complaint - filed sbco 10-9-2014

8/11/2019 Complaint - Filed SBCO 10-9-2014

http://slidepdf.com/reader/full/complaint-filed-sbco-10-9-2014 1/31



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

COMPLAINT FOR DECLARATORY AND I NJU NCT IVE R ELIEF ETC.

Background Information

4. On or about October 15, 2013, CITY’s city council approved that certain City Manager

Employment Agreement between CITY and Petitioner, pursuant to which CITY retained Petitioner’s

services as CITY’s city manager; immediately prior to the Agreement’s approval by the city council,

Petitioner had been serving as CITY’s interim city manager. A true and correct copy of the Agreement

is attached to this pleading as Exhibit “A.”

5. While serving as CITY’s city manager, Petitioner began to fulfill his legal obligations

under the Colton Municipal Code and, among other things, started to investigate certain public officials

of CITY for misappropriation of public funds and other malfeasance affecting the taxpayers. By way

of example and not limitation, Petitioner was concerned that millions of dollars from CITY’s general

fund could not be accounted for and that more than one public official was consciously trying to hide

the fact that the money could not be accounted for.

6. Upon learning that at least one of them could be implicated in Petitioner’s investigation,

the members of CITY’s city council unanimously agreed amongst themselves that they should take

immediate action to prevent Petitioner from conducting any further investigation. Thus, on June 5,

2014, Petitioner was “placed on administrative leave of absence” by CITY’s city council. A true and

correct copy of the memorandum advising Petitioner of his leave is attached to this pleading as Exhibit

“B.”

7. At no time prior to voting to place Petitioner on administrative leave did CITY’s city

council ever publish an agenda for a closed-session or open-session meeting notifying the public that

they intended to consider putting Petitioner on administrative leave or otherwise disciplining him.

8. On August 21, 2014, CITY’s city council held a special meeting to discuss dismissing

and terminating Petitioner’s employment as city manager. The discussion during which CITY’s city

council unanimously agreed to terminate Petitioner took place in closed session, with the open-session

portion of the meeting dedicated only to the city council’s approval of the resolution memorializing its

closed-session decision. A true and correct copy of the agenda for this meeting is attached to this

pleading as Exhibit “C.”



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


9. Petitioner has not received any of the compensation or other benefits owed under the

Agreement since August 21, 2014.

Jurisdiction, Venue, and Prior Notice

10. The Court has jurisdiction over this proceeding pursuant to, among other legal provisions

(and to the extent applicable), Code of Civil Procedure Sections 1060 et seq. and 1084 et seq. and

Government Code Sections 54960, 54960.1, and 54960.2.

11. The illegal conduct that is the subject of this lawsuit occurred in the City of Colton, the

County of San Bernardino, State of California.

12. Even though he was not legally required to do so in order to maintain this lawsuit, on

August 28, 2014, Petitioner caused a notice of the illegal conduct that is the subject of this lawsuit and

a demand for correction thereof to be served on CITY as a courtesy and in an abundance of caution.

A true and correct copy of the notice is attached to this pleading as Exhibit “D.”

FIRST CAUSE OF ACTION:Violation of the Ralph M. Brown Act(Against All Defendants/Respondents)

13. Paragraphs 1 through 13 are fully incorporated into this paragraph.

14. At all times since the Agreement was made, Government Code Section 54957(b) has

provided as follows: “(1) Subject to paragraph (2), this chapter shall not be construed to prevent the

legislative body of a local agency from holding closed sessions during a regular or special meeting to

consider the appointment, employment, evaluation of performance, discipline, or dismissal of a public

employee or to hear complaints or charges brought against the employee by another person or employee

unless the employee requests a public session. [¶] (2) As a condition to holding a closed session on

specific complaints or charges brought against an employee by another person or employee, the

employee shall be given written notice of his or her right to have the complaints or charges heard in an

open session rather than a closed session, which notice shall be delivered to the employee personally

or by mail at least 24 hours before the time for holding the session. If notice is not given, any

disciplinary or other action taken by the legislative body against the employee based on the specific

complaints or charges in the closed session shall be null and void.”



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


15. At no time prior to terminating Petitioner as city manager did CITY ever give him

written notice of his right to have the complaints or charges made against him heard in an open session

rather than a closed session as required by Government Code Section 54957(b)(2). Had Petitioner been

provided with such notice, he would have opted to have all complaints and charges against him heard

in open session. Petitioner is informed and believes and on that basis alleges that CITY’s city council

unanimously agreed not to provide him with such notice because they knew he would opt to have the

complaints and charges heard in open session and that such a proceeding would likely result in the

disclosure of information that members of the city council did not want disclosed to the public.

16. At all times since the Agreement was made, Government Code Section 54954.2(a) has

provided as follows: “(1) At least 72 hours before a regular meeting, the legislative body of the local

agency, or its designee, shall post an agenda containing a brief general description of each item of

business to be transacted or discussed at the meeting, including items to be discussed in closed session.

A brief general description of an item generally need not exceed 20 words. The agenda shall specify

the time and location of the regular meeting and shall be posted in a location that is freely accessible

to members of the public and on the local agency’s Internet Web site, if the local agency has one. If

requested, the agenda shall be made available in appropriate alternative formats to persons with a

disability, as required by Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec.

12132), and the federal rules and regulations adopted in implementation thereof. The agenda shall

include information regarding how, to whom, and when a request for disability-related modification or

accommodation, including auxiliary aids or services, may be made by a person with a disability who

requires a modification or accommodation in order to participate in the public meeting. [¶] (2) No

action or discussion shall be undertaken on any item not appearing on the posted agenda, except that

members of a legislative body or its staff may briefly respond to statements made or questions posed

by persons exercising their public testimony rights under Section 54954.3. In addition, on their own

initiative or in response to questions posed by the public, a member of a legislative body or its staff may

ask a question for clarification, make a brief announcement, or make a brief report on his or her own

activities. Furthermore, a member of a legislative body, or the body itself, subject to rules or procedures

of the legislative body, may provide a reference to staff or other resources for factual information,



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


request staff to report back to the body at a subsequent meeting concerning any matter, or take action

to direct staff to place a matter of business on a future agenda.”

17. At all times since the Agreement was made, Government Code Section 54956(a) has

provided as follows: “A special meeting may be called at any time by the presiding officer of the

legislative body of a local agency, or by a majority of the members of the legislative body, by delivering

written notice to each member of the legislative body and to each local newspaper of general circulation

and radio or television station requesting notice in writing and posting a notice on the local agency's

Internet Web site, if the local agency has one. The notice shall be delivered personally or by any other

means and shall be received at least 24 hours before the time of the meeting as specified in the notice.

The call and notice shall specify the time and place of the special meeting and the business to be

transacted or discussed. No other business shall be considered at these meetings by the legislative body.

The written notice may be dispensed with as to any member who at or prior to the time the meeting

convenes files with the clerk or secretary of the legislative body a written waiver of notice. The waiver

may be given by telegram. The written notice may also be dispensed with as to any member who is

actually present at the meeting at the time it convenes. [¶] The call and notice shall be posted at least

24 hours prior to the special meeting in a location that is freely accessible to members of the public.”

2.

18. At no time prior to placing Petitioner on administrative leave did CITY ever publish an

agenda for any regular or special meeting at which any aspect of Petitioner’s employment as city

manager was to be discussed. The fact that CITY did place Petitioner on administrative leave implies

that the city council voted to do so at a secret meeting--that is, at a meeting that was not properly

agendized as required by law.

19. At all times since the Agreement was made, Government Code Section 54957.1 has

provided in pertinent part as follows: “(a) The legislative body of any local agency shall publicly report

any action taken in closed session and the vote or abstention on that action of every member present,

as follows: * * * (5) Action taken to appoint, employ, dismiss, accept the resignation of, or otherwise

affect the employment status of a public employee in closed session pursuant to Section 54957 shall be

reported at the public meeting during which the closed session is held. Any report required by this



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28


paragraph shall identify the title of the position. The general requirement of this paragraph

notwithstanding, the report of a dismissal or of the nonrenewal of an employment contract shall be

deferred until the first public meeting following the exhaustion of administrative remedies, if any.”

20. At no public meeting did CITY’s city council report that its members had voted to place

Petitioner on administrative leave or report the vote or abstention of the members who were present

when the decision was made. Furthermore, Petitioner was never provided with any opportunity to

exhaust his administrative remedies in order to oppose and prevent his termination. Petitioner is

informed and believes and on that basis alleges that CITY’s city council unanimously agreed not to

provide him with an opportunity to exhaust his administrative remedies because they knew that process

would likely result in the disclosure of information that members of the city council did not want

disclosed to the public.

21. CITY’s decision to place Petitioner on administrative leave and its decision to terminate

him as city manager constitute violations of the Ralph M. Brown Act, GOV’T CODE § 54950 et seq., and

such violations render the decisions null and void. Consequently, the Agreement’s termination is null

and void and thus Petitioner remains entitled to receive all compensation and other benefits of the

Agreement that accrue between August 21, 2014, and the date on which the Agreement is lawfully

terminated (i.e., October 31, 2016, unless otherwise lawfully terminated before then).

22. Petitioner has been harmed as a result of CITY’s violations of the Ralph M. Brown Act

because he has been denied the benefits and protections provided by compliance with the Act and

further denied the compensation and other benefits owed to him under the Agreement.

23. As a result of the foregoing violations, Petitioner is seeking mandamus, injunctive, and

declaratory relief as provided under Government Code Section 54960, 54960.1, and 54960.2, as

applicable, in addition to any other remedies that are available to him. The relief that Petitioner seeks

includes but is not limited to a declaration that CITY’s purported termination of the Agreement is null

and void and that the Agreement remains in full force and effect, as well as injunctive relief prohibiting

CITY from hiring another city manager while the Agreement is in force.



COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND PETITION

FOR WRIT OF MANDATE UNDER THE RALPH M. BROWN ACT

Exhibit “A”





Exhibit “B”





Exhibit “C”





Exhibit “D”

complaint - filed sbco 10-9-2014

Documents