. Weir’s family and friends who naturally expected Mr. Weir (then Vice Mayor) to
                be elected Mayor.

               Mr. Flaherty’s 2012 Campaign team who do not normally attend Council meetings,
                and would not normally attend the annual City Council Reorganization meeting
                unless they expected Mr. Flaherty to receive some honor.

     16. The owner of a business in Pleasant Hill heard a rumor about the plan to prevent Mr. Weir
         from becoming Mayor sometime before the December 2, 2013 Council meeting.11

     17. The “Introduction of Family and Guests by Public Officials” was conspicuously missing on
         the December 2, 2013 Agenda. Those exact words have appeared on each and every annual
         City Council Reorganization meeting agenda since 2007, and most likely for many, many
         years before that.

        It was no accident that those words disappeared from the agenda. City Council Rules and
        Procedures require the City Manager’s Office to “prepare the agenda in cooperation with the
        Mayor,” and further require that “a tentative agenda” be “submitted to the Mayor…for review
        and approval.”



11
  In other words, it appears the old adage, “Loose lips sink ships,” must hold true in this case. It should be a
relatively easy task to trace the rumor back to its source – the Council member, staff member, or third-party
conspirator/facilitator who knew what Dr. Harris, Mr. Carlson, and Mr. Flaherty planned to do and probably
also knows exactly how Dr. Harris, Mr. Carlson, and Mr. Flaherty managed to communicate in advance of the
December 2, 2013 Council meeting.

                                                  Page 6 of 8
        Therefore, either staff or Dr. Harris who, as Mayor, was responsible for reviewing the interim
        agenda and proposing any additions, deletions or changes before the final agenda is prepared
        and issued, deliberately omitted “Introduction of Family and Guests by Officials” from the
        December 2, 2013 agenda.

The revision to the December 2, 2013 agenda (item 17) like so many of the other issues described in
items 1 – 16 above, indicate that Dr. Harris, Mr. Carlson, Mr. Flaherty, City staff, and perhaps even
the interim City Attorney knew exactly what was going to happen, several days prior to the
December 2, 2013 Council meeting and long before Council ultimately voted to break with tradition,
reject Mr. Weir, and elect Mr. Flaherty to the office of Mayor.

Demand for Cure:

As you are aware, the Brown Act allows the remedy of invalidation of illegally taken action. Pursuant
to Government Code section 54960.1, I demand that the City Council cure or correct the illegally
taken action as follows:

     1. Mayor Flaherty immediately resign his position as Mayor of Pleasant Hill, and Council
        includes the “Election of Mayor” on Council’s January 6, 2014 regular meeting agenda, or

     2. Council places the review of Brown Act Complaints on Council’s January 6, 2014 regular
        meeting agenda, including specific options for curing and correcting the serial meetings
        involving Council members Harris, Carlson, and Flaherty.

        Council then proceeds to nullify its December 2, 2013 “Election of Mayor” vote at the
        January 6, 2014 meeting and directs staff to include the “Election of Mayor” on Council’s
        January 20, 2014 regular meeting agenda, or

     3. Council places the review of Brown Act Complaints on Council’s January 6, 2014 regular
        meeting agenda, including specific options for curing and correcting the serial meetings
        involving Council members Harris, Carlson, and Flaherty.

        Council then proceeds to remove Mr. Flaherty from the office of Mayor, as provided in
        Section 2.3 of the City’s Council Rules and Procedures and directs staff to include the
        “Election of Mayor” on Council’s January 20, 2014 regular meeting agenda.

     4. Upon Mr. Flaherty’s resignation, Council’s January 6, 2014 meeting agenda shall include a
        brief, general description of Mayor Flaherty’s resignation and shall include a proposal for
        Council to elect Mr. Weir Mayor,12 or




12
  Although it is unusual to specify the proposed Mayoral candidate in advance of a Council reorganization
meeting, it is the only appropriate outcome given the tainted and illegal actions by Council members Harris,
Carlson, and Flaherty; unless, of course, Council wants to consider electing Mr. Durant as Mayor – the only
Council member besides Mr. Weir who is innocent of any wrongdoing in Council’s December 2, 2013
Election of Mayor.

                                                 Page 7 of 8
     5. In the event Council proceeds with option 2 or 3 above, Council’s January 20, 2014 meeting
        agenda shall include a brief, general description of the action Council takes at Council’s
        January 6, 2014 meeting (either nullification of the December 2, 2013 election result, or the
        removal of Mr. Flaherty from the office of Mayor), and shall include a proposal for Council to
        elect Mr. Weir Mayor.

     6. At Council’s January 6, 2014 and January 20, 2014 meetings, Council shall provide the public
        with the full opportunity for informed comment of which the public was deprived at the
        December 2, 2013 Council meeting.13

     7. Upon Mr. Flaherty’s resignation or removal by Council from the office of Mayor, Vice Mayor
        Carlson (or another Council member as appropriate) shall preside over Council’s January 6,
        2014 and January 20, 2014 meetings. He shall invite public comment and he shall call for
        discussion by members of Council before he calls for a vote.

     8. Council elects Mr. Weir as Mayor of Pleasant Hill at Council’s January 6, 2014 meeting (in
        the event Mr. Flaherty resigns) or at Council’s January 20, 2014 meeting (in the event Council
        nullifies its December 2, 2013 election result, or effectively removes Mr. Flaherty from the
        office of Mayor on January 6, 2014).

                                 *   *        *       *         *     *       *

In conclusion, Dr. Harris, Mr. Carlson, and Mr. Flaherty made a very serious, unfortunate, and costly
mistake. Now, Council must do everything in its power to control the damage and make things right.
In the process, Council will hopefully begin to restore a measure of public trust in the City of
Pleasant Hill, the legislative bodies we have created, and the public officials we have elected to
represent us.

Thank you for your consideration. I look forward to receiving Council’s response to my Complaint.

Respectfully,


Dorothy Englund

c: Ms. Janet E. Coleson, Interim City Attorney and Ms. June Catalano, City Manager

13
  The public was deprived of informed comment at the December 2, 2013 Council meeting because the public
was not privy to the information shared with and between Council members Harris, Carlson, and Flaherty in
advance of the meeting and Dr. Harris did not reopen public comment as soon as it dawned on members of the
public that Dr. Harris, Mr. Carlson, and Mr. Flaherty were deliberately maneuvering to reject Mr. Weir as
Mayor and to elect Mr. Flaherty in his stead – an extraordinary break with the City’s history, tradition, and
precedence. At this juncture, informed comment requires public access to any and all documents in the City’s
possession related to the December 2, 2013 Election of Mayor. Such documents should be listed and described
on the agendas for Council’s January 6, 2013 and January 20, 2014 meetings. Those documents should be
accessible to the public via electronic link on the posted agendas, at the offices of the City and at the
meeting(s) at which Council accepts Mr. Flaherty’s resignation or Council removes Mr. Flaherty from the
office of Mayor, and elects Mr. Weir Mayor of Pleasant Hill.

                                                  Page 8 of 8

				
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